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da271593-0490-42ce-821d-0814057abf30 | White v. Georgia Cas. and Sur. Ins. Co. | 520 So. 2d 140 | N/A | Alabama | Alabama Supreme Court | 520 So. 2d 140 (1987)
Johnny C. WHITE and Mary Elizabeth White
v.
GEORGIA CASUALTY AND SURETY INSURANCE COMPANY.
85-380.
Supreme Court of Alabama.
July 2, 1987.[*]
Rehearing Denied February 12, 1988.
Boyd Whigham, Clayton, for appellant.
James R. McKoon, Jr., Phenix City, for appellee.
ADAMS, Justice.
The appellants, Johnny C. and Mary E. White, appeal from a summary judgment entered by the Circuit Court of Barbour County in favor of Georgia Casualty and Surety Insurance Company (hereinafter, "Georgia Casualty").
Johnny C. White, an employee of Automatic Gas Company of Eufaula, Inc., was acting within the scope of his employment as the driver of a gas delivery truck when he was injured on November 4, 1983, in a collision with a vehicle driven by an uninsured motorist. Mary White, his wife, was a passenger in the delivery truck at the time of the accident. There is no dispute that the uninsured motorist was at fault and that Johnny White was not contributorily negligent. Both appellants were physically injured in the collision.
On September 12, 1984, Georgia Casualty paid to Johnny and Mary White $10,000.00 each, pursuant to the insurance policy on the delivery truck which they occupied at the time of the collision. That policy provided for uninsured motorist coverage of $10,000.00 per person and $20,000.00 per accident. Similar coverage was provided on each of Automatic Gas Company's other vehicles. The appellants accepted the payments of $10,000.00 each from Georgia Casualty and deposited the checks in a bank account in their names.
On October 24, 1984, approximately six weeks after accepting payment from Georgia Casualty, Mr. and Mrs. White filed a complaint alleging multiple claims against multiple defendants, a complaint which they later amended twice. The Whites subsequently moved for partial summary judgment on their contention that they were entitled to stack insurance coverage on Automatic Gas Company's other vehicles pursuant to the Company's policy with Georgia Casualty. Georgia Casualty admitted that *141 Johnny C. White was "insured under the terms of the general liability portion of the policy," but argued that the $10,000.00 paid to each plaintiff was the maximum payment owed by Georgia Casualty under the insurance contract with Automatic Gas. Georgia Casualty contended that its policy with Automatic Gas was a fleet policy; that the plaintiffs were second-class insureds; and, therefore, that they were not entitled to stack insurance coverage.
The Whites' motion for partial summary judgment was denied and the circuit court granted Georgia Casualty's motion for summary judgment. The court found that on the basis of all items submitted by the plaintiffs and the defendant, the plaintiffs were permissive users of the delivery truck at the time of the collision. The court also found that the plaintiffs were not named insureds or designated insureds under the policy issued to Automatic Gas by Georgia Casualty, but were second-class insureds entitled only to the amounts already paid to them under the uninsured motorist provision of the policy. As second-class insureds, the court said, the plaintiffs were not entitled to stack coverage. In support of its judgment, the court cited Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260 (Ala.1976); Holloway v. Nationwide Insurance Co., 376 So. 2d 690 (Ala.1979); Nationwide Mutual Insurance Co. v. United Services Automobile Ass'n, 359 So. 2d 380 (Ala.Civ.App.1977); and Fuqua v. Travelers Insurance Co., 734 F.2d 616 (11th Cir.1984).
The issue presented in this appeal is whether the Whites are entitled to stack insurance coverage on other vehicles owned by Automatic Gas Company and insured by Georgia Casualty. Georgia Casualty admitted that the plaintiffs were insureds under the policy with Automatic Gas, and paid each plaintiff $10,000.00. The present dispute arose over the holding that the plaintiffs were insureds of the second class instead of insureds of the first class.
Ala.Code (1975), § 32-7-23 provides the basis for stacking insurance coverage by a person "insured thereunder" as provided in the primary liability policy. In the present case, Johnny C. White, as an employee of Automatic Gas Company, is included in the primary liability part of the insurance policy as one who is "insured thereunder," and is, therefore, entitled to stack coverage under the fleet policy. Mary E. White is not a person "insured thereunder," according to the insurance policy and is not entitled by statute to stack coverage. She is entitled only to the $10,000.00 already paid to her under the uninsured motorist provision of the policy.
In Lambert, supra, we recognized that there are distinctions between classes of insureds. In that case, Lambert was injured while riding as a passenger in a vehicle owned by his employer; that vehicle was struck by another vehicle driven by an uninsured motorist. The circuit court concluded that Lambert was not entitled to stack coverage on other vehicles owned by his employer which were insured under the same policy. The court reasoned 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, the court said, only because he was an occupant of the vehicle at the time of the collision. We stated in Lambert:
Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260, 264-65 (Ala.1976). Since Lambert, this Court has followed the basic reasoning that two distinct classes of insureds exist and that mere occupants of a vehicle are not entitled to stack coverage. See Holloway v. Nationwide Mutual Insurance Co., 376 So. 2d 690 (Ala.1979); Nationwide Mutual Insurance Co. v. United Services Automobile Ass'n, supra; and Billups v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352 So. 2d 1097 (Ala.1977).
The appellants argue that they were designated insureds under the Georgia Casualty policy. That policy identified the following persons as insureds, among others:
As the regular driver of the delivery truck involved in the collision, Johnny White insists that he cannot be considered a mere permissive user of the vehicle. We agree, however, that because Mr. White is an insured under (e)(i), and because Mrs. White is not an insured for primary liability purposes under either (e)(i) or (e)(ii), we need not address the permissive user issue. The present case stands apart from previous cases in which stacking of insurance coverage has been considered by this Court. Although the facts in Nationwide Mutual Insurance Co. v. United Services Automobile Ass'n and Fuqua are similar in part to the facts presented here, in neither of those cases was the appellant actually a "person insured thereunder," as specified in the primary liability policy providing fleet coverage. Here, as the policy clearly states, supra, White, as an employee of the named insured is specifically included under the primary liability coverage provided by Georgia Casualty. As Justice Jones wrote in his special concurrence in Lambert, supra:
Lambert v. Liberty Mutual Insurance Co., supra, at 266. In contrast to the facts presented in Lambert, White was undisputably an employee of Automatic Gas Company at the time of the accident and, as an employee, was designated as an insured under the primary liability provisions of that company's fleet policy. Whether White owned the truck or paid any of the premiums for the insurance on the vehicle he was driving at the time of the accident is of no consequence in this case.
This decision is not a return to General Mutual Ins. Co. v. Gilmore, 294 Ala. 546, 319 So. 2d 675 (1975). In Gilmore, the decedent, as an employee, was deemed to have been an insured under the omnibus uninsured motorist provision of the policy and was allowed to "stack" coverage as a third party beneficiary of the insurance contract. Here, because he was an employee of the named insured, the primary liability provisions of the Georgia Casualty fleet *143 policy included White as an insured. We conclude, therefore, that White is entitled to "stack" coverage on other vehicles insured under the fleet policy issued by Georgia Casualty.[1]
For the foregoing reasons, we hold that the Circuit Court of Barbour County did not err in holding that Mrs. White was an insured of the second class and not entitled to stack coverage. Further, we hold that the trial court did err in holding that Mrs. White was not entitled to stack coverage.
The judgment of the circuit court is, therefore, affirmed in part, reversed in part and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
[*] Reporter's note: An opinion in this case was issued on June 26, 1987. That original opinion was withdrawn ex mero motu on July 2, 1987.
[1] We note that Ala.Code (1975), § 32-7-23, was amended by the Alabama Legislature May 15, 1984, prior to the filing of this suit, but did not become effective until January 1, 1985. Paragraph "(c)" of that section provides:
The recovery by an injured person under the uninsured provisions of any one contract of automobile insurance shall be limited to the primary coverage plus such additional coverage as may be provided for additional vehicles, but not to exceed two additional coverages within such contract. (Acts 1965, No. 866, p. 1614, Acts 1984, No. 84-301, p. 672, § 4.) | July 2, 1987 |
2b858286-95ce-49c9-b2e9-f711dbf7c5b2 | Beeson v. Scoles Cadillac Corp. | 506 So. 2d 999 | N/A | Alabama | Alabama Supreme Court | 506 So. 2d 999 (1987)
Frances BEESON, as administratrix of the Estate of Alfred E. Beeson, deceased
v.
SCOLES CADILLAC CORPORATION.
Agnes Marie ARCHER, as administratrix of the Estate of Kendra Kee Archer, deceased
v.
SCOLES CADILLAC CORPORATION.
85-1302, 85-1332.
Supreme Court of Alabama.
April 10, 1987.
Roy M. Johnson III of Watson & Johnson, Alabaster, for appellant Beeson.
Jeffery C. Kirby and Elizabeth R. Jones of Emond & Vines, Birmingham, for appellant Archer.
William Anthony Davis III and E. Martin Bloom of Starnes & Atchison, Birmingham, for appellee.
SHORES, Justice.
These appeals are from summary judgments in favor of the defendant, Scoles Cadillac Corporation.
On the evening of October 26, 1984, Samuel Ross Baggett and his date, Kendra Kee Archer, attended a company party on the business premises of Baggett's employer, Scoles Cadillac. Dinner was served at the party, along with beer and wine. While driving home from the party, Baggett was involved in an accident with a vehicle driven by Alfred E. Beeson. Beeson and the passenger in Baggett's car, Ms. Archer, were killed in the crash. Police reports estimate that Baggett was travelling at a speed of 95 miles per hour at the time of the collision. Baggett's blood alcohol content was found to be .29 percent.
Frances Beeson, as administratrix of the estate of Alfred E. Beeson, and Agnes Marie Archer, as administratrix of the estate of Kendra Kee Archer, filed separate suits against Mr. Baggett; the Butcher Block, caterer for the party; and Scoles Cadillac. Scoles Cadillac moved to consolidate the cases. The trial court granted the motion for discovery purposes only. Thereafter, in both cases, the plaintiffs settled their claims against Mr. Baggett by pro tanto release, and the trial court granted summary judgment in favor of the Butcher Block and Scoles Cadillac. The plaintiffs filed *1000 separate appeals of the summary judgments in favor of Scoles Cadillac. Pursuant to Rule 3(b), A.R.A.P., this Court consolidated the appeals.
Beeson and Archer contend on appeal that common law principles of negligence and the Alabama Dram Shop Act, § 6-5-71, Ala.Code 1975, as applied to this case, render Scoles Cadillac liable for the deaths of Alfred Beeson and Kendra Kee Archer because of its providing and continuing to provide alcoholic beverages to Baggett when he was visibly intoxicated, and because it allowed Baggett to drive home.
The evidence is undisputed that Scoles Cadillac was the host of the party, and that none of the guests was charged to attend or to drink the alcoholic beverages provided.
To date, this Court has not recognized a cause of action against a social host for negligently dispensing alcoholic beverages where no sale is involved and where the beverages are not dispensed contrary to law. In a case strikingly similar to the one at bar, this Court held that a company hosting an open house on its premises and furnishing free alcoholic beverages is not liable under common law theories of negligence for dispensing alcohol. DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979).
In Hatter v. Nations, 480 So. 2d 1209 (Ala.1985), this Court reaffirmed its holding in DeLoach and summarized its rulings over the years in similar cases:
Hatter, 480 So. 2d at 1210-11.
The plaintiff offers no compelling reason for us to depart from the rule expressed in King and followed by a majority of jurisdictions. Accordingly, there having been no sale in this case, we hold that an action for common law negligence will not lie against Scoles Cadillac; hence, the trial court was correct in granting summary judgment in its favor on this issue.
We also agree with the trial court's ruling on the Dram Shop Act issue. As well as ruling in DeLoach that liability could not be imposed on Mayer Electric as a social host under common law, negligence principles for dispensing alcoholic beverages, this Court also held that Mayer Electric could not be held liable under the Dram Shop Act, because Meyer Electric, as a non-licensed dispenser of alcoholic beverages, had made no sale or other disposition of liquor to another contrary to the provisions of law. See, however, Martin v. Watts, (Ala.1987).
The Alabama Dram Shop Act, § 6-5-71, Ala.Code 1975, provides as follows:
The plaintiffs argue that it is clear that the Alabama Dram Shop Act applies to non-licensee social hosts because it specifically refers to selling, giving, or otherwise disposing of alcoholic beverages. Their argument is in direct contravention to legislative intent and court decisions interpreting the statute.
In Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320, (1951), the Court of Appeals recognized that the Dram Shop Act evidenced a policy on the part of the legislature to discourage the illegal sale of alcoholic beverages. In Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), this Court reiterated that policy in its ruling against a seller of alcoholic beverages. Moreover, this Court made its position quite clear in DeLoach v. Mayer Electric Supply Co., that a social host is not liable under the Dram Shop Act when no sale is involved, or where the alcoholic beverage is not dispensed contrary to law.
The plaintiffs contend that even if the Alabama Dram Shop Act is limited to a sales situation, evidence was presented in the case indicating that a sale did in fact take place. We disagree. The Scoles employees were not required to attend the function. Only employees and their families and friends were invited. No money flowed to or from Scoles in any manner regarding the social function. Clearly, the necessary element of consideration was missing and the liquor was not dispensed contrary to the law; thus, the Dram Shop Act does not apply to this case.
There being no genuine issue as to any material fact, the summary judgments are affirmed. Rule 56(c), A.R.Civ.P.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, BEATTY, HOUSTON, and STEAGALL, JJ., concur. | April 10, 1987 |
ccb2b182-9755-4732-b4ac-e2a9a32b4135 | Sports World, Inc. v. Neil's Sporting Goods, Inc. | 507 So. 2d 480 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 480 (1987)
SPORTS WORLD, INC.
v.
NEIL'S SPORTING GOODS, INC., et al.
85-367.
Supreme Court of Alabama.
April 24, 1987.
*481 Ernest H. Hornsby and Lexa E. Dowling of Johnson, Huskey, Hornsby and Etheredge, Dothan, for appellant.
William C. Carn III of Lee & McInish and Edward M. Price, Jr., of Farmer, Price & Smith, Dothan, for appellees.
ADAMS, Justice.
Plaintiff, Sports World, Inc., appeals from the Houston County Circuit Court's order denying a preliminary injunction to prevent Neil's Sporting Goods, Inc., from operating a full-line sporting goods store in the Northside Mall in Dothan, Alabama. We affirm.
In 1973, Charles Heath, vice-president of Sports World, Inc., contacted Julian Turner, president of Northside Realty, Inc., the corporation that owned the Northside Mall, in an attempt to lease space in the mall to operate its sporting goods store. During the negotiations, Heath and Turner entered into an oral agreement whereby Northside Realty agreed not to lease space in the mall to any other full-line sporting goods store. Heath executed a 15-year lease with Northside Realty on May 29, 1973.
In 1980, Turner proposed to Heath that Sports World expand its store to include an additional 1,125 square feet of space located adjacent to its then-existing store. Heath told Turner that he would not be interested in leasing the additional space unless Turner again promised not to lease space in the mall to any other full-line sporting goods store. Turner orally reaffirmed his original agreement, and Heath signed a new ten-year lease which included the additional space but did not incorporate the oral promise.
On January 6, 1981, Northside Realty sold the mall to Prudential Life Insurance Company ("Prudential Life"). Early in 1984, Heath discovered that one of the other tenants in the mall, "Below the Knee," was planning to expand its business to become a full-line sporting goods store. Heath contacted Turner and requested that he make the new owners of the mall aware of the oral agreement between them. Turner notified Prudential Life by letter dated February 23, 1984. Nothing further was done at that time, as "Below the Knee" never became a full-line sporting goods store.
In September 1985, Prudential Life leased space in the mall to Neil's Sporting Goods, a full-line sporting goods store. As a result, Sports World filed its complaint for injunctive relief against Neil's Sporting Goods, Inc., Goodman-Seger-Hogan, Inc. (the managing agents of Prudential Life), and Prudential Life. The complaint was filed on October 18, 1985. On October 28, 1985, the court notified the parties that a hearing on the application for issuance of a preliminary injunction would be held three days later. After the hearing, the court gave the parties two weeks to submit short memoranda of law. On November 19, 1985, the court entered an order denying the preliminary injunction. Sports World then filed a motion for reconsideration, which the court denied, and this appeal followed.
The judgment of the trial court must be, affirmed for several reasons. First, it is clear to this Court that the trial court had before it ample evidence that Prudential Life purchased the mall without any notice of the oral agreement between Sports World and Northside Realty. The purchase and sale contract between Prudential Life and Northside Realty defines "Permitted Encumbrances" as "liens, encumbrances, restrictions, exceptions and other matters referenced in Exhibit E hereto." There is no reference in Exhibit E to any oral agreement between Sports World *482 and Northside Realty. In addition, the contract provides:
Sports World was also required by Prudential Life to sign a "certificate of tenants" form, the pertinent portions of which provided:
At the end of the form there was space provided for any amendments or modifications, but none was included.
There is nothing in any of the writings concerning the sale of the mall that suggests that Prudential Life had any knowledge of the oral agreement between Sports World and Northside Realty before it purchased the mall. Rather, according to the provisions of the contract and the "certificate of tenants" form, Prudential Life had been assured that there was no agreement of any kind, other than what was evidenced by these two documents, between Sports World and Northside Realty. Moreover, it appears from the evidence that the first time that Prudential Life was made aware that an oral agreement existed between Sports World and Northside Realty was when it received a letter from Julian Turner, dated February 23, 1984, more than three years after Prudential Life's purchase of the mall property.
Sports World argues that there is language in the contract that would make the oral agreement a covenant running with the land and, therefore, one which Prudential Life would be bound to honor. We disagree.
First, it is undisputed that the agreement was oral. If the agreement had been intended to constitute a permanent restriction on the use of the property, then it should have been put in writing. In Carter v. Stringfellow, 293 Ala. 525, 306 So. 2d 273 (1975), this Court stated:
293 Ala. at 528, 306 So. 2d at 275.
Furthermore, courts of this State have followed the longstanding rule regarding the enforceability of such covenants against a subsequent purchaser of the property. That rule is stated in Annot., 97 A.L.R.2d 5, 12 (1964):
Alternatively, if the agreement was between the two original parties only, then it obviously would not be binding upon Prudential Life.
Another reason why the injunction was properly denied is that Sports World executed a "certificate of tenants" form, which in no wise suggested the existence of any agreement other than what was before the parties in writing. Sports World had ample opportunity to put something in writing concerning the agreement, but, for whatever reason, chose not to do so. Sports World cannot now complain about a situation that it could have prevented had it acted properly.
In its reply brief, Sports World argues that a violation of the Statute of Frauds and the rights or status of a bona fide purchaser for value and without notice are affirmative defenses that are deemed to be waived by a defendant unless specifically pleaded. In an ordinary case, where both sides are given the opportunity to develop discovery within the normal time limitations, we agree. This suit, however, is for extraordinary relief, namely, an injunction. In such a case, the parties are operating under stricter time restraints than usual. In the case sub judice, the complaint was filed on October 18, 1985. Ten days later, before defendants were able to file an answer, the court set a hearing for three days later, on October 31, 1985. It would be unfair and unjustified for this Court to hold that these two affirmative defenses were waived by the defendants because they were not specifically pleaded during the short time period allowed in this case, when, according to Rule 12(a), Alabama Rules of Civil Procedure, a defendant normally has thirty days in which to respond to a complaint.
For all of the above-stated reasons, the judgment of the lower court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | April 24, 1987 |
6c6ea63c-7402-455f-b743-6cc2a2cb0066 | Vick v. HSI Management, Inc. | 507 So. 2d 433 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 433 (1987)
Karen VICK
v.
H.S.I. MANAGEMENT, INC., et al.
85-851.
Supreme Court of Alabama.
February 27, 1987.
As Modified on Denial of Rehearing May 1, 1987.
Thomas W. Bowron II of Johnson, Cory & McNamee, Birmingham, for appellant.
Robert D. Norman and Robert D. Norman, Jr., Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellees H.S.I. Management, Inc., and Haversham Townhouse, Ltd.
James A. Bradford of Balch & Bingham, Birmingham, for appellee Alabama Power Co.
SHORES, Justice.
Plaintiff Karen Vick appeals from a summary judgment in favor of defendants, H.S.I. Management, Haversham Townhouse Limited, and Alabama Power Company. We reverse and remand.
The pleadings, depositions, and exhibits before the trial court reveal the following. On July 2, 1984, Vick was a tenant of Haversham Townhouse. This apartment complex was owned by Haversham Townhouse Limited and managed by H.S.I. Management, Inc. These two defendants will be referred to as "Haversham." Alabama Power Company (hereinafter "APCo") was under contract with Haversham to provide outdoor lighting on the apartment complex property. Vick testified that three sources of light existed on the premises: a dusk-to-dawn light maintained by Alabama Power Company, floodlights, and porch lights for the individual residents.
On July 2, 1984, Vick had been cooking out with some of her friends. At approximately nine o'clock that night, Vick and her friend, Nina Crowe, decided to go to Crowe's apartment to get some coffee. In order to do so, they walked on a cement walkway adjacent to the apartment entrances. Vick testified that it was "pitch black" outside. She also stated that she was aware of some steps on the pathway because she had been on it approximately 20 times before her accident. However, because she could not see, she fell when she reached the steps. She testified that she reached for a railing to break her fall, but that there was no railing there. Vick testified that, as a result of the fall, she was rendered unconscious and was taken *434 by ambulance to a hospital, where she remained for several days.
Vick stated that she was not sure if there had been a railing on the steps at any time prior to her accident. The defendant's exhibit # 1 to the deposition of Vick depicts the stairway in question. In this photograph, there are two poles standing upright next to the stairs, but no handrail is attached. Nina Crowe testified that at one point there had been a handrail on the steps, but that "[i]t was loose and it fell or somebody knocked it off."
Defendants' exhibits show that next to the walkway, near the steps upon which Vick fell, was the dusk-to-dawn light which APCo was under contract with Haversham to maintain. Vick testified that on the night of her accident the light was off. She testified that the light had been out of order for approximately six weeks prior to her accident, and that twice she had reported it to Nancy Gillam, the manager of the apartments. Vick testified that Gillam stated that she was aware of the problem, and that she had notified APCo.
Vick also testified that her porch light, which was not far from the steps on which she fell, had never worked while she was a resident at Haversham. Furthermore, she said, her complaints to the management did not result in the light being repaired. Vick also testified that the floodlights located on the building had never worked while she lived at the apartments.
Vick filed suit on December 27, 1984, alleging that the defendants were responsible for the proper repair, maintenance, upkeep, and safe condition of the common areas of the apartment premises and the lighting thereon, and that the defendants negligently failed or refused to perform their duties, thereby causing her injuries. Furthermore, she alleged that the defendants breached their contractual obligation to maintain the premises in a safe and adequately lighted condition.
The trial court, in its order granting summary judgment to all of the defendants, held that the defendants "had no duty to warn the plaintiff of open and obvious defects of which the plaintiff [was] aware:"
Although the "open and obvious" doctrine is applicable to both theories, we note that Vick is not contending that the defendants had a duty to warn her about the lighting and stairs in question, but, rather, is asserting that the defendants negligently maintained the premises.
In order to overcome a motion for summary judgment, a plaintiff must come forward with at least a scintilla of evidence that establishes the negligence of the defendants. Such evidence must exist to show, inter alia, that the defendant had a duty and that an alleged breach thereof was the proximate cause of the injury suffered by the plaintiff. Coggin v. Starke Brothers Realty Co., 391 So. 2d 111 (Ala. 1980). Summary judgment is appropriate, then, only where there is a complete absence of any genuine issue of fact material to the plaintiff's allegation. Armstrong v. Life Insurance Co. of Virginia, 454 So. 2d 1377 (Ala.1984).
Furthermore, a summary judgment is rarely appropriate in a negligence action. Allen v. Mobile Infirmary, 413 So. 2d 1051 (Ala.1982); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So. 2d 818 (1975).
Before we apply these summary judgment standards in the present case, a review of the applicable substantive law is appropriate. With regard to Haversham, this Court has held that a landlord ordinarily is under a duty to maintain, in a reasonably safe condition for the use of the tenants, common areas over which he retains control. Bates v. Peoples Savings Life Insurance Co., 475 So. 2d 484 (Ala.1985); Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So. 2d 721 (1961); 52 C.J.S. Landlord & Tenant § 417(7) (1968).
*435 Restatement (Second) of Torts, § 360 (1965), adopted by this Court in Hancock v. Alabama Home Mortgage Co., 372 So. 2d 858 (Ala.1979), and reaffirmed in Coggin, reads as follows:
Coggin, 391 So. 2d at 112-13.
Vick presented evidence that while upon the common areas of the apartment complex, she slipped and fell at night on some stairs located in an area of the complex that had insufficient lighting. There was evidence that the apartment manager had received complaints about the inadequate lighting. Furthermore, there was evidence that at the time of her fall, the handrail on the stairs had been broken and had never been repaired or replaced. We hold that there is evidence indicating that Haversham had not met its duty to maintain common areas in a reasonably safe condition.
We do not agree with the trial court that the present case is distinguishable from Coggin v. Starke Brothers Realty Co., supra. In Coggin, the plaintiff tenant fell down some steps which were a part of the common area. Prior to her fall, the plaintiff was aware that the steps were "steep and narrow" and lacked a handrail. In Coggin, we reversed the defendant landlord's summary judgment. We held in that case, as we now hold in the present case:
Coggin, 391 So. 2d at 113.
We also hold that it was error to grant summary judgment in favor of APCo. It is undisputed that prior to July 2, 1984, the date of Vick's accident, APCo had contracted with Haversham to install and maintain outdoor lights on the premises of Haversham apartments. Obviously, the contract was for the benefit of the tenants at Haversham apartments.
In Harris v. Board of Water & Sewer Commissioners of Mobile, 294 Ala. 606, 320 So. 2d 624 (1975), the plaintiff was an owner of a restaurant and motel which were destroyed by fire. When the firemen arrived on the scene, they found that the fire hydrants were dry. As a result, the motel and restaurant were totally destroyed. The Board of Water and Sewer Commissioners of Mobile had a contract with the City of Mobile to provide the water and sewer system responsibilities for Mobile County. As part of its contractual obligation to the City, the Board was to provide fire hydrants and to maintain an adequate supply of water for the proper functioning of those hydrants.
In Harris, the trial court granted the Board's motion to dismiss Harris's complaint alleging breach of contract and negligent maintenance. This Court reversed the order of dismissal entered by the trial court. With regard to the negligent maintenance claim alleged by Harris, we cited MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), which set forth the following well-recognized principle of tort law:
Id., 294 Ala. at 613, 320 So. 2d at 630.
Like those in Harris, the facts of the present case fall within that rule. APCo *436 contracted with Haversham to provide outdoor lighting. It is foreseeable that without the outdoor lights, a third party, such as Vick, could be injured while attempting to use the common grounds on the premises. See also, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974), where this Court recognized an action against an engineering corporation for the wrongful death of a motorist in a tunnel where it was alleged that the corporation negligently performed an investigation of the tunnel pursuant to a contract with the City of Mobile.
In Williams v. Jackson Co., 359 So. 2d 798 (Ala.Civ.App.), cert. denied, 359 So. 2d 801 (Ala.1978), the Court of Civil Appeals held:
Williams, 359 So. 2d at 801.
Applying the above principles of law, we hold that it was error to grant APCo summary judgment. Vick presented evidence supporting her negligence claims against APCo and Haversham. We hold that the evidence, including evidence bearing on the defense of "open and obvious danger," viewed in light of the applicable substantive law, presents genuine issues of material fact which Vick is entitled to have submitted, pursuant to appropriate instructions, for a jury's determination. Coggin, supra. We, therefore, reverse the judgment and remand this case for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, ALMON and ADAMS, JJ., concur.
SHORES, Justice.
Application overruled. Opinion modified.
TORBERT, C.J., and JONES, ALMON and ADAMS, JJ., concur. | May 1, 1987 |
3ef48542-e30c-42a9-a1ec-b5327fcab6df | Ex Parte Godbolt | 546 So. 2d 991 | N/A | Alabama | Alabama Supreme Court | 546 So. 2d 991 (1987)
Ex parte Jerry Steven GODBOLT.
(Re Jerry Steven Godbolt v. State).
85-1287.
Supreme Court of Alabama.
May 15, 1987.
Rehearing Denied July 24, 1987.
*992 Charles M. Purvis and Virginia A. Vinson of Wilkinson, Purvis & Vinson and Ronda H. Lacey, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
This is a capital murder case. A detailed statement of the facts is contained in the opinion of the Court of Criminal Appeals, Godbolt v. State, 546 So. 2d 982 (Ala.Cr. App.1986).
Jerry Steven Godbolt, the defendant, was indicted by a Jefferson County Grand Jury for murdering Myra Faye Tucker and her husband, Terry Wayne Tucker, while robbing them. The defendant was first tried for the capital murder of Mrs. Tucker. The jury found him guilty and recommended the death sentence. The trial court sentenced him to life imprisonment without parole. That conviction and the sentence were later affirmed on appeal. Godbolt v. State, 429 So. 2d 1131 (Ala.Cr. App.1982). (The defendant's trial for the murder of Mrs. Tucker will sometimes be referred to in this opinion as his "first trial.")
The defendant was later tried for the capital murder of Mr. Tucker; the jury found him guilty and recommended the death sentence. Pursuant to that recommendation, the trial court sentenced the defendant to death in accordance with § 13A-5-31(a)(2), Code 1975 (repealed 1981).[1] The Court of Criminal Appeals affirmed that conviction and sentence and later overruled the defendant's application for rehearing. He then filed this petition for a writ of certiorari seeking review of *993 his conviction and sentence for the capital murder of Mr. Tucker. We granted the writ pursuant to Rule 39(c), Ala.R.App.P.
Applying the principles of collateral estoppel and double jeopardy, the defendant contends that because his first trial resulted in a sentence of life imprisonment without parole, the state was precluded from seeking the death sentence in this case. We disagree.
The defendant primarily relies on Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), and Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).
In Poland v. Arizona, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986), we find the following synopsis of Bullington:
"* The `case' to which the Court referred in Bullington was the prosecution's case that the defendant deserved the death penalty. The analogy drawn of guilty, a life sentence and a verdict of innocent. The Court emphasized that the sentencer was required to make a choice between `two alternative verdicts,' 451 U.S., at 438, 101 S.Ct., at 1858...." (Footnote in original.)
476 U.S. at 151-152, 106 S. Ct. at 1753-54.
In Ashe, three or four armed, masked men robbed six men playing poker in the home of one of the victims. The defendant was charged in separate counts with the robbery of each of the six players. He was tried on one count and acquitted because there was insufficient evidence to convince the jury that he was present when the victims were robbed. The Supreme Court held that the principle of collateral estoppel is embodied within the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and, because it had been previously determined by a jury that the defendant was not present when the victims were robbed, the state was precluded on double jeopardy grounds from thereafter prosecuting him for the robbery of a different player. The Court noted:
"`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated *994 between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 [1916]...."
The defendant's argument, as we understand it, is that the life sentence imposed by the trial court at his first trial was, under Bullington and Ashe, conclusive on the trial court in this case. He reasons that because the deaths of the Tuckers were the result of one continuous transaction consisting of several inextricably intertwined acts, the aggravating and mitigating circumstances would necessarily be the same in both cases; therefore, he argues that when the trial court at his first trial sentenced him to life imprisonment without parole for the murder of Mrs. Tucker (pursuant to its consideration of the aggravating and mitigating circumstances which it found to exist) the issue of whether the death sentence was appropriate for the murder of Mr. Tucker was also determined in his favor (i.e., that he was acquitted of the death sentence for both offenses under Bullington). Thus, the defendant seeks to foreclose a "reconsideration" of the death sentence in this case under the rationale of Ashe.
At this point we should note that although one continuous transaction led to the deaths of the Tuckers, the record in this case, as well as the record from the first trial, clearly shows that separate, distinct offenses were committed against each victim. A plea of double jeopardy is unavailing unless the offense presently charged is the same in law and fact as the former one relied on under the plea. Therefore, the defendant was subject to prosecution for each of these killings. See Clift v. State, 352 So. 2d 838 (Ala.1977); Colston v. State, 350 So. 2d 337 (Ala.1977); Racine v. State, 291 Ala. 684, 286 So. 2d 896 (1973).
When Bullington is considered in conjunction with Alabama's capital sentencing proceeding (in which the trial court, not the jury, is the ultimate sentencing authority)[2] it stands for the proposition that a defendant sentenced to life imprisonment without parole by the trial court is protected against the later imposition of the death sentence in the event that he obtains a reversal of the conviction and is retried and reconvicted for the same offense. As previously stated, the defendant was first convicted and sentenced to life imprisonment without parole for the capital murder of Mrs. Tucker. Under Bullington, the defendant was acquitted of the death sentence for that offense. However, he was then convicted and sentenced to death for the capital murder of Mr. Tucker in this case. As we understand Bullington, it does not apply where a defendant is tried for and convicted of one capital murder and sentenced to life in the penitentiary without parole and then later tried and convicted of a completely separate capital murder and sentenced to death. Accord, Wheat v. State, 420 So. 2d 229 (Miss.1982), cert. denied, 460 U.S. 1056, 103 S. Ct. 1507, 75 L. Ed. 2d 936 (1983).
However, the defendant insists that it was determined at his first trial that he should not receive the death sentence in this case. This conclusion is based upon the defendant's assertion that the aggravating and mitigating circumstances were the same in both cases. Thus, the defendant's position is that Bullington applies because, he says, he has been "tried" and "convicted" twice on the issue of the propriety of the death sentence in his case.
At the risk of belaboring the point, we must state again that the defendant was indicted, convicted, and sentenced at this first trial for the capital murder of Mrs. Tucker, not Mr. Tucker. A sentence in a capital murder case, be it life imprisonment without parole or death, is imposed by the trial court only after careful consideration of the aggravating and mitigating circumstances *995 which it finds to exist in the particular case. No specific findings with regard to those circumstances were made by the trial court at the defendant's first trial. The trial court stated only that "The court having considered the aggravating and mitigating factors and all the evidence in the case, the court does now commute the sentence to life imprisonment without parole...." We note that the trial court instructed the jury on the aggravating circumstances set out in § 13A-5-35(4), Code 1975, and the mitigating circumstances set out in § 13A-5-36(1), (4), (5), (6), and (7), Code 1975. The court also instructed the jury to consider "any aspect of the defendant's character and life and any of the circumstances of the capital offense which tend to indicate that the defendant should not be sentenced to death."
In fixing the defendant's sentence at death in this case, the trial court specifically found three aggravating circumstances:
(1) Mr. Tucker was robbed and then intentionally killed by the defendant. See § 13A-5-35(4), supra;
(2) The defendant had been previously convicted of another capital murder (i.e., the murder of Mrs. Tucker). See § 13A-5-35(2), Code 1975; and,
(3) The capital murder of Mr. Tucker was especially heinous, atrocious, or cruel. See § 13A-5-35(8), Code 1975.
The trial court in this case also specifically found two mitigating circumstances:
(1) The defendant had no significant history of prior criminal activity. See § 13A-5-36(1), supra; and,
(2) The defendant was 21 years of age at the time he committed the offense. See § 13A-5-36(7), supra.
Clearly, the trial court's imposition of the death sentence in this case was based upon its consideration of the aggravating and mitigating circumstances which it found to exist in connection with the murder of Mr. Tucker. Contrary to the defendant's contention, the aggravating circumstances considered by the trial court at the defendant's first trial (presumably those contained in § 13A-5-35(4), supra) could not have been the same as those found by the trial court in this case because at the first trial the issue centered on the defendant's actions toward Mrs. Tucker. The first and third aggravating circumstances found to exist in this case related solely to the defendant's actions toward Mr. Tucker. The second one obviously could not have been considered at the first trial. Furthermore, because the trial court at the first trial made no specific findings with regard to the mitigating circumstances which it considered, we simply have no way of knowing what "mitigating factors" it found to exist.
Based upon our review of the record from the first trial, we are simply unable to find any evidence to support the defendant's contention that the trial court did anything at that time which would have precluded the trial court in this case from imposing the death sentence as it did. Bullington and Ashe do not control this case.
For the foregoing reasons we agree with the Court of Criminal Appeals that the state was not precluded from seeking the death sentence in this case.
The defendant next contends that the trial court erred in this case by admitting evidence which showed how Mrs. Tucker was mistreated and then killed. He argues that this evidence was irrelevant because he was on trial for the murder of Mr. Tucker and that its admission only served to inflame and prejudice the jury. As the Court of Criminal Appeals correctly held, the evidence showing how Mrs. Tucker was mistreated and then killed was within the res gestae of the offense against Mr. Tucker and served to shed light on the acts, motive, and intent of the defendant. The admission of this evidence was not error. Higginbotham v. State, 262 Ala. 236, 78 So. 2d 637 (1955).
The defendant also contends that the trial court erred in admitting his testimony from the first trial. He argues that because he elected not to testify in this case, the admission of his testimony from the first trial was in contravention of his right against self-incrimination and also constituted *996 an improper comment on his failure to testify.
Both the Fifth Amendment to the United States Constitution and Article I, § 6, of the Constitution of Alabama 1901 prohibit a defendant from being compelled to be a witness against himself. Section 12-21-220, Code 1975, reads as follows:
The record from the first trial clearly shows that the defendant intelligently waived his constitutional right to remain silent. The defendant voluntarily took the stand and testified under the guidance and supervision of his counsel and in the presence of and under the protection of the trial court. Therefore, the admission in this case of his testimony from the first trial was not in contravention of his right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694 (1966) ("Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today"). See also Annot., 5 A.L.R.2d 1404 (1949).
It is well established that a defendant's election to remain silent at trial cannot be commented upon by the district attorney, either directly or indirectly. Beecher v. State, 294 Ala. 674, 320 So. 2d 727 (1975); Diamond v. State, 49 Ala.App. 68, 268 So. 2d 850 (1972); Thompson v. State, 41 Ala.App. 353, 132 So. 2d 386 (1961). However, we are not prepared to say that the defendant's testimony from the first trial was inadmissible as a comment on his failure to testify in this case. Neither the organic nor the statutory law was intended to operate in such a manner as to relieve the defendant of the incriminating effect of the voluntary testimony which he gave at the first trial. See Bess v. Commonwealth, 118 Ky. 858, 82 S.W. 576 (1904); Miller v. People, 216 Ill. 309, 74 N.E. 743 (1905).
The defendant next contends that his conviction must be reversed because the court reporter did not record the closing argument of the district attorney. The Court of Criminal Appeals disagreed, relying on § 12-17-275, Code 1975, which, in pertinent part reads: "The official court reporter ... shall take full stenographic notes of the oral testimony and proceedings, except argument of counsel...." (Emphasis added.) The court reporter is not required under this section to record closing arguments except when there is an objection. See Ervin v. State, 399 So. 2d 894 (Ala.Cr.App.), cert. denied, 399 So. 2d 899 (Ala.1981). There was no objection to the district attorney's closing argument in this case. In fact, one of the defendant's attorneys conceded during oral argument before this Court that he could not specify any statement made by the district attorney during the closing argument that would necessitate a reversal. However, it is argued that because we cannot scrutinize the district attorney's closing statements in light of our "plain error" rule, see Rule 39(k), Ala.R.App.P., and Ex parte Bush, 431 So. 2d 563 (Ala.1983), we should presume that reversible error occurred. We disagree.
The defendant relies on several federal cases: United States v. Taylor, 607 F.2d 153 (5th Cir.1979), United States v. Brumley, 560 F.2d 1268 (5th Cir.1977), and United States v. Upshaw, 448 F.2d 1218 (5th Cir.1971), cert. den., 405 U.S. 934, 92 S. Ct. 970, 30 L. Ed. 2d 810 (1971). The Fifth Circuit Court of Appeals recognized in these cases that there are times when reversible error should be presumed when a court reporter fails to comply with the Court Reporter Act, 28 U.S.C.A. § 753(b), by omitting some portion of the trial proceedings. However, that court has not chosen to *997 adopt a per se rule requiring reversal for any and all omissions. Error is presumed only if the defendant is represented on appeal by counsel other than the attorney at trial. The Fifth Circuit rule is well expressed in United States v. Selva, 559 F.2d 1303 (5th Cir.1977):
"* "The rule established by this line of cases is well expressed in the following portion of the opinion in Addison, 317 F.2d 808 (5th Cir.1963), in which appellants claimed that the failure of the court reporter to record the arguments of counsel was reversible error:
"`In their appeal in this case, although appellants were represented in the trial by six lawyers, one of whom is still representing one of the appellants in this court, the record is silent as to any objection made or any motion of any kind filed with respect to any alleged impropriety *998 during the course of the final arguments of counsel. Nor have the appellants in their original brief filed in this case attempted to state that any inflammatory or other improper comments were made by counsel during their summations. Obviously, even though a failure of the court reporter to report the arguments of counsel [was] an error per se, such error would not be available to appellants to work a reversal without a showing that it was prejudicial error... Without even the contention being made as to language used or other conduct of counsel that goes beyond the permitted range of oral argument, no effort is made to show that such failure prejudiced appellants. Id. at 811.'" (Footnote in original.)
559 F.2d at 1305-06.
In our view, the approach taken by the Fifth Circuit is a sound one and the rule applied in that court should be applied in this case. Here, the defendant is represented on appeal by one of the same attorneys who represented him at trial. As previously noted, there was no objection made at trial to any of the statements made by the district attorney during the closing argument. This indicates to us that the district attorney's closing statements did not exceed the bounds of the law. Furthermore, no specific error has been alleged on appeal. The inability of the defendant's attorney who was present at trial to recall any statements on the part of the district attorney that would rise to the level of reversible error further indicates to us that none was made. Moreover, no effort has been made to reconstruct the substance of the closing argument for submission as a supplement to the record. See Rule 10(d), Ala.R.App.P., and Strauss v. United States, 311 F.2d 926 (5th Cir.1963), cert. den., 373 U.S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412 (1963). Even though the Court of Criminal Appeals and this Court are required to search the record for plain error in every case in which the death sentence has been imposed and to take the appropriate action when such error is found, neither the Court of Criminal Appeals nor this Court will presume that reversible error occurred at trial when there is nothing in the record to so indicate, unless the defendant is not represented on appeal by the same attorney who represented him at trial.
Finally, the defendant contends that under the Supreme Court's recent decision in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the trial court erroneously excluded prospective jurors because of their views against capital punishment. He argues that the trial court applied the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and that, in doing so, it "tipp[ed] the scales in favor of the prosecution and further prevented [him] from receiving a fair and impartial trial from a jury of his peers." We have carefully reviewed the record in this regard and it clearly shows that the trial court did not run afoul of Wainwright, supra, when it excluded the prospective jurors in this case.
Pursuant to Rule 39(k), supra, we have searched the record for plain error in the trial below and have found none except that now to be discussed.
Although the matter was not called to our attention by counsel, our search of the record has revealed that the following occurred subsequent to the selection of the jury:
Since the district attorney in this case was never required to give explanations for his striking of the blacks from the venire, we remand this case to the Court of Criminal Appeals for it to order further proceedings. If the trial court determines that the facts establish a prima facie case of purposeful discrimination and the district attorney does not come forward with race-neutral explanations for its strikes, then the defendant is entitled to a new trial. Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). See also Ex parte Jackson, 516 So. 2d 768 (Ala. 1986).
REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
ADAMS, J., not sitting.
HOUSTON, Justice.
APPLICATION OVERRULED.
JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
TORBERT, C.J., not sitting.
MADDOX, Justice (concurring specially in denial of rehearing).
On application for rehearing, the State contends that the defendant affirmatively waived his right to raise the challenge to the jury.
On June 18, 1981, a motion to quash the indictment was filed raising numerous grounds, including alleged systematic exclusion of minorities from the grand jury and petit jury rolls. However, when this *1000 motion came on to be heard on December 18, 1981, it was submitted without evidence or argument and was overruled.
On October 24, 1983, the cause came on for trial before Circuit Judge James S. Garrett and a jury. The petitioner was attended by his three attorneys, James Jolly, Ronda Lacey, and James G. Stevens. The State was represented by its district attorney, John Paul DeCarlo, and his deputies, Ken Gomany, Tom Sowa, and Russell R. McDonald. After a lengthy jury qualification procedure, the jury was struck and those not stricken were placed in the box. At that point, the court, through the bailiff, asked:
The defense responded:
Hearing no objection from either side to the jury selected, the trial judge thanked the stricken veniremen and dismissed them. No objection was made to this by either party.
The judge then ordered the jury sworn. No objection came from either side, and the jury was sworn.
He then gave the jury a lengthy charge on their duties and responsibilities as jurors, and released them for the night in the care of bailiffs. No objection was made to these actions.
The proceedings adjourned at 6:20 p.m., with neither party making any objection to the jury as selected.
Over 14 hours later, at 9:10 a.m., October 25, 1983, "trial resumed" and the petitioner for the first time objected to the jury that had been struck, agreed on, and sworn the day before. The objection was overruled.
In the original opinion it affirmatively appears that the trial judge did not base his ruling on defendant's objection on the ground that it came too lateafter the jury was sworn but before the receipt of evidence. In this case, the trial judge based his ruling upon an erroneous application of the law. I believe that, under these facts, Batson applies.
[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 codewere 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 preexisting law, i.e., § 13A-5-30 through 13A-5-38. See Spears v. State, 428 So. 2d 174 (Ala.Cr.App.1982).
[2] Alabama's capital sentencing proceeding is indistinguishable for double jeopardy purposes from the capital sentencing proceeding discussed in Bullington. See 476 U.S. at 152, 106 S. Ct. at 1754, n. 4. | May 15, 1987 |
8e703498-f416-4832-90dd-3893fb544f73 | Mobile County v. Brantley | 507 So. 2d 483 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 483 (1987)
MOBILE COUNTY
v.
Elouise BRANTLEY, et al.
85-563.
Supreme Court of Alabama.
April 24, 1987.
*484 James C. Wood and J. Randall Crane of Simon, Wood & Crane, Mobile, for appellant.
Samuel L. Stockman of Stockman & Bedsole, Mobile, for appellees.
HOUSTON, Justice.
This is a condemnation case. Mobile County instituted proceedings to condemn.34 acres of Mrs. Elouise Brantley's property. Commissioners were appointed by the Mobile County Probate Court, and they assessed Mrs. Brantley's damages at $14,810. The County appealed to the circuit court, and the jury returned a verdict of $52,818.70 in favor of Mrs. Brantley. The County filed a motion for new trial or in the alternative for remittitur, which was denied. The amount of the verdict was within the range of expert appraisal testimony, and the question of excessiveness of the verdict is not raised as an issue in this appeal by the County. We affirm.
Mrs. Brantley owned approximately 3.5 acres at the southwest corner of Cottage Hill and Sollie Roads prior to the condemnation of the .34-acre tract involved in this proceeding. At the time this proceeding was filed, Sollie Road was a 3.5-mile dirt road running north and south. Cottage Hill Road was a paved road running east and west. Prior to this condemnation proceeding being filed, the County had on two occasions acquired land from Mrs. Brantley for a right-of-way of what is now Sollie Road (previously designated Dawes Hollow Road). A 30-foot-wide strip was acquired by deed in 1956. An additional 20-foot-wide strip was acquired by condemnation in 1957.
Mrs. Brantley testified over the County's objection that on several occasions in 1955 and 1956, the county negotiator, and the county engineer, as well as the county commissioners told her that the County was going to build a paved road on the right-of-way which it was acquiring from Mrs. Brantley and that this road would enhance the value of her remaining property. The County assigns as error the admission of this testimony.
These were out-of-court statements made by a party opponent; such statements are admissible when offered against the party making them. Southern Railway Co. v. City of Birmingham, 271 Ala. 114, 122 So. 2d 599 (1960); Mitchell v. Kinney, 242 Ala. 196, 5 So. 2d 788 (1942). Section 180.01(4) of C., Gamble, McElroy's Alabama Evidence, states:
In Southern Railway Co. v. City of Birmingham, supra, 271 Ala. at page 116, 122 So. 2d at 601, we wrote:
The doctrine of admissions is also applicable where the principal is a county. Mrs. Brantley did not offer the county officials' statements to bind the County in a contractual sense, but for those statements to serve as a basis for an inference in regard to whether a paved road was planned at the time the statements were made.
There was other evidence offered which indicated that the County planned to pave Sollie Road within the County's previously acquired and existing right-of-way long prior to 1983, which was not objected to by the County (e.g., minutes of a 1961 commissioners' meeting indicating a plan to place the road on the farm to market road program; the minutes of a 1957 commissioners' meeting at which the county engineer was instructed to clear and grade the road within the right-of-way that had been acquired by the County; and testimony of a member of the road planning committee for the Chamber of Commerce and the Real Estate Board that it was his understanding that years before the present condemnation, the County was to pave and build Sollie Road and that he interpreted the major City Plan of Mobile to include Sollie Road).
There was also testimony that the real reason for the County's now condemning additional land from Mrs. Brantley was for the purpose of aligning Sollie Road and Cody Road at their intersection with Cottage Hill Road. Cody Road intersected Cottage Hill Road on the north side and Sollie road intersected Cottage Hill Road on the south side.
Based on the fact that the County did not receive funding to pave Sollie Road until 1983, the County contends that the "scope of-the-project rule," as enunciated in United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336 (1943), was not triggered until the County became "committed" to pave Sollie Road in 1983. United States v. 320 Acres of Land, More or Less in Monroe County, State of Fla., 605 F.2d 762 (5th Cir.1979). That being so, the County contends the trial judge erred in allowing Mrs. Brantley to show the "before" value of her property taken as enhanced by the paving of Sollie Road and in giving the following instruction to the jury:
Mrs. Brantley contends that she is entitled to have the "before" value of her property determined as if Sollie Road were paved. She further contends that the present taking of .34 acres was not contemplated by the original paving project for Sollie Road, and, therefore, that the valuation of her property is not subject to the general rule that owners of land taken by eminent domain are not entitled to the enhancement in the value of their property due to the proposed improvement. Standard Oil Co. v. State, 287 Ala. 143, 249 So. 2d 804 (1971); State Highway Commissioner v. Bell, 209 Va. 769, 167 S.E.2d 127 (1969); United States v. Miller, supra.
Both parties cite Miller as being the applicable law. "In Miller, the United *486 States Supreme Court set forth the principles to be applied in determining whether enhancement in the market value of a tract of land, occasioned by virtue of its proximity to the improvement to be constructed, is to be considered in awarding compensation."
Justice Roberts, writing for the United States Supreme Court, made the following observations:
United States v. Miller, 317 U.S. at 376, 63 S. Ct. at 283, as quoted in Standard Oil Co., 287 Ala. at 148, 249 So. 2d at 809.
Justice Bloodworth, writing for this Court in Standard Oil Co., supra, stated "that the question as to whether the acquisition of these access rights was probably within the scope of the project is a factual issue which should have been resolved by the jury under proper instructions from the Court." 287 Ala. at 149, 249 So. 2d at 809. We are of the opinion that the trial court properly submitted this question to the jury and properly instructed the jury on the principles enunciated in Miller.
The facts of this case, as set out earlier in this opinion, present a fact question for determination by the jury, as to whether the County planned to pave Sollie Road in the previously acquired and existing right-of-way before the 1983 paving project was instituted. There is evidence from which the jury could, and apparently did, find that the real reason for the present taking is to align Sollie Road and Cody Road at their intersection with Cottage Hill Road. The fact question as to whether the taking of .34 acres of Mrs. Brantley's property was "probably within the scope of the project" from the time the County was committed to it was properly resolved by the jury under proper instructions from the court.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ. concur. | April 24, 1987 |
054683b0-0ea8-4ead-8e07-5d1b43b72d28 | Muscle Shoals Aviation, Inc. v. Muscle Shoals Airport Auth. | 508 So. 2d 225 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 225 (1987)
MUSCLE SHOALS AVIATION, INC.
v.
MUSCLE SHOALS AIRPORT AUTHORITY and James Crowder.
86-12.
Supreme Court of Alabama.
April 24, 1987.
Rehearing Denied May 29, 1987.
Lindsey G. Mussleman of Holt, McKenzie, Holt & Mussleman, Florence, for appellant Muscle Shoals Aviation, Inc.
J.A. Keller of Keller, Cochran & Pitts, Florence, for appellee Muscle Shoals Airport Auth.
Frank Butler Potts, Florence, for appellee James Crowder.
HOUSTON, Justice.
Muscle Shoals Airport Authority ("the Authority") filed this declaratory judgment action against Muscle Shoals Aviation, Inc. *226 ("Aviation"), in the Circuit Court of Colbert County, asking for a declaration that a renewal option in a 1966 lease agreement (that option appearing as paragraph F of a November 8, 1966, addendum to the lease) was unenforceable. The trial court entered a judgment declaring the renewal option unenforceable because of "vagueness" and "uncertainty." Aviation appeals from this judgment. We affirm.
The facts herein are not disputed. In March 1966, Aviation entered into a 20-year lease with the Authority to operate a "fixed base operation" at the Muscle Shoals Airport in Muscle Shoals, Alabama. In November 1966, the renewal clause here in question was added to the lease. It provides as follows:
Prior to the expiration of the lease, Aviation notified the Authority of its intent to exercise the renewal option. The Authority, by letter dated December 31, 1985, acknowledged Aviation's intention to renew the lease and in response submitted a proposed lease agreement for Aviation's acceptance by January 14, 1986. Upon receipt of the Authority's proposal, Aviation requested a meeting to negotiate the terms of the proposed lease, and indicated that it would consider legal recourse to enforce its rights under the 1966 lease if the Authority failed to "fully" and "fairly" negotiate the terms of the proposed lease agreement. Dr. James Crowder, who subsequently was allowed to intervene as a plaintiff, and General Aviation, Inc. (a "fixed base operator"), also threatened suit if the Authority did not award the lease pursuant to the Alabama Public Bid Laws, § 41-16-24, Code 1975. The Authority filed this declaratory judgment action to determine the enforceability of the renewal provision.
The general rule, as followed by a majority of the states, is stated in 50 Am.Jur.2d Landlord and Tenant, § 1158 (1970):
The general rule, as expressed above, was enunciated in Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (1980), and in the following cases:
In Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982), Justice Jones wrote that "elementary to contract principles is the axiom that `agreements to later agree are not enforceable.'" See Cowin v. Salmon, 244 Ala. 285, 13 So. 2d 190 (1943.) Furthermore, in Parker Chiropractic Research Foundation v. Fairmont Dallas Hotel Co., 500 S.W.2d 196 (Tex.Civ.App.1973), Chief Justice Williams set out several "well defined and settled principles" of law regarding the remedy of specific performance, including the following principle:
In Radford v. McNeny, supra, the Texas Commission of Appeals wrote:
Aviation contends that the specific terms were not set out in the 1966 addendum because they were unascertainable at that time and argues, therefore, that reasonable terms should be inferred. Aviation further asserts that the renewal provision was incorporated in the agreement to insure that Aviation had the exclusive option to renew at the expiration of the initial lease period.
In support of this argument Aviation relies upon Slade v. City of Lexington, 141 Ky. 214, 132 S.W. 404 (1910), which appears to set out a rule contrary to the rule followed by the majority of the states. Alabama follows the majority rule and we are not persuaded that we should adopt the rule enunciated in Slade in the event that Slade cannot be distinguished from the case at issue.
The renewal provision in the case at issue leaves everything pertaining to the renewal open for determination by the parties' future negotiations. That is to say, they must agree on not only the amount of rent to be paid, but upon such conditions, covenants, and limitations as are acceptable to both parties. Renewal agreements much more specific than this one, in that they leave only the renewal rental to be fixed by future agreement between the parties, have generally been held unenforceable and void for uncertainty and indefiniteness. See Edgewater Enterprises, Inc. v. Holler, 426 So. 2d 980 (Fla.Dist.Ct. App.1982); Giglio v. Saia, 140 Miss. 769, 106 So. 513 (1926); Phipps, supra.
*228 It is fundamental that courts will not enforce a contract which is vague, indefinite, or uncertain. It is not the province of the court to make or remake a contract for the parties. Cotton States Mut. Ins. Co. v. Conner, 387 So. 2d 125 (Ala.1980). In order to be enforceable, a contract to enter into a future contract must be definite and certain in all of its terms and conditions so that the court can know what the parties have agreed upon. Radford, supra. Since there was no specificity as to the terms and conditions of the lease to be made, we hold the renewal provision void for uncertainty and therefore unenforceable.
Aviation further contends that the Authority should be estopped from denying the enforceability of the renewal provision because of the Authority's letter of December 31, 1985. Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977). We do not agree.
The Authority had no legal obligation to renew Aviation's lease; however, the Authority, by its letter dated December 31, 1985, offered a proposed lease agreement for Aviation's acceptance. Aviation did not accept the Authority's offer. Therefore, this contention is without merit. The judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | April 24, 1987 |
b47b674d-b21b-4838-86dc-3c7dc9a59642 | Ex Parte Hill | 507 So. 2d 558 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 558 (1987)
Ex parte Cynthia HILL.
(Re Cynthia Hill v. State of Alabama).
86-640.
Supreme Court of Alabama.
May 1, 1987.
Donald L. Colee, Jr., of Ackerman, Colee & Tucker, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., respondent.
Prior report: Ala.Cr.App., 507 So. 2d 554.
PER CURIAM.
The writ is denied. In denying the writ, we point out that we agree with Judge Bowen's opinion concurring in the result.
WRIT DENIED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | May 1, 1987 |
9b1e5fa2-c1e9-4ef9-a9cf-c3a9cb4e968f | Ledbetter v. Jackson County Bd. of Educ. | 508 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 244 (1987)
Marie LEDBETTER
v.
JACKSON COUNTY BOARD OF EDUCATION.
85-468.
Supreme Court of Alabama.
May 22, 1987.
ALMON, Justice.
The opinion previously issued in this case is withdrawn and the following is substituted as the opinion of this Court.
The Jackson County Board of Education (hereinafter referred to as the board) filed this declaratory judgment action against Marie Ledbetter, seeking to establish whether its action in reducing her hours as a lunchroom worker at Hollywood Elementary School from 35 to 30 hours per week constituted either a "termination" of her employment or a "transfer," under the applicable provisions of the Fair Dismissal Act, §§ 36-26-100 to -108, Code 1975. The trial court declared that "the legislative intent of the Fair Dismissal Act does not *245 apply to the action taken by the [board] in reducing" Mrs. Ledbetter's hours of work, and, further, that Mrs. Ledbetter was "not entitled to the administrative hearings and procedure restricting `termination' of employment."
Marie Ledbetter and two other persons are employed by the Jackson County Board of Education as lunchroom workers at the Hollywood Elementary School. Mrs. Ledbetter is no longer on probationary status as an employee of the board. See § 36-26-102, Code 1975. On September 27, 1985, the board voted at its regularly scheduled meeting to reduce the hours of each of the three lunchroom workers by one hour each day to 30 hours per week. The board alleged in its complaint that a lesser number of lunchroom worker labor-hours were needed, due to a decreased enrollment at Hollywood Elementary School. On October 2, 1985, Mrs. Ledbetter requested an appeal to a three-member panel, as provided for under the Fair Dismissal Act. In response to her request, the board filed the present complaint, wherein it averred that its action was neither a "termination" nor a "transfer" within the meaning of the Fair Dismissal Act. Mrs. Ledbetter appeals from the trial court's judgment declaring that she was not entitled to a hearing.
The sole issue for our review is whether the trial court properly interpreted § 36-26-102, Code 1975, and other applicable provisions of the Fair Dismissal Act, as they applied to the facts in the instant case.
Mrs. Ledbetter first asserts that the trial court erred in its finding that the board's action did not constitute a "termination" of her employment within the meaning of § 36-26-102, Code 1975. Specifically, § 36-26-102 provides:
Mrs. Ledbetter contends, in effect, that the above section of the Fair Dismissal Act should be construed in pari materia with § 16-24-3 of the Teacher Tenure Act. In support of this position, Mrs. Ledbetter relies upon Ex parte Wright, 443 So. 2d 40 (Ala.1983), and asks that the reasoning of Wright be applied in the present case. In Wright, this Court addressed the issue of whether certain tenured teachers' contracts had been improperly cancelled by the school board. This Court held that a new contract, which changed the number of months that the teachers were to work from ten to nine was a "partial cancellation" of the old contract, and as such could not be enforced without compliance with the procedures set out in § 16-24-9 of the Teacher Tenure Act. Based on Wright, Mrs. Ledbetter contends that the board's action in the present case was a "partial termination" of her employment and as such entitles her to an appeal under the procedures of the Fair Dismissal Act.
The trial court concluded that there was a material distinction between the Fair Dismissal Act and the Teacher Tenure Act. In its order, the trial court stated that the Fair Dismissal Act "does not speak to the cancellation [or] partial cancellation of the employee's contract of employment, but, instead, to termination of the `.... employee's employment....'" The court added, "Here, by the plain meaning of the Fair Dismissal Act, the action of the board has not amounted to a termination of Marie Ledbetter's employment."
The trial court's opinion fails to address the principle that a public employee with a "legitimate claim of entitlement to continued employment must be given an opportunity to prove the legitimacy of his claim to such entitlement" if the state deprives him of his employment. Perry v. Sinderman, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972). Although a narrow reading of § 36-26-102, § 16-24-3, and *246 Wright, supra, leaves room for the trial court's distinction between the Fair Dismissal Act and the Teacher Tenure Act, the relevant principles of due process under the Fourteenth Amendment lead us to the conclusion that Mrs. Ledbetter has been deprived of her property interest in her employment without due process of law.
In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972), the United States Supreme Court observed:
Although the trial court would appear to concede that Mrs. Ledbetter has a property interest in employment for at least 20 hours per week,[1] the effect of its decision is that a school board may arbitrarily reduce the working hours of an employee covered by the Fair Dismissal Act from 35 (or 40) to as low as 20. On the contrary, if Mrs. Ledbetter has a property interest in her employment at all, and she clearly does under the statute (Roth, Sinderman, and subsequent cases), then she has a property interest in the whole of it. If a person owns an acre of land, the state may not take any portion of it without proper condemnation proceedings and compensation. Why, then should the state be allowed to grant a property interest in employment and then take up to half of it away without according the owner the same due process of law?[2]
By holding that Mrs. Ledbetter was not entitled to a hearing or any review of the board's reduction in her hours of employment, the trial court has allowed the state to deprive her of a property interest given by the statute without due process of law. We do not mean to imply that the board acted arbitrarily or capriciously; indeed, the only evidence of record indicates that declining enrollment provided at least an arguable reason for the reduction in hours of the lunchroom employees. Rather, we hold only that when Mrs. Ledbetter followed the procedures of the Fair Dismissal Act to challenge the reduction, she was entitled to present her position before the neutral decision-making body for which the Act provides.
Because we hold that the board's reduction of Mrs. Ledbetter's working hours was a partial termination of her employment and triggered her right to a hearing, we do not address the argument as to whether the reduction was a transfer within the meaning of the Fair Dismissal Act.
For the reasons stated the judgment is reversed and the cause is remanded.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
MADDOX, JONES, SHORES and STEAGALL, JJ., concur.
TORBERT, C.J., and BEATTY and HOUSTON, JJ., dissent.
[1] The trial court wrote in its judgment: "It is the conclusion of this court, further, that a `transfer' with `loss of status' would apply to a reduction of the working hours per week of the employee only when the school board reduced that employee to less than 20 hours per week, which, under the definition of the act, would reduce her to the status of other than a `full-time employee' under Section 36-26-100, Code of Alabama of 1975."
[2] We do not mean to suggest that the parallel with real property ownership is exact. In the proper circumstances and if it follows the proper procedures, the state may reduce hours of employment or even reduce pay for a given number of hours worked. These questions relate to how much the employee is compensated for his labor, and are comparable to the question of how much compensation is due for a taking of real property. | May 22, 1987 |
ba807c38-9e48-4da2-a219-4c5ad3ebb2ff | Ex Parte City of Birmingham | 507 So. 2d 471 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 471 (1987)
Ex parte CITY OF BIRMINGHAM.
(In Re BLOUNT COUNTY, et al. v. CITY OF BIRMINGHAM).
86-2.
Supreme Court of Alabama.
April 10, 1987.
*472 James K. Baker, City Atty., City of Birmingham and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for petitioner.
B.J. McPherson, Oneonta, for respondent.
ALMON, Justice.
The City of Birmingham petitions this Court for a writ of mandamus ordering Circuit Judge H.E. Holladay of the 30th Judicial Circuit (Blount County) to enter an order transferring the case below to the Circuit Court for the 10th Judicial Circuit (Jefferson County). The underlying action is a suit brought by Blount County, the members of the Blount County Commission, and Bobby Hudson, a resident taxpayer of Blount County, seeking a judgment declaring invalid certain ordinances by which the City of Birmingham purports to have annexed certain property in Blount County. The trial court denied the city's motion to dismiss or for change of venue, whereupon the city filed this petition.
We find a scarcity of authority in this state on venue of suits against municipalities. In Wilder v. Crook, 250 Ala. 424, 34 So. 2d 832 (1948), an action was brought in Montgomery County against the City of Atmore, its city council, and a Montgomery resident. This Court held that venue was improper because the Montgomery resident was not a material defendant and therefore found it unnecessary "to consider whether The City of Atmore, a municipal corporation, could be sued outside of Escambia County where it is located." Id., 250 Ala. at 426, 34 So. 2d at 834. We have found no subsequent cases squarely holding that venue is proper as to a city outside of the county where it is located.
In City of Dothan v. Dale County Commission, 295 Ala. 131, 324 So. 2d 772 (1975), an action was brought in Dale County against the City of Dothan, which is in Houston County, to prohibit an annexation election by which Dothan proposed to annex property in Dale County. The appeal by the City of Dothan did not present any issue regarding venue. In the earlier case of Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So. 2d 451 (1968), this Court held that the Airport Authority had waived any objection to venue by filing a demurrer not based solely on the matter of jurisdiction of the person, which constituted a general appearance.
In Mead Corp. v. City of Birmingham, 295 Ala. 14, 321 So. 2d 655 (1975), the City of Birmingham had called an election to annex land within the jurisdiction of the Bessemer Division of the Jefferson County Circuit Court. When the Mead Corporation brought an action in the Bessemer Division to challenge the annexation, the city filed a motion to transfer the case to the Birmingham Division. This Court granted a writ of mandamus ordering the Bessemer circuit judge to grant that motion. The Court stated:
Id., 295 Ala. at 15, 321 So. 2d at 656.
The Birmingham/Bessemer question present in Mead is unique, however, because the allocation of cases to the Bessemer Division of the Jefferson County Circuit Court is statutorily limited and has been held to include only cases in which the cause of action arises there. See, e.g., Glenn v. Wilson, 455 So. 2d 2 (Ala.1984), involving a sale for division of land in the Bessemer Division, and Ex parte Southern Building Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968). Thus, although Mead states that the "subject matter" of a suit contesting an annexation election "does not involve title to land," its holding is only that, in the limited context of whether a case belongs in the Bessemer Division or the Birmingham Division, the cause of action in such a suit "arises" where the election is declared and held and its results canvassed and made known. Mead does not necessarily resolve the question of whether an annexation makes venue proper in the circuit where the land is located.
Venue generally turns either upon the question of where a material defendant resides or upon the question of where the cause of action arose. Either question may apply in the class of cases denominated transitory actions; only the latter usually applies in cases denominated local actions. A local action is one which could only have arisen in the particular locality where it did arise, for example, where the subject matter is real estate. A transitory action is one which could have arisen anywhere, such as an action on a contract. These rules arise from the common law and apply except where changed by statute. At common law a defendant could be sued in a transitory action anywhere he could be served; the rule establishing venue at the place of his residence is a statutory modification. See, e.g., 77 Am.Jur.2d Venue §§ 2, 10, and 20 (1975).
Statutory provisions regarding venue in Alabama are found in Code 1975, §§ 6-3-1 through -22. See also Rules 82 and 12(b)(3), A.R.Civ.P., and Art. IV, § 75, Const. of 1901. Section 6-3-2 and Rule 82(b) contain provisions regarding venue of actions against individuals. Section 6-3-7 provides for venue of actions against corporations, stating in part that "a domestic corporation may be sued in any county in which it does business by agent." The City of Birmingham is a public corporation, not a private one, and we question whether the legislature intended for this statute to apply to municipal corporations, which are subdivisions of the State. In a well-reasoned and often-cited opinion holding that such a general statute governing venue against corporations did not apply to public corporations, the Court of Appeals of Maryland stated:
Phillips v. Mayor of Baltimore, 110 Md. 431, 438, 72 A. 902, 905 (1909).
We agree with this reasoning. Assuming that a municipal corporation may be said to do business by agent, a rule allowing suit against such a public body in any county in which it might be found to be doing, or to have done, business would subject its officers and agents to impermissible constraints on their performance of their public duties. This situation is different in principle from that applying to private corporations, which may establish offices and places of business in any and every county in the state. Therefore, we *474 hold that § 6-3-7 does not apply to municipal corporations.
It remains to be seen whether any other ground exists for laying venue in Blount County. We address some general principles before turning to a consideration of § 6-3-2 and Rule 82(b).
It was early held in this state that a suit against a county must be brought in that county. Cullman County v. Blount County, 160 Ala. 319, 49 So. 315 (1909). This Court questioned the Cullman County result, however, in Ex parte City of Huntsville Hospital Board, 366 So. 2d 684 (Ala.1978). The Court noted that Code 1975, § 11-1-2, was in effect as § 123 of the Code of 1907 when Cullman County was decided, and that section provided:
We held in the Huntsville Hospital Board case that this statute establishes jurisdiction over a county in another county and we decided the venue question on the basis of § 6-3-3, which provides that actions for work and labor done may be brought in the county where the work was done, without an exception for actions against counties. By relying on a specific venue statute, this rationale at least conceivably leaves open the question of venue against counties generally.
We note that there is no statute analogous to § 11-1-2 expressly stating that municipal corporations (i.e., cities and townssee § 11-40-6) have power to sue and be sued in any court of record. Cf. § 11-40-1.
Agencies and officers of the state must be sued in the county of their official residence absent specific statutory authority to the contrary or waiver of objection to venue. Hardin v. Fullilove Excavating Co., 353 So. 2d 779 (Ala.1977); Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So. 2d 428 (1974); Tri-State Corp. v. State, 272 Ala. 41, 128 So. 2d 505 (1961). This rule is adhered to even where the case arguably is one involving real estate in another county. Tri-State Corp., supra; Alabama Youth Services Board v. Ellis, 350 So. 2d 405, 408 (Ala.1977): "Moreover, the allegations in this case pertaining to the location of real estate in Jefferson County, while they may resolve a venue question in an ordinary case, do not control a case such as this where the action is one against a state agency."
We conclude that, to the extent that the cases regarding counties and state agencies and officers are analogous, they support the proposition that venue of suits against a governmental entity is at the situs of the entity unless a specific provision to the contrary applies.
The general authorities on the subject state that actions against municipalities are local actions and must be brought in the county where the municipal corporation is located. 17 McQuillin, Municipal Corporations § 49.15 (3d ed. 1982); 64 C.J.S. Municipal Corporations § 2203 (1950); annot., 93 A.L.R. 500 (1934).
On the basis of the above authorities, we hold that an action against a municipal corporation is a local action for which venue generally lies in the county which is the situs of the municipal corporation. There is authority that general venue provisions as to individuals apply to municipal corporations, see annot., 93 A.L.R. 500 (1934), but we need not address whether § 6-3-2 and Rule 82(b) might apply in a proper case, because none of their provisions would make venue proper outside of Jefferson County in this case. This is not a case in which "the subject matter of the action is real estate ... or [an action] for recovery or the possession thereof or trespass thereto," as described in Rule 82(b)(1)(B), A.R.Civ.P.; it is a suit to have a municipal ordinance declared invalid. Analogously to the allegations in Alabama Youth Services Board v. Ellis, supra, "the allegations in this case pertaining to the location of real estate in [Blount] County, while they may resolve a venue question in an ordinary case, do not control a case such as this where the action is one against a [municipality]." Furthermore, because the act of adopting the ordinances took place in Jefferson County and because there are no *475 material defendants in Blount County, § 6-3-2 and Rule 82(b), even if they might be applicable in a proper case, provide no ground on which to base venue in Blount County.
Respondents argue that Birmingham, by adopting ordinances annexing land in Blount County, has extended itself into Blount County and so has made venue proper there. This argument fails to address the question of whether a municipality can be sued outside of the county where its seat of government is located. The general rule is that where a city occupies territory in two or more counties, it is subject to suit only in the county where the seat of government is located. Willis v. City of Corbin, 572 S.W.2d 610 (Ky.Ct. App.1978); Oklahoma City v. District Court, 429 P.2d 791 (Okla.1967); City of Grand Prairie v. State ex rel. Crouch, 266 S.W.2d 184 (Tex.Civ.App.1954); Arlington v. Calhoun, 148 Ga. 132, 95 S.E. 991 (1918); Fostoria v. Fox, 60 Ohio St. 340, 54 N.E. 370 (1899); 17 McQuillin, Municipal Corporations § 49.15 (3d ed. 1982); annot., 93 A.L.R. 500 (1934). For the reasons stated in these authorities, we adopt the rule as stated. We note particularly that Willis v. City of Corbin and City of Grand Prairie regard annexation elections or ordinances and are in accord in several respects with the holding we reach in this case.
For the foregoing reasons, we hold that the trial court erred in denying the motion for change of venue. The writ of mandamus is therefore due to be, and it is hereby, granted.
WRIT GRANTED.
MADDOX, SHORES, ADAMS and BEATTY, JJ., concur.
TORBERT, C.J., concurs specially with opinion.
HOUSTON, J., dissents with opinion in which JONES and STEAGALL, JJ., concur.
TORBERT, Chief Justice (concurring specially).
I agree that under these facts venue is proper only in Jefferson County. In order for venue to be proper in Blount County, the "subject matter" of the action would have had to be real property. Code 1975, § 6-3-2, A.R.Civ.P. 82(b)(1)(B). "Subject matter," as used in the statute, has been defined as "the nature of the cause of action and of the relief sought." First Federal Savings & Loan Ass'n v. Haley, 377 So. 2d 1082, 1084 (Ala.Civ.App.1979); Clark v. Sanders, 267 Ala. 674, 103 So. 2d 370 (1958). Plaintiffs filed suit questioning the validity of the ordinances that annexed territory in Blount County and the constitutionality of the statute authorizing such annexations. Under these circumstances, the cause of action more closely relates to the validity of the ordinances and the statute than to real estate. In addition, the relief sought is a declaration that the ordinances are invalid and the statute unconstitutional. Therefore, the "subject matter" is the ordinances and the statute and not real estate, and venue is controlled by Code 1975, § 6-3-2 and A.R.Civ.P. 82(b)(1)(A).
Having reached that conclusion, I agree that the weight of authority holds that the situs of the municipality is where the seat of government is, notwithstanding the fact that the city is located in more than one county. See Willis v. City of Corbin, 572 S.W.2d 610 (Ky.Ct.App.1978), and other authorities cited in the majority opinion.
I note that this opinion should not be construed to hold that a municipality can never be sued in any county other than where its seat of government is located. See Oklahoma City v. District Court, 429 P.2d 791 (Okla.1967).
HOUSTON, Justice (dissenting):
The majority opinion acknowledges that there is authority that general venue provisions as to individuals apply to municipal corporations, annot., 93 A.L.R. 500 (1934). It then seeks support for its position that the venue rule (Rule 82(b)(1)(B) "against resident individuals" does not apply by analogizing this case to Alabama Youth *476 Services Board v. Ellis, 350 So. 2d 405, 408 (Ala.1977), and substituting the word "municipality" for "state agency." The exact quote from Alabama Youth Services Board is "Moreover, the allegations in this case pertaining to the location of real estate in Jefferson County, while they may resolve a venue question in an ordinary case, do not control a case such as this where the action is one against a state agency." (Emphasis added.) The general venue provisions as to individuals do not apply to state agencies. See, Alabama Youth Services Board v. Ellis, supra.
Therefore, since general venue provisions as to individuals apply to municipal corporations, to me, the question becomes this: Is the subject matter of an action attacking a municipal ordinance, which purports to annex real estate into the city limits of a municipality, real estate? The subject matter does not have to be exclusively real estate, but is the subject matter, to any material extent, real estate? Rule 82(b)(1)(B).
Since I would answer these questions in the affirmative, and since Rule 82(b)(1), Ala.R.Civ.P., provides that "Actions against an individual [which would apply to municipal corporations].... (B) Must, if the subject matter of the action is real estate, whether or not exclusively, ... be brought in the county where the real estate... is situated," I believe that Blount County was the proper venue for an action seeking to declare invalid a municipal ordinance which purported to annex real estate in Blount County into a municipal corporation. I would deny the writ.
JONES and STEAGALL, JJ., concur. | April 10, 1987 |
3b0aa498-4482-41c4-88e6-1ed1279e61fb | State v. McCurdy Concrete, Inc. | 507 So. 2d 403 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 403 (1986)
STATE of Alabama
v.
McCURDY CONCRETE, INC.
85-363.
Supreme Court of Alabama.
September 26, 1986.
On Return to Remand April 24, 1987.
Winston V. Legge, Jr., Sp. Asst. Atty. Gen., for appellant.
Thomas E. Parker, Jr., of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellee.
PER CURIAM.
Because the State's post-judgment motion for a new trial on the sole ground of excessiveness of the award was denied without opinion or findings of fact, we remand this cause for reconsideration of the issue of excessiveness, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). See, also, Harmon v. Motors Insurance Corporation, 493 So. 2d 1370 (Ala.1986); and Alabama Farm Bureau Mutual Casualty Insurance Company v. Griffin, 493 So. 2d 1379 (Ala.1986).
REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
PER CURIAM.
We remanded this cause for reconsideration of the issue of excessiveness of the award, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). The trial court has now responded with a supplemental judgment setting forth: 1) a summary of the evidence going to the issue of damages; 2) findings that the jury award was well within the range of the testimony and that the verdict was not the product of bias or prejudice; and 3) its reaffirmance of the judgment as originally entered.
By purposeful design, this Court in Hammond used the following broad, general language:
We recognized at the time of Hammond that numerous cases involving the "excessiveness" issue were already "in the pipeline," and that these cases would have to be decided on a case-by-case basis. It was never our intention, however, to automatically remand every case then on appeal in *404 which the "excessiveness" issue was raised. In retrospect, we realize that this case (for compensatory damages only) is one that should not have been remanded for further proceedings within the contemplation of Hammond. This is not to say, however, that the Hammond remand procedure is limited to awards of punitive damages.
While we commend the trial court for its excellent and timely response to our remand order, we now acknowledge that in this case we should not have placed an additional burden upon the trial court on remand. Indeed, the original record on appeal reflected the very evidence later summarized by the trial court in support of its supplemental judgment. Moreover, we have now consciously released two "in the pipeline" cases, without a Hammond remand, where the record on appeal in each case was sufficient for this Court's review of the "excessiveness" issue. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala. 1987); Farmers & Merchants Bank v. Hancock, 506 So. 2d 305 (Ala.1987).
The judgment is due to be affirmed on the authority of State v. Compton, 502 So. 2d 1205 (Ala.1987).
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | April 24, 1987 |
aabc1886-4f66-410b-81b9-385b49047ee5 | Ex Parte Stewart | 518 So. 2d 118 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 118 (1987)
Ex parte Bonnie Kay STEWART.
(Re Bonnie Kay STEWART v. CARTER REALTY CO., INC.).
85-1376.
Supreme Court of Alabama.
May 8, 1987.
*119 Jeffery H. Long and George L. Beck, Montgomery, and Cary Dozier, Troy, for petitioner.
J. Pelham Ferrell of Ferrell, McKoon & Britton, Phenix City, for respondent.
TORBERT, Chief Justice.
The petitioner in this case, Bonnie Kay Stewart, sued the respondent, Carter Realty Co., Inc., for damages based on injuries she received in a fire. Stewart worked as a resident manager of an apartment complex for which Carter Realty served as rental and management agent, and one of the claims she asserted in this suit was for worker's compensation. After reviewing the extensive evidence presented in this case, the trial court entered a judgment in favor of Carter Realty. Stewart appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. See Stewart v. Carter Realty Co., 518 So. 2d 117 (Ala. Civ.App.1986).[1] The case is before us on writ of certiorari.
The only issue presented for our review concerns Stewart's status as an "employee" of Carter Realty. The trial court ruled that she was not such an employee, and that she was therefore ineligible to claim worker's compensation from Carter Realty. The basis of this decision was that the owners of the apartment complex had retained a right of control over Stewart's work, and that she was therefore the employee of the apartment owners, and not the employee of their rental agent, Carter Realty.
In affirming, the Court of Civil Appeals applied the test of American Tennis Courts, Inc. v. Hinton, 378 So. 2d 235 (Ala. Civ.App.1979), cert. denied, 378 So. 2d 239 (Ala.1979), to the facts of this case. We granted certiorari to consider whether American Tennis Courts was properly applied by that court.
American Tennis Courts essentially restates the settled test for determining whether an employer-employee relationship exists for the purposes of the worker's compensation law. This test, borrowed from agency principles as they apply to the relationship of master and servant, provides a method for determining when a party is a servant or employee as opposed to an independent contractor. As articulated in American Tennis Courts, "[t]he test to be used in determining the relationship of [employee to employer] is whether [the employer] had a reserved right of control over the means and agencies by which the work was done or the result produced, not the actual exercise of such control." Id., at 237. If a reserved right of control exists, then a worker is an employee, as opposed to an independent contractor, and the provisions of Alabama's worker's compensation laws apply to the relationship between the worker and his employer.
Had the instant case presented the question of whether Stewart was an "employee" as opposed to an "independent contractor," *120 the test of American Tennis Courts would have resolved the issue. However, no one contends in this case that Stewart was an "independent contractor." Indeed, it appears to be uncontested that Stewart was someone's "employee" within the meaning of the worker's compensation law. The question is: whom did she serve as an employee, Carter Realty or the owners of the apartments? As a legal and logical matter, the "control" test of American Tennis Courts often cannot provide a meaningful answer to such a question.
Inherent in the Court of Civil Appeals' application of the "control" test is the assumption that a worker can have only one master for the purposes of the worker's compensation law. Whatever validity this assumption might have had at common law, in cases involving worker's compensation, such an assumption ignores both the realities of the workplace and the teachings of precedent.[2]
For instance, in the case of general and special employers, we have indicated that both the general and the special employer may be liable for worker's compensation, even though only the special employer actually controlled the details of the employee's work. See Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052 (Ala. 1986) (dictum); Terry v. Read Steel Products, 430 So. 2d 862 (Ala.1983) (dictum). Moreover, in Terry, we expressly noted that the control test need not be dispositive in determining employer-employee status in cases involving general and special employers. See id., at 864. Thus, our precedent recognizes that compensation liability may extend to multiple employers and that the "control" test has limitations in such situations.
Another typical employment relationship which demonstrates the limitations of the control test is that of "joint employment." Professor Larson's comments on this relationship are instructive:
1C A. Larson, Workmen's Compensation Law, § 48.42, at 8-511 (1986). Professor Larson's description of joint employment demonstrates the sometimes indeterminate nature of the "control" test. Where there is evidence of a measure of control over an employee by two or more putative employers, a finding of "control" and liability in just one of them would be obviously erroneous. As a logical matter, "control" cannot properly be used to establish the compensation liability of one employer as opposed *121 to the other in such a situation. Cf. Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052, 1054 (Ala.1986) (even "substantial" evidence of an employment relationship with a party in the position of a general employer cannot, of itself, negate the existence of a co-extensive employment relationship with a party in the position of a special employer).
In short, we reject the exclusive use of the "control" test in this case. The issue of Stewart's status as an employee, as opposed to an independent contractor, was not pertinent to the issue raised in this case. More importantly, the control test can be inconclusive in determining compensation liability as between two or more putative employers, where there is evidence in the record of shared or concurrent control, or evidence of a general-special employer relationship.
In the instant case, the Court of Civil Appeals noted that "[t]here was certainly some testimony that employees or representatives of Carter directed the employee as to certain aspects of her work...." Stewart v. Carter Realty Co., 518 So. 2d at 118. In view of this state of the record, where it appears that both Carter Realty and the owners exercised some measure of control over Stewart, we hold that the Court of Civil Appeals erred in holding that one putative employer was not liable for compensation, on the basis that the other putative employer also exercised "control." A finding of control in one putative employer does not absolve the other putative employer of compensation liability, where there is evidence of joint or concurrent control.
Consequently, in cases such as this, the finder of fact should concentrate, not solely on control, but also on additional indicia of the employment relationship in determining an employee's status.
In the instant case, a directed inquiry into the actual contract for hire which bound the employee to either Carter Realty or the owners, or to both, would be particularly in order. Professor Larson has pointed out the overwhelming importance of the employment contract in worker's compensation cases:
1C A. Larson, Workmen's Compensation Law, § 47.10, at 8-287 through 8-291 (1986) (emphasis added). Accordingly, a proper inquiry in this case would be to determine with some clarity the actual parties to this employment contract. If it appears that Carter Realty was a party to the contract and that Carter Realty also exercised control, then that company is at least a joint employer for the purposes of the worker's compensation law. Similarly, in spite of the appearance of some possible "control" in the owners, if no contractual relationship existed between the owners and Stewart, then Stewart was not their employee, and Carter Realty was the petitioner's sole employer. In this regard, the finder of fact should restrict its inquiry to evidence of contractual intent occurring during the term of the contract in question.[3]
Finally, we must also reject the alternative reasoning advanced by the Court *122 of Civil Appeals. The "fact"[4] that the owners, rather than Carter Realty, "paid" Stewart is not determinative on this issue as a matter of statutory construction, as numerous cases, including American Tennis Courts, 378 So. 2d at 237, make clear. See also Pettaway v. Mobile Paint Mfg. Co., 467 So. 2d 228 (Ala.1985); Craig v. Decatur Petroleum Haulers, Inc., 340 So. 2d 1127 (Ala.Civ.App.1976), cert. denied, 340 So. 2d 1130 (Ala.1977). Similarly, we can find no support in Terry, supra, or Pettaway, supra (which extensively relies on Terry), for the proposition that an "agent" cannot also be an employer for the purposes of the compensation law, as the previous discussion of Terry illustrates.
In view of the foregoing reasoning, we remand this case to the Court of Civil Appeals for further consideration. In this regard, we are advised pursuant to Rule 39(k), Ala.R.App.P., that the trial court, in addition to holding that Carter Realty was not Stewart's employer, also held that the statute of limitations barred Stewart's claim. Because this issue was not discussed in the opinion below, it is inappropriate for us to consider it here on certiorari. See Keith v. City of Birmingham, 254 Ala. 487, 49 So. 2d 227 (1950). Due to the potentially dispositive nature of this issue, however, the Court of Civil Appeals, upon remand of this case, should first address the arguments of the parties on the matter of the statute of limitations. If no error was committed by the trial court in this regard, then an affirmance of the trial court's judgment may be in order on this ground.
However, should the statute of limitations not constitute a bar to this action, the Court of Civil Appeals should remand the case to the trial court for additional findings of fact on the issue of Stewart's status as an employee of Carter Realty. Any further factual determinations by the trial court should be made in accordance with the legal principles outlined in this opinion.
The judgment of the Court of Civil Appeals is reversed, and the cause is remanded for further consideration consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] For a more complete summary of the somewhat troubled procedural history of this case, see the opinion of the Court of Civil Appeals.
[2] The law of master and servant, as it applies to the concept of respondeat superior, often requires a stricter identification of the servant's master for the purpose of imposing vicarious liability. See Williams v. Tennessee River Pulp & Paper Co., 442 So. 2d 20 (Ala.1983). In such cases, therefore, it is possible that a servant with two or more possible "masters" would nevertheless be considered the servant of just one for the purpose of imputing liability to that master. We have, however, expressly rejected any one-to-one correspondence between compensation cases and the common law in the application of the law of master and servant, recognizing that compensation cases require a broader conception of the employer-employee relationship. See id., at 22-23.
[3] Much reliance in the Court of Civil Appeals' opinion is placed on the fact that the "owners" fired Stewart, and that the right to fire clearly demonstrates control of the employee. We have examined the record on this matter, as we may do on certiorari when the facts are not in dispute and we wish to better understand the facts treated in the opinion of an appellate court. See, e.g., Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 296 So. 2d 900 (1974).
As the opinion of the Court of Civil Appeals notes, the apartments were eventually sold to new owners. The record reveals, however, that this sale took place prior to Stewart's termination, and that at the time of her termination, neither Carter Realty nor the owners had any connection to the apartments. Instead, after the sale of the apartments, the new owners replaced Carter Realty with another rental agency and also replaced Stewart.
Such a firing could in no way be evidence of contractual intent as to the contract in issue, because it is simply too remote an occurrence to bear on the contract which controls in this case.
[4] Although we do not reach this evidentiary issue, we are compelled to note that the "proof" of the owners' "payment" is at least inconclusive, in view of the fact that it appears that Stewart was paid, at least in part, by checks drawn on an escrow account that Carter Realty established in its own name to retain the rental profits for the apartments in question. In view of the beneficent purposes of the worker's compensation law, we are hesitant to approve overly formalistic distinctions as to who paid whom in these cases, where there is any evidence in support of a payment relationship. | May 8, 1987 |
51cdafc6-f21a-4be1-8538-8d543f739e0f | Frison v. Delchamps Store No. 11 | 507 So. 2d 478 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 478 (1987)
Wanda Ann FRISON
v.
DELCHAMPS STORE NO. 11, et al.
85-162.
Supreme Court of Alabama.
April 24, 1987.
*479 James D. Wilson, Mobile, for appellant.
Davis Carr, Mobile, for appellees.
ALMON, Justice.
This is an appeal from a judgment on a jury verdict in favor of defendants in a suit based on false arrest and other causes of action not material here. Plaintiff, Wanda Ann Frison, was detained by Mr. Peek, the assistant manager of Delchamps Store No. 11, after being accused of shoplifting. She argues, in effect, that the court erred in instructing the jury that it was to determine whether Peek had probable cause to arrest her.
Code 1975, § 15-10-14(a), provides:
As we make out the argument, Frison contends that Peek did not have probable cause to detain her because the person who reported the shoplifting to him did not actually see her shoplifting.
Witness Jan Smith observed a person shoplifting shortly prior to the detention of Frison:
Smith testified that she looked so stunned that her husband asked her what was the matter. She testified that she answered, "[S]he's standing there taking pantyhose before God and everybody," in a loud enough voice that the shoplifter could have heard her.
When Smith and her husband reached the cash register line, Mr. Smith went to the service desk and told the assistant manager "what we saw." Thus, says Frison, the report of shoplifting was made by one who lacked personal knowledge of the incident. Jan Smith's testimony continues, however:
Frison cites Gulf States Paper Corp. v. Hawkins, 444 So. 2d 381 (Ala. 1983), and Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So. 2d 514 (1969), in support of her argument that the trial court should not have submitted the question of probable cause to the jury. Delchamps asserts that those cases establish only that when the facts are undisputed the question of probable cause is a question of law for the court, and cites Bank of Cottonwood v. Hood, 227 Ala. 237, 149 So. 676 (1933), as holding that there is a question for the jury if there is a dispute as to whether defendant had probable cause.
We note that the pertinent case cited in Bank of Cottonwood held that, in a malicious prosecution case, when the facts are controverted the jury is to determine what facts exist and the court is to determine whether those facts constitute probable cause. Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651 (1925). The principal distinction between the two cases cited by Frison and the one cited by Delchamps, however, is that Gulf States and Birwood Paper were malicious prosecution cases, and Bank of Cottonwood was a false imprisonment case. In Bank of Cottonwood, the Court held that "the principle that the question of probable cause is a question of law for the court ... is limited to suits for malicious prosecution, and is not applicable to actions for false imprisonment." 227 Ala. at 241, 149 So. at 679 (citations omitted). See Alabama Digest, False Imprisonment, Key No. 39.
Because probable cause is a jury question in false arrest cases, and because there was evidence which would support a finding of probable cause, the trial court did not err in submitting the question of probable cause to the jury. The judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | April 24, 1987 |
b1e7265e-9af7-483e-9905-bcb6e2292798 | City of Birmingham v. Smith | 507 So. 2d 1312 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 1312 (1987)
CITY OF BIRMINGHAM, a municipal corporation, and George S. Reynolds, probate judge
v.
Ben H. SMITH, Jr., et al.
85-154.
Supreme Court of Alabama.
May 8, 1987.
*1314 James L. North and Edgar C. Gentle III, and J. Michael Rediker and David R. Donaldson, of Ritchie & Rediker, Birmingham, for appellants.
William F. Murray, Jr., James J. Robinson, and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, and John T. Ennis, Sr. of Lloyd & Ennis, Birmingham, for appellees Ben H. Smith, Jr., et al.
Carl E. Johnson of Bishop, Colvin & Johnson, for intervenor-appellee City of Trussville.
A.J. Coleman, Decatur, for amicus curiae City of Decatur.
PER CURIAM.
This is an appeal from a judgment declaring unconstitutional §§ 11-42-40 through -88, Code 1975, under which the City of Birmingham attempted to annex territory, and voiding the results of the election held pursuant to those Code sections. The City of Irondale and seven individuals filed this action against the City of Birmingham and the Judge of Probate of Jefferson County. The City of Trussville intervened as a plaintiff. In addition to the constitutionality of the Code sections, the appeal presents several issues relating to the drawing of the boundaries of the annexed territory and the granting of a tax exemption to the residents.
There are three annexation articles under the "alteration of corporate limits" chapter of the title in the 1975 Code on counties and municipal corporations. Article 1, made up of §§ 11-42-1 through -4, applies to municipalities generally and provides for annexation by election. Section 11-42-2(10) states that no territory shall be included within the annexation boundary "unless there are at least two qualified electors residing ... on each quarter of each quarter section or part thereof ... who assent thereto in writing by signing said petition, together with the consent of the persons ... owning at least 60 percent of the acreage." The reference to a petition is unclear, but this provision at least appears to limit annexation under Article 1 to occupied land with pre-election consent by the specified number of residents and landowners. Much of the land in the annexation at issue is unoccupied.
Another limitation on the applicability of Article 1 is that the territory to be annexed "must be contiguous to the boundary of and form a homogeneous part of the city or town," § 11-42-2(10). Article 3 territory, by contrast, need only "be contiguous to the boundary of the city at some point," § 11-42-42. This Court has held that this language in Article 3 allows annexation along a corridor, City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975).
Article 2 consists of §§ 11-42-21 through -23 and provides for annexation by petition of all the landowners upon approval of the petition by the city council. Beginning prior to and continuing contemporaneously with the election proceedings, Birmingham obtained petitions for annexation of much of the land in question in this case, together with some adjoining lands. Assuming the city council has accepted or may at any time accept these petitions as provided in Article 2, the validity of the annexation by petition is not in dispute in this appeal. Birmingham does not have petitions for annexation of certain significant parcels included within the election territory, however, so the case is not moot.
*1315 Article 3 (§§ 11-42-40 through -88) was declared unconstitutional in its entirety by the trial court. It allows for annexation by election by cities of 25,000 inhabitants or more. The portion deemed unconstitutional is found in § 11-42-73:
The City of Birmingham concedes that this provision (hereinafter "the voting limitation") is unconstitutional under Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966), but argues that the provision is severable and that, at least since Harper was decided, it has not attempted to enforce the provision in territory it has annexed under Article 3 and would never attempt to do so. The trial court, however, held that the voting limitation is not severable.
The Article 3 annexation method has been the law of this state for 80 years and has been used for annexations in many instances, and there is no indication that the voting limitation has ever been applied. See City of Birmingham v. Mead Corp., 372 So. 2d 825 (Ala.1979); Washington v. City of Birmingham, 364 So. 2d 1151 (Ala. 1978); and City of Dothan v. Dale County Comm'n, supra. Considering the limited applicability of Articles 1 and 2, an affirmance in this case would result in there being many instances of cities having no effective procedure for annexation.
Birmingham first argues that the plaintiffs do not have standing to challenge the constitutionality of the voting limitation because there has been no attempt to enforce it against them. The major contention of the plaintiffs, however, is that Article 3 as a whole is unconstitutional because the voting limitation is so interrelated with the other provisions of Article 3 that it is inseverable, i.e., that the entire article can neither stand nor be enforced consistently with the legislative intent without the voting limitation being enforced. Four of the individual plaintiffs live within the annexed area, and plans by the Cities of Irondale and Trussville to annex to each other's borders are substantially affected by the annexation. Given the argument of inseverability, Birmingham's use of Article 3 to effect the annexation gives the plaintiffs standing to bring this suit.
If a portion of a legislative enactment is determined to be unconstitutional but the remainder is found to be enforceable without it, a court may strike the offending portion and leave the remainder intact and in force. Courts will strive to uphold acts of the legislature. The inclusion of a severability clause is a clear statement of legislative intent to that effect, but the absence of such a clause does not necessarily indicate the lack of such an intent or require a holding of inseverability. See, e.g., Hamilton v. Autauga County, 289 Ala. 419, 268 So. 2d 30 (1972); Wilkins v. Woolf, 281 Ala. 693, 208 So. 2d 74 (1968); Singer, Sutherland Statutory Construction, § 44.09 (4th ed. 1986).
Article 3 does not include a severability clause. Article 3 is the current codification of Act 677, 1907 Ala.Acts. Contrary to having a severability clause, Act 677 included the "contract clause" now found at § 11-42-88, which reads:
A fair reading of the whole of this section indicates that it was intended to prevent a city from usurping "other or different rights and powers" and to give residents the right to enforce the rights granted to them in Article 3. Under this reading, § -88 did not necessarily preclude a city from extending services or the right to vote. However, because the language in § -88 refers to the provisions of the article as being a contract between the city and persons owning property in the tax-exempt territory, we must address the question of whether § -88 prevents the voting limitation from being severable from the remainder of Article 3.
Although the 1907 legislature may have intended the voting limitation to be included among the rights given up in exchange for the tax exemption, that legislature could not have expected that such a condition on voting would be deemed unconstitutional. Indeed, the Alabama Constitution of 1901, only recently enacted at the time, included a poll tax as a requirement for voting. Furthermore, the United States Supreme Court upheld poll tax requirements for votingsee Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937), and Butler v. Thompson, 341 U.S. 937, 71 S. Ct. 1002, 95 L. Ed. 1365 (1951)until the reversal of that principle in Harper. Thus, the legislature in 1907 and even in 1940, when the last previous Code was adopted, could have considered the right to vote as an unremarkable item in a list of rights which new city residents did not obtain until their tax exemption expired.
The 1977 legislature readopted the provisions of Act 677 as Article 3 of title 11, chapter 42, of the 1975 Code. Act 20, 1977 Ala.Acts. By making these provisions part of the 1975 Code, the 1977 legislature made them subject to the following provision of § 1-1-16:
A legislature is not to be presumed to have done a futile thing. To reenact Act 677 in 1977 with the indisputably unconstitutional voting limitation as a necessary, inseparable portion would have been futile. A broad look at Article 3 shows only a procedure for annexation elections with provisions for tax exemptions and reductions of city services. Buried in one section, which in the 1940 Code (t. 37, § 169) bore the heading "Wards created; aldermen and councilmen provided for," and which bears a similar heading in the 1975 Code, is a provision disfranchising residents of tax-exempt annexed areas and prohibiting them from holding city office. This textually minor provision should not be considered a substantively major one unless compelling considerations make it so.
Therefore, even if the contract provision in § -88 makes the voting limitation a part of a unified scheme, the above considerations compel us to consider whether the voting limitation is such a necessary part of the statutory scheme that its exclusion makes the whole unintelligible or unenforceable or impossible to apply.
To consider the place of the voting limitation in the statute as a whole, it is necessary to have a general idea of the plan of the statute. The following is a rough classification of the individual sections of Article 3, omitting the title and chapter portions of the section numbers:
The grant of the exemption is balanced by the provision of reduced city services, which takes up much more of the statute and is commensurably more prominent in the scheme than the voting limitation, which is only a small part of the seventh group of sections. That group, providing for apportionment and elections, is fully understandable and capable of implementation without the voting limitation.
Section 76 generally provides:
This section alone provides a reasonable balance to the tax exemption and gives substance to the legislative intent in § -88 that the provisions of the article shall be a contract between the city and the residents and property owners of exempt territory. Moreover, the article goes even further in counterbalancing the detriment to the city of the tax exemption by limiting construction of improvements, § -77, with exceptions for sanitary sewers, § -78, and sidewalks and curbing, § -79. A street tax is allowed by § -80, with the proceeds to go to streets in the exempt territory. Dance halls, poolrooms, and businesses "of like kind or character" may not be licensed, § -81,[1] and license or privilege taxes may be imposed only under the limitations in §§ -82 through -84. The city may fix a per capita tuition for students in city schools to offset the portion of the school budget which would normally be supplied by city taxes, § -85.
All of these provisions constitute an easily comprehensible plan of giving residents an incentive to vote in favor of annexation by deferring the imposition of city taxes for some years, while decreasing the burden on the city of providing services. In addition to these provisions for limited economic participation in city services by residents of newly annexed territory, the statutory scheme as enacted includes the further provision for limited political participation in city government. This unconstitutional political limitation is not central to the scheme, however, and we hold that it is severable and that the remainder of Article 3 may be implemented with the voting limitation excised.
The trial court found that the tax exemption was a material inducement to the residents to vote in favor of annexation, and that the voting limitation was inextricably linked to the tax exemption. Aside from our holding that the voting limitation is severable, we point out that the trial court's finding of a "material inducement" and an "inextricably link" results from a misapplication of the test applied in City of Mobile v. Salter, 287 Ala. 660, 255 So. 2d 5 (1971); A. Bertolla & Sons v. State, 247 Ala. 269, 24 So. 2d 23 (1945); and Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 (1934). The test is not whether the voters would vote in favor of annexation without the tax exemption, but whether the legislature would have passed the statute without the voting limitation. Consonant with our holding on severability, we hold that the likelihood that the legislature would have passed the statute without the voting limitation is great enough that the statute as a whole should be upheld.
The trial court also referred to § -86, the provision by which landowners *1318 may waive the tax exemption and acquire full rights and privileges as city residents, as being unconstitutional. This provision makes no explicit reference to voting and office-holding, and it is unobjectionable as a means by which the landowners may choose to acquire full city services. Therefore, with the voting limitation severed, nothing in § -86 is unconstitutional.
The trial court further discounted Birmingham's assertions that it would not enforce the voting limitation, "because, among other reasons, `The constitutional validity of a statute is to be tested, not by what has been done under it, but by what, by its provisions, rightfully may be done.' Town of Samson v. Perry, 17 F.2d 1, 2 (5th Cir.1927)." Birmingham's disclaimer of the voting limitation was not offered to show the constitutionality of that provision, however, but to show its severability and the constitutionality of Article 3 without the voting limitation. In this respect the disclaimer is relevant and pertinent. Indeed, under our holding in this case, all cities in this state are prohibited from attempting to enforce the voting limitation which has now been stricken from Article 3.
Plaintiffs argued, and the trial court accepted, four other challenges to the annexation at issue based on its facts: (1) that the drawing of the boundaries of the territory constituted gerrymandering so as to violate plaintiffs' right to equal protection of the laws; (2) that the drawing of the boundaries violated the rule of reasonableness; (3) that the tax exemption granted by Birmingham exceeded that authorized by Article 3; and (4) that the legal description of the territory to be annexed was inadequate or inaccurate. The trial court also awarded attorney fees to plaintiffs pursuant to 42 U.S.C. § 1988.
Regarding the gerrymandering issue, we think it appropriate to set forth some of the facts concerning this case. The City of Birmingham, the largest city in the state, is surrounded by more than 23 incorporated municipalities within Jefferson County. Many of these are adjacent to the Birmingham city limits and are contiguous to each other, leaving only a few gaps through which Birmingham can expand. This annexation is an attempt to expand through one such gap. Irondale adjoins Birmingham on the east, and the City of Leeds lies about two miles east of Irondale. The general route of this annexation is from the Birmingham border north of Irondale to the east and then south between Irondale and Leeds. The territory continues a good distance to the south and then turns back west.
Birmingham recently annexed property to the north of Irondale, including the site of the new horse racing track. See Phalen v. Birmingham Racing Comm'n, 481 So. 2d 1108 (Ala.1985). The territory at issue in this case adjoins Birmingham at the southern and eastern borders of that annexation. The portion to the south lies between the horse track annexation boundary and the northern city limits of Irondale; this area includes the communities of Brownlee Hills and Liberty Highlands. To the east, the territory proceeds to the western edge of Interstate Highway I-459. At the northernmost reach of the territory it turns eastward to cross I-459, proceeds above[2] the northern border of the unincorporated community of Alton, and turns southward. The result is that Alton is surrounded on the west, north, and east by Birmingham, with the opening to the south consisting primarily, if not entirely, of the I-459 right-of-way corridor.[3]
*1319 The plaintiffs argue, and the trial court held, that Birmingham violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by drawing the annexation boundaries to include Brownlee Hills and Liberty Highlands but to exclude Alton and other communities adjacent to the territory as it proceeded southward. This argument relies largely on City of Birmingham v. Community Fire District, 336 So. 2d 502 (Ala. 1976). This Court in Community Fire District, citing Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969), stated:
336 So. 2d at 505. (Emphasis in Community Fire District.)
Community Fire District presented a different situation from the instant case, however, as can be seen from the language setting forth its holding:
Id., at 505-06 (emphasis in original). In the instant case, Birmingham did not surround small pockets of citizens because it knew they would vote against the election; it bypassed whole communities and left them completely outside the city limits either because it had had no indication that they wished to be brought into the city or, in the case of Alton, because the residents had expressed a desire to be brought into the City of Irondale.
Because City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985), was overruled in City of Fultondale v. City of Birmingham, 507 So. 2d 489 (Ala.1987) (rejecting the public-right-of-way "long lasso" method, but reaffirming "corridor" annexation), it is no longer true that Alton can use the I-459 corridor to be annexed into Irondale. That fact does not make Birmingham's encirclement of Alton a violation of the Alton residents' equal protection rights by denying them the right to vote in the annexation election. For one thing, Alton was not made an island or enclave under the law as it existed when the election was declared and held. For another thing, Alton is a sizeable, homogeneous community which has been left as such, whereas the citizens whose right to vote was denied in Community Fire District were residents of parcels, in some cases smaller than a city block, which were completely surrounded in a checkerboard pattern of excluding potential anti-annexation voters.
It is not necessary for Birmingham to give the right to vote to persons outside its city limits. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978). Birmingham has an articulated "open door" policy by which it admits those communities which express an interest in coming into the city but normally does not bring in residential communities if they do not request to be brought in. It followed that policy in this case. The drawing of the boundaries of the annexation territory did not violate the constitutional rights of those who were left outside; indeed, they wanted to be outside, as is apparent from the fact that their whole argument is based on their right to vote that preference.
Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960), is distinguishable if only in that it involved the deannexation of portions of the City of Tuskegee and thereby the disfranchisement of residents of certain portions of the city for no reason other than the fact that the population of those portions was primarily black. As in other cases cited by the trial court and the plaintiffs, the deprivation of the right to vote in Gomillion *1320 concerned people within the political subdivision. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Evans v. Cornman, 398 U.S. 419, 90 S. Ct. 1752, 26 L. Ed. 2d 370 (1970).
A further argument made by the plaintiffs but not relied on by the trial court is that the residents of the southern portion of the annexed territory were deprived of an effective vote because their sparsely settled residential areas were coupled with the distant and more densely populated areas of Liberty Highlands and Brownlee Hills, as to which Birmingham knew that a majority of the residents wished to be annexed. Plaintiffs cite the proposition of Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d 506 (1964), that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." See, also, Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272, 73 L. Ed. 2d 1012 (1982); Busbee v. Smith, 549 F. Supp. 494 (D.D.C.1982), affirmed, 459 U.S. 1166, 103 S. Ct. 809, 74 L. Ed. 2d 1010 (1983).
Resolution of this issue requires setting forth further facts. After the annexation territory turns south on the east side of Alton, it incorporates some sizeable tracts, including most of two government survey sections, whose owners had petitioned to come into Birmingham. These tracts lie between Irondale and Leeds on the north side of U.S. Highway 78 and Interstate Highway I-20. The territory crosses Highway 78 and I-20 in a narrow strip and then follows the Cahaba River, incorporating a path approximately 1000 to 2000 feet wide, southward through four different sections, until the river turns west and north. Birmingham had petitions from some of the landowners in this area.
After the river turns west, the annexation territory follows a corridor the width of a quarter-quarter section and the length of two sections until it reaches the Lake Purdy reservoir, which is owned by the Birmingham Water Works Board. Birmingham had petitions from the Water Works Board for this property to come into the city. The annexation of this area, together with the Cahaba River area described above, was a principal purpose of this entire annexation effort. The river and the lake are important elements of Birmingham's water supply, and the lake has potential for recreational development and thus for both city recreational use and additional tax base for the city.
Considerable portions of the Lake Purdy area included in the annexation territory were covered by petitions, but some other portions were not. The annexation territory proceeded to the west, crossing some areas where Birmingham again had petitions from property owners, until it reached the intersection of I-459 and U.S. Highway 280. Annexation of the major commercial and office building development at this intersection was another prime purpose of this annexation effort.
Prior to calling the annexation election under the provisions of Article 3 of title 11, chapter 42, Birmingham was attempting to annex the properties in question by the petition method of Article 2. At the same time, Irondale was conducting a petition drive in Alton, and there is evidence that Irondale and Leeds were planning to annex to each other's borders so as to block Birmingham's expansion to the south. Upon learning this, Birmingham hastily called the election in question, largely following the property lines of petitions it had in hand. It had petitions from some, but not all, of the property owners in Brownlee Hills and Liberty Highlands, and it did not have petitions sufficient to establish contiguity to Lake Purdy, especially in the Cahaba River area (though it later obtained some petitions there) and the corridor immediately to the south.
North of Highway 78 and south of Alton is Goat Mountain Road. Plaintiffs cite figures from the probate court record of the annexation election indicating that the vote *1321 north of Goat Mountain Road was 118 in favor of annexation and 14 against, while south of Goat Mountain Road the vote was 11 in favor and 44 against. It is these figures which plaintiffs, some of whom apparently live in the annexation territory south of Goat Mountain Road, cite in support of their argument that the votes of those in the southern portion of the territory were diluted by the votes of those in the northern portion.
The simple answer to this argument is that the cases on which plaintiffs rely involve the election of representatives to legislative bodies from distinctly apportioned districts. The Court in Reynolds v. Sims, supra, held that
Id., 377 U.S. at 568, 84 S. Ct. 1362.
Because this case does not involve the right to participate in representative government, which is "preservative of all rights," Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220 (1886), we question whether it requires as strict a scrutiny as other voting rights cases or whether the principle of dilution of votes applies. Even assuming the affirmative in both cases, however, we find that there has been no violation of the Equal Protection Clause here.
In calling an annexation election, the city does not divide the territory into districts. Article 3 contemplates annexation of industrial and mining properties as well as residential properties, § 11-42-59, and that "Land owned by any number of separate and distinct owners may be embraced in the same resolution" terminating the tax exemption, § 11-42-62. To hold in plaintiffs' favor on this issue would require a city to annex in incremental steps, annexing only small homogeneous communities or areas at each step. As the law stands, the whole territory is either annexed or not depending on the vote over the whole territory. Certainly if a city has legitimate objectives in including various parcels in annexation territories it does not unconstitutionally dilute the votes of the residents of the less populous areas so long as it draws the boundaries reasonably and not arbitrarily.
The foregoing statement shows that the vote dilution issue, if it provides a real issue at all, is little different from the reasonableness issue that is the other prong of the Community Fire District case, cited supra. Considering the facts set forth in previous sections of this opinion, as well as other evidence of record, we hold that the annexation in question did not violate the rule of reasonableness. City boundaries and territories annexed thereto do not have to be regular in shape. City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975). Indeed, as explained at the beginning of this opinion, the corridor method of annexation is one of the principal differences between Article 1 and Article 3, both of which were enacted by the 1907 legislature. Birmingham's decisions to include and exclude residential communities were reasonably based on consideration of the wishes of the residents. Each of the areas annexed was included in furtherance of a legitimate municipal objective: admission of community residents who desired city services, protection of sources of city water supply, and protection of the city's tax base by expansion to outlying areas which benefit from the metropolitan community centered around Birmingham but which have eroded that tax base by the movement of commerce into and beyond the ring of suburban incorporated municipalities surrounding the central city.
The trial court also voided the annexation election on the ground that Birmingham exceeded the provisions of Article 3 when it granted a 15-year tax exemption to the residents of the annexed territory. Section 11-42-57 reads:
The trial court, without referring to the above section, quoted § 11-42-58, omitting the first four words:
Section 11-42-60 provides that the city "shall pass a resolution" declaring territory subject to taxation "[w]henever and as often as the facts exist which authorize a city to collect taxes." Section 11-42-63 allows a property owner to file a contest
The "from time to time" language in § 11-42-58 and the provisions of § 11-42-60 require the city to make the determination and declare, at any time after five years but before the territory-wide exemption of 10 to 15 years expires, that parcels fitting the description in § 11-42-58 are subject to taxation. Section 11-42-63 and those following give the right to contest such declarations. Therefore, the expiration of the tax exemption after five years is not automatic, and the failure to set these provisions forth in the resolution does not void the annexation. We do not read the final clause of § 11-42-57 as modifying the clause stating that the "period of exemption shall be fixed in the resolution," but as modifying the clause providing that all territory shall be exempt from city taxes for "not less than 10 nor more than 15 years."
Ramer v. City of Hoover, 437 So. 2d 455 (Ala.1983), is distinguishable in that it involved a contract whereby the city proposed to bind itself to certain limitations on taxation for 15 years. Even though that provision was held to be void, it was held severable and its inclusion not sufficient to void the election. Similarly, the only residents of the annexed territory who lived on property fitting the description in § 11-42-58 at the time of the election were those in Liberty Highlands and Brownlee Hills, and they approached Birmingham city officials requesting annexation before any representations about tax exemptions were made. Therefore, no reliance on a mistaken statement that the tax exemption would last 15 years affected the annexation election, so no such statements provide cause to void the election.
Finally, the trial court held that variances between the descriptions of the annexed territory and the map of the territory on file at the probate court were cause to void the election. Section 11-42-42 requires the mayor to certify to the probate judge a copy of the resolution calling the annexation election, together with a plat or map showing the boundary of the territory proposed to be annexed. Section 11-42-44 requires the probate judge to give notice of the election and provides that
This Court held in City of Birmingham v. Mead Corp., 372 So. 2d 825 (Ala.1979), that the standard to be applied is that substantial accuracy, not perfection, is all that is required in an annexation description, and that an ambiguity in the property description will not void the election if a surveyor can locate the property on the ground. Although two of the plaintiffs testified that they did not know whether they lived in the annexation territory or not, it appears from their testimony that they did not even try to find out. The discrepancies between the map and the notices were insubstantial and do not serve to void the election.
Because we reverse the trial court's holding in favor of the plaintiffs, the award of attorney fees cannot stand.
For the foregoing reasons, the judgment is reversed and the cause remanded. The trial court is directed to enter a judgment declaring the annexation valid.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and HOUSTON, J., concur in the result.
[1] Perhaps because such establishments tend to require greater police protection.
[2] One of the maps included as exhibits in this case makes it appear that the annexed territory crosses the northern portion of Alton rather than passing entirely to the north of Alton. The parties discuss the territory as avoiding Alton altogether, so we treat the facts in that manner.
[3] Plaintiffs claim that Alton was encircled because Birmingham annexed to the right-of-way on the west and again on the east. The map and all other evidence shows the highway and its right-of-way as not being annexed. Just because a city can annex across a right-of-way, City of Leeds v. Town of Moody, 294 Ala. 496, 319 So. 2d 242 (1975), does not mean that an annexation to a right-of-way necessarily includes the right-of-way. | May 8, 1987 |
4392c620-43fb-4e11-95b8-db1a1b7bc804 | Higgins v. Wal-Mart Stores, Inc. | 512 So. 2d 766 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 766 (1987)
Leonard A. HIGGINS, Jr.
v.
WAL-MART STORES, INC., and H. David Clark.
86-31.
Supreme Court of Alabama.
July 24, 1987.
*767 Joseph L. Dean, Jr., of Herndon & Dean, Opelika, for appellant.
H.E. Nix, Jr., and Alex L. Holtsford, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees.
BEATTY, Justice.
Appeal by Leonard A. Higgins, plaintiff, from a summary judgment for the defendants, Wal-Mart Stores, Inc., and H. David Clark, and from the denial of consent to file a second amended complaint, in plaintiff's action based upon allegations of malicious prosecution, abuse of process, and false arrest. We reverse and remand.
The trial court's order on summary judgment disclosed that court's consideration of the following material:
Plaintiff's complaint stated causes of action against Wal-Mart and Clark in malicious prosecution, abuse of process, and false arrest.
Summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Kutack v. Winn-Dixie Louisiana, Inc., 411 So. 2d 137 (Ala.1982). Thus, the trial court's task was to test the elements of each cause of action against the material before it to determine whether any genuine issues of material fact existed.
*768 The elements of malicious prosecution are: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as the result of the action or prosecution complained of. Evans v. Alabama Professional Health Consultants, Inc., 474 So. 2d 86 (Ala.1985), citing Turner v. J. Blach & Sons, 242 Ala. 127, 129, 5 So. 2d 93, 94 (1941).
The elements of an action for abuse of process are: (1) malice, (2) the existence of an ulterior purpose, (3) an act in the use of process not proper in the regular prosecution of the proceedings, Tapscott v. Fowler, 437 So. 2d 116 (Ala.1983), and (4) want of probable cause. Tarver v. Household Finance Corp., 291 Ala. 25, 26, 277 So. 2d 330, 333-34 (1973).
Similarly, in a cause of action for false arrest, a plaintiff must prove that the defendant caused him to be arrested without probable cause. As pointed out in Brinegar v. United States, 338 U.S. 160 at 175, 69 S. Ct. 1302 at 1310, 93 L. Ed. 1879 (1949):
Thus, for a detention to be valid, the officer must reasonably, and in good faith, suspect the individual detained of being involved in some form of criminality. Fennell v. State, 51 Ala.App. 23, 282 So. 2d 373, cert. denied, 291 Ala. 778, 282 So. 2d 379 (1973). Reasonable ground for belief of guilt, or probable cause, "exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Fennell, 51 Ala.App. at 29, 282 So. 2d at 378.
As applied in malicious prosecution actions, probable cause is "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty." Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So. 2d 514, 521 (1969). And, as stated in S.S. Kresge Co. v. Ruby, 348 So. 2d 484, 488 (Ala.1977):
Notwithstanding these rubrical principles, the existence or non-existence of proximate cause is a jury question "if the facts or any necessary particular fact on the issue of probable cause is in dispute." Key v. Dozier, 252 Ala. 631, 634, 42 So. 2d 254 (1949), and cases cited therein. See also National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133 (Ala.1983).
The affidavit of H. David Clark was executed on February 1, 1986, after the plaintiff's action was filed. The material assertions of that affidavit follow:
Clark's extensive deposition established that he observed Leonard Higgins and Dexter Wilson in the pet department of the Wal-Mart store as he was making his rounds a few minutes before the incident in question. When Clark next noticed them, Wilson was standing at the electronics department looking at a camera with a store employee. Higgins was standing in an aisle in the same department looking at a portable telephone. According to Clark, Higgins placed the telephone in a merchandise cart that also contained a large bag of Purina Dog Chow and a mop. A few seconds intervened before Clark observed the two again when he checked the toy aisle near the register. Greg McCoy had replaced the electronics department employee and was talking to Wilson about the camera. As Clark, in plain clothes, walked by them, Higgins pushed the cart forward as McCoy was ringing up an item on the register. Clark did not look at the register or at the individuals when McCoy actually rang up the transaction and handed over the sales receipt. He walked down the aisle, and, he said, about 15 or 20 seconds later, he was standing at the cosmetics counter, about 10 to 15 feet from and at an angle to the register, when Wilson and Higgins walked by him. He continued:
Clark said he then observed both Higgins and Wilson, directly behind the buggy and side by side, walking toward the front of the store, looking at the registers and looking behind them:
Ms. Cindy Apgar, an employee at the service desk, left the store as requested, talked to Wilson and Higgins, and, as Clark stated, returned to the store appearing distressed. Higgins accompanied her to the door, where Clark met him, identified himself, and stated that he needed to speak to him about the situation:
Clark proceeded to fill out some company reports, for which he obtained the names and addresses of the three persons detained prior to the time the police arrived. He went to the police department, related the event to a detective, and remained there throughout the police investigation, which included police interrogation of each person. Clark sat in the room while each person was questioned. According to Clark, although Higgins denied any involvement, Wilson gave two written statements:
Clark was also present when McCoy was giving his statement to the police:
"A. At first Greg denied any knowledge of what had happened. Then, he gave some conflicting statements which Detective Quenelle was able to go in and confront the other individuals on and then confront Greg McCoy on hison what he had been told by the others. And Greg McCoy finally broke down and gave his confession as to his involvement on it and implicated hishishis roommate *772 at the time, which was Dexter Wilson. And he said he had no knowledge of Leonard Higgins even beingeven coming down to the store with
The McCoy statement, in which McCoy implicated Wilson, was as follows:
Although Clark testified that Wilson implicated Higgins, Wilson denied making any statement on the night the interrogations occurred. No such statement of Wilson was introduced at Higgins's subsequent trial and none is contained in the record.
The following day, March 5, 1984, Clark signed an arrest warrant against Higgins which charged him with theft of property in the second degree.
On April 5, 1984, Wilson and McCoy pleaded guilty to theft of property in the second degree. Subsequently, the Lee County grand jury, after Clark had testified before it that Wilson had implicated Higgins in the "under-ringing" scheme, which implication Wilson denied, indicted Higgins on a charge of theft of property in the second degree. Higgins pleaded not guilty, and, at his trial by jury on that indictment, he was found not guilty, and this action for malicious prosecution, abuse of process, and false arrest ensued.
Perusal of Clark's statements made in connection with the summary judgment motion discloses that the following facts were material to the defendants on the issue of probable cause:
Clark was suspicious of the motives and conduct of Wilson and Higgins because of what he considered to be the small amount of time it took for them to check out at the cash register;
Clark's suspicions were further aroused because of the movements of Wilson and Higgins, i.e., hesitating, looking at the registers, looking from side to side, and looking behind them;
Clark's suspicions were enhanced because Wilson did not return to the store with Higgins, but, in Clark's opinion, pretended to use a telephone; and
Clark's statement that Higgins told Clark that he did not know Greg McCoy.
Each of these postulations, however, is directly contested. Higgins's affidavit submitted in opposition to summary judgment contains the following:
Additionally, Wilson denied giving any statement to anyone that implicated Higgins in the "under-ringing" scheme.
Clark, moreover, testified by deposition that the item he saw Higgins put into the shopping cart was a cordless telephone. However, Higgins consistently denied placing any telephone in the cart, or even handling a telephone.
Finally, there is Clark's account of his observations of Higgins and Wilson at the time they checked out. As previously noted, in his deposition Clark testified that it took them only 15 to 20 seconds to check *774 out and pass him some 10 to 15 feet away. Yet, Clark's own handwritten statement made only hours after the incident at the Auburn Police Department stated:
Thus, Clark's own statements concerning the time frame of his observation of Higgins and Wilsonthe initial cause of his aroused suspicionsare in conflict.
These disputed facts, we respectfully submit, clearly make the issue of probable cause one for the jury. Indeed, on summary judgment, all reasonable inferences from the facts are viewed most favorably to the nonmoving party. Kutack, supra. Contrary to Clark's statements, there are facts from which a jury could reasonable infer that Higgins himself took nothing, knew of no scheme, was not implicated by the others, and made no movements tending to cause reasonable suspicion. Consequently, summary judgment on the counts for malicious prosecution, abuse of process, and false arrest was improper, and the trial court erred in granting it.
At a pre-trial conference, on June 20, 1986, the trial court entered the following schedule order: "Any amendments to the pleadings are to be filed on or before 8-14-86." (Emphasis added.) This order also set August 14, 1986, as the date for the pre-trial conference and for a hearing on "motion for summary judgment." Additionally, the order recited: "This cause is set for trial on the merits on fall term which starts 9-16-86."
In compliance with the order, which remained unchanged, Higgins filed a second amended complaint on August 14, 1986, i.e., within the time allowed by the order itself. On the objection of the defendants, however, the trial court denied plaintiff permission to file the amendment.
The amendment itself purported to state a cause of action in defamation. It averred that the defendants had placed plaintiff's photograph on a bulletin board in the Auburn Wal-Mart store devoted to photographs of persons arrested for shoplifting or stealing, that it was placed there shortly after March 4, 1984, and remained there until sometime in the fall of 1984, after June 7, 1984, the date plaintiff was acquitted. Although this cause of action was different in its nature from those alleged earlier, it is clear that it arose out of the same incident. Indeed, Clark conceded that he took the picture in connection with the store program then in existence. Moreover, in view of the extensive discovery engaged in by the parties, it is highly unlikely that the defendants or their counsel were unmindful of this evidence or of its possible legal implications. Be that as it may, Rule 15(a), A.R.Civ.P., and the decisions of this Court make it clear that amendments are not to be unduly restricted, but freely allowed when justice requires. Suffice it to state here that no showing of prejudice was made, Miller v. Holder, 292 Ala. 554, 297 So. 2d 802 (1974), nor was there a showing of any unfair disadvantage to the defendants. Indeed, neither they nor plaintiff objected to the amendment/trial schedule at the time the scheduling order was entered, or at any time prior to the filing of the amendment. Thus, we find that the well-meaning trial court abused its discretion in denying the amendment when it was filed in compliance with the trial court's order as to the time for filing such amendments, and there was no showing of prejudice.
For the reasons stated, the judgment must be, and it is, reversed and the cause remanded for further proceedings. It is so ordered.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON and SHORES, JJ., concur. | July 24, 1987 |
0f4db485-92b0-41e7-a5fa-7e167dc93c6f | Anonymous v. State | 507 So. 2d 972 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 972 (1987)
Ex parte State of Alabama.
(Re: ANONYMOUS
v.
STATE of Alabama)[*]
85-628.
Supreme Court of Alabama.
April 10, 1987.
Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for petitioner.
James T. Bachelor, Prattville, for respondent.
Warren S. Reese, Jr., of Reese & Reese, Montgomery, amicus curiae for appellant.
BEATTY, Justice.
The defendant was charged with three counts of first degree rape of one of his daughters, in violation of § 13A-6-61, Code of 1975, and also with three counts of incest with the same daughter, in violation of § 13A-13-3, Code of 1975. These charges were predicated upon three acts of forcibly compelled sexual intercourse, which allegedly occurred on three separate dates in April 1983. The prosecutrix was an adult at the time these acts allegedly occurred.
At trial, the prosecutrix was allowed to testify, over the defendant's objection, that *973 her father had been forcing her, on frequent occasions, to engage in sexual intercourse with him since some point in her early childhood. She also testified that her father had forced her to have two abortions.
The prosecutrix's sister was allowed to testify that she had also been forced to have intercourse with her father, on frequent occasions, since some time in her early childhood. She testified that she had also become pregnant by the petitioner's agency; however, unlike the prosecutrix, she had given birth as the result of this pregnancy. At the time of trial, the child was ten years of age.
The defendant was convicted on all counts, and he was sentenced to serve 90 years in prison.
On appeal, the Court of Criminal Appeals, relying on this Court's decision in Lee v. State, 246 Ala. 69, 18 So. 2d 706 (1944), among other cases, reversed the defendant's conviction and remanded for a new trial. The Court of Criminal Appeals specifically held:
Grizzell v. State, 507 So. 2d 969, 971 (Ala. Crim.App.1986).
Upon the State's petition, we granted certiorari to determine whether the judgment of the Court of Criminal Appeals was correct. The State, of course, argues that the trial court's decision was correct and that the judgment of the Court of Criminal Appeals must be reversed. The State argues that the facts of Lee, supra, are distinguishable from those in the present case. We acknowledge that the facts of the present case are not identical to those in Lee. However, we fail to see how this determination, without more, requires reversal.
In order to reverse the judgment of the Court of Criminal Appeals, a determination must necessarily be made that the evidence which that court held to be inadmissible was, indeed, admissible. To make that determination, the applicable laws of evidence must be applied to the unique facts of this case.
The general evidentiary principle, long adhered to in Alabama, which must be applied in this case may be stated as follows: In a prosecution for one offense, evidence of collateral[1] crimes or acts is generally inadmissible to prove the guilt of the accused. See Ex parte Cofer, 440 So. 2d 1121 (Ala.1983); Ex parte Killough, 438 So. 2d 333 (Ala.1983); Brasher v. State, 249 Ala. 96, 30 So. 2d 31 (1947); Haley v. State, 63 Ala. 89 (1879); Ingram v. State, 39 Ala.
*974 247 (1864). In fact, it has been stated that such evidence is prima facie inadmissible. See Cofer, supra; Brasher, supra; Allen v. State, 380 So. 2d 313 (Ala.Crim.App. 1979), cert. denied, 380 So. 2d 341 (Ala. 1980).
As was explained in Cofer:
Cofer, 440 So. 2d at 1123 (quoting C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1977) (hereinafter cited as "McElroy's".)
The rationale for this general exclusionary rule was well stated by one commentator:
(Footnotes omitted.) Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala. L.Rev. 241 (1984).
This rationale notwithstanding, there exist certain exceptions to this general exclusionary rule. Although evidence of collateral crimes and acts may not be admitted to prove the accused's bad character, it has been held admissible to prove such things as the accused's criminal intent, his motive, or his identity, or to prove that the now-charged crime and another crime were committed pursuant to a single plan, design, scheme, or system. See generally, McElroy's § 69.01, and those cases cited therein. Of course, the evidence offered must be relevant to some issue that is material to the case. See Cofer, supra (evidence offered was inadmissible because it was offered to prove intent and there existed "no real and open issue" concerning the accused's intent); Killough, supra (evidence offered under the exceptions to this general exclusionary rule must be both relevant and material).
Application of this rule and its exceptions to the facts of the present case makes it clear that the Court of Criminal Appeals correctly determined that the evidence of the prosecutrix's pregnancy and her abortions and the sister's pregnancy and resulting child was inadmissible. There is simply no imaginable reason for the admission of this testimony other than to prove the defendant's bad character. This is, of course, not an acceptable purpose. See Brasher v. State, 249 Ala. 96, 30 So. 2d 31 (1947).
The State argues that this evidence should have been held admissible because evidence of other collateral acts of sexual misconduct was held admissible by the Court of Criminal Appeals. Apparently, the argument is that this evidence of collateral acts should have been held admissible under the same exceptions which allowed *975 the admission of evidence of those other collateral acts. The fallacy of this argument is that it assumes that the Court of Criminal Appeals was correct when it held that evidence of those other collateral acts was admissible. In truth, the court was not correct.
The Court of Criminal Appeals held the evidence of those other acts admissible under the "identity" and "intent" exceptions to the general exclusionary rule. However, neither exception is applicable.
The identity of the person who actually committed the acts with which the defendant was charged was not at issue. The defendant did not argue that "someone else committed the acts with which he was charged"; instead, he merely denied that the acts ever occurred. Therefore, because there was no "real and open" issue concerning identity, the collateral acts could not be admissible as going toward such an issue. See Cofer, supra; Killough, supra.
Neither can the "intent" exception be applied in this case. Under §§ 13A-6-60 and -61, Code of 1975, rape in the first degree does not require any specific criminal intent. Similarly, no specific criminal intent, other than knowledge of relationship, is required under § 13A-13-3, Code of 1975, defining the crime of incest. The intent exception is simply not applicable in a case that requires no specific criminal intent as a prerequisite to conviction. See McElroy's § 69.01(5) and cases cited therein. As was explained by Justice Shores in Cofer, supra, any intent necessary to this type of crime could be inferred by the jury from the testimony about the act charged:
(Emphasis added.) 440 So. 2d at 1124.
Because the asserted exceptions of "intent" and "identity" are not applicable to this case, one cannot escape the conclusion that there exists no exception upon which the admissibility of the testimony concerning the prior sexual mistreatment of the defendant's daughters could be based. Similarly, that evidence (concerning the pregnancies, the abortions, and the child) which was held inadmissible by the Court of Criminal Appeals was, indeed, inadmissible.[2]
The foregoing considered, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and HOUSTON, JJ., concur.
TORBERT, C.J., and MADDOX and STEAGALL, JJ., concur specially.
ADAMS, J., not sitting.
MADDOX, Justice (concurring specially).
When the writ was granted, I was of the opinion that the Court of Criminal Appeals probably had incorrectly relied upon this Court's decision in Lee v. State, 246 Ala. 69, 18 So. 2d 706 (1944), in reversing this defendant's conviction. Arguably, the Lee case is distinguishable upon its facts, but, after further study, I am of the opinion that it is not so distinguishable that the judgment of the Court of Criminal Appeals reversing the conviction on that ground is due to be reversed.
Consequently, I would quash the writ as having been improvidently granted.
TORBERT, C.J. and STEAGALL, J., concur.
[*] Reporter's Note: In its opinion on certiorari review, the Supreme Court dropped the defendant's name and restyled the Court of Criminal Appeals' opinion "Anonymous v. State." The Court of Criminal Appeals declined to do likewise.
[1] Many Alabama cases use the term "collateral" to describe crimes or acts other than those for which the defendant is on trial. Because such crimes or acts may occur before, after, or at the same time as the crime for which a person is on trial, the term "collateral" makes more sense than "prior" or "similar."
[2] The defendant did not petition for certiorari to this Court. Therefore, the evidence of collateral acts held admissible by the Court of Criminal Appeals was discussed only for the purpose of addressing the State's arguments. | April 10, 1987 |
ea6deec6-3cdd-4670-ab0a-bcafd0be7f9f | Jackson v. Colonial Baking Co. | 507 So. 2d 1310 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 1310 (1987)
Robert Lee JACKSON
v.
COLONIAL BAKING COMPANY, et al.
86-54.
Supreme Court of Alabama.
May 1, 1987.
Vanzetta Penn McPherson and Billy L. Carter, Montgomery, for appellants.
Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Colonial Baking Co.
Milton C. Davis, Tuskegee, for appellee Buford Roberts.
Jock M. Smith, Tuskegee, for appellee James Vance.
*1311 Tyrone C. Means of Massey, Means & Thomas, Montgomery, for appellee Bobby Layton.
JONES, Justice.
This appeal challenges the trial court's summary judgment in favor of the defendants (employer and co-employees) on the plaintiff's (employee's) claim for intentional infliction of emotional distress. We affirm.
For a statement of the pertinent background facts, we quote a portion of the trial court's findings from a hearing on plaintiff's workmen's compensation claim (not in issue on this appeal):
The relevant inquiry, of course, is whether the evidence presents an issue of fact, which, if resolved in plaintiff's favor, would justify a claim premised on the tort of outrage, also known as the tort of intentional infliction of emotional distress. American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), defines this theory of recovery:
Jackson alleges that the defendants, his employer and certain co-employees, mistreated him during the course of his employment after learning of his respiratory problem. More particularly, Jackson points to an incident wherein certain co-employees requested that he climb a ladder and clean some overhead exhaust fans. Jackson refused, citing to his superiors his breathing disability. He says that his co-employees retaliated by reducing his work schedule twice until he had only a 32-hour work week. He asserts that his co-employees knew at the time that he was in danger of bodily injury, considering his respiratory problem as documented by his doctors; and that his loss of income and the pressure *1312 placed upon him by his superiors further caused him mental suffering.
We have carefully studied each of the plaintiff's allegations of specific conduct on the part of his employer and each of his co-employees, and we conclude that this conduct is not "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." 394 So. 2d at 365. This is not to say that Mr. Jackson, as a natural incident of his work-related injury, did not suffer both physically and mentally; but we are unable to find that these facts, when viewed most favorably to him, support a claim against these appellees for intentional infliction of emotional distress.
AFFIRMED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur. | May 1, 1987 |
7c5327bb-98bd-43f7-a252-8bfcb166df00 | Reinhardt Motors, Inc. v. Boston | 516 So. 2d 509 | N/A | Alabama | Alabama Supreme Court | 516 So. 2d 509 (1986)
REINHARDT MOTORS, INC.
v.
Randolph BOSTON.
85-6.
Supreme Court of Alabama.
October 3, 1986.
On Return to Remand May 15, 1987.
Rehearing Denied September 4, 1987.
Roger S. Morrow of Whitesell, Morrow & Romine, Montgomery, for appellant.
Robert D. Segall and Lee H. Copeland of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
*510 JONES, Justice.
This is an appeal from a judgment based on a jury award in favor of Plaintiff Boston in a suit for fraud against Reinhardt Motors. These are the facts, viewing the evidence most favorably toward the plaintiff: Boston noticed that his car was losing engine coolant, and took the car to Reinhardt Motors for repairs. Boston had taken his car to Reinhardt several times before for routine maintenance and trusted the people who worked there.
One of the mechanics looked at the car and suggested that there might be a problem with the engine head. Boston talked to the shop supervisor, Mr. Reinhardt, who recommended that he have the head gasket replaced before any work was done on the head to see if that would correct the problem. Boston purchased the necessary parts, but the mechanics at the shop were too busy to perform the repairs at that time. Boston returned a few days later to have the repairs made on his car.
When he returned, Boston was told that replacing the head gasket would be of no use because his engine head was cracked. The mechanic removed the engine head and showed Boston four marks along the sides, which he explained were the visible cracks in the engine head. Boston questioned the mechanic and Mr. Reinhardt about this, but then agreed to their replacing the engine head.
Boston took the old engine head to an auto parts shop to discover why it had cracked. He was informed there that the part was not cracked, and that the markings that he was shown were in fact factory markings that had been placed there at the time of manufacture. When Boston called Mr. Reinhardt to complain, he was assailed with insulting and abusive language.
Boston brought this suit, claiming fraud and suppression of material facts. The suit was tried before a jury, which found in Boston's favor and awarded compensatory and punitive damages in the amount of $100,480. The trial judge refused Defendant's motions for directed verdict at the close of Plaintiff's case, at the close of Defendant's case, and at the close of all the evidence. In addition, the trial judge denied Reinhardt's alternative motions for judgment notwithstanding the verdict or a new trial, as well as a motion for remittitur. Reinhardt Motors appeals, alleging twelve grounds of reversible error.
Defendant first contends that there was insufficient evidence to submit the count for fraud to the jury. Primarily, it argues "that any statements made by Defendant's employees were mere expressions of opinion that would not support an action for fraud." Defendant cites two recent cases as support for its proposition, both of which are readily distinguishable from the case at bar.
The first case, Jones v. McGuffin, 454 So. 2d 509 (Ala.1984), involved a suit for misrepresentation against a structural engineer. The McGuffins conditioned their purchase of a certain home upon a favorable report by a structural engineer. Jones, the engineer, inspected the home, noted several cracks in the walls, but stated that "in his opinion" the house was in excellent structural condition. Within months of having moved into the house, the McGuffins had to spend over $12,000 to repair the foundation of the house. The Court held that "mere statements of opinion are not material facts upon which actions for legal fraud can be maintained." 454 So. 2d at 512.
The second case relied upon by Defendant is Reynolds v. Fowler Pest Control & Insulation, Inc., 479 So. 2d 1185 (Ala.1985), in which a similar situation occurred. As a part of the Veterans' Administration financing for the purchase of a new home, the Reynoldses had the house inspected for termite damage. The report noted the presence of termites, but made no notation of any damage, only that corrective measures had been taken. Shortly after moving into the house, the Reynoldses discovered that the house had substantial termite damage. Fowler was able to escape liability because of several disclaimers which accompanied its report.
Both of those cases are distinguishable from the situation here presented. Unlike *511 those two cases, where, after visual inspections, written reports were submitted estimating the condition of invisible portions of homes, the Defendant here was able to dismantle and observe every angle of the engine head. If there had been any question as to the condition of the part, the Defendant could easily have subjected it to several inexpensive tests. Also, unlike the defendants in those two cases, the Defendant here, rather than reporting that it believed a condition did not exist, Defendant's employees here affirmatively stated that there were cracks in the engine head, and even pointed to factory markings on the part and asserted that they were cracks.
Therefore, these assertions were not "mere expressions of opinion"; they were statements of objective facts, which the jury was authorized to believe were made by experts who knew that they were false and that they were made with the intent to deceive.
Defendant's second allegation of error is that there was insufficient evidence to submit to the jury a count based on suppression of material facts. It is undisputed that Defendant did not inform Plaintiff that it was impossible upon visible inspection to state with certainty that the engine head was cracked, or that there were several inexpensive tests which could have been conducted to determine whether the head was cracked. On the contrary, Defendant stated positively that the head was cracked. There was sufficient evidence to allow the count based on suppression of material facts to go to the jury. § 6-5-102, Code 1975.
The third allegation of error involves the issue of damages for mental anguish, which the trial court allowed to go to the jury. Defendant here argues that damages for mental anguish are not appropriate in a tort such as this. In support of this proposition, Defendant cites Hayes v. Newton Bros. Lumber Co., 481 So. 2d 1123 (Ala.1985), and B.F. Goodrich Co. v. Hughes, 239 Ala. 373, 194 So. 842 (1940), both of which quote from Birmingham Waterworks Co. v. Martini, 2 Ala.App. 652, 657, 56 So. 830, 832 (1911).
Both Hayes and B.F. Goodrich state the general rule that the law will not allow recovery of damages for mental distress where the tort results in mere injury to property. While this is the general rule, there is a well established exception. Where the injury to property is committed under circumstances of insult or contumely, mental suffering may be recoverable. B.F. Goodrich Co. v. Hughes, supra. See, also, Holcombe v. Whitaker, 294 Ala. 430, 318 So. 2d 289 (1975) ("the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish"); Dawsey v. Newton, 244 Ala. 661, 15 So. 2d 271 (1943) ("When a trespass to property is committed under circumstances of insult or contumely, mental suffering may be compensated for when it is a proximate consequence."); Smith & Gaston Funeral Directors v. Wilson, 262 Ala. 401, 79 So. 2d 48 (1955) ("That mental anguish is recoverable in an action of trespass to property committed `under circumstances of insult or contumely' is well recognized").
This Court pointed out in Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979), that "[t]he general measure of recovery for fraud includes all damages within the contemplation of the parties or which are the necessary or natural and proximate consequences of the wrong. This is a factual determination to be made by the jury." Whether the tort is committed under circumstances of insult or contumely is a question properly left to the determination of the jury. Dawsey v. Newton, supra.
Moreover, the restrictive language of the general rule ("when the tort results in mere injury to property") is material to our inquiry. Although Boston's automobile was the underlying subject of Reinhardt's intentional misrepresentation, the tort did not result in mere injury to the property. The tort and its consequent injury were committed not upon Boston's car, but upon him personally. The replacement of the engine head, though unnecessary under the *512 circumstances, did not result in injury to Boston's property.
To be sure, the evidence discloses that it was primarily because of Defendant's rude and insulting language and treatment to which Boston was subjected, accompanied by the resultant unnecessary cost of repair, that this action was pursued. Boston presented evidence which, if believed by a jury, would support the claim for damages for mental anguish. Therefore, the trial judge was correct in submitting that issue to the jury.
Next, Defendant alleges that there was insufficient evidence to support the submission of the issue of punitive damages to the jury. As support for its position, Defendant cites Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37 (1970), and several other cases, all of which stand for the proposition that punitive damages will not lie unless the fraud is perpetrated "grossly, maliciously, oppressively, and with an intent to deceive."
The evidence presented at trial was sufficient for a jury to determine that an intentional fraud was committed. "The Court [has] recognized that, if the misrepresentation is shown to have been made knowing that it is false, then the law permits punitive damages by way of punishment." Big Three Motors, Inc. v. Smith, 412 So. 2d 1222, at 1224 (Ala.1982).
Defendant's next two allegations of error concern the admission into evidence of two of Plaintiff's exhibits, and testimony surrounding them. Defendant's principal objection is that Roy Kelley, the auto parts store superintendent who gave the testimony, did not personally perform the tests. The two exhibits introduced over Defendant's objections were properly authenticated as business records. Also, it was shown that Mr. Kelley was the superintendent of the shop, and that he was aware of the shop's record keeping procedure.
Dean Gamble has set forth the test for admissibility of business records. See C. Gamble, McElroy's Alabama Evidence § 254.01(3) (3d ed. 1977). Applying that test, we find that the Plaintiff's exhibits 7 and 8 were properly admitted by the trial judge, and that there was no error in allowing Mr. Kelley's testimony.
Defendant next asserts that it was error for the trial judge to allow the testimony of Plaintiff's witness Wesley Simmons. Mr. Simmons performed new tests on the engine head a few days before the trial began. Plaintiff never informed Defendant before trial that the tests had been performed or what the results of the tests were. Defendant claims that this violation of discovery rules entitles him to a new trial. While nondisclosure is a practice to be heartily discouraged, ordinarily the ultimate decision of whether evidence is admissible lies with the trial judge. Barring abuse of discretion by the trial judge in matters of admissibility, this court will not interfere with the trial court's decision. We find no abuse of discretion in this instance and, therefore, we refuse to disturb the trial court's ruling.
Defendant's next three allegations of error deal with certain jury charges, either given or omitted, and all three contentions are without merit. The given charge here challenged, when viewed in light of the court's entire oral instruction, was a correct statement of the law. The substance of the refused charges, requested by Defendant, was adequately covered in the court's oral instructions.
Finally, Defendant argues that the verdict was excessive. In our recent case of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), we reiterated our reluctance to usurp the prerogative of the trial court and to interfere with its decision to deny a new trial on the ground of excessiveness of the jury's verdict. We take this opportunity, however, to re-emphasize that Hammond requires the trial court to state its reasons for either granting (as a condition of its denial of defendant's motion for a new trial) or denying remittitur. Because the record before us contains no stated rationale for the court's denial of the motion for remittitur, we must remand this cause for the trial judge's statement of his reason for denying the post-judgment motion *513 for a new trial based solely upon the ground of excessiveness of the verdict.
The trial court, within its discretion, may order a further hearing on the remittitur issue or may comply with these instructions without a further hearing. In any event, the trial court shall report its findings and conclusions to this Court within 28 days of the issuance of this opinion.
AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.
MADDOX, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., and STEAGALL, J., dissent.
TORBERT, Chief Justice (dissenting).
I would reverse because of the trial court's submitting the issue of damages for mental anguish to the jury. If the majority of this Court wishes to extend damages for mental anguish to the area of fraud, it should do so in a more appropriate case, where an objective standard for awarding such damages could be put forth.
The trespass cases of B.F. Goodrich v. Hughes, 239 Ala. 373, 194 So. 842 (1940), and Dawsey v. Newton, 244 Ala. 661, 15 So. 2d 271 (1943), and the marriage case of Holcombe v. Whitaker, 294 Ala. 430, 318 So. 2d 289 (1975), do contain language that allows the Court to extend mental anguish damages to the area of fraud. However, this case is not the proper one in which to take such a step. Allowing such damages in a case of fraud because of "insult or contumely" should only be done under an objective standardsuch as upon a determination of whether a reasonable person in like circumstances would be insulted by the conduct in question. See Anderson v. Atlanta Newspapers, Inc., 212 Ga. 776, 95 S.E.2d 847 (1956). The majority states that the rude and insulting language of the defendant's agents was a primary reason for Mr. Boston's pursuing this action. On direct examination Mr. Boston testified to this language:
"A. I told Mr. Reinhardt I had reason to suspect my [engine] head was not cracked as he and Mr. Jackson had previously indicated.
"A. He said that there was nothing to talk about. I called him on the telephone, by the way, and I told him I had reason to suspect my head wasn't cracked as he and Mr. Jackson indicated. We needed to get together and talk about it.
"A. Yeah. He said there was nothing to talk about. I had made my decision. That he understood I was upset because I had spent the money for the new head, but there was absolutely nothing to talk about. He went into detail about there is no absolute way to tell if the head is cracked or not cracked.
"Q. Is that the first time that Mr. Reinhardt or anybody else at Reinhardt had told you there was no way to tell whether or not the head was cracked?
"A. At first, he was kind of harsh. But as we talked, hewe talked about forty minutes, I guess. And as we talked, he got a little, his voice got a little bit more calmer. I guess he assumed I was satisfied with his reasoning. So his voice, as we talked along, got more calmer. The nicer he got.
"A. He was definitely firm when he said there was nothing to talk about."
"Q. All right. Did your conversation with Mr. Reinhardt cause you any, or this whole experience about learning that the head wasn't cracked and your conversation with Mr. Reinhardt, did that cause you any emotional upset?
Then on cross-examination, Mr. Boston testified:
"A. Yes, sir. They had done the work. It was still under warranty, if I recall.
"Q. You didn't have, I'm talking about the mental anguish, about how they were treating you. They weren't treating you bad?
"A. No sir. The mental anguish came from, I was deceived, taken advantage of. I was not told everything I should have been told to make the proper decision. That's what mental anguish came from.
"Q. But you said they treated you good when you came out there on September 9th?
"A. They did not ever at one time treat me bad. The only harsh words I had is initially, when I talked to Mr. Reinhardt. He was kind of harsh saying there was nothing to talk about. But no one ever treated me bad. When I say treated me bad, other than that one time, they've always been polite to me."
Mr. Boston testified that his mental anguish came from being deceived. If mental anguish damages are allowed for every case of deceit, then the whole law of fraud will be radically changed. "Deceit is an economic, not a dignitary tort.... separate recovery for mental anguish is usually denied in deceit cases." D. Dobbs, Handbook on the Law of Remedies § 9.2 at 602 (1973). As for allowing mental anguish damages for fraud accompanied by insult, perhaps Mr. Boston was genuinely, subjectively insulted, but the actions by Mr. Reinhardt certainly do not meet an objective standard for insult. This Court should not allow a plaintiff to recover a mental anguish award every time he feels as if he has been let down by someone or someone is a bit abrupt with him in a telephone conversation.
The trial judge charged the jury, "If you are reasonably satisfied from the evidence that the plaintiff has undergone mental anguish as a proximate result of the injury in question, you should award such sum as would reasonably and fairly compensate him for such mental anguish suffered by him." Such a charge states a subjective standard for determining mental anguish due to fraud with insult. If the Court is going to recognize mental anguish damages for fraud, then it should require an objective standard for proof of such damages, and the present case is not the proper one for establishing such a precedent.
For these reasons I must respectfully dissent.
PER CURIAM.
The trial court's order on remand denying the defendant's motion for a new trial, or, alternatively, for an order denying a new trial on the condition that plaintiff accept a remittitur, is affirmed.
AFFIRMED.
MADDOX, JONES, BEATTY, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., and STEAGALL, J., dissent.
TORBERT, Chief Justice (dissenting).
Because I dissented on the original deliverance of the opinion in this case, I dissent from the order affirming the trial court's supplemental order denying defendant's motion for a new trial on the ground of excessiveness of the verdict.
STEAGALL, J., concurs. | May 15, 1987 |
c730dc88-5472-4fb2-ae2f-e8f65faefb5d | Ex Parte Stephens | 512 So. 2d 786 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 786 (1987)
Ex parte James W. STEPHENS.
(Re: James W. Stephens v. State of Alabama)
85-1389.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied June 19, 1987.
Ira De Ment and Ronald W. Wise, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
PER CURIAM.
We granted the writ of certiorari to the Court of Criminal Appeals on the issue of whether that court's decision, 512 So. 2d 782 (Ala.Crim.App.1986), was in conflict with prior decisions of this Court in holding *787 that the trial court did not err in refusing the petitioner's written requested charge as to a lesser included offense.
The petitioner, James W. Stephens, was convicted under six separate indictments for the sale of codeine and dextropropoxyphene in violation of Code 1975, § 20-2-70. This conviction was the culmination of a Montgomery Police Department investigation of Stephens for dispensing drugs from Sav-Mart Pharmacy without proper prescriptions.
At trial, a number of state witnesses testified that Stephens sold them the controlled substances without a prescription or without oral authorization from the prescribing physician's office when the prescription stated "non-refillable." There was also testimony to the effect that a large number of drugs were missing from the Sav-Mart Pharmacy and could not be accounted for through Stephens's pharmaceutical records. Stephens maintains as his defense that he sold drugs to these people, but only after he received oral authorization from their physicians.
In the defendant's requested jury charge No. 14, he asked the trial court to charge the jury on the offense of failure to keep proper records, a misdemeanor, which he claimed was a lesser included offense as to the offense charged. This request was refused. That requested jury charge No. 14 read as follows:
Stephens's counsel objected to the court's refusal to give that charge:
Under Code 1975, §§ 20-2-58(c) and 20-2-70, it is a felony for a pharmacist to sell the controlled substances referred to in Stephens's indictments, codeine and dextropropoxyphene, without a written or oral prescription. In addition, even if there is a prescription, the pharmacist is prohibited from filling or refilling it more than six months after the date thereof or refilling it more than five times, unless it is renewed by the prescribing physician. Code 1975, § 20-2-58(c).
Under Code 1975, §§ 20-2-71(a)(3) and 34-23-70(i) and (m), it is a misdemeanor for a pharmacist as a first-time offender to fail to keep inventories and records of all controlled substances and a prescription file for schedule III, IV, and V controlled substances. *788 (Codeine is a schedule III controlled substance and dextropropoxyphene is a schedule IV controlled substance.)
The first question we must address is whether the failure to keep records of prescriptions is a lesser included offense of the offense chargedunlawful sale of controlled substances without a prescription. We hold that it is.
Section 13A-1-9, Code 1975, defines a "lesser included offense" as follows:
Stephens was convicted of selling controlled substances without written or oral prescriptions. Stephens contends that he had an oral prescription from the prescribing physician in each case; however, he says, he neglected to make proper record of their authorization.
The one element separating the two offenses is authorization by a prescribing physician to sell the controlled substance. If there is no authorization, sales by a pharmacist of controlled substances are in violation of Code 1975, §§ 20-2-58(c) and 20-2-70. However, if there is authorization, but no record of the prescription, then, at the very most, sales by a pharmacist of controlled substances are in violation of Code 1975, §§ 20-2-71(a)(3) and 34-23-70(i) and (m).
Clearly, the misdemeanor offense of failing to keep a proper record of prescriptions is "established by proof of the same or fewer than all the facts required to establish the commission of the [felony] offense charged [for the sale of controlled substances without a prescription]." Code 1975, § 13A-1-9(a)(1). Accordingly, we hold that the misdemeanor offense by a pharmacist of failing to keep proper records of prescriptions is a lesser included offense of the felony offense by a pharmacist of selling controlled substances without a prescription.
The second and final question we must address is whether Stephens was entitled to a charge on the lesser included offense.
Section 13A-1-9, Code 1975, also provides:
At trial, Stephens testified that he failed to record prescriptions. Another witness testified that controlled substances were missing from Sav-Mart Pharmacy and could not be accounted for through Stephens's records. A doctor testified that it was possible that Stephens called him for an oral prescription, even though his records did not indicate that such a call was made.
This Court has held:
Ex parte Chavers, 361 So. 2d 1106 (Ala. 1978).
There was evidence offered in this case which, if believed by the jury, could establish that Stephens indeed had oral prescriptions before dispensing the drugs, but failed to properly document them. Accordingly, the trial court erred in refusing to charge the jury on the lesser included offense.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.
REVERSED AND REMANDED.
All Justices concur, except ALMON, BEATTY and ADAMS, JJ., not sitting. | April 10, 1987 |
c94c3bcc-ee5e-40bb-b951-9609a25f9650 | City of Fultondale v. City of Birmingham | 507 So. 2d 489 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 489 (1987)
CITY OF FULTONDALE, et al.
v.
CITY OF BIRMINGHAM, et al.
CITY OF BIRMINGHAM
v.
CITY OF TRUSSVILLE.
85-1159, 85-1440.
Supreme Court of Alabama.
April 24, 1987.
J. Scott Greene of Bishop, Colvin & Johnson, Birmingham, for appellant City of Fultondale.
James K. Baker, City Atty., and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellant City of Birmingham in No. 85-1440.
David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellee City of Birmingham in No. 85-1159.
Carl E. Johnson of Bishop, Colvin & Johnson, Birmingham, for appellee City of Trussville.
PER CURIAM.
Fultondale and Trussville filed separate actions against Birmingham, challenging the validity of annexation actions taken by Birmingham and seeking declaratory and injunctive relief. Birmingham filed counterclaims, alleging that certain purported annexations by Fultondale and Trussville were improper. These cases were consolidated for appellate review.
Acting pursuant to the provisions of Act No. 32, Acts of Alabama 1964, p. 54, Fultondale *490 and Trussville each began annexation proceedings by passing a resolution giving notice of a public hearing to be held prior to the adoption of an annexation ordinance. Fultondale's proposed annexation included portions of seven public road rights-of-way which were necessary to create contiguity with the existing city limits of Fultondale. Trussville's proposed annexation included 13 residential streets, approximately two miles of U.S. Highway 11 right-of-way, portions of old Highway 11 right-of-way, and portions of Interstate 59 right-of-way. These rights-of-way were used to create contiguity to the existing city limits of Trussville.
After the Fultondale and Trussvile annexation procedures were in progress, Birmingham adopted annexation ordinances pursuant to Ala.Code 1975, § 11-42-21. Under this section, Birmingham assented to U.S. Pipe & Foundry's petition for annexation of its property into Birmingham. Portions of the U.S. Pipe property lie across roadways that were included in the Fultondale and Trussville annexations. Birmingham purported to annex and/or "jump across" these roadways in order to make those portions of the U.S. Pipe property contiguous to the existing city limits of Birmingham.
Fultondale and Trussville argue that the first municipality to commence annexation proceedings in compliance with statutory annexation procedures takes priority over any attempt by another municipality to annex the same territory. They also argue that once a right-of-way is annexed into a particular municipality, another municipality may not "jump across" that right-of-way in order to annex property on the other side of that right-of-way.
Birmingham argues that both the Fultondale and the Trussville annexation attempts, which use public road rights-of-way, as authorized under City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985), to create contiguity, are invalid, arbitrary, and unreasonable exercises of corporate power.
In the Fultondale case, the trial court granted Birmingham's motion for summary judgment, holding, as a matter of law, that Birmingham's use of the public road rights-of-way was permissible, but reserving the court's ruling on whether Fultondale's use of the rights-of-way was proper. In the Trussville case, the trial court held that Trussville's annexation procedures were proper; and that although the annexation proceedings were not complete when Birmingham began its annexation, Trussville had precedence over the rights-of-way and Birmingham's annexations using the same rights-of-way were invalid.
These two cases present this Court with an opportunity to reexamine the holdings in City of Tuskegee v. Lacey, supra, and City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975).
Although most courts that have addressed the issue of "corridor" or "strip annexation" have disfavored it, this Court has condoned such annexation in City of Dothan v. Dale County Comm'n, supra. See Annot., 49 A.L.R.3d 589, § 10-16 (1973), and 56 Am.Jur.2d Municipal Corporations § 69 at 126 (1971), for a listing of those courts disfavoring it. Corridor annexation was upheld in City of Dothan based upon the municipal purpose involved and the definition of "contiguity." Although Alabama's annexation statutes do not specifically define "contiguous," there is a requirement in Ala.Code 1975, § 11-42-42, that territory to be annexed be "contiguous to the boundary of the city at some point." Accordingly, this Court refused to require that a substantial common boundary exist between the annexing city and the annexed territory, as some other states have done. City of Dothan v. Dale County Comm'n, supra. Based upon this statutory language, we feel we must reaffirm the holding in City of Dothan.
Upon reexamining the holding in City of Tuskegee v. Lacey, supra, we feel it should be overruled for two major reasons.
First, the facts in City of Dothan and City of Tuskegee are materially different. In City of Dothan, a private property owner petitioned to have his property annexed into the city of Dothan. This property created the necessary contiguity with the airport property. City of Tuskegee involved *491 14 miles of public road rights-of-way, and not one property owner along that route petitioned to be brought into the city of Tuskegee. Alabama's statutory methods of annexation require that property owners consent to the annexation before an annexation of their property can occur.[1] See Ala.Code 1975, §§ 11-42-1 through 11-42-88. The public road rights-of-way annexed in City of Tuskegee were used merely to create contiguity and, in effect, to avoid the requirement of a touching at some point. We do not believe the legislature intended to allow annexation in this manner.
Second, in City of Tuskegee, the main opinion recognized that the wholesale allowance of "the long lasso method" of annexation could invite abuse and substantial problems. We feel the instant cases represent such abuse and problems.
A look at the maps in the records of the present cases discloses the unreasonableness of the Fultondale and Trussville annexations. The proposed annexations by Fultondale and Trussville consist of strips of roadways running in all directions from each city, creating a spider-web effect and leaving areas of unincorporated territory surrounded by the roadways, but otherwise unconnected with either Fultondale, Trussville, or Birmingham. Also, it appears from the Trussville map that Trussville annexed portions of rights-of-way that were not connected to any tract of land as to which there had been a petition for annexation into Trussville.
This Court has held annexation unreasonable and invalid where a municipality drew its annexation lines so as to include only those people whom it had predetermined would be in favor of annexation. City of Birmingham v. Community Fire District, 336 So. 2d 502 (Ala.1976). We hold that the use of public road rights-of-way to create contiguity is unreasonable and invalid as a matter of law.
Although Alabama law does not require that municipal boundaries form a regular shape, the legal and popular idea of a municipality in this country is "that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitantsthat is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places." 56 Am.Jur.2d Municipal Corporations § 69 at 125 (1971); City of Dothan, supra. The annexations proposed by Fultondale and Trussville do not create a collective body of inhabitants, but, rather, several bodies scattered across an area, a result we feel the legislature did not intend.
Based upon the foregoing, the holding in City of Tuskegee is overruled. Accordingly, we reverse the judgment that holds the Trussville annexation to be proper and remand the cause for the entry of a judgment consistent with this opinion; and we affirm the summary judgment granted in favor of Birmingham in the Fultondale case, not for the reasons given by the trial court, but due to our holding that annexation by use of public road rights-of-way is invalid.
85-1159, AFFIRMED.
85-1440, REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and ALMON, JJ., concur.
STEAGALL, J., concurs in the result.
SHORES, BEATTY and HOUSTON, JJ., dissent.
ADAMS, J., not sitting.
STEAGALL, Justice (concurring in the result).
Because most of the states that have addressed the issue of corridor or strip annexation require a substantial common boundary, I have reservations about reaffirming City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975). A listing of those courts requiring a substantial common boundary can be found at Annot., 49 A.L.R.3d 589, § 10-16 (1973), and 56 Am.Jur.2d Municipal Corporations, *492 § 69 at 126 (1971). I think the Court is correct in overruling City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985). However, I would go further and overrule City of Dothan also. Nevertheless, since the Court declines at this time to overrule City of Dothan, I concur in the result of the per curiam opinion to overrule City of Tuskegee.
HOUSTON, Justice (dissenting):
I would overrule both City of Dothan v. Dale County Comm'n, 295 Ala. 131, 324 So. 2d 772 (1975), and City of Tuskegee v. Lacey, 486 So. 2d 393 (Ala.1985), abolish strip or corridor annexation in Alabama, and require a substantial common boundary for municipal annexation as is required by a substantial majority of the states. See Annot., 49 A.L.R.3d 589 (1973). Since I cannot distinguish City of Dothan from City of Tuskegee, I would not overrule one without overruling both (see my special concurrence in City of Tuskegee, 486 So.2d at 396-7). What difference does it make whether the umbilical cord by which the annexed property is joined to the city is owned by a tax-exempt, non-elector, quasi-municipal corporation or by a governmental entity?
[1] We note that unanimous consent is not required under all methods of annexation. | April 24, 1987 |
18c8e1db-30cf-4a58-b5ed-1c7bd59de6fb | WOODLAWN FRAT. LODGE 525 v. Commercial Union Ins. | 510 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 162 (1987)
WOODLAWN FRATERNAL LODGE NO. 525, F. & A.M.
v.
COMMERCIAL UNION INSURANCE COMPANY, O.M. Hughes, et al.
85-647.
Supreme Court of Alabama.
April 24, 1987.
Rehearing Denied June 19, 1987.
*163 Ann Z. Arnold of Jackson & Arnold, Birmingham, for appellant.
John S. Thrower, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee Commercial Union Ins. Co.
John W. Clark, Jr. and Amy K. Myers of Clark & Scott, Birmingham, for appellee O.M. Hughes.
TORBERT, Chief Justice.
Appeal by Woodlawn Fraternal Lodge No. 525, F. & A. M., plaintiff, from summary judgment in favor of defendants, Commercial Union Insurance Company and O.M. Hughes, Jr., individually and d/b/a O.M. Hughes Insurance Agency, in plaintiff's action based upon breach of contract and fraud. We reverse and remand.
At some time prior to 1978, Robert Byars, plaintiff's business manager, obtained for plaintiff a named peril insurance policy providing coverage against damage to plaintiff's building. Byars dealt with O.M. Hughes, Jr., and O.M. Hughes Insurance Agency, who represented Commercial Union Insurance Company. While this policy was in force, the water pipes in the insured building froze and burst, causing damage for which a claim was made under the policy. Commercial Union paid that claim.
Later, in 1981, Byars dealt with Hughes in obtaining a renewal of that previous policy. According to Byars, at the time the renewal policy was issued, Hughes represented to Byars that it covered all risks and contained the same basic coverage previously held on the premises. Byars stated that, upon questioning Hughes as to whether the policy was "the very best you have to offer and we're covered every way that's conceivable," Hughes answered, "Yes." Byars, who took possession of the renewal policy, did not read it.
On or about December 27, 1983, the plaintiff's building was again damaged by water when pipes inside the building froze and burst. Byars stated that he contacted Hughes and was told that "you're covered." Shortly thereafter, Bob Waldrop, an adjuster for Commercial Union, called on Byars and told him that "you're covered and go ahead and repair anything you want to that belongs to and is owned by the lodge." A few days later, Byars was told by Waldrop that all the bills had been received and that "everything is approved. I'm fixing to put your check in the mail on Friday afternoon." Nevertheless, Commercial Union subsequently denied coverage under the renewal policy because a "loss caused directly or indirectly by frost or cold weather, or ice (other than hail), snow or sleet, whether driven by wind or not" was not a peril against which coverage was provided. This lawsuit followed.
Plaintiff's first count alleged that defendant Hughes, as agent of defendant Commercial Union, made misrepresentations to plaintiff concerning the all-risk coverage of the renewal policy, upon which plaintiff relied to its deteriment. A second count alleged breach of contract by failing to pay for the damage incurred on December 27, 1983. Defendant Commercial Union answered with a general denial and the affirmative defenses of (1) failure to exercise precaution to safeguard interests, and (2) the statute of limitations. Defendant Hughes answered with (1) a denial of a stated cause of action, and (2) a denial that any misrepresentations were made as alleged. Discovery ensued, with Byars and Hughes answering interrogatories and giving depositions. Thereafter, summary judgment motions were made by the defendants based upon the pleadings, the depositions of Byars and Hughes, a copy of *164 the insurance policy in question, and briefs of the parties. After consideration, the trial court granted the defendants' summary judgment motions, and plaintiff appealed.
The parties present two issues:
(1) Whether there was a genuine question of material fact on the reasonableness of plaintiff's reliance on the representations of Hughes, and
(2) Whether there was a genuine issue of material fact over the tolling of the statute of limitations due to the alleged fraudulent statements.
"Legal fraud" is defined by statute, Code of 1975, § 6-5-101:
Under this principle, of course, the plaintiff's reliance must have been reasonable under the circumstances, Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 758-59 (Ala.1983):
Torres deals with a situation where the parties have initially entered into a contract. It says in effect that the policy of the law is that it is unreasonable to rely on oral statements when one is in possession of written documents that would put one on notice as to the validity of oral statements. By the same token, the written documents put the party to whom oral representations were made in a position to discover the falsity of those representations, thereby putting him on notice as a matter of law that a fraud may have been committed.
However, in this case, we are not dealing with parties who have initially entered into a contractual relationship, as was the case in Torres. The contract at issue here is a renewal insurance policy. The diligence required of parties when initially contracting is greater than when the parties renew that contract. We have held that in renewing an insurance policy the burden is on the insurer to notify the insured if the renewal policy differs from the original policy. Alliance Ins. Co. v. Reynolds, 494 So. 2d 609 (Ala.1986); National Union Fire Ins. Co. v. Morgan, 231 Ala. 640, 166 So.2d (1936). Failure to notify the insured will result in the insured's being entitled to coverage under the policy as originally issued. Reynolds, supra.[1]
Because the law casts the burden on the insurer to notify the insured if a renewal policy's terms differ from the original policy, the insured's reliance on the insurer's statements that coverage is the same under the renewal policy is not unreasonable, as a matter of law. In addition, the fact that the insured had been covered under the original policy for damage resulting from frozen pipes made it all the more reasonable for its agent not to closely examine the renewal policy to see if it had the same coverage, when he had been assured by Hughes that the plaintiff had the same coverage under the renewal policy.
For the same reasons, the insured's possession of the renewal policy does not put it in a position where it should have *165 discovered the fraud as a matter of law for the purpose of starting the running of the statutory period of limitations.
The judgment is reversed.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON and SHORES, JJ., concur.
BEATTY, HOUSTON and STEAGALL, JJ., dissent.
BEATTY, Justice (dissenting):
Under the definition of "legal fraud," Code of 1975, § 6-5-101, the plaintiff's reliance must have been reasonable under the circumstances, Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 758-59 (Ala. 1983).
In Torres, the circumstances were that, despite the insureds' insistence to the agency that certain coverage be extended, i.e., flood coverage, the successive policies issued for approximately one and one-half years contained no such coverage, and, indeed, the defendant was not in the business of selling such coverage. This Court held that the insured "failed to exercise ordinary diligence in relying for so long on [the agency's statement that it would obtain flood coverage] when they received nothing from State Farm indicating that flood coverage had gone into effect."
In this case, the representation at the time the renewal policy was delivered was to the effect that it extended coverage for all risks, when in fact it did not cover the risk later causing damage. The renewal policy itself consists of 25 pages and 21 endorsements. It is not unlike other such insurance policies in its form. Nevertheless, plaintiff's business manager, Byars, did not read the policy in the approximately 29 months from its delivery to the date of the loss, choosing instead to rely upon the agent's statements. This course of inaction was a failure of ordinary diligence, for certainly within that period of time Byars himself could have personally examined the policy and ascertained the perils insured against. Especially is this true when he had so recently experienced a loss of the same character as the instant loss. Thus, Torres fits this situation like the proverbial glove, and the plaintiff should have no claim for misrepresentation under these facts. The majority simply makes a dubious exception when the policy is a "renewal" policy.
Moreover, the statute of limitations had run on plaintiff's claim. Code of 1975, § 6-2-3,[1] states:
Plaintiff took possession of the policy on or about July 2, 1981. The damage in question occurred on or about December 27, 1983. Fraud is "discovered" when it ought to or should have been discovered; that is, 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. Papastefan v. B & L Construction Co., 385 So. 2d 966 (Ala.1980). Thus, it is sufficient to begin the running of the statute of limitations that the plaintiff knew of the facts, the policy itself here, which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry. Jefferson County Truck Growers Ass'n v. Tanner, 841 So. 2d 485 (Ala.1977). In this case, approximately 49 months elapsed between the time plaintiff took physical possession of the policy and the date this action was commenced, i.e., August 5, 1985. Plaintiff has failed to disclose by way of any averment or proof why it could not have discovered the lack of coverage by ordinary diligence, or was prevented by Commercial Union or Hughes from discovering that fact. Johnson v. Shenandoah Life Ins. Co., 291 Ala. *166 389, 281 So. 2d 636 (1973). See also Lewis v. East Alabama Funeral Ins. Co., 472 So. 2d 1090 (Ala.Civ.App. 1985).
For these reasons, the trial court was not in error in granting summary judgment for the defendants, and, therefore, I must respectfully dissent.
TORBERT, Chief Justice.
Appellees contend that the Court made a factual error in the original opinion. They contend that we wrongfully assumed that the renewal policy provided narrower coverage than the original policy. Admittedly, we assumed that to be true because the record appeared to show that the insurer treated identical incidents differently under the two policies. Unfortunately, we can not resolve this controversy because the record fails to disclose the provisions of the original policy.
More importantly, even assuming that appellees are correct, it would seem that it has no bearing on whether the insured's reliance was unreasonable as a matter of law, but rather would bear on whether the alleged representation that the policies were basically the same was true, an issue not before us.
OPINION EXTENDED; APPLICATION OVERRULED.
MADDOX, JONES, ALMON and SHORES, JJ., concur.
BEATTY, HOUSTON and STEAGALL, JJ., dissent from the denial of the application, but concur in the extension of the opinion.
[1] The insured filed a complaint alleging fraud. The complaint was amended to add a contract claim. The trial court granted summary judgment for the defendants on both claims. On appeal the insured has questioned only the propriety of summary judgment on the fraud claim.
[1] This section was amended in 1985 to allow two years instead of one year. Act No. 85-39, § 2, 1984-85 Ala. Acts, 2d Spec. Sess. | April 24, 1987 |
fec70caf-cf6d-48a2-a8ba-47033b2f73ff | Bains v. Jameson | 507 So. 2d 504 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 504 (1987)
Jack Martin BAINS, Sr., et al.
v.
Richard JAMESON, As Executor of the Estate of Jessie Katheryn Howard, Deceased.
No. 85-1126.
Supreme Court of Alabama.
May 1, 1987.
B.J. McPherson, Jack Martin Bains, and Thomas Prickett II, Oneonta, for appellants.
Henry E. Simpson and Barbara F. Olschner of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
BEATTY, Justice.
This is an appeal by the plaintiffs, Jack Martin Bains, Sr., and Peggy H. Bains, suing individually and as parents and next friends of Jack Martin Bains, Jr., from a judgment for the defendant, Richard Jameson, executor, based upon a jury verdict in plaintiffs' action to recover damages. We affirm.
The action arose out of a collision between a vehicle driven by Jack Martin Bains, Jr., and another vehicle driven by Jessie K. Howard. The accident occurred on Highway 75 within the city limits of Oneonta. Highway 75 is a five-lane highway, with two lanes running east, two lanes running west, and a turn lane between the east and west lanes. Jack, Jr., was travelling west, driving his father's 1983 Chevrolet Blazer vehicle, with his father's permission. He was operating the vehicle with the cruise control set at about 45 m.p.h., and, with the windows down, *505 was listening to a tape of a musical selection, "Blizzard of Oz."
Mrs. Howard was driving south in her two-door vehicle on Ingle Street, a perpendicular street which intersected Highway 75. A stop sign was located on the corner of Ingle Street and Highway 75 for traffic approaching Highway 75.
The collision occurred in the inside westbound lane on Highway 75, the lane that Jack, Jr., occupied. Both drivers sustained personal injuries. Mrs. Howard died on the day of the accident. Jack, Jr., was treated for injuries but not hospitalized.
Plaintiffs brought this action against Mrs. Howard's estate, alleging negligence and wanton conduct, to recover damages for the damage to the vehicle of Jack, Sr., for loss of service to the parents of Jack, Jr., and for injuries sustained by Jack, Jr. State Farm Mutual Automobile Insurance Company, as subrogee, was made a party plaintiff. Defendant answered by charging Jack, Jr., with contributory negligence. Following further pleading and discovery, trial by jury ensued, with a verdict being rendered for the defendant on all counts. State Farm and the Bainses moved for a new trial, which was overruled. The Bainses appeal. State Farm did not appeal.
Plaintiffs contend on appeal that there was no evidence of contributory negligence on the part of Jack, Jr., and thus, that the evidence is insufficient to support the verdict. Plaintiffs also argue that the trial court erred in improperly charging the jury.
Regarding plaintiffs' attack upon the sufficiency of the evidence, we conclude that, upon the record, this Court cannot review that issue. It is well settled that a motion for a directed verdict must be made at the close of all the evidence and that a timely post-trial motion for judgment notwithstanding the verdict must be subsequently made before an appellate court may consider on appeal the insufficiency-of-evidence issue directed to the jury's verdict. A full discussion of this requirement is found in Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877, 880-82 (Ala. 1979), in which the Court, after discussing Rule 50, A.R.Civ.P., concluded:
See also Black v. Black, 469 So. 2d 1288 (Ala.1985), and Housing Authority of the City of Prichard v. Malloy, 341 So. 2d 708 (Ala.1977).
The plaintiffs in this case did not move for a directed verdict at the close of all the evidence. Nor did plaintiffs move for a judgment notwithstanding the verdict. Accordingly, plaintiffs have waived their right to question the sufficiency of the evidence on appeal.
Plaintiffs also maintain that the trial court erred in failing to charge the jury that Jack, Jr., was not, under the evidence, the agent, servant, or employee of his father.
The record discloses that the trial court gave an extensive oral instruction to the jury dealing with the law of agency as applied to Jack, Sr., and his son, Jack, Jr. Part, but not all, of that oral charge is reproduced here:
*507 After the trial court had completed the oral charge and given certain requested charges, counsel for plaintiff made the following request and exception:
(Emphasis added.) Thereafter, plaintiffs' counsel proceeded to except to the trial court's refusal to instruct on certain of plaintiffs' requested charges. None of the refused requested charges contained in the record before us pertains to the issue of agency.
Moreover, it does not appear, from a reading of counsel's address to the court, that plaintiff was objecting to the court's instructions on the agency issue. But if we are mistaken in that interpretation, nevertheless, plaintiff has failed to comply with Rule 51, supra. If the objection was that the trial court erred in giving defendants' requested charge, it has not been pointed out to us, and our own study of the entire jury charge does not disclose, which portion of that charge was complained about. In any case, no grounds for such an objection were proffered as required by Rule 51. If, on the other hand, the objection, if it was an objection, was to the giving of "an erroneous, misleading, incomplete, or otherwise improper oral charge," then, again, no grounds for objection were stated. Marshall Durbin Farms, Inc. v. Landers, 470 So. 2d 1098 (Ala.1985).
Finally, if by raising this issue on appeal plaintiffs are attacking the sufficiency of the evidence on the issue of agency, then we respectfully refer them to our discussion under Part I.
The final issue presented by plaintiffs concerns the trial court's response to a question from the jury. According to plaintiffs, the trial court erred in its response. The record discloses that the following exchanges occurred after the jury had been excused to begin their deliberations but returned to the courtroom with a question:
We have quoted the entire transaction so that the issue of the trial court's response is clearly and completely aired. *509 The record amply demonstrates the efforts of the trial court to fully respond to the jury's question while at the same time being careful not to emphasize any portion of his instruction. Contrary to the plaintiffs' position on appeal that the trial judge erred when he stated that "[t]he law would leave them the way they found them," the trial court diligently went further to assure that the jury would not overlook the effect of negligence on the agency issue.
Moreover, plaintiffs themselves, though objecting presently, made no objection to this charge. It was the defendant who objected. Plaintiffs cannot for the first time object to a jury instruction after they failed to make any objection and thus failed to preserve any supposed error for review. Record Data International, Inc. v. Nichols, 381 So. 2d 1 (Ala.1979).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | May 1, 1987 |
02863f71-b978-4893-a995-d3c2738d8448 | Wallace v. State | 507 So. 2d 466 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 466 (1987)
Jack WALLACE, et al.
v.
STATE of Alabama.
85-1179.
Supreme Court of Alabama.
April 10, 1987.
*467 William E. Bright, Jr., Birmingham, for appellants.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
James K. Baker, City Atty., and David J. Vann and Ronald L. Stichweh of Carlton, Vann & Stichweh, Birmingham, for amicus curiae The City of Birmingham.
Carl E. Johnson of Bishop, Colvin & Johnson, Birmingham, for amicus curiae Jefferson County Board of Educ.
BEATTY, Justice.
This is an appeal from an order entered by the Jefferson Probate Court denying appellants' petition to incorporate Center Point, Alabama, pursuant to Code of 1975, § 11-41-1.
Appellants are inhabitants of the unincorporated community of Center Point; they petitioned the probate court under § 11-41-1 seeking an order incorporating Center Point as a municipal corporation. By the last paragraph of their petition, appellants purported to challenge the constitutionality of § 11-41-1: "By filing this Petition to Incorporate a Municipality, the Petitioners are hereby challenging the constitutionality of Section 11-41-1 of the Code of Alabama (1975) as amended." No other parties were joined in the probate court proceeding. That court entered the following order denying appellants' petition:
From the above order, appellants filed in the probate court a notice of appeal to this Court, naming the State of Alabama as appellee. In their notice of appeal, appellants noted that they were "questioning [the] constitutionality of Section 11-41-1 of Code of Alabama (1975) as amended." The probate court entered another order "granting" the appeal, and that court subsequently transmitted the notice of appeal to this Court. Apparently, this notice of appeal was served on the Attorney General, for that office has filed an appellee's brief with this Court.
The only ground argued as a basis for reversing the order entered below is appellants' contention that § 11-41-1 is constitutionally *468 infirm. For the reasons set out below, this appeal is due to be dismissed.
The first problem concerns the jurisdiction of the probate court to adjudicate the constitutionality, vel non, of a state statute. Section 11-41-1 confers on the probate court the jurisdiction to entertain petitions to incorporate, such as the one filed by appellants in this case, and to enter an order pursuant thereto when the requirements of § 11-41-1 are shown to have been met. However, we have found no authority on which to base the conclusion that the probate court had jurisdiction to adjudicate the constitutionality of the very statute that conferred jurisdiction on that court to entertain the appellants' petition. See Constitution of Ala., Amend. No. 328, § 6.06, as amended by Amendment No. 364; and Code of 1975, § 12-13-1. The jurisdiction of the probate court is limited to the matters submitted to it by statute. Mosely v. Tuthill, 45 Ala. 621 (1871); McCaa v. Grant, 43 Ala. 262 (1869). Compare Broughton v. Merchants National Bank of Mobile, 476 So. 2d 97 (Ala.1985). However, in order to present the constitutional issue to this Court, appellants must have raised that issue in a court below having the jurisdiction to adjudicate the issue.
This Court addressed this problem of jurisdiction in City of Homewood v. Caffee, 400 So. 2d 375 (Ala.1981), and, most recently, in Ex parte Averyt, 487 So. 2d 912 (Ala. 1986), except that, in those cases, the question concerned the jurisdiction of a zoning board (Caffee) and a personnel board (Averyt) to entertain constitutional issues. We reiterate the rule applied in both of those cases:
Caffee, 400 So. 2d at 378; Averyt, 487 So. 2d at 914. "In other words, [the probate court having denied their petition to incorporate], only by invoking the general jurisdiction of the circuit court, by way of a collateral suit, could [appellants'] constitutional challenges be raised and presented for determination." Averyt, supra.
Moreover, in a proceeding in which the constitutionality of a state statute is challenged, Code of 1975, § 6-6-227, requires that "the attorney general of the state shall also be served with a copy of the proceedings and be entitled to be heard." This Court has determined that "service on the Attorney General, pursuant to § 6-6-227, is mandatory and jurisdictional," regardless of whether appellants' action was brought as a declaratory judgment action. Barger v. Barger, 410 So. 2d 17, 19 (Ala. 1982): "[I]t seems only reasonable and logical that [by § 6-6-227] the legislature intended to cover other than original declaratory judgment actions." See also Guy v. Southwest Alabama Council on Alcoholism, 475 So. 2d 1190 (Ala.Civ.App. 1985). The record in this case does not disclose that the Attorney General was served in the trial court with "a copy of the proceeding" as required by § 6-6-227.
For the foregoing reasons, the only issue raised by this appeal is not properly before this Court. Accordingly, the appeal is due to be dismissed.
APPEAL DISMISSED.
MADDOX, ALMON and HOUSTON, JJ., concur.
TORBERT, C.J., concurs in the result. | April 10, 1987 |
7492f173-8c32-4b0e-937a-3a24874700f7 | Bradley v. Nall | 505 So. 2d 1062 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1062 (1987)
Marc E. BRADLEY
v.
J.C. NALL.
85-153.
Supreme Court of Alabama.
March 27, 1987.
*1063 Allan R. Chason, of Chason & Chason, Bay Minette, for appellant.
Byron A. Lassiter and Robert A. Wills, Bay Minette, for appellee.
ALMON, Justice.
J.C. Nall brought an action on a promissory note against H. Aubrey Taylor as maker and Marc E. Bradley "as guarantor" or accommodation party. Summary judgment was granted for plaintiff Nall against Taylor. After a trial, without a jury, judgment was entered against Bradley for $129,736.51, being principal and interest, less certain payments, and attorney fees. Taylor has not appealed.
The dispositive issue in this case is whether the trial court erred in admitting secondary evidence of an allegedly lost or destroyed legal document.
The facts leading to this lawsuit are that in 1981 Nall purchased for $120,000 an interest in oil and gas leases on lands in Mobile County. Bradley, a practicing attorney, represented Taylor in preparing the legal documents for the sale to Nall.
Nall became of the opinion that Taylor had made misrepresentations to him regarding the sale and in 1983 brought an action for fraud against Taylor. Bradley was not involved in that suit.
Subsequently, Nall and Taylor entered into some kind of settlement agreement which provided that Taylor would in effect buy back the oil and gas leases and Nall would forbear pursuing the fraud suit. Additional negotiations followed, with the result that Taylor gave a promissory note to Nall secured by a written guaranty which was to be signed by Bradley. During these negotiations, Nall was represented by Attorney Robert A. Wills and Taylor was represented by Attorney Bradley, who was to be a guarantor of the note or an accommodation party. Questions regarding what occurred during these negotiations and the kind of guaranty agreement which Bradley signed form the basis of this law suit.
The first draft of the guaranty agreement prepared by Wills was referred to at trial as an "unrestricted guaranty" because it would have permitted Nall to demand payment of the note from Bradley without having attempted collection from Taylor. When Bradley received the first draft of the agreement, he changed it to provide that Nall could seek recovery from Bradley only if Nall had exhausted his remedies against Taylor. This document, which was referred to at trial as the "restricted guaranty," was signed by Bradley and returned to Wills. This restricted guaranty was unsatisfactory to Nall; he mailed it back to Bradley with a cover letter dated April 4, 1983.
Negotiations continued for some time and led to a meeting in Wills's office on May 3, 1984. The parties present at this meeting were Wills, Nall, and Bradley. Wills and Nall testified that at this meeting Bradley delivered to them the unrestricted guaranty agreement signed by Bradley. Bradley testified that he never signed the unrestricted guaranty document, but, instead, delivered to them the restricted guaranty, which he had previously signed.
The unrestricted guaranty was not produced at trial. The trial judge allowed the introduction into evidence of an unsigned *1064 copy of the unrestricted guaranty as a substitute for a lost or destroyed original.
The Statute of Frauds pronounces "void," any agreement "to answer for the debt, default or miscarriage of another", unless it is in writing and signed by the party sought to be charged. § 8-9-2(3) Code 1975.
In order to admit evidence of a lost document, the proponent must establish: (1) the existence and execution of the document; (2) the substance of its contents; and (3) the loss or destruction of the document or other satisfactory reason for failure to produce the original. Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So. 2d 814 (1968).
52 Am.Jur.2d Lost & Destroyed Instruments § 60 (1970).
In establishing the existence of an executed document, we think the evidence must be clear and convincing. Wiggins, supra. This is especially true where the party seeking to hold others liable on the instrument is responsible for its loss.
In reviewing the record, and especially the correspondence between the two attorneys, we find that a number of inferences can be drawn, but none is conclusive on the issue of execution vel non. There is no evidence that anyone saw Bradley sign the document. Nall testified that he read the signed document and that it was in fact the unrestricted version of the guaranty. Attorney Wills was somewhat less than positive:
As previously stated, Bradley denies the execution. The Statute of Frauds was enacted to prevent this very kind of swearing match. We conclude that the evidence was insufficient to establish by the clear and convincing standard the existence of an unrestricted guaranty signed by Bradley. It was, therefore, error to introduce secondary evidence, and the judgment is reversed.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | March 27, 1987 |
ee9b1ac5-a2b1-418c-a007-87592599a36e | State Farm Fire & Cas. Co. v. JB PLASTICS | 505 So. 2d 1223 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1223 (1987)
STATE FARM FIRE AND CASUALTY CO., as Subrogee of Robert E. Haley and Irene B. Haley, et al.
v.
J.B. PLASTICS, INC.
85-1010.
Supreme Court of Alabama.
April 3, 1987.
*1225 G.B. McAtee of Stokes & McAtee, Mobile, for appellants.
Vincent A. Noletto, Jr., of Brown, Hudgens, Richardson, Mobile, for appellee.
MADDOX, Justice.
The trial court granted summary judgment in favor of the manufacturer of an allegedly defective PVC (plastic) plumbing cap. We affirm.
State Farm Fire and Casualty Company, as subrogee of its insured, Robert Haley, brought this indemnity action against J.B. Plastics, Inc., the manufacturer, claiming that it was liable for water damage its insured suffered because of the cap; State Farm bases its claim on negligent failure to warn, implied warranty, and on the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). The trial court granted summary judgment in favor of J.B. Plastics on all counts, and State Farm appeals.
The facts are undisputed. State Farm's insured, Haley, was experiencing a plumbing problem known as "water hammer" in his new home in Baldwin County. In an effort to alleviate this problem, Haley and a neighbor, Richardson, designed and built a "surge chamber" or "water hammer arrestor," using a length of pipe connected to the water line at one end and sealed with the J.B. Plastics cap at the other end. Haley and Richardson had selected those materials from bins of loose plumbing parts at a local supply store. Neither the bins nor the caps themselves bore instructions for proper use or any warnings against improper use of the caps. Further, neither Haley nor Richardson is an experienced plumber, and neither sought any advice at the supply store.
The evidence shows that Haley's surge chamber performed satisfactorily for approximately three months before the cap ruptured; when the cap failed, Haley suffered approximately $33,462.33 in water damage to his house and personal belongings. Upon Haley's signing a subrogation receipt, State Farm paid his claim for the water damage and brought this action against J.B. Plastics.
After discovery, which included taking the depositions of Haley and Richardson, and of engineers retained by plaintiff and defendant, J.B. Plastics moved for summary judgment. J.B. Plastics, in support of its motion, attached the pleadings; the plaintiff's interrogatories to the defendant and the defendant's responses thereto; the deposition of Robert E. Haley; the deposition of Dr. Courtney Busch, an expert witness for the plaintiff, and exhibits thereto; the affidavit and report of one Dr. Charles Kendall Clarke; the deposition of Richard Peterson, a purportedly expert witness for the plaintiff, and exhibits thereto; and the deposition of Charles Richardson, Jr. Dr. Busch, the plaintiff's materials engineer, and Dr. Clarke, consulting materials engineer for J.B. Plastics, both testified that, based on their stress tests, the cap in question was neither defectively nor negligently designed or manufactured. Both stated that the failure of the cap was due to material fatigue caused by the cap's use in an improperly designed surge chamber and by the great pressure extremes present in the system due to the improper design. One of the plaintiff's own experts, Dr. Busch, testified that this particular homemade water hammer arrestor installed by Haley was not the proper method to cope with the water hammer problem, and that a properly designed arrestor would have contained a separate chamber or bladder to keep air entrapped and not allow the cushion (which absorbs the shock of the water hammer) to dissipate and fill with water. In his opinion, the cap was not defective. It simply was not designed to withstand the cyclic loading or alternating pressures to which it was improperly subjected.
Similarly, Dr. Clarke stated in his affidavit and report that the failure of the water hammer arrestor was not the result of a manufacturing defect in the cap, but rather of a defect in the Richardson design of the arrestor. In his opinion, the "notch" created where the cap met the pipe created an ideal crack initiation site where the enormous cyclic pressures caused by the improper Richardson design collected, thus *1226 accentuating the lack of a separate air chamber.
J.B. Plastics contends that Haley misused its product and thus cannot maintain either an action for product failure, see Banner Welders, Inc. v. Knighton, 425 So. 2d 441 (Ala.1982); McCaleb v. Mackey Paint Mfg. Co., 343 So. 2d 511 (Ala.1977), or an action for failure to warn, McCaleb, supra.
In its brief in opposition to summary judgment, and again before this Court, the plaintiff argues that a scintilla of evidence and a jury question was raised as to all counts. The plaintiff bases much of its argument on the opinions of two purported expert witnesses and on a letter it received from the defendant's insurer, Aetna Casualty and Surety Company, which stated that the cap was not for household use. J.B. Plastics contends that neither of the two witnesses was qualified to testify as experts in this matter, and thus that their testimony as to matters of plumbing and materials failure was due to be disregarded by the trial court; J.B. Plastics also contends that the letter from Aetna is inadmissible for any purpose and should, therefore, also be disregarded.
We agree with J.B. Plastics that the Aetna letter, which was attached to State Farm's brief in response to the motion of J.B. Plastics for summary judgment, does not create an issue of fact sufficient to defeat summary judgment. This letter, from Bryan Bower of Aetna Casualty and Surety Company to State Farm's attorney, dated March 1, 1984, is inadmissible under the provisions of Rule 56, Ala.R. Civ.P. But, even if we should consider the letter as evidence in opposition to the motion for summary judgment, all the letter states is that the cap manufactured by J.B. Plastics should not have been used by State Farm's insured on a water hammer arrestor. It points out that the cap was manufactured for use primarily on sprinklers and in pool systems "where an extreme amount of pressure is not needed." At most, the letter states that the cap should not have been used in situations where it would be subjected to extremes in water pressure.
As to the claim of J.B. Plastics' that two of the plaintiff's three proffered "experts" are unqualified to render expert opinions, we also agree. "[T]o qualify as an expert witness, it must appear that by study, practice, experience, or observation, as to the particular subject matter involved, the witness has acquired a knowledge beyond that of ordinary witnesses." Independent Life & Acc. Ins. Co. v. Aaron, 282 Ala. 685, 213 So. 2d 847 (1968). From all of the evidence before the court, the trial judge was authorized to hold that Peterson and Richardson, the challenged witnesses, were not competent to express expert opinions regarding the propriety of the design of the surge chamber, the cause of the cap's failure, or whether the failure was the result of any negligence or defect in the cap's design or manufacture. Richardson, who designed the chamber for Haley, is a retired communications engineer whose only apparent knowledge of hydraulics and surge chambers came from an undergraduate course during his school years. Peterson, a civil engineer, likewise has no training in hydraulics or in metallurgy or materials failure; although he stated in his deposition that he, in all likelihood, would have designed the surge chamber the same as Richardson did, Peterson has no basis in specialized training or experience on which to base that testimony, under the principles set out in Aaron, supra. Indeed, Peterson deferred to Dr. Busch's experience when asked in deposition about the cause of the cap's fatigue and failure. While both men stated that they believed that the installation of the chamber was proper, and that the materials and design were appropriate, their testimony does not contain a scintilla of evidence to prove any of the plaintiff's claims.
Based on the testimony of the only two qualified experts in this case, this Court must conclude that the trial court did not err in holding that the plaintiff failed to produce a scintilla of evidence that the cap was either negligently designed or manufactured, or that there was liability under *1227 the AEMLD as that doctrine is expressed in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976). As stated above, both experts concluded that the cap failed, not due to any defect in itself, but it was used in a defective design, and in an improper application.
State Farm further contends that it presented a scintilla of evidence on its claim of a negligent failure to warn. State Farm cites the case of Outlaw v. Firestone Tire & Rubber Co., 770 F.2d 1012 (5th Cir.1985), wherein the Fifth Circuit correctly stated Alabama law, that the existence of a duty to warn and the adequacy of a warning are questions of fact for the jury:
Id. at 1014-15.
We believe that, under the facts of this case, there was no duty to warn of the pressure capacity of the PVC plumbing cap. A manufacturer's duty to warn of the dangerous propensities of a product arises only when the product is unreasonably dangerous when put to its intended use. McCaleb v. Mackey Paint Mfg. Co., 343 So. 2d at 514. All of the direct evidence, and the logical inferences which can be drawn from that evidence, indicate that the cap was misused and that the misuse was the direct cause of its failure. Under McCaleb, as a matter of law, J.B. Plastics had no duty to warn of possible failure of the PVC plumbing cap. Cf., Comments, The Drug Manufacturer's Duty to Warn and the Alabama Extended Manufacturer's Liability Doctrine, 37 Ala.L.Rev. 681 (1986), which also discusses Alabama law on the duty to warn in product liability cases involving products other than drugs; cf., also, Gurley v. American Honda Motor Co., 505 So. 2d 358 (Ala.1987). For that reason, summary judgment was also properly granted on State Farm's claim of a negligent failure to warn.
As to the plaintiff's count based on an implied warranty of merchantability under Code 1975, § 7-2-314, the plaintiff has failed to state a claim for which relief may be granted. While Alabama's version of U.C.C. § 2-318 has abolished privity requirements in actions involving injuries to natural persons, the privity requirements still remains in cases of strictly economic injury. See Simmons v. Clemco Industries, 368 So. 2d 509 (Ala.1979); Chandler v. Hunter, 340 So. 2d 818 (Ala.Civ.App. 1976); Dudley v. Bayou Fabricators, Inc., 330 F. Supp. 788 (S.D.Ala.1971).
In summary, under the above-stated law and facts, we determine that the plaintiff, State Farm, has failed to state a cause of action under Code 1975, § 7-2-314, has failed to produce a scintilla of evidence that the defendant negligently or defectively designed or manufactured the PVC cap in question, and has failed to establish that there was a duty on the part of J.B. Plastics to warn against misuse of its product. Therefore, this Court affirms the defendant's summary judgment as to all counts.
AFFIRMED.
*1228 TORBERT, C.J., and BEATTY and HOUSTON, JJ., concur.
ALMON, J., concurs in the result. | April 3, 1987 |
881e7bd0-fe46-4375-95c7-8154317be4a0 | Precision American Corp. v. Leasing Service Corp. | 505 So. 2d 380 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 380 (1987)
PRECISION AMERICAN CORPORATION
v.
LEASING SERVICE CORPORATION.
85-1495.
Supreme Court of Alabama.
March 27, 1987.
Thad G. Long and Michael J. Brandt of Bradley, Arant, Rose & White, Birmingham, for appellant.
Michael L. Hall and Robert S. Vance, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
TORBERT, Chief Justice.
This action arises out of a commercial lease transaction. Precision American Corporation ("Precision") leased a tree harvester to Southland Timber Company and assigned its lessor's rights under that lease to Leasing Service Corporation ("LSC") and to Credit Alliance Corporation, which is not a party to this appeal. Precision's assignment was with recourse, but the parties *381 dispute the extent of that recourse. Southland's assignee defaulted on the lease to the extent of $140,385.52. Precision maintains that its recourse obligation is for one-half of the balance due on default ($70,192.76, half of $140,385.52); LSC contends that Precision's recourse obligation is for one-half of the initial amount of the lessee's obligation ($113,739.56, half of $227,479.12).
Precision sued LSC, alleging that LSC misrepresented the nature of the recourse obligation at the time the transaction was entered, and Precision also sought relief in equity to have the documents reformed to express what it claimed to be the true intent of the parties. Precision also asserted claims against Southland and its assignee, and against Credit Alliance Corporation, but those claims are not involved in this appeal. LSC counterclaimed against Precision for one-half of the total initial amount due on the lease and for possession of the tree harvester. LSC then moved for partial summary judgment for the amount Precision claims represents the recourse obligation ($70,192.76) and expressly preserved its rights on the balance of its counterclaim for later determination. The trial court granted LSC's motion for partial summary judgment and certified that judgment as final under Rule 54(b), A.R.Civ.P. Precision made a motion under Rule 59(e), A.R.Civ.P., for the trial court to reconsider its Rule 54(b) certification and argued that Rule 54(b) certification was improper since LSC had received summary judgment on only a portion of one of its claims. Precision's motion was denied, and Precision has appealed to this Court. Precision's claims and LSC's other counterclaims remain pending in the trial court.
Precision argues that LSC received summary judgment on only a portion of one of its claims and, therefore, that the trial court's Rule 54(b) certification was erroneous. We agree.
As this Court stated in Foster v. Greer & Sons, Inc., 446 So. 2d 605, 610 (Ala.1984), "Rule 54(b) certifications should be granted only in exceptional cases and `should not be entered routinely or as a courtesy or accommodation to counsel.' Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978)." The Committee comments to Rule 54 note:
Committee comments, Rule 54, A.R.Civ.P.
The question before this Court is whether the partial summary judgment LSC received completely disposed of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim. Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984). Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson, 732 F.2d at 1001; Cates v. Bush, 293 Ala. 535, 307 So. 2d 6 (1975). However, authorities have stated that "when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply." 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir.1985).
In this case, LSC counterclaimed for one-half of the initial amount of the lessee's obligation, and the trial court gave LSC a summary judgment on a portion of that amount, while reserving determination on the balance of the counterclaim. In Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66 (2d Cir.1973), the Second Circuit Court of Appeals held that when the trial court determined part of the damages (the principal) but reserved determination on the amount of prejudgment interest, that determination was not final despite the trial court's Rule 54(b) certification. "It is settled that, in making the requisite determination *382 and direction under F.R.Civ.P. 54(b), `[t]he District Court cannot, in the exercise of its discretion, treat as "final" that which is not "final"....'" 482 F.2d at 69 (emphasis in original). The Second Circuit noted in a later case that it had held that "a judgment fixing certain damages but not others could not be considered final." International Controls Corp. v. Vesco, 535 F.2d 742, at 748 (2d Cir.1976), referring to Aetna Cas. & Surety Co. v. Giesnow, 412 F.2d 468 (2d Cir.1969). That court said, "In short, a judgment cannot be considered final as long as it leaves open the question of additional damages." International Controls Corp. v. Vesco, at 748. "[A] judgment which awards damages but also allows the judgment holder to return to court to prove more damages is not a final judgment." Southeast Nursing Home, Inc. v. St. Paul Fire & Marine Ins. Co., 750 F.2d 1531, 1539 n. 11 (11th Cir.1985).
Not all aspects of LSC's counterclaim for one-half of the initial amount of the lessee's obligation have been adjudicated; therefore, the trial court's certification of finality under Rule 54(b) was erroneous and is due to be set aside. There being no final judgment, the appeal is dismissed for lack of jurisdiction.
APPEAL DISMISSED.
MADDOX, ALMON, BEATTY and HOUSTON, JJ., concur. | March 27, 1987 |
064319fd-2f1a-4720-9237-753f9fe22c39 | Creel v. Brown | 508 So. 2d 684 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 684 (1987)
Connie H. CREEL and George D. Creel
v.
Roger Steve BROWN.
85-403.
Supreme Court of Alabama.
April 24, 1987.
Rehearing Denied June 5, 1987.
*685 George H. Howell of Howell, Sarto and Howell, Prattville, for appellants.
James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
ALMON, Justice.
This appeal presents an issue of whether there was a scintilla of evidence of contributory negligence upon which to submit the question to the jury. At the conclusion of the trial of this suit for personal injuries and loss of consortium arising out of an automobile accident, the jury returned a verdict for defendant, finding contributory negligence on the part of the plaintiff.
Connie H. Creel and her husband, George D. Creel, own and operate the Prattville Memory Gardens Cemetery. On May 3, 1983, Mrs. Creel was driving her automobile on Highway 14, preparing to turn left into the cemetery. The first driveway provides access to the office, and Mrs. Creel testified that she switched on her left turn signal and prepared to turn left at this first driveway. She stated that she then saw her husband working in the cemetery in an area reached by the second driveway into the cemetery, so she proceeded along the highway to this second driveway, which she said was about 200 feet past the first one. When she reached it, she came to a stop to wait for oncoming traffic to clear her way, and as she waited an automobile operated by defendant Roger Steve Brown struck her automobile from the rear.
There was very little evidence as to liability, because most of the proof concerned Mrs. Creel's injuries. Therefore, we are able to quote substantially all of the proof regarding liability. The pertinent testimony by Mrs. Creel is as follows:
The police officer who investigated the accident testified: "I asked both drivers could they tell me briefly what happened from their point of view. And he said he just didn't see her when she was trying to make her turn."
Mr. Brown's testimony on direct examination about the accident was as follows:
Brown's testimony on cross-examination clearly demonstrates that there was no proof of any negligence on the part of Mrs. Creel which proximately contributed to the accident:
At the close of the evidence the parties moved for directed verdicts. The trial court granted Brown's motion for directed verdict on the wantonness count and denied it otherwise. The court then said to the Creels' attorney:
The court instructed the jury on contributory negligence and on the rules of the road, including the following, based upon Code 1975, § 32-5A-133:
Contributory negligence on the part of a plaintiff which proximately contributes to the plaintiff's injuries will bar *688 recovery. Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370 (Ala.1984). However, the defendant must plead and prove contributory negligence:
Alabama Great Southern R.R. v. Evans, 288 Ala. 25, 30, 256 So. 2d 861, 865 (1972); American Furniture Galleries, Inc. v. McWane, 477 So. 2d 369 (Ala.1985); United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala.1977).
While the question of contributory negligence is normally one for the jury, it has been held that "Where the facts are such that all reasonable [people] must reach the same conclusion, contributory negligence may be found as a matter of law." Brown v. Piggly-Wiggly Stores, supra, at 1372. See Alabama Digest, Negligence, Key No. 136(26). Conversely, if a defendant does not present a scintilla of evidence of contributory negligence, he should not be entitled to submit the question to the jury. Banks v. Harbin, 500 So. 2d 1027 (Ala.1986).
Brown's evidence does not present a scintilla of evidence that Mrs. Creel was negligent. He testified that when he first saw her car it was stopped and the turn signal was on, not that she suddenly turned on her signal and came to a stop. He testified that it was apparent that she was stopped waiting for the oncoming traffic to clear. His testimony that the accident happened in a split second is not attributable to Mrs. Creel's operation of her vehicle, but to his perception of the situation. The trial court's observation that there was no evidence of how long she had had her signal on ignores her testimony that she had it on from the time she passed the office until the time she reached the second driveway. Even assuming that Mrs. Creel failed to give a signal for the required 100 feet (although there was no proof of this), such a failure under the facts of this case could not have proximately caused the accident, because Brown testified that when he first saw Mrs. Creel's automobile her signal was on.
Because there was not a scintilla of evidence that Mrs. Creel was negligent, the trial court should have granted a directed verdict for the Creels on Brown's plea of contributory negligence. Because the jury specifically returned the verdict for Brown on its finding of "Contributory negligence on [the] part of the plaintiff," the trial court should have granted the Creels' motion for new trial. The judgment denying that motion is reversed and the cause is remanded for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX and BEATTY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
Does 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, satisfy our scintilla-of-evidence sufficiency standard? To me, it does not. I believe that we must review all of the testimony of a particular witness to determine whether there is any evidence to take a plaintiff's case or a defendant's affirmative defense to the jury. In this case, if I read only certain of Brown's answers to certain questions addressed to him, I could arrive at a metaphysical judgment that I saw a gleam, glimmer, spark, or trace of evidence from which I could logically infer that Mrs. Creel was contributorily negligent. If I analyze all of Brown's testimony and all other evidence introduced, that gleam, glimmer, spark, or trace disappears, and I am of the opinion that it would be logically unreasonable for a jury to conclude that Mrs. Creel was contributorily negligent. Therefore, I agree that the affirmative defense of contributory *689 negligence should not have been submitted to the jury. | April 24, 1987 |
72a7818a-66dd-4930-affb-16eae8440ae6 | Abbott v. Allstate Ins. Co. | 507 So. 2d 905 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 905 (1987)
Roy E. ABBOTT
v.
ALLSTATE INSURANCE COMPANY, et al.
85-991.
Supreme Court of Alabama.
April 24, 1987.
Philip Henry Pitts and J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for Abbott.
William J. Gamble of Gamble, Gamble & Calame, Selma, for appellee Allstate Ins. Co.
P. Vaughan Russell of McCormick, Russell and Armstrong, Selma, for appellee Carolyn Drewniak.
Barry R. Bennett of Hobbs & Hain, Selma, for appellee Scott Allen Hadaway.
Sterling G. Culpepper, Jr., of Balch & Bingham, Montgomery, for appellee Alabama Power Co.
HOUSTON, Justice.
"It was a dark and stormy night"[1] when defendant/appellee Scott Allen Hadaway lost control of his vehicle on U.S. Highway 80 east in Selma, and struck a streetlight *906 pole located in the median of the four-lane highway. The pole fell across the two east-bound traffic lanes of Highway 80. Plaintiff/appellant Roy E. Abbott was dispatched to the accident scene.
Abbott was struck by a vehicle, driven by defendant Carolyn Drewniak, near the scene of the accident. Abbott sustained a concussion and a broken ankle and claimed that he had aggravated a previous leg injury. Abbott filed suit against Allstate Insurance Company (Abbott's uninsured motorist insurance carrier), Alabama Power Company, Hadaway, Drewniak, and certain fictitious parties. Answers were filed by all defendants denying the material allegations of the complaint and pleading contributory negligence; independent, intervening cause; the statute of limitations; assumption of risk; and unavoidable accident. On motion of Alabama Power Company, Blue Cross-Blue Shield of Alabama was added as a plaintiff.
There was a general jury verdict for the defendants. Abbott appeals and presents two issues for review.
Blue Cross was named as a party plaintiff more than a year prior to trial, without objection by Abbott. On the day of trial, Abbott filed a motion to exclude Blue Cross as a plaintiff and a motion in limine asking that defendants be refrained from mentioning plaintiff's coverage by Blue Cross.
Clearly, some of the medical bills incurred by Abbott in the treatment of his previous leg injury, which he alleged was aggravated by the accident, were paid by
Blue Cross, which was subrogated to Abbott's right to recover for these. The only testimony before the jury concerning Blue Cross that this Court can find in the record was Abbott's testimony by which he apparently sought to claim the premiums he had paid to Blue Cross as an element of his damages.
Rule 17(a), Ala.R.Civ.P., not only permits, but requires, a subrogee to be named as a party under the facts in this case:
Abbott contends that since he agreed and stipulated to be bound by any judgment so as to protect the interest of Blue Cross and the defendants, it was a violation of the collateral source rule (Gribble v. Cox, 349 So. 2d 1141 (Ala.1977); Carlisle v. Miller, 275 Ala. 440, 155 So. 2d 689 (1963)), and prejudicial error, not to exclude Blue Cross as a party.
There is no merit in this contention.
In Roberts v. Hughes, 432 So. 2d 1232, 1233 (Ala.1983),[2] Justice Faulkner, speaking for a division of this Court, wrote:
The following is without dispute in the record:
(1) Hadaway struck the streetlight pole, knocking it down, at about 12:15 a.m.
(2) Abbott arrived on the scene at about 12:30 a.m. and parked his patrol car in the outside eastbound lane facing the pole, with emergency and hazard lights flashing and with headlights and spotlight shining on the pole.
(3) A state trooper was called to investigate Hadaway's accident and arrived at the scene at 12:58 a.m. He positioned his car in the outside eastbound traffic lane slightly behind Abbott's vehicle, with its emergency light and four-way lights flashing and with its headlights on.
(4) Alabama Power was notified at least once and maybe twice before Abbott was injured, but had not responded.
(5) Abbott was hit at about 1:49 a.m. by Drewniak, who had been drinking and who had a blood alcohol content of .11%.
(6) It was not until after Alabama Power had been notified that Abbott had been hit that it dispatched Jamie Pitts, an Alabama Power employee, to remove the pole.
(7) Once Pitts received the call, he left immediately to go to the scene.
Pitts gave a written statement to a claims agent in August 1981, after this suit was filed. In this statement Pitts stated that at 12:30 or 1:00 a.m. he was notified to remove the pole. Even after examining this statement, Pitts would not testify that his recollection had been refreshed by the statement. Abbott's offer to prove the statement and to have it admitted into evidence was denied by the trial court.
Abbott contends that the statement was admissible as a "past recollection recorded." The leading decision in Alabama on this subject is Acklen's Executor v. Hickman, 63 Ala. 494 (1879), wherein the Court stated:
63 Ala. at 498.
The Acklen case was relied upon by the Court in the later case of St. Paul Fire & Marine Insurance Co. v. Johnson, 259 Ala. 627, 67 So. 2d 896 (1953). In the later case, the Court affirmed the ruling of the trial court in permitting into evidence a portion of an affidavit of a witness. The affidavit was made in April of 1948, following a fire on January 24, 1948. The trial was held May 8, 1952. The witness testified that the affidavit was made at his direction and bore his signature, but that he had no independent recollection of the contents of the affidavit even after reading it.
The only relevance of the statement of Pitts, which is the subject of this controversy, is that it contained Pitts's earlier recollection of when he had gotten the call to go remove the pole. Although we cannot find *908 the statement in controversy in the record, Pitts apparently said in that statement that he received that call about 12:30 a.m. or 1:00 a.m. Obviously, he could not have gotten the call at either of those times because that was before Abbott got hit, and it was admitted by Alabama Power that it did not dispatch anyone until after Abbott was hit. Therefore, if Alabama Power did not dispatch Pitts until after Abbott was hit, it makes absolutely no difference what time that call was made. Any delay in dispatching Pitts to the scene after Abbott was hit cannot be said to have had any bearing on his being hit initially. Accordingly, even if the statement was technically admissible, keeping it out of evidence certainly does not constitute prejudicial error. If Abbott claims the statement constitutes evidence that Alabama Power dispatched a man earlier than Alabama Power claimed, we cannot see how that would inure to the benefit of Abbott. The burden is on Abbott, as appellant, not only to establish error but to show that he was prejudiced by it. American Furniture Galleries, Inc. v. McWane, Inc., 477 So. 2d 369 (1985). Abbott has not sustained that burden in this case.
AFFIRMED.
TORBERT, C.J., and MADDOX and ALMON, JJ., concur.
BEATTY, J., concurs specially.
BEATTY, Justice (concurring specially).
It was a dark and stormy night?
[1] This is the opening phrase of two briefs in this case; it is also the opening line of obscure Lord Edward Bulwer-Lytton's obscure novel Paul Clifford. It is used as the beginning phrase in this opinion, so that this "literary gem," which has been relegated to the ephemeral comics, will not be lost, but preserved with such classic opening lines as "It was the best of times, it was the worst of times," and "Call me Ishmael."
[2] Ex parte Howell, 447 So. 2d 661 (Ala.1984), which involved subrogation in a third-party workman's compensation case, modified Roberts v. Hughes insofar as subrogation under workman's compensation was concerned. Roberts v. Hughes involved subrogation rights arising out of the payment of collision coverage, as well as workman's compensation coverage. Roberts v. Hughes, supra, is still authority for the subrogation issue involved in this case. | April 24, 1987 |
9f00e051-7d19-4d48-9286-9e75a5a65fcb | Martin v. Watts | 508 So. 2d 1136 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 1136 (1987)
Kerri M. MARTIN, Ricky J. Martin, and April Kelli Hazelrig
v.
Richard P. WATTS and Huntsville Jaycees, Inc.
84-1007.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied May 8, 1987.
Charles C. King and Charles A. Sullins, Huntsville, and Francis H. Hare, Jr., and D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
E. Cutter Hughes, Jr., and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee Richard P. Watts.
Don G. DeCoudres, Birmingham, for appellee Huntsville Jaycees, Inc.
PER CURIAM.
This is an appeal from a summary judgment made final pursuant to Rule 54(b), A.R.Civ.P. Defendants, Richard Watts, David Worley, and Huntsville Jaycees, Inc. ("Jaycees"), were alleged to have participated in sponsoring or to have assisted in sponsoring a party at which alcoholic beverages were provided to minors.
Two of the minors became intoxicated and caused an automobile accident in which plaintiffs were injured and another person was killed. The plaintiffs brought an action for damages against these defendants and others. Settlements have been reached with some of the original defendants, while others have been dismissed.
Defendants Watts and Jaycees filed motions to dismiss and motions for summary judgment. The lower court denied the motions to dismiss. In considering the motions for summary judgment, the trial court addressed two issues: First, whether an action for damages under the Alabama Dram Shop Act could be brought against either the Huntsville Jaycees or Watts, and second, whether an action founded upon common law negligence principles would lie *1137 against either defendant? Judge Smith, in a lengthy and scholarly order which traces the history of legislation affecting alcoholic beverages in this state, held that an action will not lie on either theory and granted summary judgment for Watts and the Jaycees.
The following facts are taken from Judge Smith's order.
The Huntsville Jaycees, Inc.
The Huntsville Jaycees, Inc., is a service organization created to benefit and improve the city of Huntsville. According to 11 World Book Encyclopedia 51 (1976),
Included among the many community programs which the Huntsville Jaycees conducted was its sponsorship of the Huntsville High School Junior Jaycees.
The Huntsville High School Junior Jaycees ("HHS Jr. Jaycees") is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. The following boys were officers of the HHS Jr. Jaycees during the 1981-82 school year: President: John Watts (son of defendant Richard Watts); Vice President: Drew Crow; Secretary: David Vest; and Treasurer: Wes Neighbors (son of William W. "Billy" Neighbors, Jr.). These boys were responsible for planning and preparing the party where the alcoholic beverages were consumed.
Mrs. Sandra Norton was the school faculty sponsor; however, she took no part in the affairs of the club. According to testimony, she was "just a name used by the club to comply with the stated school policy."
David Worley is an attorney. He is associated with the Huntsville Jaycees, Inc., and served as "sponsor" for the HHS Jr. Jaycees chapter. In that capacity, he served as liaison between the two organizations and coordinator of their joint activities. To perform those duties, Worley attended meetings of both clubs.
Richard Watts is the father of John Watts, the president of the HHS Jr. Jaycees. He and his wife, Jean Watts, are part owners of a lake cabin where this party was held.
Each year for a number of years, the HHS Jr. Jaycees had held "a big social event" for the club members and their invited friends. Thus, at one of the last club meetings during the 1980-81 school year, the members discussed party plans. Someone suggested a place where the beer might be purchased, but Worley, who was present, stated that he could get the club "a special deal." According to deposition testimony of Wes Neighbors,
On Friday, May 15, 1981, following the end of classes for the day, Neighbors drove with David Vest to the law office of Worley with a check drawn on the "Huntsville High School Imprest Account" and made payable to Wes Neighbors. Neighbors endorsed the check and gave it to Worley. He and David Vest then followed Worley to Turner Beverage Company. Worley also endorsed the check, and handed it to Tully Turner, owner of the beverage company. Half-cases of beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. Next, they proceeded to the residence of Worley, where they stored the beer on Worley's back porch.
The following morning, Saturday, May 16, 1981, Neighbors and Vest returned to *1138 Worley's home. They loaded the beer into a pick-up truck and covered it with tarpaulins. After meeting fellow club members John Watts and George Mahoney, they transported the beer from Huntsville to the cabin on Guntersville Lake in Marshall County.
When the four boys arrived at the Watts cabin, around noon, they iced the beer down in six coolers. John Watts had obtained these coolers from a building owned by the Jaycees.[1] Soon other HHS Jr. Jaycees and their guests began to arrive. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help himself to as much as he desired. According to Neighbors, just about everybody who attended the party "was pretty much intoxicated." He described the party as "wild, a melee." Four young people passed out totally and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle.
Adults present during the party were: Billy Neighbors, the father of Wes Neighbors; Richard Watts, owner of the cabin and father of club president John Watts; and David Worley, who attended the party in his capacity as club "sponsor." Around 3:30 p.m., Billy Neighbors decided that things were getting out of hand; he and Richard Watts called a halt to the party. Richard Watts told the boys to load the beer back into the pick-up truck. Warren Bradford, age 18, was one of the boys who became intoxicated. Billy Neighbors told John Watts to remove the ignition keys from Bradford's vehicle. The keys were given to Bradford's companion, Mark Pullen, age 17. Pullen was told that he was to drive the vehicle back to Huntsville.
Pullen and Bradford left around 4 or 4:30 p.m., with Pullen driving. After they left, Bradford demanded forcefully that Pullen let him drive the car. Pullen stopped the vehicle and the boys changed positions.
Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, "moving to the [beat of the] music" playing on the car's stereo, laughing, and "in a good mood," Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and into the path of plaintiffs' on-coming vehicle.
Neither Pullen nor Bradford was injured very badly. However, the driver of the other car, Georgia L. Hazelrig, was killed. Her two daughters, Kerri Martin and April Hazelrig, were gravely injured.
Appellants argue that the appellees should be amenable to suit because appellees created and controlled a dangerous and foreseeable risk of harm. They contend that Judge Smith erred in holding as a matter of law that there was no cause of action which would lie against these defendants for their part in promoting a party at which alcoholic beverages were served to minors.
The essential element underpinning Judge Smith's order is an assumption that there can be no right of action against a noncommercial supplier of alcoholic beverages. Appellees go one step further and argue that to hold otherwise would amount to a social host liability. At the outset, a very important distinction should be made. The facts of this case do not require us to consider social host liability. Here we are concerned only with the providing of alcoholic beverages by adults to minor school children, which is a clear violation of law.
Appellants contend that they should have been allowed to proceed under Code 1975, ง 6-5-71(a), Alabama's Dram Shop Act. Appellees contend that this section does not pertain to dispensing outside of the commercial setting.
*1139 The relevant portion of the Dram Shop Act provides:
Code 1975, ง 6-5-71(a). Whether an action will lie under this section depends upon a statutory construction of two of the operative terms of the Act. We must determine the effect of the phrases "selling, giving or otherwise disposing of" and "contrary to the provisions of law". Section (a) of the statute contains a compound subject, modified by a dependent clause, and a predicate, modified by a series of prepositional phrases and a dependent clause. Stripped of their modifiers the subject is "every wife, child, parent, or other person," and the predicate is "shall have a right of action." Thus it can be seen that the overall purpose of this sentence is to create a cause of action.
We are concerned here with the effect of the modifiers of the predicate. The right of action is granted "against any person who shall ... cause the intoxication" of the intoxicated person referred to in the dependent clause which modifies the subject. The language represented by the ellipsis in the preceeding quotation consists of a compound prepositional phrase. The gerunds "selling," "giving," and "disposing of" form the compound object of the preposition "by". These gerunds are modified by the phrases "to another" and "contrary to the provisions of law," and take the compound object "any liquors or beverages." By analyzing the sentence grammatically we are able to arrive at the cause of action which has been created. The gerundial phrases act as modifiers of the verb of the dependent clause in the predicate, "who shall ... cause intoxication." The effect of these modifiers is to identify who may be sued and under what circumstances. That is, the right of action is granted "against any person who shall ... cause the intoxication of [the] person [injuring the plaintiff]," (1) "by selling ... to another, contrary to the provisions of law, any liquors or beverages," (2) "by giving ... to another, contrary to the provisions of law, any liquors or beverages," or (3) "by otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages."
Our responsibility is to apply the statute according to the intent of the legislature. In discerning the intent of the legislature the Court looks solely to the language of the act, unless it appears that the wording is ambiguous or leads to a result which the Legislature could not have intended. Alabama Industrial Bank v. State Ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970).
We note that the legislature, in describing the conduct which will trigger the application of ง 6-5-71, has employed words and phrases which have or suggest a general application: "any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law." Had the legislature intended to limit the class of persons against whom an action could be brought, the draftsmen could certainly have employed words much better suited to an expression of such an intent. If it was the intention to create a right of action against only that narrowly defined class of persons, i.e., "commercial dispensers," the draftsmen could have incorporated that term into the act. Or, they could have stopped with the words "by selling." They did not do that. Instead, they included the terms "giving" and "otherwise disposing of." It is hard to imagine a phrase more expansive than "otherwise disposing of."
However, these gerunds are further modified by the phrase "contrary to the provisions of law." Appellees argue that this is evidence of a legislative purpose to regulate those in the business of selling alcoholic beverages. Here also, the choice of words is significant. Elsewhere in the Code, under Title 28, the legislature has *1140 enacted an elaborate scheme for regulating the manufacture, dispensing, and consumption of alcoholic beverages. If the purpose was to tie the causes of action allowed under ง 6-5-71 to the legislature's regulation of the industry, that purpose could have been clearly expressed by a specific reference to the provisions under Title 28; the drafters could have provided "in violation of the regulations of Title 28." Such is not the case. Rather, we find the words "contrary to the provisions of law." Again, it is difficult to imagine a compilation of words suggesting a broader application.
Much attention has been devoted to a historical discussion of the Dram Shop Act. Section 6-5-71 is virtually a word-for-word codification of the language of ง 8 of the 1909 Act which first created the cause of action. Act No. 191, ง 8,1909 Ala. Acts, p. 65. To determine whether the draftsmen of the 1909 Act intended to restrict its application to the commercial setting, we turn to the definitional section of that Act. Section 31 of the 1909 Act defines the term "otherwise dispose of":
Id. at p. 96 (emphasis supplied).
It is important to observe that the 1909 Act, of which the civil remedy was but one small part, was a very broad enactment intended to "suppress the evils of intemperance," p. 63. A perusal of the entire Act, which spans 33 pages, reveals that much of the current law regulating alcoholic beverages may also be traced to the 1909 Act. The fact is, the Act of 1909, just like the current provisions affecting "dry counties," prohibits virtually all use of alcoholic beverages, without regard to their source. But see Code 1975, ง 28-4-200.
Appellees go beyond the specific wording of the statute in search of support for their position. They present three additional factors which they contend provide such support: (1) the fact that the section is listed under the heading "ARTICLE 6. ILLEGAL LIQUOR SALES"; (2) the fact of frequent reference by this Court in prior cases to ง 6-5-71 as the "Dram Shop Act"; and (3) that prior opinions of this Court imply that a commercial sale is a prerequisite to an action under ง 6-5-71. The latter two factors are readily dismissed. The specific question not having been before the court, the prior case law "implying" such an intent of the legislature provides no guidance and amounts to little more than dicta. Likewise, there is no precedential value in the past references by the Court to ง 6-5-71 as the "Dram Shop Act" when that limited question was not being considered. See Ward v. Rhodes, Hammonds & Beck, [Ms. 85-930, April 10, 1987] (Ala.1987) (Jones, J., concurring, n. 1) (stating that the label "Dram Shop Act" is a misnomer).
Appellees assert that the legislature's designation "ARTICLE SIX. ILLEGAL LIQUOR SALES" is evidence of an express intent of the legislature to regulate illegal liquor sales. Certainly, if the reader looked at nothing more, the designation would alert in the reader an expectation that Article Six deals with illegal liquor sales. But, appellees attach too much significance to the name given to Article Six. As has already been pointed out, Article Six comes under Chapter 5, "ACTIONS," of Title Six, "CIVIL PRACTICE." Its purpose is to provide a civil remedy for a civil wrong arising out of a violation of law. The designation given by the legislature does no more than alert the reader to the general subject matter covered by the provisions of the Article. See Alabama Constitution 1901, Art. IV, ง 45. The designation is not accorded greater dignity than the substantive provisions of the Article. It is to be read consistent with those provisions, not vice versa, and should not impute a meaning different from that provided by the language of the statute. *1141 Where most acquisitions of alcoholic beverages originate from a commercial transaction, it would not be unreasonable to anticipate that most acts giving rise to a civil remedy under ง 6-5-71 would also originate from a commercial transaction. Nor would it be unusual for the draftsmen to reflect that fact by designating the Article "ILLEGAL LIQUOR SALES." We think that the legislature did no more than seize upon a label which would succinctly state the general nature of the causes of action covered under Article Six.
Section 6-5-71 creates a civil remedy against persons who, contrary to law, cause the intoxication of another by providing the other person with alcoholic beverages, when the plaintiff is injured because of the intoxication. The term which most narrowly limits this cause of action is the requirement that the providing of the alcoholic beverages be contrary to law.
The legislature has prohibited all use of alcoholic beverages by minors. Code 1975, ง 28-3A-25(a)(19). Pullen and Bradford were both minors when the lake party was held. See Code 1975, ง 28-3A-2(18); cf. Acts 1986, No. 86-212, ง 2, effective April 1, 1986. It was the clearly stated intent of the legislature that these minors not have access to alcoholic beverages. It has long been recognized that "The sale or furnishing of prohibited alcoholic beverages to a minor is ... unlawful whether made by a licensee in a wet county, or by a nonlicensee in any territory in this State." Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951).
The trend in recent decisions of other jurisdictions is to allow causes of action where adults have assisted in furnishing alcoholic beverages to minors. See the appendix to this opinion.
There are no facts to support an allegation that Watts provided any of the alcoholic beverages consumed by the minors. One of the elements of the cause of action under the Dram Shop Act is that the defendant provide alcoholic beverages to the intoxicated person who caused the injury to the plaintiff. Appellee Watts states in his brief that his only connection to the HHS Jr. Jaycees lake party was his ownership interest in the cabin and his presence during the party; that he took no part in providing the minors with alcoholic beverages. This has not been contested by Appellants in their brief. Therefore, summary judgment was properly granted for Watts.
We hold that a common law cause of action does not lie in this case, notwithstanding the case of Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984). See Ward v. Rhodes, Hammonds, & Beck, Inc., [Ms. 85-930, April 10, 1987] (Ala.1987).
Therefore, the judgment for Watts is affirmed. The judgment for Huntsville Jaycees, Inc., is reversed, and the cause is remanded for trial.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result insofar as it affirms the summary judgment for defendant Watts, and insofar as it holds there is no liability under common law negligence, but otherwise dissents.
Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir.1986). (Applying Pennsylvania law, Court of Appeals held that questions of material fact existed as to whether persons helped organize party for purposes of serving alcoholic beverages to minors, and whether they provided substantial assistance to minor in his consumption of alcoholic beverage, thus precluding summary judgment.)
Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985). (Analogizing to the rule that an owner of an automobile is liable when he entrusts it to an intoxicated individual, *1142 the court held that a person who encouraged an intoxicated minor to have more drinks, knowing the minor would be driving an automobile, could be liable to a third person injured by the negligence of the intoxicated minor.)
Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974). (Violation of statute providing "No alcoholic beverages shall be sold, bartered, exchanged, given, provided or furnished, to any person [under age]" is negligence per se. Cause of action existed where adult acquiesced in minors' helping themselves to liquor from her refrigerator.)
Williams v. Klemsrud, 197 N.W.2d 614 (Iowa 1972). (Court found right of action under Dram Shop Act, against person "not engaged in liquor traffic" for having provided liquor to minor.) See also, Lewis v. State, 256 N.W.2d 181 (Iowa 1977).
Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985). (Violation of sections of liquor statute prohibiting furnishing of liquor to minor gave rise to action in favor of minor who was served and later injured himself.)
Reinert v. Dolezel, 147 Mich.App. 149, 383 N.W.2d 148 (1985). (Cause of action lies against defendants who furnished alcoholic beverages to persons under the legal drinking age.)
Lover v. Sampson, 44 Mich.App. 173, 205 N.W.2d 69 (1972). (Though the Dram Shop Act applied only to commercial vendors, nevertheless an action can be brought by an injured party against a non-commercial supplier who provides alcoholic beverages to a minor.)
Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972). (Court found liability against individuals who purchased liquor for 19-year-old and held that Dram Shop Act, though never before applied in a non-commercial setting, imposed liability on all violations.)
Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (1976). (Without reference to any statute, Court held that furnishing of alcoholic beverages to minors in a social setting may give rise to a suit for injuries to third parties.)
Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984). (Violation of statute prohibiting dispensing of alcoholic beverages to minors gave rise to action by third parties injured by intoxicated minor.)
Huyler v. Rose, 88 App.Div. 755, 451 N.Y.S.2d 478 (1982). (Court found no cause of action under Dram Shop Act, but a common law duty to control the conduct of minor who was intoxicated, argumentative, and combative.)
Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). (Cause of action lies against fraternity that hosted party and served alcoholic beverages to minors and knew, or should have known, that minors were being served.)
Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). (Though court held in companion case that ordinarily there exists no liability on the part of a social host, an action does lie where the server provides alcohol to a minor.)
Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). (Following Congini, court held that "Defendants were more than mere social hosts furnishing liquor, they were knowledgeable persons providing alcohol to a minor....")
Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985). (In action against hosts of high school graduation party, it was negligence per se to furnish liquor to a minor.)
United Services Automobile Ass'n v. Butler, 359 So. 2d 498 (Fla.Dist.Ct.App.1978). (Deferring to the State legislature, the Court noted that historically there has not been a common law action against the dispenser and that Florida has no Dram Shop Act.)
Cory v. Shierloh, 29 Cal. 3d 430, 174 Cal. Rptr. 500, 629 P.2d 8 (1981). (California statute explicitly bars suit against all dispensers.)
Holmquist v. Miller, 367 N.W.2d 468 (Minn.1985). (Civil Damage Act preempts *1143 a cause of action against non-commercial dispenser, whether recipient was an adult or a minor.)
Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979). (Citing public policy grounds, the court distinguished between the justifications supporting imposition of liability on the commercial vendor and on the non-commercial dispenser and held that the justifications were not sufficient to warrant extension of liability to the non-commercial vendor. Overruled in Nehring v. La-Counte, 712 P.2d 1329 (Mont.1986) (not involving a minor or a non-commercial dispenser), insofar as Runge holds that "the drinking of the intoxicating beverage, not the furnishing thereof, is the proximate cause of any subsequent injury.")
HOUSTON, Justice (concurring in part and dissenting in part).
I withdraw my original opinion (concurring in part and dissenting in part, issued May 1, 1987) and in its place substitute the following:
Dram Shop Act actions brought under ง 6-5-71(a), Code 1975, are recognized in Alabama against licensed vendors and purveyors of alcoholic beverages. Certainly there was a scintilla of evidence that Turner Beverage sold beer to minors who were members of the Junior Jaycees; that Turner Beverage accepted a check drawn on the Huntsville High School Imprest Account for this beer; that the check contained the notation "For Jr. JC'sโ"Lake Party Expenses"; and that the beer was removed from Turner Beverage's warehouse by these minors and Turner's employees. Turner Beverage was a licensed vendor and purveyor of alcoholic beverages. Clearly, an action under the Alabama Dram Shop Act against Turner Beverage would have withstood a motion for summary judgment. Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984). However, that is not the case before this Court. Here the plaintiffs sought to extend the Dram Shop Act to reach the Huntsville Jaycees, Inc., a service organization, which is neither a licensed vendor nor purveyor of alcholic beverages, and as such in my opinion had no liability under the Alabama Dram Shop Act. The majority opinion permits this.
The majority opinion extends the Alabama Dram Shop Act to social hosts if minors are involved. The Jaycees neither sold nor gave the beer to the minors. In some way, without any evidence of authorization or ratification that I can find in the record, an honorary member, not an active dues paying member served as sponsor of the Junior Jaycees and otherwise disposed of beer to minors by assisting the minors to purchase the beer. How an illegal act of an honorary member of a service organization which is not authorized or ratified becomes the act of the service organization is not addressed by the majority opinion.
I am persuaded that Judge Lynwood Smith's "Memorandum of Opinion and Order on Motions for Summary Judgment" is correct and should be affirmed. Judge Smith presented, in complete and masterful fashion, the reasons for his decision. To the extent that I dissent, I adopt Judge Smith's opinion as my own. It is as follows (omitting citations to the relevant pages of the trial record):
"These consolidated actions are before the Court on the motions for summary judgment filed by defendants Huntsville Jaycees, Inc., and Richard P. Watts. Upon consideration of the pleadings, affidavits, depositions, and briefs of counsel, the Court renders the following memorandum of opinion and order.
"On May 16, 1981, the Huntsville High School Junior Jaycees club hosted a party at the lake cabin of defendant Richard P. Watts. The cabin is situated on Guntersville Lake in Marshall County, Alabama, a `dry county.' All but a handful of the persons who attended the party were minors. Nonetheless, a large quantity of iced *1144 beer was freely available to all who desired to consume it. The beer had been purchased for the Junior Jaycees by an adult, defendant David E. Worley, with funds provided him by the Junior Jaycees club. David E. Worley was a non-voting, semi-retired, `honorary member' of defendant Huntsville Jaycees, Inc., but he had been approved by that organization as `sponsor' of (or liaison to) the Huntsville High School Junior Jaycees club. Mr. Worley was present at the lake party for a portion of the afternoon it was held, but he personally made no effort to restrict the consumption of beer by the minors present. Moreover, even though defendant Richard P. Watts was present for all but thirty minutes of the party, he also made no effort to restrict the consumption of beer until it became obvious that matters were getting out of hand. As subsequent events proved, however, it was by then too late. One of the young persons present, who had consumed beer to the point of intoxication (former defendant Warren Lee Bradford) was involved in an automobile collision while driving back to Huntsville. The driver of the vehicle he struck was killed, and her two daughters were seriously injured. Hence, these consolidated actions.
"The motions raise a number of troublesome questions. In the main, however, there are two, overwhelming questions. One, does an action for damages under the Alabama dram shop act lie against either the organization that established and sponsored the Huntsville High School Junior Jaycees club, or the property owner who permitted the party to be held on his premises? Two, if not, does an action founded upon common law principles lie against either defendant?
"Surprisingly, neither question has been squarely answered by the appellate courts of this State. There is no decision on all fours. Consequently, close attention must be paid to those appellate decisions and other authorities which may be found, in order to glean a direction for reasoning. Hence the following detailed analysis of the facts and law applicable to these actions.
"The Huntsville Jaycees, Inc. is a service organization created to benefit and improve the City of Huntsville.' It is affiliated with a national organization founded in 1920, and then known as the `Junior Chamber of Commerce.' (The name was changed in 1965 to the `United States Jaycees.')
11 World Book Encyclopedia 51 (1976). Jaycees believe, as a creed ...:
"Ernest C. Kaufmann II was President of the Huntsville Jaycees, Inc., from June 1, 1980, through May 31, 1981. That year, the local Jaycees had `a minimum' of 300 members. The general membership met twice each month, as did the Board of Directors (but on dates different from the general membership meeting).
"The Huntsville Jaycees, Inc., conducted a number of community programs during 1980-1981. At least one of those programs (the Northeast Alabama State Fair) generated a large cash flow. Nonetheless, the `corporation' was loosely structured. Minutes of meetings were kept only on a `sporadic basis.' There was neither a central depository for, nor any member designated to preserve, corporate documents on a `permanent basis.' Rather, all organizational *1145 records were `kept ... loose,' in the home or garage of the individual who was secretary during any particular organizational year.
"The Huntsville High School Junior Jaycees (HHS Jr. Jaycees) is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. All general meetings of the club (with the exception of the year-end Awards Banquet and Lake Party) are held in Huntsville High classrooms. Election of new members to the club and of officers for the succeeding year, occurs near the end of each school year. Thus, in late April or early May of 1981 the following young men were elected officers of the HHS Jr. Jaycees for the forthcoming 1981-1982 school year:
"PRESIDENT: John Watts (son of Richard P. Watts);
"VICE-PRESIDENT: Drew Crow;
"SECRETARY: David Vest; and,
"TREASURER: Wes Neighbors (son of Wm. W. `Billy' Neighbors, Jr.). This new slate of officers was responsible for planning and preparing both the 1980-81 year-end Awards Banquet and [the] Lake Party.
"The defendant Jaycees did not control the day-to-day activities of the HHS Jr. Jaycees. There really is no question about that. Rather, as David Vest (Secretary of the HHS club) testified, the Junior Jaycees did not seek the `input' or `permission' of the Huntsville Jaycees, Inc., for every club activity. `It was our club to run as we saw fit in an orderly and respectful manner.' Thus, the HHS Jr. Jaycees engaged in school activities, and, conducted community service projectsโ"such as helping at `an old folks' home'โ"independent of the defendant Jaycees.
"Moreover, the Huntsville Jaycees, Inc., did not provide any financial assistance to the HHS Jr. Jaycees. The high school organization was `self-sustaining.' Each school year, the club would raise its own funds by means of such things as `a talent... or gong show,' or firewood sale. The proceeds from those projects were deposited to the `Imprest Account' maintained by the administration of Huntsville High School, and drawn on as necessary to meet club expenses. The expenditures occasioned by the year-end Awards Banquet and Lake Party, for example, were paid by means of checks drawn on that account.
"Nonetheless, there were seven significant connections between the defendant Jaycees and the HHS Jr. Jaycees during 1980-1981. And it is those connections that now shall be discussed.
"First among such connections, of course, is ... the fact that both organizations share the name of `Jaycees.' The implications of that shared title are obvious, in spite of the many ways in which the defendant Jaycees have sought to disavow any relationship. Nevertheless, it is undisputed that the Huntsville Jaycees, Inc., `established' and `organized' the Junior Jaycee chapters in area high schools. [Testimony of Randy Morris.][1] Moreover, it is not disputed that the parent organization appointed individuals to `stay in touch with' the high school chapters for the purposes of coordinating common community activities (discussed infra), determining whether the junior clubs needed assistance from the senior club, and also ensuring that the high school chapters `keep [to] that purpose' for which they were established.
"Second, the HHS Jr. Jaycees assisted each year in the `March of Dimes Walkathon' *1146 sponsored by the Huntsville Jaycees, Inc. In that activity, the Huntsville Jaycees solicit area elected officials, personalities, dignitaries, and other `residents [to] walk 15 miles and get money donated per mile' for the benefit of the March of Dimes. Members of the HHS Jr. Jaycees were stationed at each of the fifteen-mile checkpoints, and stamped each participant's card for verification of the distance walked.
"Third, the HHS Jr. Jaycees assisted every year in the conduct of the `Northeast Alabama State Fair' by:
In other words, from Monday through Saturday night of each Fair week, the HHS Jr. Jaycees performed many of the same functions as members of the Huntsville Jaycees, Inc., `[w]ith the exception of handling money.'
"Fourth, each organizational year the Huntsville Jaycees, Inc., designated one general membership meeting as `Junior Jaycee Night.' The officers of Junior Jaycee chapters were invited to attend, and were recognized at that meeting.
"Fifth, in return for the assistance they rendered the parent Jaycee organization during the March of Dimes Walkathon and the Northeast Alabama State Fair,
[Emphasis added by Judge Smith.][2]
"The sixth connection is an ironic one. The defendant Jaycees took credit for sponsoring and promoting the laudable community service projects of the HHS Jr. Jaycees. In award competitions among State and National Jaycee organizations, the defendant Jaycees, on at least three occasions, listed the HHS Jr. Jaycees program as an example of their youth development programs in this City. `We won a state award and a national award for the Huntsville High chapter.' David E. Worley contends that prior to 1980-81, he, personally, was given an award by the defendant Jaycees in his capacity as sponsor of the high school chapter, `for having one of the better projects, or the best project' during the year.
"The seventh, and possibly the most significant, connection is that David E. Worley served as `sponsor' for the HHS Jr. Jaycee chapter. In that capacity, he served as liaison between the two organizations, and coordinator of their joint activities. To perform those duties, Worley periodically attended meetings of both clubs.
"Of course, for summary judgment purposes the question of whether David E. Worley was the principal link in the chain connecting the defendant Jaycees to the high school chapter is a `material fact.' And in that regard, the defendant Jaycees have gingerly attempted to imply there is a `genuine issue' about that fact, without *1147 flatly stating such.[3] But, in spite of the understandably cautious manner in which they approach the question, in the final analysis they do not deny that Worley was the club's sponsor.[4] Indeed, as the following summary of the evidence should make clear, they really can not deny that connection.
"Thus, when all of the evidence is summarized, the links in the organizational chain connecting the defendant Jaycees with the HHS Jr. Jaycees may be depicted *1148 by the diagram shown [at a later point in this opinion.]
"Each year for a number of years, the HHS Jr. Jaycees had held `a big social event' for club members and their invited friends. [The year] 1981 was no different. Thus, at one of the last club meetings during the 1980-1981 school year, the members discussed party plans. Someone suggested that beer be purchased `from Ragland's place,' but David E. Worley, who admits he was present, allegedly stated he could get the club `a special deal.'
"On Friday, May 15, 1981, Wes Neighbors obtained from `Mrs. Pukl' in the main office a check drawn on the `Huntsville High School Imprest Account' in the amount of $270, and drawn payable to the order of `Wes Neighbors.' The check shows that it was `FOR Jr. JC'sโ"Lake Party Expenses.'
"Later that same afternoon, following the end of classes for the day,[5] Wes drove with David Vest to the law office of David E. Worley. Wes endorsed the back of the check and gave it to Worley. Wes and David Vest then followed Worley to Turner Beverage Company. They arrived late in the day, just as the business was closing. Worley also endorsed the back of the check, and handed it to `Tully' Turner, owner of the beverage company. Half-cases of Budweiser beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. That done, the boys followed Worley to his residence. The beer was stored on Worley's screened, back porch.[6] When unloading the beer, the two boys were surprised to learn they had purchased not 30 full cases, but 51.
"The following morning of Saturday, May 16, 1981, Wes Neighbors and David Vest returned to Worley's home. They loaded 31 to 35 cases of the beer into the bed of George Mahoney's black Ford pickup truck, which they had borrowed for the purpose, and covered it with tarpaulins. Wes and David Vest, after meeting John Watts and George Mahoney at another location, then drove the beer from Huntsville to the cabin of Richard P. Watts on Guntersville Lake, in Marshall County.
"Richard P. Watts is the father of John Watts, the newly elected President of the HHS Jr. Jaycees. He and his wife, Jean Cummings Watts, own an undivided one-third interest in the lake home where this party was to be held. The other two-thirds interest is owned by Jean Watts' two sisters and their husbands. The cabin is situated in a `dry' county. But, Richard Watts was under the impression that it was permissibleโ"even for minorsโ"to consume beer in a dry county, `if it was on private property.' Moreover, Richard Watts asserts that he was not asked, nor did he give his son permission, to hold the HHS Jr. Jaycee party at the cabin. Rather, he contends, his wife (and John's mother) was the one who gave permission, and he did not learn of the plans until two days before. In any event, the party was held at that cabin, and Richard P. Watts was present throughout most of the day.
"When the four boys arrived at the Watts cabin around noon, they iced the beer down in `long legged' metal Coca-Cola coolers. John Watts had, apparently surreptitiously, obtained those coolers from the Bonn Building at the Jaycees' fairgrounds. `I don't think they knew we had them ...' [said Wes Neighbors]. They then spread out barbecued pork and other edibles left over from the annual Awards *1149 Banquet, held the previous week, and waited for everyone else to arrive.
"And arrive they did. Estimates of the number who attended vary from a low of forty to a high of 110. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help himor herself to as much as desired.
[Wes Neighbors.] Consequently, things began to get out of hand, as Wes Neighbors later implied by his choice of the words `wild' and `melee' to describe the scene.
"According to Wes Neighbors, just about `everybody' who attended the party `was pretty much intoxicated, except for Mark Pullen and John [Watts] ....' Four young people `passed out totally,' and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle. Warren Lee Bradford was among those.
"`Late in the morning, maybe ten-thirty, eleven' o'clock on May 16, 1981, Warren Lee Bradford (son of Dr. Ivan B. Bradford) called at the home of Dr. Joe R. Pullen for his son, Mark. The two boys then drove from the Pullen residence to Guntersville Lake in Dr. Ivan Bradford's 1978 International `Scout,' a four-wheel drive vehicle. Lee Bradford, the driver, was eighteen years old. His friend, Mark Pullen, was 17. They arrived at the Watts cabin around noon. From then until 3:30 that afternoon, the boys admittedly consumed some beer. Pullen said he drank four cans of Budweiser. Lee Bradford estimated he drank five or six cans, in conjunction with `three or more' barbecued pork sandwiches. Whatever the true facts may be, Lee Bradford became noticeably intoxicated. According to Wes Neighbors, Bradford's speech was slurred, he staggered, he kissed a girl that `wasn't his girlfriend,' and `he couldn't run a race.'
"Former [University of] Alabama All-American (and NFL All-Pro) football player Billy Neighbors also drove to the Watts cabin that afternoon. He went to check on his son, Wes, and arrived about 1:30. For a while he talked with Richard Watts and David E. Worley, who attended the party in his capacity of club `sponsor' and father of Jonnie Worley, the `Sweetheart' of the HHS Jr. Jaycees. By 3:30, however, Billy Neighbors decided that enough was enough. He and Richard Watts stopped the flow of beer. According to Wes Neighbors, his father `laid down the law.... [A]nd my dad got a lot of respect from everybody, to say the least.' Richard Watts told the boys to load the beer back into the bed of the pick-up truck. And Billy Neighbors told John Watts to remove the ignition keys from Warren Lee Bradford's Scout. The keys were given to Mark Pullen with instructions that he was to drive the vehicle back to Huntsville. Billy Neighbors told Bradford that he would `kick his tail' if he tried to drive home.
"The two boys followed those instructions, after a fashion. Pullen and Bradford remained at the cabin for possibly as much as another hour, drinking no more beer. They left `around four [or] four-thirty,' with Mark Pullen behind the wheel. At the point where U.S. Highway 431 changes from a two-lane to a four-lane roadway, however, Lee Bradford `demanded,' `forcefully,' that Pullen let him drive the car. Mark pulled onto the shoulder of the road, and the boys changed positions.
"The boys almost made it safely home. Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, `moving to the [beat of the] music' playing on the car's stereo/radio, laughing, and `in a good mood,' Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and *1150 into the path of plaintiffs' oncoming vehicle.
"Neither Mark Pullen nor Lee Bradford was injured very badly. It was another story with the plaintiffs, however. The driver, Georgia L. Hazelrig, died. Her two daughters, Kerri M. Martin and April Kelli Hazelrig, were horribly injured.
"Warren Lee Bradford was subsequently indicted and prosecuted for manslaughter. He was convicted by a jury of criminally negligent homicide. And, of course, these civil actions were brought against those defendants listed in paragraph 1 of this Court's Order on Pre-Trial Hearing. Since then, however, a substantial out-of-court settlement was reached with certain defendants. And the claims against Warren Lee Bradford, Ivan B. Bradford, and Mark Edward Pullen have been dismissed, by stipulation, with prejudice. This Court also granted Billy Neighbors's motion for summary judgment. Which brings us, then, to the instant motions.
"The Alabama legislature first enacted a dram shop act in 1909. It came into being as section 8 of Act Number 191, passed during the 1909 Special Session. It read as follows:
1909 Acts of Alabama, Act No. 191, ง 8 at 65-66 (Aug. 25, 1909) (emphasis supplied).
"The troublesome phrase in the statute is emphasized: i.e., `selling, giving or otherwise disposing of ....' (the same language now is found at Ala.Code, ง 6-5-71(a) (1975)). The moving defendants contend they did not sell, give, furnish, or otherwise dispose of the intoxicating beverages consumed by Warren Lee Bradford, or any other member of the HHS Jr. Jaycee Club. Plaintiffs contend the statutory language is un ambiguous, and clearly applicable to the facts of this controversy. These conflicting positions raise the question of what the Alabama Legislature intended when it employed the disputed language. Surprisingly, the answer to that question requires a more intensive inquiry into the history of our dram shop act than this Court initially surmised.
"At common law, no action to recover damages for injuries caused by intoxication could be brought against the person who furnished liquor to another, whether by sale, by gift, or by other means. The reason generally given for the common law rule was simple. The voluntary consumption (and not the dispensing) of liquor was deemed the proximate cause of injuries sustained as a result of intoxication. See, 45 Am.Jur.2d, Intoxicating Liquors งง 553, 554 (1969). `The rule was based on the obvious fact that one cannot be intoxicated by reason of liquor being furnished him if he does not drink it.' Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967).
"The common law rule was enunciated in Alabama in King v. Henkie, 80 Ala. 505 (1876). Mrs. King, the widow of a man who died as a result of excessive consumption of alcohol, brought suit under the wrongful death statute against the owners of a Tuscumbia saloon. She alleged that her husband had stumbled into the bar one day `in a hopeless state of intoxication' and, while `in this condition of helplessness and mental darkness,' the proprietors ...
Id., at 506. The `violation of law' to which plaintiff referred in her complaint was a provision of the 1876 Code of Alabama which made it a misdemeanor to furnish any quantity of liquor to `persons of known intemperate habits except upon the requisition of a physician for medicinal purposes....' Id., at 508. In affirming the trial court's dismissal of the action, the Supreme Court said:
King v. Henkie, supra, at 510.
"The common law rule expounded by such cases as King v. Henkie eventually was overthrown by legislative enactments *1153 in a number of states.[7] But such remedial legislation was not generated as much by a legislative rejection of the courts' rationale,[8] as it was encouraged by both the temperance and prohibitionist movements.[9]
"Referred to as either `civil damage acts' or, more commonly, `dram shop acts,' such statutes create a cause of action against the suppliers of liquors under specified circumstances, and in favor of specified persons. The language of such statutes varies from state to state. See, generally, the authorities cited in note 7, supra. Consequently, each act must be closely studied to determine who is entitled to sue, who may be sued, under what circumstances suit may be brought, and for what damages. Generally speaking, however:
45 Am.Jr.2d Intoxicating Liquors ง 561 (1969) (emphasis supplied). See also footnote 16, infra.
"In addition, there is one other principle upon which the authorities are generally consistent: liability under such dram shop acts extends only to those engaged in the business of manufacturing, distributing, or selling intoxicating liquors.
Annot., 8 A.L.R.3d 1412, 1413 (1966) (emphasis supplied). An instructive case on this point is Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300, 8 A.L.R.3d 1402 (App.Ct.1964).[10]
"Unfortunately, the appellate courts of Alabama have not squarely addressed the question of whether our dram shop act provides an action against persons (such as defendants herein) who are not engaged in the business of manufacturing, distributing, or selling liquor. Even so, the case of DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979), supports (at least inferentially) the argument that the question would be answered negatively.
"In DeLoach, defendant Mayer Electric hosted an `open house' and `New Products Show' on its premises. Food, soft drinks, and beer were gratuitously provided for consumption by those who attended. Mayer Electric's employees were among the invited guests. One such employee became intoxicated. After leaving the function, he drove his automobile onto the wrong side of Interstate 59, and into the motorcycle of a uniformed policeman. The policeman was seriously injured, and brought suit against both Mayer Electric and the business entity (Britling's) which had catered the function. Id., at 733-34. He contended the Alabama dram shop act applied because those defendants had `sold' liquor without being licensed to do so. See Ala. Code งง 28-3-260(10), 28-3-1(16) (1975). In an opinion affirming the trial court's entry of summary judgment in favor of defendants, the Supreme Court did not write expansively. Rather, in speaking for the Court, Mr. Justice Bloodworth said only that `there was no "sale" within the meaning of the Code sections referred to above and, therefore, `the Dram Shop Act is not applicable.' Id., at 734-35.
"Admittedly, the DeLoach opinion is susceptible to conflicting interpretations. On one hand, it may be argued that the decision should be limited to its facts, and to its specific holding of no `sale,' because no compensation changed hands between the drunk and the supplier of the liquor. On the other hand, it also may be persuasively argued that DeLoach should be read more broadly, and as holding that the Alabama dram shop act normally does not apply in the absence of a sale (e.g., when the liquor is furnished gratuitously, in a social setting).
"In choosing between these conflicting interpretations, this Court is persuaded by the following authorities that the latter is the correct one.
"The broader holding suggested by De-Loach is supported by Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951). In that case, the Alabama Court of Appeals stated that Alabama's dram shop act:
Id. at โ", 54 So. 2d at 312 (emphasis supplied). The Phillips court emphasized the commercial focus of the Act by utilizing the words `sale,' `sell,' and `sold' no less than thirteen times in the course of two pages.
"In like manner, an early Supreme Court decision construing the dram shop act indicated that the action lay only against one in the businessโ"albeit, the illegal business โ"of selling liquor. Thus, in Webb v. French, 228 Ala. 43, 152 So. 215 (1934), after first noting that the Act had come into existence as part of a sweeping `prohibition enforcement measure,' the Alabama Supreme Court held that the dram shop act:
Id. at 44, 152 So. at 216 (emphasis supplied).
"Moreover, Alabama Pattern Jury Instructionsโ"Civil 36.92 begins with the following language: `Because public policy discourages [the] illegal sale of alcoholic beverages....' (Emphasis supplied.)
"Finally, the most recent pronouncement of our Supreme Court on the dram shop act contains this statement: `Alabama's dram shop statute creates a civil action against a purveyor of alcoholic beverages ....' Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121, 122 (Ala.1984) (emphasis supplied). Webster's Third New International Dictionary (1971 unabridged ed.) defines `purveyor' as `one who provides victuals or whose business is to make provisions for the table,' at 1848 (emphasis supplied).
"However, the keys which unlock the statutory scope intended by the Alabama Legislature when it inserted the phrase `selling, giving or otherwise disposing of into the dram shop act will not be found in the foregoing authorities. Rather, those interpretive keys are found in the history of the temperance and prohibitionist movements in Alabama, and in the statutory changes which those movements impressed upon public policy (of which the dram shop act is but one).
"The question of liquor regulation predates statehood. It was an important issue of government from the time settlers first moved into the region which eventually became the State of Alabama. `[E]ach colonial government ... found it necessary to devise ways and means of handling the problem of liquor control.' J.B. Sellers, The Prohibition Movement in Alabama 1702-1943, at 1 (1943) (hereinafter Sellers). From then until now, the questions of whether, and how, to control liquor have been persistent issues of our political history.
"But, the prohibition issue virtually dominated State politics during the first two decades of the twentieth century. The explanations for that political phenomenon are varied, and interesting.[11] Even so, an exploration of the socio-economic bases of the temperance and prohibitionist movements ultimately would prove a non-productive, ambiguous digression.[12] On the other hand, an examination of legislative action on the issue (and judicial construction of such acts) provides important information for interpreting the intended scope of our present dram shop act.
"As the last Federal troop trains crossed Alabama's northern border at the end of Reconstruction, the temperance and prohibitionist forces began to stir. See, Sellers 40-51. From then until 1909, the movements steadily grew, both in the number of their adherents and in the intensity of their demands. Id., at 52-100.
"Initially, the efforts of the prohibitionist forces to impress their ostensible, moralistic *1156 views[13] upon public policy met with only limited success. During the 1880s and 1890s, the movements succeeded only in the enactment of sporadic special acts of legislation prohibiting the `manufacture, or sale, or other disposition of ... intoxicating liquors within the limits of particular counties, or particular areas of a county.[14]
"Nonetheless, for two reasons, those early efforts at prohibition on a local level provide important precedents for construing the scope of our present dram shop act.[15] First, some of those local prohibition acts contained statutory phrases identical, or strikingly similar to the phrase that is so troublesome in the present case: i.e., `selling, giving or otherwise disposing of ....' And second, a number of cases arising under those acts, and requiring a construction of such language, were appealed to the Supreme Court of Alabama. A review of those decisions furnishes helpful interpretive insights.
"The first significant decision is Reynolds v. State, 73 Ala. 3 (1882). In Reynolds, the defendant was indicted and convicted for violating a local act of the legislature which made it a crime to `make, sell, or otherwise dispose of any spirituous or malt liquors' in Dale or Henry Counties. The evidence against him showed that the defendant `gave' two drinks of whiskey to the prosecution's witness at his home. There had been no sale, in the sense of compensation changing hands. On appeal, the Supreme Court reversed, saying:
Reynolds v. State, supra, at 4.
"Three aspects of the Reynolds opinion are worthy of note. First, the Supreme *1157 Court did not liberally construe the language of a statute in derogation of the common law.[16] Second, the Court applied the `ejusdem generis rule' when holding that the phrase `otherwise dispose of meant only a disposition in the nature of a sale.[17] And third, the court reserved for later decision the construction of the phrase `sell, give, or otherwise dispose of.' The opportunity to construe that phrase was presented the Court within a year.
"In Amos v. State, 73 Ala. 498 (1883), the defendant had been indicted and convicted of violating a local act of the legislature which made it a crime to `sell, give away, or otherwise dispose of spirituous, vinous or malt liquors' in Conecuh County. At trial, the prosecution had shown that defendant's father owned a store in Conecuh County, and that the father had ordered five gallons of whiskey for a man named `Bethea.' When the whiskey arrived, Bethea `had no way to take it all away,' so he persuaded the defendant's father to store it for him in a small building the storekeeper used to keep `other things incident to his business.' From time to time, Bethea would come to the store and defendant, or defendant's father, would draw off a portion of the stored whiskey, and give it to Bethea. The evidence further disclosed that defendant, though frequently about his father's store, `was not connected with his father's business in any capacity.... `Id., at 499-500.' On appeal, the Supreme Court reversed, holding that on the foregoing state of the evidence the defendant could not be said to have violated the statute. The defendant had not sold the whiskey to Bethea; his father had.
"Moreover, the defendant had not given the whiskey to Bethea (in the sense of parting with the ownership of property) because Bethea already owned it. And finally, it could not be said that the defendant had `otherwise disposed of the whiskey because, under the principle of ejusdem generis, that phrase had to be construed as applying only to transactions that fell within the classification of a sale or gift.
Amos v. State, supra, at 501-02 (emphasis supplied).
"The next case of significance is that of Norris v. Town of Oakman, 138 Ala. 411, 35 So. 450 (1903). In Norris, the defendant had been convicted of violating a city ordinance which made it a misdemeanor to `sell, give away, ... or cause to be ... delivered' any liquors on a Sunday. The evidence at trial established that Norris was both an employee of, and a boarder in the house of, a man named Coudan. Mr. Coudan owned a saloon. One Sunday afternoon, Mr. Coudan instructed Norris `to go down to the saloon and bring up some beer for him and the defendant.' Norris did so, and `he and Coudan and son drank the beer as they desired it' for the rest of the afternoon. For these acts, the defendant Norris was convicted. On appeal, however, the Supreme Court reversed. The Court first noted that Norris could not be convicted for having sold the beer because Coudan owned it. For the same reason, Norris did not `give away' the beer, because one cannot give what one does not own. All of which brought the Court to the word `delivered.'
Norris v. Town of Oakman, supra, at 414-15, 35 So. at 451 (emphasis supplied).
"The last case to be considered, Maxwell v. State, 140 Ala. 131, 37 So. 266 (1904), arose out of the following facts.
Id. (Emphasis supplied.) On these facts, Buck Maxwell, then sixteen years of age, was convicted on an indictment charging that he `sold, gave away, or otherwise disposed of whiskey without a license, and contrary to law.' On appeal, the Supreme Court reversed, citing Amos v. State, supra. The defendant had not sold the whiskey because Harmon had not paid for it. The twenty-five cents given defendant was in the nature of a tip, because the whiskey was worth fifty cents. Furthermore, defendant had neither sold nor given away the whiskey, because he did not own it. His father did. And, therefore, defendant had not parted with `possession or ownership of property.'
"The importance of the Reynolds, Amos, Norris, and Maxwell line of cases lies simply in this. In each, the Supreme Court construed statutory language strikingly similar to the dram shop phrase that is so troublesome in the case before this Court, and, in the context of legislative enactments prohibiting the sale, gift, or other disposition of intoxicating liquors. Moreover, all of these cases were decided long before the legislature enacted the dram shop act. Consequently, when our Supreme Court has repeatedly construed particular statutory language, and the legislature enacts another statute employing that same language, there arises a strong presumption that the legislature has acquiesced in the Court's interpretation of the legislature's intent in the use of such language.
"Alabama temperance forces were strengthened considerably by two events in the first decade of this century: (1) the formation of the Alabama contingent of the Anti-Saloon League of America in 1904, Sellers 102; and (2) the election of Braxton Bragg Comer as Governor of Alabama in 1906.
"Following the end of Reconstruction, `Bourbon Democrats' from the Black Belt counties and the increasingly influential `Big Mule' industrial interests in Birmingham and Mobile tightened their grip upon state government. See, e.g., V.O. Key, Southern Politics in State and Nation, 42, 46 (1949).
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 10 (1974).
"Once in a long while, however, a `progressive' candidate for Governor would successfully defy that conservative coalition. B.B. Corner was such a man. Although stigmatized by the press as a radical, a self-willed, impetuous, self-seeking, and generally dangerous man' [A.B. Moore, History of Alabama 664 (1934)], Comer handily won the 1906 gubernatorial election. In the process, many men committed to `progressive' programs rode into the legislature on his coattails. `Not since the development of factionalism within the *1160 Democratic party had the progressive wing been so victorious.' Id. 666. Both Comer and his legislative lieutenants were dominated by a `passion for reform.' Id. 667.
Prohibition was among the most important issues (if not the most important issue) used by Corner to achieve his phenomenal political success. That issue tapped the strength of the aggressive and powerful Anti-Saloon League.' Sellers 102. The focus of the Alabama Anti-Saloon League's opposition to liquor traffic was implicit in its name. League members felt that saloons bred destitution, prostitution, and other deleterious social institutions (e.g., gambling and racial equality).[18]
"Thus, the cry for the end of the `day of the saloonkeeper, gambler, harlot, and pimp domination in government,' Sellers 130, was pregnant with many connotations. But, without question, racism was prominent among the meanings telegraphed by such `code words.' Even so, that despicable truth should not blind the modern observer to the fact that the primary objective of the prohibitionist forces was the abolition of the business of selling alcohol.
"In the first Regular Session of the Legislature following Comer's election, the prohibitionists succeeded in passing the State's first, general local-option law. 1907 Acts of Alabama, Act No. 149, at 200 (Feb. 26, 1907). That act `permitted the temperance legions to force local option elections with petitions signed by one-fourth of the voters in a county.' S. Hackney, Populism to Progressivism in Alabama 303 (1969). Significantly, the Act provided that the issue to be submitted to the voters of a county was whether they approved, or disapproved of the sale of liquor.
1907 Acts of Alabama, Act No. 149, ง 6 at 202 (Feb. 26, 1907) (emphasis supplied). If a majority cast ballots `against the sale of liquor,' then the act provided that
Id., ง 14, at 204 (emphasis supplied).
"Clearly, therefore, this State's first general local-option law was aimed at the business of selling intoxicating liquors, and the phrase `or other disposition' should be construed doubt about that, it is dispelled by the following provision of the Act.
Id., ง 16, at 205 (emphasis supplied).
"The 1907 local-option act was more successful than the temperance forces had hoped. Under its auspices, prohibitionists forced, and won, elections in 58 of Alabama's 67 counties. S. Hackney, supra, 304. See also, Sellers 114.
"`Rather than satisfying the urge for temperance, [however,] the new laws stimulated demand for stricter controls.' S. Hackney, supra, 304. During a special session of the legislature commencing November 7, 1907, the Alabama Anti-Saloon League and its allies pressed their advantage. They demanded the passage of a statewide, general prohibition law. Sellers 118-20.
"Such a bill was introduced by the Speaker of the House of Representatives, A.H. Carmichael of Colbert County, and passed both houses in rapid succession. It was signed into law by Governor Comer on November 23, 1907, and provided that:
1907 Acts of Alabama (Special Session), Act No. 53, ง 1, at 72 (Nov. 23, 1907) (emphasis supplied).
"Without any question, Alabama's first statewide prohibition act was aimed at those engaged in the business of manufacturing, selling, or distributing liquor. It did not attempt `to restrain a man's private indulgence in drink....' Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 247 (1909). Rather, it specifically provided:
1907 Acts of Alabama (Special Session), Act No. 53, ง 12, at 76.
"For a while, the passage of a statewide prohibition act satiated the prohibitionists' lust for stricter State controls on the business of liquor. By mid-1909, however, it was obvious that the law was not working well, and that remedial enforcement measures were necessary. `Things got so bad' that the Sheriff of Jefferson County begged Governor Comer
Sellers 126 (emphasis supplied).
"With the accumulation of such evidence indicating the failure of the statewide prohibition law, Governor Comer acted. On July 15, 1909, he called for the legislature to convene in a special session that same month. In his address to both houses at the beginning of the session, the Governor `frankly declared the statutory prohibition *1162 law "inadequate of enforcement."` Sellers 132. He urged firm legislative action in two areas: strict enforcement legislation, and, an amendment to the State Constitution prohibiting the manufacture or sale of alcoholic liquors. The history of both proposals provides important information for interpreting the scope of our present dram shop act and, hence, each proposal will be discussed separately.
"In that portion of his speech calling for `more strenuous prohibition' enforcement legislation, Governor Comer told the Legislature that:
The Huntsville Weekly Mercury, July 28, 1909, p. 1 at col. 2. See also, Sellers 132.[19] In response to the Governor's call, two of his chief lieutenants in the House (Speaker A.H. Carmichael and Representative J.T. Fuller) introduced companion bills to stanch the flow of liquor. Both bills passed without difficulty.
"Speaker Carmichael's bill passed first, and was signed into law by the Governor on August 9, 1909. 1909 Acts of Alabama (Special Session), Act No. 7, at 8 (Aug. 9, 1909). It declared that
Id. ง 3, at 9. The contemporary value of the legislation lay in the fact that it increased both the period of imprisonment and the amount of fines that might be imposed for violation of its provisions, and, the provisions of the first statewide prohibition act which had taken effect on November 23, 1907. It further provided that each day that a business operated a brewery or distillery or `vender of intoxicants' constituted a separate offense.
"For present purposes, however, the chief importance of the Carmichael bill is found in that proviso which stated that
Id. Thus, it is beyond dispute that the Carmichael bill was aimed at those engaged in the business of manufacturing, selling, or distributing liquor for a profit.
"Although the Carmichael bill was called `radical,' critics had to get out their dictionaries to find stronger invectives to describe its companion legislation. The Fuller bill was described by the Montgomery Journal as `the most drastic prohibition bill ever brought to the attention of any legislature.' Sellers 133. It was an omnibus, prohibition enforcement measure. It contained 39 sections, spilling ink over 33 pages of the statute book. It outlawed everything from the manufacture of intoxicants to the advertisement of liquor, and covered just about everything in between.[20]
*1163 "But, for present purposes, the primary importance of the Fuller bill lies in the fact that section eight created the Alabama dram shop law. 1909 Acts of Alabama (Special Session), Act No. 191, ง 8, at 65-66 (Aug. 25, 1909): quoted herein, supra. That fact, then, leads one back to the question of what the legislature intended when it first said, in section eight of the Fuller bill, that certain plaintiffs injured in their person, property, or means of support by an intoxicated person had a right of action for damages against
Id. Two considerations indicate that the legislature only intended for such action to lie against commercial vendors of liquor.
"The first consideration comes from the fact that the Carmichael and Fuller bills were `companion laws ... to be construed together.' Grace v. State, 1 Ala.App. 211, 56 So. 25, 26 (1911); Priest v. State, 5 Ala.App. 171, 59 So. 318, 319 (1912). Consequently, the express provision of the Carmichael Act stating that it did not apply to `the social serving of ... liquors or beverages in private residences in ordinary social intercourse' must be read in pari materia with the provisions of the Fuller Act.
"The second considerationโ"found in the text of the Fuller Act itselfโ"buttresses the first. Thus, section four of the Fuller Act provided:
1909 Acts of Alabama (Special Session), Act No. 191, ง 4, at 64 (Aug. 25, 1909) (emphasis supplied). This provision now is codified at Ala.Code ง 28-4-92 (1975). In like manner, section 22(12) of the same Act provided in part that:
Act No. 191, ง 22(12), supra, at 81 (emphasis supplied).
"Of course, both provisions created evidentiary presumptions. But, a fair reading of them indicates that the reverse of the presumption also is true: i.e., that the keeping of `prohibited liquors' in any building used exclusively for a dwelling is not prima facie evidence that the liquor was kept for the purpose of selling, or otherwise disposing of the same, `contrary to law.' The Alabama Court of Appeals so held.
Strickland v. State, 20 Ala.App. 600, 104 So. 351 (1925). See also, Carmichael v. State, 11 Ala.App. 209, 65 So. 694, 695 (1914); Hauser v. State, 6 Ala.App. 31, 60 So. 549, 552 (1912).
"It follows, therefore, that the Fuller Act (like the companion Carmichael Act) was not aimed at social hosts who dispensed alcohol in the privacy of their own home to guests, as an act of social hospitality. While no appellate decision has been found which expressly holds that such a logical *1164 progression is true, two in particular hint that this court's interpretation is correct.
"For example, in Salley v. State, 9 Ala. App. 82, 64 So. 185, 187 (1914), the Alabama Court of Appeals held that the discovery of 55 gallons of whiskey in a building located some 20 to 30 feet from the defendant's residence:
"In another case, the same court held that evidence showing the defendant had delivered whiskey to the prosecution's witness in a shed adjoining a poolroom:
Grace v. State, 1 Ala.App. 211, 213, 56 So. 25 (1911) (emphasis supplied). See also, Toole v. State, 170 Ala. 41, 54 So. 197, 199 (1911).
"If there was any doubt lingering in the mind of this court over the correctness of the conclusion that the legislature did not intend for the dram shop act to apply to social hosts, or other non-commercial suppliers of liquor, then it was dispelled by the history of the constitutional amendment battle of 1909.
"In his speech to both houses of the legislature at the beginning of the 1909 special session, Governor Corner recommended that an amendment to the Alabama Constitution be submitted to the voters
Sellers 130-31 (emphasis supplied). A bill proposing such an amendment passed the legislature in short order, and was signed by the governor on August 18, 1909. In pertinent part it provided that the following question should be submitted to the voters at a special election to be held that year:
1909 Acts of Alabama (Special Session), Act No. 21, ง 3, at 21 (Aug. 18, 1909) (emphasis supplied).
"Opposition to the proposed amendment centered on the emphasized language. Those opposed to the amendment charged that the language was designed to close the loophole in the Carmichael-Fuller Acts which allowed private individuals to keep liquor in their homes, and to dispense liquor as an act of hospitality in ordinary social intercourse. Emmet O'Neal of Florence, who would be elected Governor of Alabama in 1910, largely as a result of his leadership of the anti-amendment forces,
"The campaign over the amendment was intense, bitter, and heated. Every major politician in the State was drawn into the fray, and publicly chose sides. Id. 141-42. Many considerations for and against were debated, but the focus of discussion and decision was section two, and the question of whether the legislature should be constitutionally empowered to prevent individuals from keeping liquor in the privacy of their homes. See id. 133-48; A.B. Moore, History of Alabama 673-74 (1934).
"Not only did the `will of the people' seem clear in their rejection of the prohibition amendment, but, with the clarity of hindsight, the intent of the legislature when it passed the Carmichael-Fuller Acts also now seems clear. Even though the dram shop section contains the phrase `giving or otherwise disposing of to another,' those wordsโ"when placed in the context of their legislative and judicial historyโ"clearly do not have a scope of operation as broad as would first appear. Rather, the words properly were intended to apply only to those who furnished liquor owned by them to another person in return for monetary compensation or other consideration.
"The foregoing conclusion is not weakened by the fact that the Alabama Legislature defined the phrase `otherwise dispose of in the Fuller Act. Tucked away in section 31 of that Act, one finds the following:
1909 Acts of Alabama (Special Session), Act No. 191, ง 31, at 91. This provision now is codified at Ala.Code, 28-4-1(4) (1975). The words `barter' or `exchange' are just terms which refer to another species of a `sales' transaction. In a sale, the consideration for the transfer is money. In a `barter' or `exchange,' the consideration is either other property, or services, of equivalent value. See, 45 Am.Jur.2d Intoxicating Liquors งง 239-241 (1966). The phrase `giving away,' as noted by the decisions of the Alabama appellate courts discussed earlier ..., would denote the transfer of property owned by one person to another person without consideration that could be measured in terms of money or other indices of value. See, e.g., id. ง 247. See also, Clark v. State, 167 Ala. 101, 52 So. 893 (1910) (Mayfield, J., dissenting). The concluding words of the statutory definition would, in accordance with the ejusdem generic rule of statutory construction, have to be read as applying only to transactions of the same general kind or class as barter, exchange, or gift.
"It follows from all that has been said thus far, therefore, that a dram shop action does not lie against either the Huntsville Jaycees, Inc., or Richard P. Watts, because:
"Having concluded that a dram shop action does not lie against the Huntsville Jaycees, Inc., and Richard P. Watts, the second question must be addressed: Does an action grounded on common law negligence principles lie against either defendant?[21]
"Until just recently, the answer to that question would have been an easy, unequivocal `no.' For example, it was only a few years ago that the plaintiff in DeLoach urged the Alabama Supreme Court to `recognize an action for common law negligence for [dispensing] alcohol....' He argued that King v. Henkie should be cast onto the scrap heap of history because
DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733, 735 (Ala.1979). The Supreme Court rejected that plea, saying tersely: `The rule expressed in King is as viable today as when first expressed.' Id. In a prescient phrase, however, Mr. Justice Bloodworth added:
Id. (Emphasis added.) Mr. Justice Bloodworth's portentous phrase may now, several years after his death, have come to pass.
"In Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), the Alabama Supreme Court partially overruled King v. Henkie, and recognized a common law negligence action against a commercial licensee for the on-premises sale of alcoholic beverages to a visibly intoxicated patron. The facts of the case were summarized by Mr. Justice Faulkner as follows:
Id. at 122. The son of the deceased brought suit against the corporation which did business as the `Checkers Lounge.' The action was founded on the dram shop act. Ala.Code ง 6-5-71 (1975).
"However, defendant had clever counsel who discovered that, in 1980, when amending the Alabama Alcoholic Beverage Licensing *1167 Code, the Legislature had inadvertently repealed that statute which made it unlawful for an on-premises licensee to `sell, furnish or give any beverages to any person visibly intoxicated....' Ala.Code 23-3-260(2) (1975) (repealed by Act No. 80-529, 1980 Acts of Alabama, effective Sept. 30, 1980). Hence, plaintiff could not prove one of the essential elements of the dram shop action: a sale `contrary to law.' The trial court, accordingly, granted defendant's motion for summary judgment.
"On appeal, therefore, the Alabama Supreme Court was `faced with an anomalous situation,' id. at 124, in which the facts were egregiously hard, but in which the trial judge had unquestionably ruled correctly. Due to the `emasculation of the dram shop statute by the passage of the new alcohol licensing act' (id. at 123), no action arose under the statute. And yet, the court was convinced that the loophole through which defendant had squiggled was `the result of legislative oversight, not legislative wisdom'; and that the legislature had not intended to
Id. at 123-24 (emphasis supplied).
"Toothless though it might be, the Court could not `rewrite the dram shop statute. It exists, regardless of intent, as written.' Id. at 124. Therefore, the Court was forced to consider the question of whether the plaintiff might proceed under a negligence theory. A bare majority of the Court held that he could. (Buchanan is a five-four decision.) The clearest statement of the majority's holding is found in the following extract.
Id. at 127 (emphasis supplied).
"In effect, the majority held that the law imposed a duty upon licensees for on-premises consumption to refrain from continuing to sell alcohol to visibly intoxicated patrons, in order to protect a class of third persons which included plaintiff's decedent.
"Thus, King v. Henkie was overruled. But only just enough to allow `this plaintiff to have his day in court.' Id. at 128. The court expressly limited its holding, and its overruling of King v. Henkie, to cases involving the on-premises sale of liquor by licensed, commercial vendors. The limited nature of the majority's holding is demonstrated by the following extracts from the opinion:
"The extremely limited scope of the Buchanan holding also is demonstrated by the majority's choice of supporting authorities.
Id. at 124. Later in the opinion, the majority cites the following decisions as examples of instances in which `other states have ... recognized common law negligence actions under similar facts' (id. at 127): Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983) (en banc) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) (allowing negligence action against social host who personally and `directly serves' liquor to a visibly intoxicated guest, and `continues to do so even beyond the point at which the host knows that the guest is intoxicated, and does this knowing that the guest will shortly thereafter be operating a motor vehicle'); Hutchens v. Hankins, 63 N.C. App. 1, 303 S.E.2d 584 (1983) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron, with knowledge that patron will drive from the premises); Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984) (allowing negligence action against a retail establishment for knowing sale to a minor); and, McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983) (allowing negligence action against commercial vendor for knowing sale to a minor).
"One must ask, what does the majority's choice of authorities tell us about its decision? What do the six cases have in common? Only one (Kelly) involves social host liability; so that is not the point. Two (Sorensen and McClellan) involve minors; so that might be, but probably is not, significant. Five of the six (i.e., all but Kelly) involve sales of liquor by commercial vendors; so that obviously is a significant common denominator. However, there is one factor which all of the cited cases share, and that is: all arose either in jurisdictions that had no dram shop statute, or under circumstances in which no dram shop act was in force and effect.
"For example, in Waynick, neither the Michigan nor the Illinois dram shop statute applied to the peculiar facts of that case. (See the Buchanan majority's discussion of Waynick at 124-25.) In Sorensen, the Wisconsin dram shop act had been repealed by that state's legislature in 1982 (see 350 N.W.2d at 113 and n. 8). In Ontiveros, Arizona had no dram shop act (see 667 P.2d at 211-12). In McClellan, Wyoming had no dram shop act (see 666 P.2d at 411). At the time of plaintiffs' injuries in Hutchens, North Carolina did not have a dram shop *1169 act (see 303 S.E.2d at 588). And New Jersey did not, and does not now, have a dram shop act (see Kelly, 476 A.2d at 1221).
"Moreover, counting the decision of our supreme court in Buchanan, the decision of the Wisconsin Supreme Court in Sorensen, and the decision of the North Carolina Court of Appeals in Hutchens, one finds that a majority of the states (twenty-seven in all) now have allowed a negligence action against commercial vendors of liquors for injuries sustained by third persons as a result of the acts of an intoxicated person. Significantly, however, the overwhelming majority of those states (22 out of 27) did not have a dram shop, or civil damage, act in force on the date the action arose. Compare the list of decisions in the `Appendix' to Sorensen v. Jarvis, 350 N.W.2d at 119-20, with 12 Am.Jr. Trials 729, "Dram Shop Litigation" ง 2 (1966).
"There can be little doubt, therefore, that the absence of a statutory, dram shop remedy has been a substantial factor influencing those courts which have extended negligence liability to commercial vendors of intoxicating liquor. As the New Jersey Supreme Court observed in Kelly:
Kelly v. Gwinnell, 96 N.J. at 554, 476 A.2d at 1227 (emphasis supplied).
"The statutory vacuum created by legislative inadvertence, in which the Buchanan majority operated, now has been filled by administrative regulations promulgated by the A.B.C. Board. Regulation 20-X-6-.02. Thus, in one sense, the Buchanan decision may be sui generis. We may never see its like again. (At least, in the absence of a similar legislative (or administrative) error.) That also is an argument against expanding the Buchanan negligence action beyond commercial vendors, to encompass defendants such as those before this Court. The majority hinted as much when they said:
Buchanan v. Merger Enterprises, Inc., supra, at 127-28 (emphasis supplied).
"Therefore, this Court concludes that an action based upon common law negligence principles does not lie against either of the moving defendants. In view of the clear legislative intent gleaned from the history of the Carmichael-Fuller Acts, and, the carefully limited holding of the Buchanan majority, it is not the province of this court to define a new cause of action against non-commercial entities. That law-making prerogative lies either with the Alabama Supreme Court or, more properly, the Alabama Legislature.
"Accordingly, it is ORDERED, AJUDGED, and DECREED that the motions for summary judgment of defendant HUNTSVILLE JAYCEES, INC., and, defendant RICHARD P. WATTS be, and the same hereby are, GRANTED.
"In accordance with Rule 54(b), Ala.R. Civ.P., the Court determines there is no just reason for delay, and expressly directs that judgment be entered in favor of the HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and against plaintiffs on all claims.
"In accordance with the foregoing, it also is CONSIDERED, ORDERED, AJUDGED, and DECREED that plaintiffs have and take nothing of defendants HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and that these consolidated actions be, and the same hereby *1170 are, DISMISSED with prejudice as to said defendants. Costs are taxed to plaintiffs, for which execution may issue.
"DONE and ORDERED this 14th day of May, 1985.
[1] Permission had been sought to use the building for the party. Though the HHS Jr. Jaycees had been allowed to use the building on at least one prior occasion, permission was denied.
The evidence suggests the possibility that the request was denied because the adult organization knew that alcoholic beverages would be served at the party.
[1] "Randy Morris, Youth Assistance Director of the defendant Jaycees during the administration of Ernest Kaufmann, testified during deposition that one of his goals that year was that of establishing `a Junior Jaycee Chapter in each of the area high schools, based on the Jaycee Creed.' During the 1980-81 organizational year, only two of the City's five high schools had Junior Jaycee Chapters: S.R. Butler High School and Huntsville High School."
[2] "This emphasized language raises the question of `why' the request was refused. Was it because the defendant Jaycees were aware that alcohol beverages were consumed by the Junior Jaycees at their `senior party' and for that reason refused the request? The record on this point is ambiguous.
"Ernest Kaufman testified that some unidentified members of the HHS Jr. Jaycees
came to our Board meeting and made a request that year [i.e., 1981] for two items. One being their annual awards banquet, number two, being able to use our building for an additional party of which they were refused the second request.
Kaufman stated the second request was refused `[b]ecause we wanted to have them one time a year for an annual awards banquet and that was it.'
"On the other hand, Randy Morris (Kaufmann's Youth Assistance Director) acknowledged that the second request for use of the Bonn Building was for the party ultimately held on Guntersville Lake, but he could not `remember' whether the request was refused because the Board had knowledge that beer was dispensed at that party."
[3] "See, for example, page 2 of the `Brief in Support of Defendant, Huntsville Jaycees, Inc.'s Motion for Summary Judgment,' where counsel says:
The allegation has been made that at the time of the occurrence, May 16, 1981, David Worley was a Huntsville Jaycees' sponsor for the Huntsville High Junior Jaycees and was the person who arranged for the beer to be purchased for the party. * * * * [Emphasis supplied (by Judge Smith).]"
[4] "Ernest Kaufmann does not deny that Worley was the sponsor. Rather, he states that Randy Morris appointed John Zachary `to oversee' the activities of the two high school chapters; and he thus `assumes' that Zachary served as the liaison; but admits he did not `personally know' that to be true.
"In like manner, while Randy Morris began his deposition by denying that David E. Worley was sponsor, he finally admits: (1) that he does not know; and (2) that John Zachary would have been in charge of designating the sponsor for each of the two high school chapters."
[5] "On May 15 and 16, 1981, the city schools still were in session for the year."
[6] "It should be noted that defendant David E. Worley denies any knowledge of how, or where, the beer was purchased. Without question, that is a material fact. But this Court doubts that a genuine issue has been made of it. In any event, this court will jump over Worley's denial for the moment, in order to reach the questions of law which are raised by the pleadings."
[7] "For a list of those states which have Dram Shop Acts, see 12 Am.Jr. Trials ง 2 ["Dram Shop Litigation"]. See also, Note, 9 Cumber.L.Rev. 613, 615 & nn. 16-20 (1978)."
[8] "Indeed, another common law principle, closely related to the rationale of cases such as King v. Henkie, was that which held an intoxicated person to the same standard of conduct as if he were sober. See, Prosser, Handbook of the Law of Torts ง 32 (4th ed. 1971).
This rule was premised on the belief that intoxication would be too easy to assert as an excuse for any misconduct. Thus, the inebriate alone was held responsible for his acts causing injury.
Note, 14 Cumber.L.Rev. 411, 413 (1984). The point was referred to by the Alabama Supreme Court in King when it said:
A drunkard, or one in a state of voluntary intoxication, can scarcely claim so much charity from the law ... as imbeciles and lunatics, because he has by his own agency, either wantonly or negligently, brought about his own misfortune. As drunkenness is no excuse for crimes, or for torts, no more should it be a basis for the liability of another in an action brought against him by the victim of such inebriety.
King v. Henkie, supra, at 511. Thus, it is doubtful that the common law courts' position would have been any different, even it it had not occurred to them to lay the `proximate cause' of injury in the cup of the drinker, rather than the bottle of the seller."
[9] "For a discussion of the temperance movement and its role in the movement for dram shop acts, see Ogilvie, History and Appraisal of the Illinois Dram Shop Act, 1958 U.Ill.L.F. 175."
[10] "The plaintiffs in the Miller case were injured by an automobile driven by a person who became intoxicated while attending a picnic sponsored by a voluntary association of employees of the Owens-Illinois Glass Company at its Madison, Illinois, plant. The picnic was held on premises owned by the employer, with its consent. Suit was brought against the employees' association and the employer under the Illinois dram shop act. In pertinent part, that act provided:
Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; * * * *
Miller v. Owens-Illinois Glass Co., supra, at 419, 199 N.E.2d at 304, 8 A.L.R.3d at 1409.
"The defendants filed motions for summary judgment grounded on affidavits asserting that neither was engaged in the business of selling liquor. The motions were granted and plaintiffs appealed. Thus, the Illinois Appellate Court was presented the question of whether that State's dram shop act applied: (1) to a voluntary club or association which holds a social function at which intoxicating liquors are served to the members and guests; or (2) to the owner of property who permits a voluntary club or association to hold a social function on its property, at which intoxicating liquors are served to members and guests. The appellate court responded negatively to each question, and held that the Illinois dram shop act was
intended to regulate the business of selling, distributing, manufacturing and wholesaling alcoholic liquors for profit. In other words, it was to regulate those in the business, not the social drinker or the social drinking of a group.
Id. at 423, 199 N.E.2d at 306, 8 A.L.R.3d at 1411 (emphasis supplied)."
[11] "See, e.g., W.J. Cash, The Mind of the South 231-233 (1941: Vintage ed.); S. Hackney, Populism to Progressivism in Alabama 302-305, 316 (1969); A.B. Moore, History of Alabama 666-679, 753-757 (1934)."
[12] "Prohibition is not presently regarded as a `progressive' measure. But the historic reality of Progressivism [as a political movement] is sometimes at odds with the
value-laden adjective `progressive.' Prohibition sentiment had been strong among the Progressive forces in the South. Prohibition was just one among the many economic, political, and social reforms that constituted the curiously polyglot movement, Progressivism. The strength of its appeal in the South may represent, as Dewey Grantham suggests, an enduring conservatism in matters moral and social, an essentially romantic willingness to be distracted from the hard, real problems of economics and class interest by quixotic crusades for some mystical goal of publicly enforced moral purity.
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 25 (1974). See also, id., at 9-10, 160 & n. 13."
[13] "As is so often the case when public figures self-righteously assume the cloak of virtue, one finds they have other vices aplenty. In this case, the prohibitionists' clay feet were molded from the grimy soil of racism. In the name of protecting a `traditional way of life,' they struck at Blacks.
Another [reason for the rapid growth of the prohibition movement] was the will to [master] the Negro [who], when primed with a few drinks of whiskey, was ... lamentably inclined to let his ego a little out of its chains and to relapse into the dangerous manners learned in carpetbag days.... And it seems genuinely to have been believed that to forbid the sale of legal liquor, and so presumably to force up the price of the bootleg product, would be to deprive him of alcohol altogether and so make it easier to keep him in his place.
W.J. Cash, supra, note 11, at 232."
[14] "See, e.g., Sellers 67-68 & n. 104; S. Hackney, supra, 302."
[15] "A perusal of the general, special and local laws regulating the sale of intoxicating beverages prior to 1907 shows the growth and development of the desire on the part of the people of Alabama to restrict the sale thereof.
`Editor's Note,' The Alabama Code of 1928, at 742 (Michie 1929) (not adopted by Legislature)
(emphasis supplied)."
[16] "Indeed, the early decisions of the Alabama appellate courts were very restrictive in their interpretation of language found in the prohibition statutes. For example, in Coker v. State, 91 Ala. 92, 8 So. 874 (1891), the Alabama Supreme Court was presented a case in which the defendant had been convicted for `selling or giving' liquor to a minor in violation of a local prohibition act. The evidence at trial showed that the minor had attempted to purchase whiskey from the defendant, but the defendant `told him that he had no whiskey for sale, and refused to sell him any.' The minor testified that he then `borrowed' a pint of whiskey from the defendant; and that several days later, when he happened upon the defendant who was en route to Montgomery in his wagon, he (the minor) told defendant that he did not have:
any whiskey on hand to return the whiskey he had borrowed from the defendant as before stated, [and] he handed the defendant some money, and requested him to buy as much whiskey in Montgomery as the [minor] witness had borrowed from him, and in that way returned the whiskey he, witness, had borrowed from him.
Id. The Supreme Court reversed the conviction because the trial court had erred in charging the jury that the transaction was a `giving' or `selling' contrary to law, rather than a `loan' or `barter.'
The statute is a highly penal one, and cannot be extended beyond its letter by the result, necessarily more or less uncertain, of speculations into the realms of supposed legislative intent, or the supposed evils aimed at by the law-makers. The alleged offender must be tried upon what the law-giving power has said, and not by what it may be inferred, with greater or less assurance of safety, it has intended beyond the language employed.
Coker v. State, supra at 94-95, 8 So. at 875."
[17] "On this point, Black's Law Dictionary 464 (5th ed. 1979) says:
In the construction of laws, wills, and other instruments, the `ejusdem generis rule' is, that when general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned....
See also, Maples v. Chinese Palace, Inc., 389 So. 2d 120, 124 (Ala.1980); Brook v. Cook, 44 Mich. 617, 7 N.W. 216 (1880)."
[18] "This attitude is capsulized in the following:
The saloon is a place of rendezvous for all classes of the low and vulgar, a resort for degraded whites and their more degraded negro associates, the lounging place for adulterers, lewd women, the favorite haunt of gamblers, drunkards and criminals. Both blacks and whites mix and mingle together as a mass of degraded humanity in this cess-pool of iniquity. Here we have the worst form of social equality, but I am glad to know that it is altogether among the more worthless of both races.
J.F. Clark, `The Saloon and Racial Equality,' in Alabama Christian Advocate, January 4, 1906: quoted Sellers 101."
[19] "In stating that the issue confronting the legislature was `whether whiskey shall dominate and control the State, or the State dominate and control whiskey,' Governor Corner was speaking of the whiskey lobbyists, representing those businesses which profited from the manufacture, sale, and distribution of liquor."
[20] "This was a sweeping bill. Buildings should not be let for the sale or making of intoxicants or such violation permitted in them. Tenants violating this act forfeited their leases.... [I]t was made unlawful to advertise liquor in any public place. The keeping of liquors in any place but a residence was prima facie evidence that they were kept for sale, or intended for sale. Delivery of liquor to any public place was an evidence of sale. It was a misdemeanor for any railroad or boat employees to be intoxicated while on duty. In case of injury to any person caused by one who was drunk, damages could be obtained from the man who sold the liquor. Heavy fines were imposed for selling liquor from behind screens or other obstructions. Judges were required to charge, and grand juries which had testimony had no discretion but to indict. Witnesses who refused to testify were in contempt of court, and even servants could not be excused from testifying against principals. Storage of liquor in any public place was a violation of the law. The law prohibited soliciting from without the state. Sheriffs were authorized to procure lists of United States liquor licenses every month and have them published in heavy black type, with the name and location of the business. Prohibited liquors were contraband when they were stored in violation of the law. Search could be made by warrant, and the presence of government license was prima facie evidence of guilt....'
Sellers 133 n. 30 (emphasis supplied."
[21] "Plaintiffs have neither pled, nor does the Pre-Trial Order recite, a negligence claim against either defendant. Rather, the clear thrust of plaintiffs' claims against these defendants is the dram shop act. Nevertheless, applying notice pleading principles [Rule 8, Ala.R. Civ.P. (and the committee comments thereto) ], this Court believes the question of whether a common law negligence action will lie under the circumstances of this case also should be addressed." | April 10, 1987 |
b3a9dae3-a48e-4e03-a708-2fae039b5f0f | Kemp Motor Sales, Inc. v. Lawrenz | 505 So. 2d 377 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 377 (1987)
KEMP MOTOR SALES, INC., and Gertrude Wade
v.
David W. LAWRENZ.
85-1493.
Supreme Court of Alabama.
March 27, 1987.
James R. Owen of Owen, Ball and Simon, Bay Minette, for appellants.
Pamela W. Baschab and C.G. Chason of Chason and Underwood, Foley, for appellee.
TORBERT, Chief Justice.
This is a conversion case. The plaintiffs, Kemp Motor Sales, Inc., and Gertrude *378 Wade, sued the defendant, David W. Lawrenz, for the destruction of a boathouse. In a motion for summary judgment, the defendant challenged the plaintiffs' property interests in the boathouse as insufficient to support the claim of conversion. He also counterclaimed, seeking restitution for the costs incurred in tearing down the disputed structure in the event the trial court found that the plaintiffs did in fact own the boathouse. On the defendant's motion for summary judgment, the trial court held for the defendant on the conversion claim. The trial court did not rule on the defendant's counterclaim, and the plaintiffs subsequently moved for final judgment pursuant to Rule 54(b), Ala.R.Civ.P., on the matters actually adjudicated. We now consider the plaintiffs' appeal from the judgment for the defendant on the plaintiffs' claim. We affirm.
We will assume for the purpose of deciding this case that the destruction of the boathouse was an act for which a claim of conversion will lie. We would note, however, that it is not the usual case that such a building will be considered to be personal property, as opposed to realty, and therefore subject to the tort of conversion. See Sullivan v. Lawler, 222 Ala. 628, 133 So. 911 (1931); Powers v. Harris, 68 Ala. 409 (1880); 18 Am.Jur.2d Conversion § 22, at 158 (1985). In view of the dispositive issue relating to the failure of proof, discussed below, however, we find that we need not reach the question of the status of the boathouse as personalty in order to decide this case. We, therefore, decline to reach that question, and we will assume, without deciding, that the boathouse in question could be the subject of conversion.
It has been said that "[t]he gist of conversion is the interference with control of the property." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Torts, § 15, at 102 (5th ed. 1984). Our cases have often recognized this same principle, and they have further noted that some demonstrable "property" interest must exist in order for a party to assert a claim in conversion:
McCain v. P.A. Partners Limited, 445 So. 2d 271, 272 (Ala.1984) (emphasis added). See also Sadie v. Martin, 468 So. 2d 162 (Ala.1985); Ott v. Fox, 362 So. 2d 836 (Ala. 1978). According to the defendant, the plaintiffs failed to show any property interest or possessory right in the disputed boathouse in response to his motion for summary judgment. He argues that the trial court was therefore correct in granting this motion, there being a complete failure of proof on an essential element of the tort.
We must evaluate the defendant's argument in light of the applicable standards of review. The standards implicated here have been firmly established by our previous cases:
Wright v. Robinson, 468 So. 2d 94, 97 (Ala. 1985).
Applying these standards to the instant case, we find no error on the part of the trial court. In his motion for summary judgment, the defendant challenged the plaintiffs' property interest in the boathouse by arguing that the boathouse was a fixture to realty and that any right of action for the conversion of such a fixture would lie with the owner of the realty with which that fixture was associated. In an affidavit supported by certified copies of property records from the probate court, he then asserted that the property adjacent to the boathouse was owned by his family, and that neither of the plaintiffs owned any real property in the vicinity of the boathouse. Thus, the defendant argued, the plaintiffs' claim for conversion was due to be denied, because they had no interest in the adjacent realty, and, consequently, no interest in the boathouse as a fixture. Hence, it was incumbent upon the plaintiffs to respond to the defendant's motion by showing some interest in the boathouse which would support their claim for conversion. The plaintiffs, however, failed to file any response to this motion, and our review of the record discloses that it was only in their complaint that the plaintiffs asserted any possessory or ownership interest. As the authorities noted above expressly provide, however, the bare allegations of the complaint will not provide a scintilla of proof for the purpose of responding to a motion for summary judgment. See also Rule 56(e), A.R.Civ.P. ("an adverse party may not rest upon the mere allegations or denials of his pleading"). Consequently, we hold that the trial court correctly granted a summary judgment in favor of the defendant, because no "general or special right to the property and possession or an immediate right of possession" was shown by the plaintiffs. McCain v. P.A. Partners Limited, 445 So. 2d at 272.
We are likewise not persuaded to reverse the judgment on the basis of the plaintiffs' assertion in their brief on appeal that they had an ownership interest. "On appeal from the granting of a summary judgment, this court is limited to a review of the record alone, and the record cannot be modified or altered by statements in briefs of counsel, nor by affidavits or other evidence not properly submitted." Barnes v. Liberty Mutual Insurance Co., 472 So. 2d 1041, 1042 (Ala.1985).
Finally, we note that the trial court's order granting the Rule 54(b) motion also makes final a permanent injunction requested by the defendant which forbids the plaintiffs to erect a replacement structure. The merits of this injunction are not argued on this appeal. However, the plaintiffs do contend that the trial court incorrectly included the injunction in the Rule 54(b) order, asserting that the trial court had not actually ruled on this matter at the time the order was entered. Thus, the plaintiffs argue that the petition for the injunction, like the defendant's counterclaim, is still pending in the trial court.
We think that the plaintiffs' argument in this regard is without merit. We note that the motion for the Rule 54(b) order was made by the plaintiffs themselves. In that motion, the plaintiffs stated that a permanent injunction had in fact been granted by the trial court as a consequence of the grant of the summary judgment, and the motion furthermore recites that the sole remaining claim before the trial court was the defendant's counterclaim. Thus, the manifest effect of this motion was to request that the injunction in question also be *380 made final pursuant to Rule 54(b), along with the trial court's determination of the merits of the conversion claim. In making this motion, therefore, the plaintiffs invited the very "error" of which they now complain, assuming that error was committed in the first place.
It is the settled law of this state that "invited error" cannot be the basis of argument on appeal, Osborn v. Johns, 468 So. 2d 103 (Ala.1985), and we long ago held that a party cannot complain on appeal of a judgment entered at his request. See Champion v. Central of Georgia Ry., 165 Ala. 551, 51 So. 562 (1910). Accordingly, we hold that the injunction was correctly granted by the trial court, and we affirm this aspect of the trial court's judgment as well, there being no argument before us on the merits of this issue.
For the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and STEAGALL, JJ., concur. | March 27, 1987 |
607d3e8b-95c3-4ccd-b361-acfb0fadfcea | Ex Parte Randle | 554 So. 2d 1131 | N/A | Alabama | Alabama Supreme Court | 554 So. 2d 1131 (1987)
Ex parte David RANDLE.
(Re David RANDLE
v.
STATE of Alabama).[*]
85-1388.
Supreme Court of Alabama.
June 30, 1987.
G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.
Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for defendant.
ADAMS, Justice.
The appellant, David Randle, an inmate of the Alabama prison system, was convicted of first degree escape on July 26, 1984, and sentenced to life imprisonment under the Habitual Offender Act. The conviction was affirmed by the Court of Criminal Appeals on May 27, 1986, and Randle filed an application for a rehearing. The Court of Criminal Appeals then remanded the case to the Circuit Court of Elmore County because of improper sentencing. 554 So. 2d 1124. Randle's principal argument is that the Court of Criminal Appeals erred when it found that no fatal variance existed between the indictment for escape and the proof offered by the State. He asks this Court to reverse his conviction for escape. We affirm.
*1132 The facts reveal that Randle was serving a sentence at the Staton Correctional Facility for receiving stolen property. At the time of the escape, however, Randle was at the J.F. Ingram State Technical School, a facility where prison inmates receive vocational training. A Department of Corrections employee testified that Randle was found to be missing on September 29, 1983, after a roll call and was captured a short time later.
J.F. Ingram State Technical School is not a facility where prison inmates are housed; it is located some five miles from Staton Correctional Facility, the facility at which Randle was in custody at the time of the escape. The sole function of the school is to provide vocational instruction. Randle argues that a fatal variance occurred when the State failed to prove that J.F. Ingram State Technical School was a penal facility and that he was in the school's custody on September 29, 1983.
It has been held previously that a fatal variance existed between an indictment that charged that the defendant had escaped from a prison camp and proof that he had actually escaped from the custody of a prison guard while working in a road gang 12 miles from the prison. Owens v. State, 46 Ala.App. 591, 246 So. 2d 478 (Crim.App. 1971). In Owens, Judge Almon (then sitting on the Court of Criminal Appeals) wrote:
Id., 46 Ala.App. at 591, 246 So. 2d at 478. In Brantly v. State, 340 So. 2d 902 (Ala. Crim.App.1976), a fatal variance was found to exist between the indictment that alleged the defendant had escaped or had attempted to escape from the State penitentiary and the proof that he had, in fact, escaped from the Shelby County Jail. Id., at 903. In Ex parte Behel, 397 So. 2d 163 (Ala.1981), this Court held that because the indictment failed to allege that the defendant had been convicted of any criminal offense and had been sentenced to the State penitentiary, he could not be convicted of escape under Ala.Code (1975), § 13-5-65. Id., at 164.
Randle argues that the provision in his indictment referring to J.F. Ingram as a penal facility, and implying that he had escaped from the custody of the J.F. Ingram State Technical School, was a material part of the indictment not proved by the State and, therefore, that there was a fatal variance. We agree with Judge Almon's observation in Owens that "proof at trial must correspond with the material allegations of the indictment"; however, in the present case, we do not believe that the reference in the indictment to the J.F. Ingram State Technical School as "a penal facility" was a material allegation. In Summers v. State, 348 So. 2d 1126 (Ala. Crim.App.), cert. denied, 348 So. 2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S. Ct. 1253, 55 L. Ed. 2d 773 (1978), Judge Harris wrote of the elements required in an indictment to assure due process:
"An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy *1133 for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record."
348 So. 2d at 1132. In the present case, Randle was in the custody of the State Department of Corrections at all times prior to his escape. The indictment for escape states clearly that Randle had been convicted of a felony, namely receiving stolen property, and that he escaped or attempted to escape "from custody imposed pursuant to that conviction." Appellant argues that because he was not in the custody of J.F. Ingram State Technical School, but was assigned to Staton Correctional Facility, a fatal variance existed between the indictment and the proof. We disagree. Randle was present at J.F. Ingram State Technical School immediately before his escape. Unlike the indictment in Owens, the indictment in this case did not incorrectly state that the appellant had escaped or attempted to escape from the prison. Although the indictment does improperly identify J.F. Ingram State Technical School as a penal facility, it does not say that Randle was in the custody of the school, only that he escaped from the school while in custody pursuant to his conviction for receiving stolen property. We agree with the Court of Criminal Appeals on this point:
We conclude, therefore, that the appellant's reading of the indictment is incorrect and that it does not identify J.F. Ingram State Technical School as Randle's custodian at the time of his escape. The reference in the indictment to J.F. Ingram State Technical School as a penal facility, although incorrect, is not a material allegation of the indictment and does not create a fatal variance. The State proved that Randle was in custody pursuant to his felony conviction for receiving stolen property and that he escaped from custody while he was at J.F. Ingram State Technical School. The indictment in this case satisfies the criteria set forth in Summers and did not deny the appellant due process.
The appellant also alleges: (1) that the trial court erred in permitting Betty Taylor, the Department of Corrections' Director of Inmate Records, to testify that Randle was serving a 15-year sentence for receiving stolen property; (2) that the trial court erred in admitting a trial docket sheet from Jefferson County; and (3) that the Court of Criminal Appeals erred in holding that Act No. 1071, 1971 Ala. Acts, is valid.
At trial, appellant's counsel, G. Houston Howard, objected to Ms. Taylor's failing to testify that it was within the regular course of business for the Alabama Department of Corrections to make such a memorandum or record of whether David Randle was an inmate of the Alabama Prison System on September 29, 1983, as provided in Ala.Code (1975), § 12-21-43. The trial court allowed the State to conduct the following exchange on direct examination:
Appellant's counsel quoted Ala.Code (1975), § 12-21-43, in support of his objection. That section provides:
The Court of Criminal Appeals held that although counsel for appellant was correct in principle to argue that Ms. Taylor had not testified that it was in the regular course of business for the Alabama Department of Corrections "to make such memorandum or record of whether David Randle was an inmate in the Alabama prison system on September 29, 1983," that requirement was inapplicable here. The court held:
We disagree with the conclusion of the Court of Criminal Appeals that the requirement of § 12-21-43, at issue here, is "tautological" when applied to the Department of Corrections. Had the State relied solely upon Ms. Taylor's testimony to prove Randle's prior conviction, we would agree with appellant that reversible error had been committed. Here, however, the State also introduced a certified copy of the trial docket sheet from Jefferson County as proof of the appellant's conviction for receiving stolen property. At most, therefore, assuming the trial docket sheet was properly admitted, the admission of Ms. Taylor's testimony was harmless error.
Appellant next argues that the trial court erred in admitting the trial docket *1135 sheet from Jefferson County, and that the Court of Criminal Appeals erred by not reversing. We disagree.
In Thomas v. State, 395 So. 2d 1105 (Ala. Crim.App.1981), the Court of Criminal Appeals recognized the validity of Act No. 1037, Acts of Ala. 1971, p. 1847. The court held:
395 So. 2d at 1108. In Julius v. State, 407 So. 2d 141, 148 (Ala.Crim.App.1980), reversed on other grounds, 407 So. 2d 152 (Ala.1981), the Court of Criminal Appeals held that certified copies of trial docket sheets from Jefferson County were properly accepted by the Circuit Court of Montgomery County in accordance with the provisions of Act No. 1037. We note that appellant quotes dicta in Lidge v. State, 419 So. 2d 610 (Ala.Crim.App.1982):
As a general act of local application enacted prior to our decision in Peddycoart, supra, Act No. 1037 has been declared valid in Thomas and Julius. Act No. 1037 provides in pertinent part:
Appellant argues that Act No. 1037 is invalid because it conflicts with provisions of the Alabama Constitution and violates the Equal Protection Clause of the United States Constitution. Again, we disagree.
The Court of Criminal Appeals cited Thomas, supra, in reaffirming the validity of Act No. 1037. Appellant argues that the "persuasive force of Thomas has been substantially diminished" by our decisions in Crandall v. City of Birmingham, 442 So. 2d 77 (Ala.1983), and Ex parte DeMent, 424 So. 2d 659 (Ala.1982). Contrary to appellant's assertion that Thomas has been "substantially diminished" by Crandall and DeMent, the acts challenged in those cases were held to be violative of equal protection. In DeMent, supra, we said that the act in question was enacted prior to our decision in Peddycoart; therefore, it was subject to review by application of pre-Peddycoart rules, and it failed to withstand equal protection scrutiny. Ex parte DeMent, supra, at 661. Applying the same pre-Peddycoart analysis to the present Act, we find no basis for appellant's allegation that he was denied equal protection of the law.
As the State has pointed out, the docket sheet used by Jefferson County pursuant to Act No. 1037 designates the trial court, *1136 and indicates whether the case was tried to the court or before a jury, whether the defendant was represented by counsel, the charge stated in the indictment, the names of the parties, the defendant's plea, the disposition of the case, whether defendant pleaded guilty knowingly if a guilty plea was entered, the specifics of the court's judgment, attestation by the proper custodian, how the sentence will be served, and disposition of post-judgment motions. We find no evidence that Act No. 1037 has in any manner imperiled the appellant's rights or privileges under the Alabama Constitution or the United States Constitution. The State has correctly pointed out that the use of a certified docket sheet in lieu of a certificate of judgment has not changed the substance of what must be presented to prove a conviction in court.
Act No. 1037 was intended to provide an alternative record keeping method in counties with populations exceeding 500,000 inhabitants, i.e., Jefferson County at present, in view of the greater number of criminal cases filed there. Appellant cites a five-year profile comparing the number of criminal filings in Jefferson and Mobile Counties for the years 1979-1983 in support of his argument that there is no reasonable relationship between a population-based classification and the intent of Act No. 1037. With the exception of 1982, when Jefferson County criminal filings exceeded Mobile County filings by only six percent, filings in Jefferson County for the years 1979 through 1983, ranged from 20% to 45% greater than the number of criminal filings in Mobile County, the next most populous county in the State. For the five-year period cited by the appellant, criminal filings in Jefferson County exceeded the filings in Mobile County by an average of 25.2% per year. When viewed in perspective, the statistics cited by the appellant appear to provide scant support for his argument.
Act No. 1037, as the Court of Criminal Appeals noted in Thomas, supra, is a "general act of local application applying to all counties having a population of 500,000 or more." In Opinion of the Justices No. 288, 425 So. 2d 407 (Ala.1982), we held that with regard to legislation enacted prior to our decision in Peddycoart, we would look to whether the "classifications were found to be `substantial,' were not `arbitrarily' fixed, and were based upon a `reasonable necessity' for the several classifications." Opinion of the Justices No. 288, supra, at 409. Act No. 1037, a general act of local application, was enacted prior to our decision in Peddycoart, and like Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. den., 232 Ala. 150, 167 So. 349 (1936), applied only to Jefferson County at the time it was enacted. This Court held in Dixon, and we find here, that the classification used in this case was determined in good faith and is reasonable.
Appellant also challenges the validity of Act No. 1037 on the grounds that it conflicts with the principle of a unified judicial system mandated by Ala.Const. amend. 328, §§ 6.01 and 6.11, and violates Ala.Code (1975), § 12-17-94, regarding the duties of circuit clerks. Both grounds are based upon the view that Act No. 1037 is an impermissible local law, a view we reject. (See Peddycoart, supra.) We agree with the appellant that a trial docket sheet and a certificate of judgment are different documents; however, we have held previouslyand we reaffirm here our judgment that, in the interest of efficiency and economy, Act No. 1037 reasonably accomplishes the purpose of allowing counties of 500,000 or more inhabitants to conform the trial docket sheet to serve two functions: as a docket sheet and as a certification of judgment. We find no evidence that the appellant was denied due process or equal protection of the law or that he was in any way deprived of any right or privilege of citizenship as a result of the use of a certified trial docket sheet to prove his prior conviction. The judgment is, therefore, affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and STEAGALL, JJ., concur.
ALMON and BEATTY, JJ., dissent.
[*] Editor's Note: This opinion was originally published at 510 So. 2d 843. It is published here as corrected. | June 30, 1987 |
fc41a9ce-f151-4667-9c3f-432f7185bbd6 | Aetna Life Ins. Co. v. Lavoie | 505 So. 2d 1050 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1050 (1987)
AETNA LIFE INSURANCE COMPANY
v.
Margaret W. LAVOIE and Roger J. Lavoie, Sr.[*]
82-426, 82-1152.
Supreme Court of Alabama.
March 27, 1987.
Peter V. Sintz and William M. Cunningham, Jr., of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellant.
Joseph M. Brown, Jr., of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellees.
PER CURIAM.
This case is on remand from the Supreme Court of the United States. This is the *1051 fourth time it has been before this Court.[1] On June 5, 1986, we ordered this case rebriefed. After careful reconsideration of the record and the arguments of counsel, we uphold the trial judge's denial of appellant's (Aetna's) motion for directed verdict and its post-trial motion for J.N.O.V. The trial court's denial of appellant's post-trial motion for a new trial on the ground of excessiveness of the verdict is affirmed on the condition that appellees (the Lavoies) file with this Court, within 21 days, a remittitur in the sum of $3,000,000.00.
The facts are as follows: In January of 1977, Mrs. Lavoie was examined by her physician, Dr. John B. Douglas, complaining of various ailments. Dr. Douglas recommended that she be admitted to the Mobile Infirmary for evaluation and treatment. Mrs. Lavoie remained hospitalized for 23 days, during which time a battery of tests was performed on her in accordance with Dr. Douglas's instruction.
After her discharge, the infirmary forwarded certain medical records (including the admitting sheet, the admission history and physical, the doctor's orders, the discharge summary, and extraneous information such as lab reports, etc.) and a bill for $3,028.25 to Aetna's local office in Mobile.[2] In April of 1977, Brenda Harris, a claims worker in the local office, sent a letter to Jean Becker, a "senior claims examiner" at Aetna's home office in Hartford, Connecticut, indicating Harris's conclusion that the entire period of hospitalization was unnecessary and that "[h]ospital records do not indicate anything to the contrary," despite the fact that all of the hospital records had not been received by Aetna. (The nurses' notes and patient's progress notes were not in the Lavoie medical file.) On April 27, 1977, Ms. Becker denied payment of the hospital bill and certain of the diagnostic tests ordered by Dr. Douglas (the EEG, the EKG, and the CAT-scan). The local office refused to pay the entire amount, tendering payment for only $1,579.74. The refusal to pay was made pursuant to the insurance contract, the pertinent parts of which provide:
Although there is no written policy, Aetna's witnesses agreed that before a "complicated" medical claim could be denied, a member of Aetna's medical department must review the file. The medical department included 6 physicians.
Dr. Bernard Swann, a physician employed by Aetna to review claims and a member of the medical department, was assigned the Lavoie file. Although a dispute arose over whether Dr. Swann's handwritten records reflected that he reviewed the Lavoie file on April 28, 1977, a day after the claim was denied, or whether he reviewed the file on April 25, 1977, Swann acknowledged in his notes that certain important medical records (the nurses' notes and the patient's progress notes) were not in the file.
The Lavoie claim was denied on three more occasions: on November 9, 1977, in accordance with the instruction of Tom Hutton, a senior claims examiner in the Hartford, Connecticut, office, to Harris;[3] on December 20, 1977, again on instruction from Hutton to Harris;[4] and finally on July 28, 1978, when R.E. Mann, another senior claims examiner in Hartford, instructed the Mobile office to continue the denial.[5]
Chavers v. National Sec. Fire & Casualty Co., 405 So. 2d 1 (Ala.1981), promulgated the test for bad faith refusal to honor claims with an insurance company. Justice Beatty, in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981), summarized and explained the two tiers of the bad faith tort. The first tier of the Chavers test establishes that the tort arises when there "exists `[1] no lawful basis for the refusal coupled with [2] actual knowledge of that fact'". The second tier of the test is an elaboration on the first. If the plaintiff cannot prove actual knowledge, the second tier offers plaintiff the alternative of proving that the insurer intentionally failed to determine whether there was an arguable reason for denying the claim. If the jury finds an intentional failure on the part of the insurer to determine whether there was any lawful basis for the refusal of the claim, it may use that fact in finding "actual knowledge."
Clearly, it was Aetna's responsibility to marshal all of the medical facts with regard to Mrs. Lavoie's claim before its *1053 refusal to pay. The items which were absent from the file, the progress notes and the nurses' notes, were conceded by Aetna's own witnesses to be of critical importance in the review of any medical file where the reasonable necessity of hospitalization is in issue. Dr. Swann testified, "[N]ormally you'd like to see particularly that a nurses' notes [are] included in the record," and "Over a year later ... more information was sent and also a letter from Dr. Douglas concerning the admission ... but the critical thing [that] came was the nurses' notes."
Dr. Roy Mason Arnold, M.D., one of Aetna's expert witnesses, confirmed the importance of these documents:
Another aspect of the case is the insureds' contention that Dr. Swann did not examine the medical records until one day after the first refusal to pay. Because of the foregoing discussion of the inadequacy-of-the-investigation issue, the controversy surrounding the date of Dr. Swann's recommendation to refuse payment need not be addressed here.
The question of whether the bad faith is to be tested at the time of the first denial, or at the time of subsequent denials, is of no consequence in this case, because the deficiency in the medical records continued through the first three successive denials. Once the bad faith has occurred, once the duty to use good faith in considering insurance claims has been breached, the insurance company cannot later seek to justify its denial by gathering information which it should have had in the first place. "[A]n insured purchases insurance and not an unjustified court battle when he enters into the insurance contract." Gulf Atlantic Life Insurance Co. v. Barnes, 405 So. 2d 916, 925 (Ala.1981). Thus, the jury could have found that Aetna exhibited reckless indifference to the facts or to the proof submitted by the Lavoies on their claim, thereby satisfying the "actual knowledge" element of the testand it is evident, from their verdict, that they did. Facts certainly exist which support the jury's conclusion.
Under ordinary circumstances, we would remand this cause to the trial court for reconsideration of the excessiveness-of-the-verdict issue pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986). Because of the long history of this case, and other extraordinary attending circumstances, however, we feel constrained to forgo the Hammond remand procedure and determine the issue of damages without further delay. After careful and thoughtful consideration, taking into account the gravity of the wrong, the nature and extent of the injury inflicted upon the insureds, and, upon making a comparative analysis with other awards allowed in similar cases, we hold that the trial court's order denying the insurer's motion for a *1054 new trial should be affirmed on the condition that the insureds file with this Court within twenty-one days a remittitur of damages in the sum of $3,000,000; otherwise, the judgment will be reversed and this cause remanded for a new trial.
AFFIRMED CONDITIONALLY.
JONES, ALMON and ADAMS, JJ., concur.
MADDOX, HOUSTON, and STEAGALL, JJ., concur specially.
SHORES and BEATTY, JJ., dissent.
TORBERT, C.J., recuses.
MADDOX, Justice (concurring specially).
In this special concurrence I will set out the history of this particular case, the history of the tort of bad faith refusal to pay an insurance claim, the positions taken by the various members of the Court on the tort's application, the alternative remedies which certain members of the Court have suggested should be adopted, the public policy considerations which address themselves to the legislative branch of government, and why I am of the opinion that in the interest of justice, this case should come to a conclusion.
In Lavoie v. Aetna Life & Cas. Co., 374 So. 2d 310 (Ala.1979), this Court set out the nature of the plaintiffs' claim as follows:
374 So. 2d at 310.
The sole issue presented for review in that case was whether the complaint failed to state a claim for relief. In that case, this Court held as follows:
374 So. 2d at 311-12 (emphasis added).
The case went back to the trial court, extensive discovery was undertaken, and on February 13, 1980, Aetna filed its first motion for summary judgment, which was denied on February 29, 1980. On September 22, 1980, Aetna filed a second motion for summary judgment, and on October 17, 1980, the trial court granted Aetna's motion for summary judgment as to the plaintiffs' second, third, fifth, and sixth causes of action, and simultaneously entered a judgment for the plaintiffs on the first and fourth causes of action dealing with the contractual indebtedness claim by the plaintiffs.
A second appeal arose from the trial court's granting of Aetna's summary judgment on the above-mentioned claims. Lavoie v. Aetna Life & Cas. Co., 405 So. 2d 17 (Ala.1981). In reversing the judgment and remanding the cause to the trial court, this Court stated:
405 So. 2d at 18.
The case was then tried and Aetna filed an appeal; this Court affirmed in Aetna Life Ins. Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984). After Aetna's application for rehearing was overruled, Aetna appealed to the Supreme Court of the United States, and that Court reversed and remanded the case to this Court on the ground that this Court should have granted Aetna's motion to recuse because one of the Justices of this Court who participated in the case was disqualified to participate in the decision. Aetna Life Ins. Co. v. Lavoie, ___ U.S. ___, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d 823 (1986). Since the decision made by this Court in the third appeal, Aetna Life Ins. Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984), two members of the Court who participated in that opinion have left the Court, and the Chief Justice has recused himself from participating in the case for a just cause. The Chief Justice's reason for recusal now was not present when he participated in the three prior appeals.
As already shown, this case grew out of a refusal of Aetna to pay for a hospital confinement and for certain diagnostic tests made during that confinement, which occurred between February 3 and February 25, 1977over ten years ago. I am of the opinion that it is now time for this *1056 Court, as presently constituted, to resolve this conflict.
When this case was first filed, the tort of bad faith refusal to pay an insurance claim had not been recognized by this Court. It was first judicially adopted by this Court in Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1 (Ala.1981), with the Chief Justice and Associate Justices Maddox, Almon, and Embry, dissenting; therefore, the new judicially created tort was adopted by a Court which was divided on the form of the remedy to be given in factual situations similar to the one we have here. Several members of the Court had expressed separate views on the public policy considerations involved in this kind of lawsuit in Vincent v. Blue Cross-Blue Shield, 373 So. 2d 1054 (Ala.1979). Needless to say, this Court has had difficulty with this kind of claim from the beginning. In any event, recognition of the new tort action was not in effect, and was not the law of this state when the event which gave rise to this lawsuit occurred, and that may be one of the reasons why this particular case poses so many problems. Because the tort was in its embryonic stage is probably one of the reasons the Court is requiring such a substantial remittitur in this case.
The tort of bad faith was in the developmental stage when the alleged tort occurred, and when this lawsuit was filed. Nevertheless, we must decide the case based upon the law as it now exists, and in view of the tort's own unique history.
I am still of the opinion that this is not a bad faith case, and I believe the views I expressed in my original dissent in this case are sound, but I believe the result reached here is just under the facts of this case, based upon principles of contract law. In this special concurrence I will spell out the public policy considerations involved, and suggest what I believe would be the best way to solve the public policy issues, and why I concur in the result in this particular case.
The failure of insurance companies to pay what their insureds thought were just claims has been the subject of much litigation in the past few years, and the judicial branch of government has been the primary vehicle used by citizens to address this question. From the beginning, I have been troubled by the fact that principles of contract law, in cases dealing with insurance contracts, were inadequate to do complete justice, but I was hesitant, as a member of the judiciary, to attempt to fashion a remedy to right a wrong which the people of this state, and in fact, the people in other states as well, considered to be a wrong, because any remedy involves public policy issues.
These public policy considerations, of extending the remedies available, beyond those available ex contractu, have been a source of concern for me since the subject was first addressed in this Court. Of course, it was the settled law of this state that insureds were not allowed to recover for personal injury, inconvenience, annoyance, or mental anguish and suffering in an action for breach of a contract of insurance. Vincent v. Blue Cross-Blue Shield, 373 So. 2d 1054 (Ala.1979); Sanford v. Western Life Insurance Co., 368 So. 2d 260 (Ala.1979); Stead v. Blue Cross-Blue Shield, 346 So. 2d 1140 (Ala.1977); see, also, Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976); Liberty National Life Insurance Co. v. Stringfellow, 38 Ala.App. 594, 92 So. 2d 924 (Ct.App.1956), cert. denied, 265 Ala. 561, 92 So. 2d 927 (1957); aff'd on second appeal, 270 Ala. 80, 116 So. 2d 595 (1959).
In Vincent, however, I joined the majority in stating the following:
It should have been apparent from what a clear majority of this Court stated there that the Court was considering remedies other than those provided by contract law to correct a wrong which the Court recognized could and probably did exist.
If one will look at the opinions of this Court, those written by the majority and those written by the dissenters, in these cases, it is apparent that there are serious public policy considerations involved which are difficult for me, and I believe for this Court, to address.
The same public policy considerations which plagued me in Chavers, when the tort was recognized, continue to plague me, and those public policy considerations are: What type of remedy should be employed when an insurer fails to pay a valid claim made by its insured? What is the measure of damages? Should this Court be deciding these public policy issues? In Continental Assur. Co. v. Kountz, 461 So. 2d 802 (Ala.1984), I articulated succinctly my own individual views concerning how I thought this Court should treat these "bad faith" cases, in the absence of legislative action. There, I wrote:
461 So. 2d at 811.
Because I was the lone dissenter, I felt compelled to state the reasons for my dissent. I stated the following:
461 So. 2d at 811-812 (footnotes omitted).
I am still of the opinion that the Legislature is the appropriate branch of our government to pass on matters of great public concern such as exist in this area. It has the ability to hold public hearings, and the right to investigate the need for additional legislation, and it has the plenary power to balance the competing interests of the insured and the insurer, and arrive at a solution which will be in the best interest of the public.
I was not alone in suggesting attractive alternatives to the tort of bad faith refusal to pay insurance claims, and in calling on the Legislature to address them. The Chief Justice, in his dissenting opinion in this case on the third appeal, suggested that the Court should consider alternatives. He noted:
Aetna Life Ins. Co. v. Lavoie, 470 So. 2d at 1080.
In his dissenting opinion, he further stated:
Aetna Life Ins. Co. v. Lavoie, 470 So. 2d at 1080-81.
The Legislature, in 1981, addressed some of the policy considerations surrounding health and accident insurance policies (see Code 1975, § 27-1-17), but it has not addressed the alternative which the Chief Justice suggested in his dissenting opinion in this case on the third appeal, namely, the recovery of consequential or other damages *1059 by an insured in non-commercial cases, when an insurer willfully fails to pay a valid claim. In fact, the Chief Justice said that limiting a claimant to recovery of the face amount of the claim plus interest was not a sufficient deterrent. He wrote:
470 So. 2d at 1079. (Emphasis added.)
While I am still of the opinion that the Legislature is the appropriate branch of our government to address these policy considerations, and that this is not a "bad faith" case, I believe that justice requires the disposition of this particular case now. As I have already shown, this Court, when it reversed the judgments on the first two appeals, suggested that this might be a "bad faith" case. Much of the same evidence presented at trial was available to this Court in the second appeal, when we reversed the summary judgment in favor of Aetna.
Another reason why I believe this litigation should end is that since I dissented in this case on the third appeal, a new issue has been injected into the casewhether the punitive damages award violates any rights guaranteed to Aetna under the Excessive Fines Clause of the Eighth Amendment. In Aetna Life Ins. Co. v. Lavoie, ___ U.S. ___, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d 823 (1986), the Supreme Court of the United States did not address this issue, but indicated that it might "in an appropriate setting." The Court noted:
Aetna Life Ins. Co. v. Lavoie, ___ U.S. ___, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d 823 (1986).
It appears to me that the Supreme Court of the United States may accept for review a punitive damages award made in a civil case and review it under the Excessive Fines Clause of the Eighth Amendment to the Federal Constitution,[1]in an appropriate setting.
If I apply the consequential damages standard set out in the Chief Justice's suggested alternative in his dissent on the *1060 third appeal, 470 So. 2d at 1079-82, and the standard I suggested in my dissent in Kountz, I believe the record in this case would support an award in the sum of $500,000. The plaintiff was forced to hire lawyers and to go into court to prove her claim; she had to hire attorneys, and the litigation history is staggering; therefore, when I look at all the particular facts in this case, I believe that consequential damages in this sum are justified without a remand to determine the exact amount of the consequential damages, but based upon what is before us now.
Furthermore, in my dissent in this case on the third appeal, I stated:
470 So. 2d at 1089.
It would be helpful to me, and I believe to the Court, if the legislative branch would recognize the problem posed by these cases, and would adopt legislation which would be fair to the insured and the insurer, and in the best interest of all the people of the state, so that claims of this kind could be justly, speedily, and inexpensively determined on their merits.
A clear majority of this Court has determined that damages in addition to those normally awarded in contract cases are appropriate in cases such as this one, but have disagreed on the appropriate remedy, and the extent of the damages. Although this Court can, and should, fashion an appropriate remedy for every wrong, and should do so if the legislative branch does not address the wrong, there are some areas where the legislature is uniquely qualified to make those determinations. I believe this is one of them.
Based on the foregoing, I concur in the result reached.
STEAGALL, J., concurs.
HOUSTON, Justice (concurring specially).
I am persuaded by viewing the record in the light most favorable to the Lavoies, which our standard of review requires (Cooper v. Peturis, 384 So. 2d 1087 (Ala. 1980)), that the Lavoies' evidence eliminates any arguable reason for Aetna's denial of the claim at the time the claim was denied. Certainly the jury could have found that the claim was denied before Aetna fulfilled the duty it owed its insured to "properly investigate" and subject that investigation to a "cognitive evaluation and review."
I am also persuaded that such a substantial portion of the judgment in this case *1061 was awarded as punitive damages that the judgment violated the Eighth Amendment to the United States Constitution and Article I, Section 15, of the Constitution of Alabama of 1901; and that the lack of sufficient standards governing punitive damages awards in Alabama violates the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Constitution of Alabama of 1901.
My special concurrence is pragmatic. If this were the first appeal of this case to this Court and if the constitutional challenge had been made to the issue of punitive damages, I would dissent for the reasons hereinafter set out. However, there are two reasons why I concur specially: (1) This Court is not writing on a clean slate in this case, as Justice Maddox's special concurrence shows; and (2) the majority opinion requires the plaintiffs to accept a remittitur of $3 million or to have the case retried, which removes a substantial portion of the punitive damages award.
It is my belief that allowing only punitive damages in death cases, regardless of whether the act or omission causing the death was merely negligent or was willful and wanton, has caused confusion in the law of punitive damages and perhaps has restricted this Court in its efforts to establish meaningful standards for punitive damages in non-death cases.
It is the province of the legislature to determine whether compensatory damages should be permitted in death cases. Trial judges and juries have naturally rebelled at the thought that it may be cheaper to kill a person in Alabama than to injure that person. Wrongful death damages in Alabama have no relation to the economic loss that the family has sustained as a result of a death, because such evidence is inadmissible. Until the legislature changes this, there is no meaningful way for this Court to address the question of punitive damages in wrongful death cases.
However, this should not prevent us from addressing the problem of punitive damages in non-death cases.
In non-death cases, the doctrine of punitive damages survives because it continues to serve the useful purpose of expressing society's disapproval of intolerable conduct and deterring such conduct where no other remedy would suffice. It is a judicial and not a legislative creation.
We have permitted punitive damages to be levied without the constitutional safeguards that we insist attend every criminal prosecution. The purpose for awarding punitive damages, as we have written so often that it needs no citation of authorities, is to punish and deter. We must always remember that punishment is innately related to punitive damages, just as penitence ought to be innately related to a stay in the penitentiary.
The scintilla sufficiency-of-the-evidence rule and the mere-preponderance-of-the-evidence burden of proof are not firm enough foundations for the infliction of punishment.
In most criminal proceedings, a jury determines innocence or guilt; and if the jury finds a defendant guilty, the trial judge imposes the punishment. In doing so, the trial judge is guided by minimum and maximum penalties established by the legislature. He holds a special hearing in which all pertinent information, whether aggravating or mitigating, is reviewed prior to the imposition of the sentence. The trial judge is aware of other sentences for similar offenses and there is a current concern among the judiciary about disparity of sentences.
In awarding punitive damages in a civil case, the jury is given no guidelines and the trial judge is given no guidelines, for we have not promulgated guidelines.
I believe that the judiciary must adopt a principled approach to punitive damages in order to comply with constitutional requirements and to keep from forcing the legislative branch of government to harness this unbridled judicial creation.
I recommend the following procedure as the beginning of a principled approach to punitive damages.
*1062 If the record reasonably supports the inference that the defendant's conduct warrants the imposition of punitive damages (which would be limited to that conduct for which punitive damages may now be awarded), the jury should be instructed to decide whether punitive damages should be awarded and, if the jury answers affirmatively, then the trial judge should set a hearing for the purpose of determining the amount of the punitive damages.
The following should be taken into consideration by the trial court in setting the amount of punitive damages:
(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages should be relatively small. If grievous, the damages should be much greater.
(2) The degree of reprehensibility of the defendant's conduct should be considered. The duration of this conduct, the degree of the defendant's awareness of any hazard which his conduct has caused or is likely to cause, and any concealment or "cover-up" of that hazard, and the existence and frequency of similar past conduct should all be relevant in determining this degree of reprehensibility.
(3) If the wrongful conduct was profitable to the defendant, the punitive damages should remove the profit and should be in excess of the profit, so that the defendant recognizes a loss.
(4) The financial position of the defendant would be relevant.
(5) All the costs of litigation should be included, so as to encourage plaintiffs to bring wrongdoers to trial.
(6) If criminal sanctions have been imposed on the defendant for his conduct, this should be taken into account in mitigation of the punitive damages award.
(7) If there have been other civil actions against the same defendant, based on the same conduct, this should be taken into account in mitigation of the punitive damages award.
SHORES, Justice (dissenting).
I adhere to the views expressed in the dissenting opinion which I joined in Aetna Life Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984).
BEATTY, J., concurs.
TORBERT, Chief Justice (on recusal).
Since the original opinion in this case was announced, my daughter has married a member of a law firm representing one of the parties. Canon 3(C)(1)(d)(ii), Alabama Canons of Judicial Ethics, provides that under these circumstances, I should disqualify myself.
[*] [Reporter's Note: In the original report of this case at 374 So. 2d 310, the plaintiff husband was incorrectly named as "Robert J. Lavoie, Sr." In that report and the report at 405 So. 2d 17, the defendant insurer was incorrectly named as "Aetna Life and Casualty Co., Inc."]
[1] On September 29, 1978, insureds (the Lavoies) brought an action against insurer alleging breach of contract and outrageous conduct. The trial court dismissed for failure to state a claim. On appeal, this Court reversed and remanded because it had "not foreclosed the possibility of recovery in tort for the bad faith refusal of an insurer to pay legitimate benefits due under an insurance policy." Lavoie v. Aetna Life & Casualty Co., 374 So. 2d 310, 312 (Ala.1979). On remand, the trial court granted insurer's motion for summary judgment on the bad faith claim, and judgment was entered for the insureds on the two statements of the claim based upon contract. This Court again reversed and remanded to the trial court, because, on the same day, we recognized the intentional tort of bad faith in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981). Lavoie v. Aetna Life & Casualty Co., 405 So. 2d 17, 18 (Ala.1981). On remand, appellees' bad faith claim was submitted to a jury. The jury awarded $3.5 million in punitive damages and $1,650.22 on the contract claim. The trial judge denied appellant's motion for judgment n.o.v. or, alternatively, for a new trial. This Court affirmed. Aetna Life Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984). The insurer appealed to the United States Supreme Court. That Court vacated the decision and remanded to this Court because of its failure to order the recusal of one of the Justices participating in consideration of the case. Aetna Life Insurance Co. v. Lavoie, ___ U.S. ___,106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986).
[2] Mrs. Lavoie was insured as a dependent under a group policy of health and medical insurance issued by the appellant, Aetna Life Insurance Company.
[3] This denial occurred after Dr. Douglas wrote a letter to Thomas J. Stein, the Lavoies' attorney at the time, which detailed Mrs. Lavoie's medical problems and his reasons for admitting her for diagnostic tests and treatment. The letter was forwarded to Aetna. Upon receipt of the November 4, 1977, letter from Dr. Douglas, Brenda Harris called Tom Hutton. She noted on the letter Hutton's instruction to "maintain denialif they act like they are going to file suit send back to him." No one from Aetna's medical department was consulted. The nurses' notes and patient's progress notes were not in the Lavoie file.
[4] This denial was made after consultation only with Hutton, even though Harris stated she had "again checked with our Medical Department on this matter." Again, the progress notes and the nurses' notes had not been obtained for the file.
[5] While the nurses' notes and progress notes had finally been included for consideration in the Lavoie file, the two letters from Dr. Douglas were not in the file reviewed by Dr. Swann.
[1] Our own Constitution also prohibits the assessment of "excessive fines." Art. 1, § 15, Constitution of Alabama, 1901. It is not necessary for me to address the constitutional issue to concur in this result here, although there is some authority for the proposition that the Excessive Fines Clause of our state and federal constitutions could be applicable in civil cases and that the precedents flow back to the Magna Charta.
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, 284-286, 103 S. Ct. 3001, 3006-3007, 77 L. Ed. 2d 637 (1983); Ingraham v. Wright, 430 U.S. 651, 664-666, 97 S. Ct. 1401, 1408-1409, 51 L. Ed. 2d 711 (1977). One could argue that the historical antecedents to the Excessive Fines Clause support the contention that it should be applied to civil punitive damages awards, and that the Excessive Fines Clause can be traced to the "excessive amercement" provision of Magna Charta, and that "amercements" were additional punishment for defendants in civil cases in 13th-century England. This Court has not ruled on that issue yet. An argument could also be made that the Excessive Fines Clause applies only to criminal cases. One court has so held. See Palmer v. A.H. Robins Co., 684 P.2d 187, 217 (Colo. 1984). | March 27, 1987 |
e13b02c9-4d76-4f6f-9b77-3da821682b9e | Ex Parte Guess | 507 So. 2d 551 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 551 (1987)
Ex parte Larry Wayne GUESS.
(Re: Larry Wayne Guess v. State of Alabama).
85-1529.
Supreme Court of Alabama.
April 10, 1987.
Jenifer C. Holt, Scottsboro, for petitioner.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
Two legal questions are presented by this petition for writ of certiorari:
(1) Is Alabama's so-called "firearm enhancement statute"[1] unconstitutional because it permits the trial judge, rather than a jury, to decide the fact question whether "a firearm or deadly weapon was used or attempted to be used in the commission of the felony"?
(2) Under Alabama's new Criminal Code, does the State have to prove in a kidnapping case that the accused intended to secretly confine or imprison his victim ?
Petitioner was convicted of kidnapping in the first degree and assault in the first degree. Pursuant to the provisions of Code 1975, § 13A-5-6(a)(4) and (5), respectively, the trial court sentenced petitioner for his kidnapping conviction to 30 years' imprisonment, and for his assault conviction to a term of 15 years. He was also fined, but that is not an issue in this case.
*552 The particular facts surrounding the incidents which gave rise to the prosecutions and convictions are sufficiently set out in the opinion of the Court of Criminal Appeals, Guess v. State, 507 So. 2d 546 (Ala. Cr.App.1986), and will not be restated in full here, but, briefly, they are as follows: There was evidence that the petitioner lured the victim to come and help him because his car had run out of gas. When the victim arrived, petitioner asked him to take him to see a friend, then directed him to drive down another road. Subsequently, the petitioner stuck a pistol to the head of the victim, handcuffed him, and later knocked him unconscious by hitting him on the head with a blunt object. When the victim regained consciousness, he was still in his car, but the car had been moved, and it was resting on a bluff 25 to 30 feet from a highway, and if one of the car's wheels had not become entangled in kudzu, it might have tumbled down the bluff.
We first address petitioner's claim that in the absence of a jury finding that he used or attempted to use a firearm or deadly weapon in the commission of the felonies with which he was charged and convicted, the trial court erred in sentencing him under the provisions of the so-called "firearm enhancement statute."
Insofar as we are aware, this is a case of first impression involving this particular statute, and that is one of the reasons we granted certiorari. After reviewing the opinion of the Court of Criminal Appeals and the law cited by petitioner in support of his claim, we are of the opinion that the Court of Criminal Appeals correctly decided the issue and that its judgment is due to be affirmed.
In its opinion, the Court of Criminal Appeals followed a decision involving a similar statute in another state, and distinguished a case decided by the Supreme Court of Florida involving a statute that the Court of Criminal Appeals thought differed from the one here involved. In addressing the question, Judge Patterson, writing for the court, said:
The Court of Criminal Appeals also followed one of its own cases, Darby v. State, [Ms. 8 Div. 181, October 22, 1985] (Ala.Cr. *553 App.1985), which involved a similar question about the constitutionality of a sentencing statute which was applied to Darby's conviction for trafficking in cocaine, and concluded that petitioner here "was not denied his constitutional right to a trial by jury to determine the application of §§ 13A-5-6(a) (4) and (5)." We agree with the holding of the Court of Criminal Appeals.
On the question of the sufficiency of the evidence to support a conviction of petitioner for kidnapping in the first degree, we also hold that the opinion of the Court of Criminal Appeals is correct and that its judgment on that issue is also due to be affirmed.
In affirming petitioner's conviction for kidnapping, the Court of Criminal Appeals held that the state need not prove, under Alabama's new kidnapping statute, that the accused had an "`intent to cause [the victim] to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will ...'", and relied upon its own decision in Owens v. State, [Ms. 4 Div. 536, February 12, 1986] (Ala.Cr. App.1986), cert. granted and remanded with directions on other grounds, [Ms. 85-1008, March 27, 1987] (Ala.1987). In that case, the Court of Criminal Appeals had addressed the same issue which is presented in this petition, as follows:
Although this Court remanded the Owens case to the Court of Criminal Appeals with directions to remand it to the trial court for further proceedings on another ground, this Court, nevertheless, held, as follows:
In Owens, we affirmed the judgment of the Court of Criminal Appeals on the question of the sufficiency of the evidence to prove kidnapping, and we follow Owens in affirming the judgment of the Court of Criminal Appeals in this case.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
ADAMS, J., not sitting.
[1] Code 1975, § 13A-5-6:
"(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
"* * * *
"(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.
"(5) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 10 years." | April 10, 1987 |
e7233c3b-278a-4b2c-88e0-595cf3cf0954 | Ex Parte Department of Mental Health | 511 So. 2d 181 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 181 (1987)
Ex parte DEPARTMENT OF MENTAL HEALTH, State of Alabama
(Re Ex parte Dept. of Mental Health).
(In the matter of ANONYMOUS).
85-951.
Supreme Court of Alabama.
May 15, 1987.
G.R. Trawick and Patricia Shaner, Montgomery, for petitioner.
James Ward, Joel M. Nomberg, and Kathleen Nemish, Dothan, for respondent.
ADAMS, Justice.
We granted certiorari in this case to answer the following questions:
1. Does a juvenile court have the authority to commit a child to the custody of the Department of Mental Health and Mental Retardation and thereafter to place the child in a private psychiatric facility and order that all costs for care and treatment be paid from State funds appropriated to the Department?
2. Did the fact that the child was in the custody of the Department of Mental Health and Mental Retardation by an order of the Juvenile Court of Houston County prohibit the Juvenile Court of Barbour County from making an adjudication regarding the child and committing the child to the Department of Youth Services?
The facts of this case are as follows:
On November 9, 1983, the Juvenile Court of Houston County adjudicated the minor, *182 anonymous, to be mentally ill, and a danger to himself and others, and committed him to the custody of the Alabama Department of Mental Health and Mental Retardation ("Mental Health"). The child was placed at Bryce Hospital in Tuscaloosa, Alabama. After treatment at Bryce, the child was placed by Mental Health into the Eufaula Adolescent Center in Barbour County, Alabama. During the time the child resided at Eufaula Adolescent Center, he escaped and allegedly committed numerous delinquent acts in Barbour County, Alabama.
On October 7, 1985, numerous petitions were filed in the Juvenile Court of Barbour County, alleging that anonymous was a delinquent child. The Juvenile Court of Barbour County adjudicated the child to be delinquent and committed him to the custody of the Alabama Department of Youth Services. He was then placed by the Juvenile Court of Barbour County in the southeast Alabama Diversion Center in Houston County, pending transfer to the Department of Youth Services.
On October 11, 1985, James A. Ward, the child's guardian ad litem, filed a motion in the Juvenile Court of Houston County, requesting an immediate hearing, alleging that the Juvenile Court of Barbour County modified the order of the Juvenile Court of Houston County, which committed the child to the custody of the Department of Mental Health. On October 18, 1985, the Juvenile Court of Houston County ordered the Department of Pensions and Security to take the child into protective custody and place him at Charter Woods Hospital, a private psychiatric facility, for an evaluation. This order followed a hearing in which the juvenile referee in Houston County determined that the order of the Juvenile Court of Barbour County was invalid on its face. The child's guardian ad litem then made a motion in the Juvenile Court of Houston County, alleging that the custody of the child was in controversy and that the Department of Mental Health was unwilling to take custody of him. Because the parties could not agree on where the child would be evaluated, and at whose expense, the Juvenile Court of Houston County ruled that the child was in the custody of the Department of Mental Health and that the Department of Mental Health was to pay any expenses incurred by him while he was in Charter Woods Hospital. Further, the court ordered the Department of Pensions and Security to exercise protective custody while the child was in Houston County, with legal custody remaining with the Department of Mental Health. Also, Charter Woods Hospital was to perform a complete evaluation of the child.
Subsequently, the Juvenile Court of Barbour County allowed the child to withdraw his earlier entered plea of guilty and change it to a plea of not guilty, and not guilty by reason of insanity to the alleged delinquent acts. By order of the Juvenile Court of Barbour County, dated November 26, 1985, the child was adjudicated a delinquent child and committed to the custody of the Alabama Department of Youth Services. By order dated December 3, 1985, the Juvenile Court of Houston County ordered that the child remain at his placement in Charter Woods Hospital pending further orders of the court.
Faced with conflicting orders, the Department of Mental Health filed a petition for a writ of prohibition with the Court of Civil Appeals, asking that the Houston County Juvenile Court be prohibited from exercising jurisdiction over the child because the Barbour County Juvenile Court had assumed jurisdiction over him. The Court of Civil Appeals denied the writ, holding that the Department of Mental Health was responsible for the costs of keeping the child at Charter Woods Hospital because there were matters pending before the Houston County Juvenile Court. The Department of Mental Health then filed the instant petition for a writ of certiorari, which we granted.
We agree with petitioner's contention that the Court of Civil Appeals erred when it said that the costs of maintaining and treating the child in a private facility could be assessed against the Department of Mental Health pursuant to Code of Alabama 1975, § 12-15-9. Section 12-15-9, including its title, is printed below:
We are of the opinion that, when the Legislature refers to "persons" in this statute it is referring to "real" personspeopleand not hospitals or institutions. Indeed, in the very next section the legislature specifically provides for maintenance and care of children generally. Section 12-15-10 reads:
Here, the Legislature expressly designates the county as the entity responsible for maintenance and care. Therefore, according to our statutory scheme, the county, not the State or a department thereof, is responsible for any monies due Charter Woods Hospital.
The Court of Civil Appeals's judgment ordering the Department of Mental Health to pay for the child's care and treatment not only runs afoul of § 12-15-10, but also violates §§ 42 and 43 of the Constitution of Alabama of 1901, which sections deal with the doctrine of separation of powers.
Although the Legislature granted authority to the juvenile courts to commit children to the custody of the Department of Mental Health and authority to avail themselves of the facilities and personnel of Mental Health, the Legislature did not confer upon the juvenile courts the authority to commit a child to the custody of Mental Health and then order that the child be placed in a private psychiatric facility. See Code of Alabama 1975, § 12-15-90. Had the Legislature intended to grant authority to juvenile courts to commit a child to the custody of the Department of Mental Health and then order that the child be placed in a private psychiatric facility at the expense of Mental Health, it would have been a simple matter for the Legislature to so provide. The Legislature's power to determine the appropriations for each state agency cannot be usurped by either of the other branches of government. The Department of Mental Health is mandated by the Legislature to act, through its commissioner, "in any prudent way to provide mental health services ... for the people of Alabama." Code of Alabama 1975, § 22-50-1, et seq. The Department of Mental Health is therefore charged by the Legislature to accept minors alleged to be mentally ill and treat them by means of its various programs and facilities. Nowhere in any of these statutes does the Legislature state that anyone other than the Department of Mental Health is authorized to care for and treat these children.
*184 Furthermore, in In re McCain, 348 So. 2d 780 (Ala.1977), this Court was presented with a situation substantially similar to the one sub judice. There, the trial court had made McCain a ward of the court, placed him in an out-of-state mental health center, and required the Alabama Department of Mental Health to pay for McCain's care and treatment. In striking down the court's order, this Court stated:
348 So. 2d at 782. The rationale behind this Court's decision in McCain is equally sound in this case. We find no merit in the argument that the case before us is distinguishable from McCain because of the fact that in McCain, the Court labeled as "court costs" the amount to be paid by the Department of Mental Health. Whatever their designation, costs for care and treatment of a minor placed in a private institution cannot be charged to the Department of Mental Health. Therefore, that portion of the Court of Civil Appeals' opinion that held the Department of Mental Health responsible for the child's expenses while he was in Charter Woods Hospital is erroneous and it is hereby reversed.
We now focus our attention on petitioner's second issue, namely, whether the fact that the child was in the custody of the Department of Mental Health pursuant to an order of the Houston County Juvenile Court prohibited the Barbour County Juvenile Court from adjudicating the child a delinquent and committing him to the custody of the Department of Youth Services. For the reasons that follow, we are of the opinion that the Barbour County Juvenile Court was prohibited from entering an order which conflicted with the previously entered order of the Houston County Juvenile Court.
This Court has recently denied certiorari in a case with facts almost identical to those before us in the case of Ex parte Department of Mental Health & Mental Retardation, 491 So. 2d 956 (Ala.Civ.App. 1986). In that case a juvenile, was committed to the custody of the Department of Mental Health pursuant to an order of the Houston County Juvenile Court, and was placed in the Eufaula Adolescent Center. He escaped, allegedly committed various criminal acts, and was returned to the Eufaula Adolescent Center the following day by the authorities. As a result of his activities, the Barbour County Juvenile Court adjudicated the child a delinquent and committed him to the Alabama Department of Youth Services, to be later placed in the Southeast Alabama Diversion Center. Upon motion of the Department of Mental Health, the Houston County Juvenile Court ordered that custody of the child remain with the Department pending a full hearing.
Addressing the underlying issue in the trial court's order in that similar case, the Court of Civil Appeals stated:
491 So. 2d at 958, 959. We agree wholeheartedly with the above-quoted reasoning.
Another case which is substantially similar to the one before us is J.D.H. v. Juvenile Court of St. Louis County, 508 S.W.2d 497 (Mo.1974). There, the juvenile was under the jurisdiction of the St. Louis County Juvenile Court, and was committed to the Division of Mental Health; he later abducted a woman, stole her car, and was apprehended by the Jefferson County authorities. The juvenile was returned to St. Louis County, but he argued that he should have remained in the jurisdiction of the Jefferson County Juvenile Court. In holding that the juvenile was under the jurisdiction of the first court to acquire it, the Missouri Supreme Court stated:
508 S.W.2d at 500.
In another case involving conflicting orders of courts with concurrent jurisdiction, In Re William T., 172 Cal. App. 3d 790, 218 Cal. Rptr. 420 (1985), the court found that "concurrent jurisdiction does not make the jurisdiction co-equal," and upheld the juvenile court's order which conflicted with a superior court's order. Although the facts are somewhat different in this case from those previously cited, the California court's statement, that concurrent jurisdiction does not mean co-equal jurisdiction, is one that should be applied in the present case and ones like it.
As the Court of Civil Appeals stated in Ex parte Department of Mental Health & Mental Retardation, supra, the primary concern in all of these cases is the juvenile's best interests, and courts should cooperate to ensure that these interests are not taken for granted. It is therefore the holding of this Court that where juvenile courts have concurrent jurisdiction, the court which exercised its jurisdiction first shall not have its orders contradicted by another juvenile court. Thus, that portion of the Court of Civil Appeals' opinion that held that the Barbour County Juvenile Court should have yielded to the continuing jurisdiction of the Houston County Juvenile Court is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, JONES, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., not sitting. | May 15, 1987 |
ab7e0aac-4735-442d-9911-c2e2b95d0306 | Cutts v. American United Life Ins. Co. | 505 So. 2d 1211 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1211 (1987)
William J. CUTTS
v.
AMERICAN UNITED LIFE INSURANCE CO., a corporation, and Blount International Limited, a corporation.
85-160.
Supreme Court of Alabama.
March 13, 1987.
*1212 Barry Hess and Richard M. Crump of Hess, Atchison & Horne, Mobile, for appellant.
Mary Beth Mantiply, Mobile, for appellee American United Life Ins. Co.
Richard T. Dorman and C. Grantham Baldwin of Johnstone, Adams, Howard, Bailey & Gordon, Mobile, for appellee Blount Intern. Ltd.
ALMON, Justice.
The original opinion issued in this case is withdrawn and the following is substituted as the opinion of this Court.
This is an appeal from summary judgments entered in favor of the defendants. We affirm.
In February of 1979, Process & Systems, Inc. "P & S", a company owned by the appellant, William J. Cutts, entered into a contract with Blount International, Ltd. "Blount", to perform fabrication work for one of the locks on the Tennessee-Tombigbee Waterway. This contract was subsequently amended by change orders in October 1979 and September 1981. The change orders provided that, upon the submission of a request, Blount would reimburse P & S for "casualty, liability, workmen's compensation and other insurance costs." However, no request for reimbursement was ever sent to Blount, and none was paid.
In late 1980, American United Life Insurance Company "AUL" issued a group health policy for the employees of P & S, to be effective November 15, 1980. In the latter part of 1981, a dispute arose between P & S and AUL over insurance premiums and, on December 28, 1981, AUL sent a letter to P & S stating that premiums had been paid to May 15, 1981, and that if further premiums were not received, AUL would consider the account delinquent. No further funds were received and the insurance was retroactively terminated as of May 15, 1981. P & S's position in the dispute was that premiums had been paid through November of 1981.
In the summer of 1982, the Mobile County district attorney's office, at the request of two former employees of P & S, began an investigation regarding money withheld from employees' paychecks for insurance *1213 premiums and the existence of insurance coverage. During the course of the investigation, Mobile Assistant District Attorney Tom Harrison contacted both Blount and AUL. Harrison told the general counsel for Blount of the investigation and inquired generally as to what the contract with P & S provided for and whether there was a provision regarding the payment of insurance by Blount. Harrison was later told that there was no such agreement between Blount and P & S, and that no Blount representative had made any commitment to Cutts or anyone else to provide insurance. Counsel for Blount did not inform Harrison of the substance of the change orders, which provided that Blount would reimburse P & S for the cost of its employees' insurance.
Harrison also contacted AUL and questioned its agents about the insurance policy it issued to P & S. He was told that a policy did exist and that P & S was to pay the premiums, but that there was a dispute regarding the premiums due and that the insurance had been terminated in May of 1981. Harrison did not recall being told, nor did a letter from AUL confirming the information reveal, that the policy in question was terminated in late 1981 or early 1982, retroactive to May of 1981. Based on all the information he received, Harrison presented the case to a grand jury, which returned two indictments against Cutts for theft of property in the first degree on the ground that Cutts had withheld premiums from employees' paychecks but had not remitted them to AUL.
After the indictment was returned, counsel for Cutts provided Harrison with copies of the contract change orders in question showing that there was, in fact, a contractual provision regarding the payment of insurance and also provided correspondence from AUL regarding the dates of the termination of the policy. As a result, Harrison nol-prossed the indictments and discontinued his investigation.
Cutts brought suit against AUL and Blount. In his amended complaint, he alleged:
In his first cause of action, he alleged that AUL negligently stated that the policy was terminated on May 14, 1981, without disclosing the facts concerning the disagreement over the premium payments, the retroactive termination, or Cutts's contention that the premiums were paid to November 1981. In his second cause of action, Cutts alleged that AUL intentionally, willfully, and wantonly made these statements or failed to disclose the information. His third cause of action alleged that Blount negligently "stated that there was no provision in the contract between Blount and Process & Systems relating to the payment of insurance premiums." His fourth cause of action alleged that this statement constituted intentional, willful, and wanton conduct. His fifth cause of action was for defamation, against AUL only.
Both Blount and AUL filed motions for summary judgment with supporting affidavits. Cutts responded with his own affidavit, two affidavits by Assistant District Attorney Harrison, and the deposition of the general counsel for Blount. The trial court granted both motions, and this appeal followed.
The burden on motion for summary judgment is upon the moving party to show that there is no genuine issue of a material fact and that the movant is entitled to a judgment as a matter of law. If there is a scintilla of evidence which supports the position of the non-movant, summary judgment must be denied. Rule 56, A.R.Civ.P.; Booth v. United Services Auto Ass'n, 469 So. 2d 1281, 1282 (Ala.1985).
Cutts argues that once the defendants voluntarily undertook to provide information to the district attorney, they were thereafter charged with the duty of acting with due care, citing the doctrine that one *1214 who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith. Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala.1979). In this case, Blount and AUL did not "volunteer" any information about Cutts and P & S. Neither Blount nor AUL instigated the investigation; rather, they responded to a request from a law enforcement official who was directing a criminal investigation. We have found no case, and Cutts has cited none, which recognizes a cause of action for negligently, or even intentionally, willfully, or wantonly, failing to produce information in response to a district attorney's request.
Cutts's complaint, if it states a claim at all, can only be an action for malicious prosecution. Malicious prosecution is an action disfavored in the law. Evans v. Alabama Professional Health Consultants, Inc., 474 So. 2d 86 (Ala.1985); Jordan v. Empiregas, Inc., of Belle Mina, 337 So. 2d 732 (Ala.1976); Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So. 2d 555 (1959); Daniel v. Goodyear Tire & Rubber Co., 225 Ala. 446, 143 So. 2d 449 (1932).[1] The wrongdoing which Cutts alleges centered around the procurement of the indictment against him. Indeed, the damages he claims are for the expense, emotional suffering, and humiliation incurred in being indicted and having to defend himself. The policy disfavoring malicious prosecution claims would also disfavor bringing claims arising out of facts within the ambit of malicious prosecution but couched in other terms, especially general allegations of negligence, willfulness, or wantonness. Therefore, in the absence of any other clearly recognized theory under which Cutts could proceed, his complaint must be treated as one for malicious prosecution.
The elements of malicious prosecution are: (1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage. Allen v. Molton, Allen & Williams Realty Co., 495 So. 2d 27 (Ala.1986); Johnson v. Haynie, 414 So. 2d 946 (Ala.1982); Brown v. Parnell, 386 So. 2d 1137 (Ala.1980); S.S. Kresge Co. v. Ruby, 348 So. 2d 484 (Ala. 1977); Sanders v. Davis, 153 Ala. 375, 44 So. 979 (1907).
Prior to the adoption of the Alabama Rules of Civil Procedure, a complaint in malicious prosecution had to allege each of these elements. See Sanders v. Davis, supra. Under the current rules, "A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief," Rule 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required," Rule 8(e)(1). Furthermore, "All pleadings shall be so construed as to do substantial justice," Rule 8(f).
These rules set up the procedure of "notice pleading," but that notice must be fair notice of the claim presented so as to do "substantial justice." Not only does it do substantial justice to construe the pleadings in the instant case as not giving fair notice of a claim for malicious prosecution, but such a construction is unavoidable: malicious prosecution was argued nowhere in the record before us, nor in the appellant's brief. The first mention of malicious prosecution is in appellee Blount's brief, where Blount argues by analogy to malicious prosecution cases that the facts before the court on the summary judgment motion *1215 would not support a finding of liability on its part. Cutts attempts in his reply brief to distinguish some of these cases, notably Alabama Power Co. v. Neighbors, 402 So. 2d 958 (Ala.1981), arguing that a defendant may be held liable in a malicious prosecution case where he misrepresents or suppresses material facts.
Generally, in an action for malicious prosecution, Alabama law allows recovery only from those who are directly responsible for the prosecution. American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927). Merely giving or negligently failing to give information to law enforcement officials is not enough. Dismukes v. Trivers Clothing Co., 221 Ala. 29, 127 So. 188 (1930); see also Daniel v. Goodyear Tire & Rubber Co., 225 Ala. 446, 143 So. 449 (1932).
Ritch v. Waldrop, 428 So. 2d 1, 3 (Ala.1982), quoting Alabama Power Co. v. Neighbors, 402 So. 2d 958, 962 (Ala.1981).
Alabama Power Co. v. Neighbors, 402 So. 2d 958, 964 (Ala.1981), quoting Dismukes v. Trivers Clothing Co., 221 Ala. at 32, 127 So. at 190. (Emphasis supplied.)
Cutts's late argument that he is entitled to come under the exception to the principle of no liability where the district attorney independently investigates and prosecutes cannot suffice to put the trial court in error. Cutts made no attempt below to allege that Blount or AUL initiated the prosecution, and there is no indication in the record that he attempted to come under the Neighbors exception. Furthermore, there was absolutely no pleading or proof regarding lack of probable cause. Thus, the complaint cannot be held to have alleged malicious prosecution sufficiently to put the defendants on notice that they were called upon to defend such an action.
For the foregoing reasons, the judgment of the trial court is not due to be reversed either on the ground that Cutts presented a genuine question of material fact and precluded summary judgment on the theory of malicious prosecution or on the ground that the motion for summary judgment should have been denied as to the grounds specifically alleged, negligent or intentional, willful, and wanton misrepresentation or suppression of material facts.
Finally, Cutts alleges that AUL defamed him by publishing a letter to the assistant district attorney regarding the termination of insurance benefits for the employees of P & S.
Summary judgment was proper as to this count because an absolute privilege exists in favor of those involved in judicial proceedings, including judges, lawyers, jurors, and witnesses, shielding them from an action for defamation. Morrison v. Mobile County Bd. of Ed., 495 So. 2d 1086 (Ala.1986); Webster v. Byrd, 494 So. 2d 31 (Ala.1986); Browning v. Birmingham News, 348 So. 2d 455, 458 (Ala.1977); Snyder v. Faget, 295 Ala. 197, 326 So. 2d 113 (1976); O'Barr v. Feist, 292 Ala. 440, 445, 296 So. 2d 152 (1974); Miner v. Novotny, 304 Md. 164, 498 A.2d 269, 272 (1984). See also 50 Am.Jur.2d Libel and Slander § 193 (1970); and Annot., 48 A.L.R.2d 716 (1956).
The application for rehearing is granted; the original opinion is withdrawn and this opinion is substituted therefor; and the judgments are affirmed.
*1216 APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
All the Justices concur.
[1] Although the plaintiffs in the first three cited cases alleged malicious prosecutions of civil actions, and Boothby Realty Co. specifically justified the strict limitations on grounds of not discouraging private plaintiffs from bringing actions to enforce their rights, a disfavor of actions stemming from criminal prosecutions is similarly explained by reference to the effective administration of justice and a policy of encouraging citizens to report criminal activity to the proper authorities. In Daniel, the Court, speaking through Justice Bouldin, stated: "We think the policy of the law, the great public need for active aid in the apprehension of criminals, imposes an obligation in the nature of a public duty upon those in best position so to do, and unless affirmatively shown to have been done from other motive, or in an unlawful manner, liability should never be imposed." 225 Ala. at 448-49, 143 So. at 451 (citation omitted). | March 13, 1987 |
f6cdc172-e3ed-4b28-ac0a-3ffd94ac5ff3 | Webb v. Reese | 505 So. 2d 321 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 321 (1987)
Sandy H. WEBB
v.
James REESE, Jr., Individually and d/b/a Reese Realty.
85-1081.
Supreme Court of Alabama.
February 6, 1987.
Application for Rehearing Stricken March 27, 1987.
*322 J. Richard Piel, Montgomery, for appellant.
Richard A. Ball, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
SHORES, Justice.
Webb, a dissatisfied homeowner, sued Reese, the real estate agent with whom she had listed her house for sale, alleging breach of contract, fraud, "bad faith," and "outrage". The trial court directed a verdict in favor of the defendant on all tort claims. The breach of contract claim was submitted to the jury, which returned a verdict in favor of the defendant. The plaintiff appeals but limits her assertions of error to the trial court's action on the fraud claim. We affirm.
No useful purpose would be served by reciting the facts here. We have carefully read the entire record and, viewing the facts most favorably to the plaintiff, we can say without reservation that she has failed to supply a scintilla of evidence in support of her fraud claim. This she must do to put the trial court in error in directing a verdict against her on that claim. To get to the jury in a fraud action, the plaintiff must prove a misrepresentation of a material fact upon which the plaintiff relied to his or her injury. Taylor v. Moorman Manufacturing Co., 475 So. 2d 1187 (Ala.1985). Even if the defendant did tell the plaintiff that her house was sold, as she contends, she had no legal right to rely on that statement in view of the fact that the contract she signed contained a contingency, namely, that the purchase of her house was subject to the sale of the purchaser's house within a specified time. The plaintiff has a college education. The evidence indicates that she is knowledgeable about real estate transactions. She is not authorized to disregard the express terms of the contract and rest her claim on fraud, claiming that she relied on a statement which is contrary to the contract terms. A person's reliance upon a statement, even if the statement is false, must be reasonable before the law will require the speaker to respond in damages for fraud:
Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 759 (Ala.1983), quoting Munroe v. Pritchett, 16 Ala. 785, 789 (1849).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | March 27, 1987 |
0e1738c7-69ab-417f-9e85-01944b2e0fa9 | Ex Parte Duren | 507 So. 2d 121 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 121 (1987)
Ex parte David Ray DUREN.
(Re: David Ray Duren v. State).
86-289.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied May 8, 1987.
Roger C. Appell, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
Having considered the record and briefs in this case, the Court holds that the judgment of the Court of Criminal Appeals, 507 So. 2d 111, must be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
ADAMS, J., not sitting. | April 10, 1987 |
56b93b3c-ab3b-41e7-8657-87001f9fe8a4 | Bailey v. Shelby County | 507 So. 2d 438 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 438 (1987)
R. Howard BAILEY, et al.
v.
SHELBY COUNTY, Alabama, et al.
84-1353.
Supreme Court of Alabama.
March 6, 1987.
Rehearing Denied May 8, 1987.
*439 James H. Weaver, Jr., Birmingham, for appellants.
Oliver P. Head, J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.
ALMON, Justice.
This case involves the constitutionality of local acts creating the Shelby County Planning Commission. The trial court held the acts to be constitutional. Appellants argue that by these acts the legislature attempted to ratify actions taken under an act which this Court had held to be unconstitutional, delegated its powers contrary to the constitution, and violated the principle of separation of powers.
In Adam v. Shelby County Commission, 415 So. 2d 1066 (Ala.1982), this Court held Act 816, 1965 Acts of Alabama, to be unconstitutional under Art. IV, § 106, Const. of 1901, because the act as passed contained material differences from the act as previously published.[1] On July 8, 1982, the legislature enacted Act No. 82-693 (H. 57) and Act No. 82-771 (S. 93). These two acts are identical in wording, form, and content.[2] Sections 1-15 of the 1982 acts reenact Act 816 almost word for word. Section 16 purports to ratify all actions *440 taken under Act 816. Those 1982 acts are set out as an appendix to this opinion.
On November 15, 1983, R. Howard Bailey and 71 other named individuals filed a complaint as "resident citizens, qualified electors, taxpayers and owners of an interest in real estate in Shelby County, Alabama, as well as in Beat 12, District 3 of said county," seeking injunctive and declaratory relief against Shelby County, the Shelby County Commission, and the Shelby County Planning Commission. The primary relief requested was a declaration that Acts No. 82-693 and 82-771 are unconstitutional.
On December 7, 1983, Shelby County filed an action against James W. Parker and Carole Dean Parker, alleging that
The complaint alleged that the Parkers operated a junk yard as a prior non-conforming use on their property but that, subsequent to September 7, 1982, they greatly enlarged this use of their property and acquired additional property to increase their storage of junk automobiles and their operation of a junk business. The complaint requested that the Parkers be enjoined to limit their use of their property to the use at the time the zoning regulations became effective and to refrain from violating the Zoning Ordinance. The Parkers answered with defenses challenging the constitutionality of Acts No. 82-693 and 82-771, closely tracking the allegations of the complaint filed by Bailey and others.
These two actions were consolidated and the parties stipulated that the controlling issue in both cases was the constitutionality of the two identical 1982 acts. The trial court entered judgment on this stipulation and the briefs of the parties, finding that the acts are not patently unconstitutional and are aided by a presumption of constitutionality, and holding that the acts are constitutional. The plaintiffs in the Bailey case and the Parkers filed a joint notice of appeal.
Appellants argue that the legislature may not enact a curative act which has the effect of impairing vested or contract rights "or of validating an unconstitutional statute or proceeding," quoting Board of Revenue of Jefferson County v. Hewitt, 206 Ala. 405, 410, 90 So. 781, 785 (1921), and citing Horton v. Carter, 253 Ala. 325, 45 So. 2d 10 (1950). The Bailey complaint alleges that the planning commission "continues to operate and utilize the Shelby County Alabama Zoning Ordinance as promulgated and passed by the Shelby County Planning Commission in June 1974." On the record before us, however, there is no contradiction of the allegation in the county's complaint that the planning commission adopted the Zoning Ordinance on August 16, 1982.
We do not deem it significant in this case that the planning commission as it existed after the effective date of the 1982 acts apparently adopted a zoning map produced by the planning commission as it existed under the unconstitutional 1965 act. None of the appellants has alleged a vested right which has been taken away by the provision of § 16 of the 1982 acts, which purports to ratify actions taken under the 1965 act. The Bailey plaintiffs do not allege any specific injury. The Parkers' nonconforming use existed in September 1982, so there is no indication that it was affected by the planning commission's acting under the 1965 act. The appellants have no standing to challenge § 16 as depriving them of a vested right. Warth v. Seldin, *441 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).
Thus, this argument reduces to the contention, derived from the quotation from Hewitt and generally from the holding of Horton, that the legislature could not ratify any actions taken under the 1965 act, which the appellants claim to have been void ab initio. While there may be some cases in which an unconstitutional statute is void ab initio so that any actions taken under it are void, it might also be true in some cases that a party would be protected by justifiable reliance upon zoning regulations or other actions taken under color of the 1965 law.
The record before us admits of an inference only that the 1982 planning commission adopted a zoning map which was already in existence, and therefore not "void" in fact even if void in legal effect. There is no allegation as to how the fact that the map had no legal effect prior to its adoption in August 1982 has harmed the appellants. The 1982 planning commission might very well have adopted this map even if § 16 had not been included in the 1982 acts. Thus, this is not a case of a ratification by the legislature of some action taken under the 1965 act having injured the appellants. Therefore, we hold that the appellants have no standing to challenge § 16 under this branch of their argument, either.
The appellants' substantive challenges to the 1982 acts are based on the following provisions of the Constitution of 1901:
Appellants argue that §§ 42 and 44 prohibit the delegation by the legislature of the power to make zoning ordinances to the Shelby County Planning Commission, and that §§ 42 and 43 prohibit the vesting in the planning commission of legislative, executive, and judicial powers.
The enactment of zoning ordinances is a legislative function. Fleetwood Dev. Corp. v. City of Vestavia Hills, 282 Ala. 439, 212 So. 2d 693 (1968); Ball v. Jones, 272 Ala. 305, 132 So. 2d 120 (1961). Counties and municipal corporations do not have the inherent power to enact zoning ordinances, Roberson v. City of Montgomery, 285 Ala. 421, 233 So. 2d 69 (1970); Ball v. Jones, supra, but the legislature may delegate this power to them as a delegation of the police power. Fleetwood Dev. Corp., supra; Johnson v. City of Huntsville, 249 Ala. 36, 29 So. 2d 342 (1947); Masters v. Pruce, 290 Ala. 56, 274 So. 2d 33 (1973).
The problem in this case arises because the legislature has delegated the zoning power to a non-elected body. The Shelby County Planning Commission consists of two members appointed by the Shelby County Commission, two members appointed by the Shelby County Board of Education, two members appointed by the Shelby County Bar Association, and one member appointed by the Judge of the Circuit Court of Shelby County. The members are, however, required to "subscribe to an oath as provided by law for public officials." Section 2 of the 1982 acts.
*442 In 1984, after these actions were filed but before the trial court had ruled on them, the legislature enacted Act No. 84-454 to amend Act No. 82-693. Act No. 84-454 provides that the planning commission will be appointed by the county commission and that the actions of the planning commission relating to zoning will be taken with the approval of the county commission. This case is not mooted by these amendments, however, if only because of the action for an injunction against the Parkers.
The only other delegations of zoning power by the legislature which have come to our attention are to municipal corporations, Code 1975, § 11-52-70 et seq., and to Jefferson County, see, e.g., 1947 Ala. Acts 344. These delegations are to the elected governing bodies of the local political subdivision. We note especially City of Mobile v. Karagan, 476 So. 2d 60 (Ala.1985), which turned on the fact that the Mobile City Planning Commission was an advisory body only, with the City of Mobile having final authority to rezone.
Of course, the fact that a delegation of zoning power to a non-elected local body has not previously been made does not mean that such a delegation is unconstitutional. Administrative agencies are often given power to make rules and regulations which in effect are delegations of the legislative power of the state, and those administering these powers are usually appointed officers. For example, the Commissioner of the Department of Conservation and Natural Resources is empowered to make rules and regulations, inter alia, as to catching or taking game fish, § 9-2-7(6). In Williams v. Kelley, 289 Ala. 440, 268 So. 2d 485 (1972), a regulation promulgated under this authority was challenged not as being the result of an unconstitutional delegation of legislative power, but as a special, private, or local law fixing the punishment of a crime in violation of Const. of 1901, § 104(14).
An instance of delegation of the authority to make rules and regulations being upheld as against a § 44 challenge is Franklin v. State ex rel. Milk Control Board, 232 Ala. 637, 169 So. 295 (1936). This holding was reaffirmed in Alabama Dairy Commission v. Food Giant, Inc., 357 So. 2d 139 (Ala.1978), where reference was made to the following statement regarding the circumstances under which the legislature may delegate power:
Norton v. Lusk, 248 Ala. 110, 122, 26 So. 2d 849, 859 (1946), citing Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93 (1935) (other citations omitted).
See generally the Alabama Administrative Procedure Act, Code 1975, § 41-22-1, et seq.; K. Davis, Administrative Law Treatise, (2d ed. 1978), esp. Chapter 3, regarding the pervasive delegation of rule-making authority to administrative agencies.
Section 41-22-3 of the Alabama APA defines "agency" as "Every board, bureau, commission, department, officer, or other administrative office or unit of the state, other than [listed exceptions, including] counties, municipalities, or any agencies of such local governmental units." (Emphasis added.) By analogy, the planning commission would be an agency of Shelby County, although it is not covered by the APA. If the legislature may delegate law-making powers to state agencies, why not to a county agency? Indeed,
Wallace v. Board of Ed. of Montgomery County, 280 Ala. 635, 641, 197 So. 2d 428 (1967).
*443 Professor Davis, in his treatise on administrative law, states that the question that should be asked in a delegation of powers question is whether the legislative authority has provided standards and safeguards or, preferably, in his view, has required the agency to set up appropriate standards and safeguards in light of its experience with the subject matter:
1 K. Davis, supra, § 3.15.
It is not necessary to go as far as Professor Davis suggests in deferring to agencies in order to uphold the 1982 acts; indeed, we question whether it would be proper to do so in light of the strong language in our constitution. However, the acts in question do contain appropriate standards in §§ 6, 7, and 10. They contain safeguards against arbitrary action in their provisions for publication of notice and hearings on proposed changes, § 11, for procedures to grant exceptions, § 14, and for appeals to the circuit court, § 15.
The Court of Civil Appeals has upheld the requirement that planning commission members be freeholders, on the ground that it bears a rational relation to a legitimate state interest, although that portion of the decision could be taken as dicta. McClendon v. Shelby County, 484 So. 2d 459 (Ala.Civ.App.1985); cert. denied, 484 So. 2d 465 (Ala.1986). Appellants do not raise this as an issue, but they do address some argument to the question at the end of their brief. The Bailey complaint, however, alleges that all of the plaintiffs are property owners, and the Parkers can be seen to be freeholders from the face of the complaint against them. Appellants therefore have no standing to challenge the provision requiring the commission members to be freeholders, and we express no opinion on the subject.
Appellants' separation of powers argument is similarly not well taken. It is normal procedure for an agency to make rules, administer them, and conduct the first level of review of complaints regarding the agency's functions. See generally the Alabama Administrative Procedure Act and Davis, supra, Chapter 2.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
Acts No. 82-693 and 82-771 read as follows:
"Section 1. Creation of County Planning Commission. There is hereby created a Planning Commission for Shelby County, Alabama which Commission shall be appointed as herein provided and shall have responsibilities and duties as are stated herein. The Commission shall be known as the Shelby County Planning Commission. The term, `county governing body' when used herein shall refer to the Shelby County Commission or its successors.
*444 "Section 2. Personnel of the Shelby County Planning Commission. The Commission shall be composed of seven members, all of whom shall be over the age of 25 years and each of whom shall be a qualified elector in and an actual resident of and a free-holder in Shelby County who resides outside the corporate limits of any municipality therein. Two of the members shall be appointed by the Shelby County Commission, two shall be appointed by the Shelby County Board of Education, two shall be appointed by the Shelby County Bar Association, and one shall be appointed by the Judge of the Circuit Court of Shelby County. Not over two members of the Commission shall come from any one beat of the County. Each member shall serve a term of six years and until his successor is duly appointed and qualified. Prior to taking office each member shall subscribe to an oath as provided by law for public officials and the same shall be recorded in the Probate Office of Shelby County. The original members of this Commission shall draw lots to determine the period of time each is to serve and the terms of two shall expire two years from the date of the organization of the Commission, the terms of two shall expire four years from the date of the organization of the Commission and the terms of three shall expire six years from the date of the organization of the Commission. In the event of a vacancy on the Commission the same shall be filled as in the case of the original appointment. All members shall serve without compensation, and the members shall hold no other county office. However, reasonable and necessary expenses of the members shall be paid from the General Fund of Shelby County.
"Section 3. Jurisdiction of Commission. The jurisdiction of the Commission shall extend to all areas of the county outside the boundaries of municipal corporations; provided, however, that where a municipality now or in the future is authorized to exercise and does in fact exercise planning and zoning powers in any area outside its municipal boundaries, such areas shall be excluded from the jurisdiction of the county planning commission.
"Section 4. Organization and rules. The Commission shall elect its chairman and create and fill such other offices as it may determine. The term of chairman shall be for one year, with eligibility for re-election. The commission shall normally hold at least one regular meeting each month. It shall adopt by-laws for the transaction of business and shall keep a record of its resolutions, transaction of business, which record shall be a public record. Five of the members shall constitute a quorum to transact the business of the Commission.
"Section 5. Staff and Finances. The commission may appoint, promote, demote, and remove such employees as it deems necessary for its work. The Commission may also contract with county or city planners, engineers, architects, and other consultants and with any local, state, or federal agency for such services as it may require. The commission may cooperate with and accept funds from Federal, state and local public or semi-public agencies, private individuals or corporations, and may expend such funds, and may carry out such cooperative undertakings and contracts for planning studies necessary in the performance of its duties. The expenditures of the Commission, exclusive of gifts, grants, or contract receipts, shall be within the amounts appropriated for the purpose by the county governing body.
"Section 6. General Power and Duties of the Commission. It shall be the function and duty of the commission to make and maintain in an up-to-date manner a master plan and to adopt appropriate zoning regulations as provided by Section 10 hereof for the physical development of Shelby County; provided, however, that the Commission shall have no power, by the adoption of zoning regulations or otherwise, to limit or impair in any manner the use of land for mining, quarrying or otherwise extracting coal, limestone or other minerals located therein, or for processing or distribution of such minerals. Such plan and regulations with the accompanying maps, plats, charts, and descriptive material shall show the Commission's recommendations for the use *445 and development of the territory of the said county. The zoning regulations shall also include a zoning plan for selected areas for the control of the height, area, bulk, location, and use of buildings and land. As the work of making the whole master plan and preparation of zoning regulations progresses, the Commission may from time to time adopt and publish a part or parts thereof, any such part to cover one or more major sections or divisions of the county. The commission may from time to time amend, extend, or add to the plan or regulations as hereinafter provided. Nothing in this act shall be construed to impair the right of eminent domain conferred on railroads and utilities, both public and private, or their right to construct, use and maintain structures reasonably required in the public service or their right to exercise authority conferred by statutes, franchises, certificates of convenience and necessity, licenses, easements or conveyances.
"Section 7. Purposes in View. In the preparation of the master plan and zoning regulations, the commission shall make careful and comprehensive surveys and studies of the present conditions existing within the county with due regard to existing agricultural uses, to land by virtue of its fertility, proximity to water supplies, and other geographical features is particularly suited to agricultural uses, to neighboring municipalities, towns and villages, to the growth of subdivisions, to the general population growth of the county, and make adequate provision for traffic, recreational areas and industry, and other public requirements. The plan and zoning regulations should be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the county, which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development, and should promote safety from fire, flood and other dangers, the healthful and convenient distribution of population, and the wise and efficient expenditure of public funds. The plan and regulations shall be a public record, but its purpose and effect shall be to aid the planning commission in the performance of its duties, including making recommendations to the county governing body and assisting cooperating with other federal, state and local agencies so as to achieve coordinated, adjusted, and harmonious development.
"Section 8. Election to Determine if Beat is to be Covered by The Master Plan and Zoning Regulations. The master plan and zoning regulations provided by the Commission shall not be applicable in any beat of Shelby County until the majority of the qualified electors of the beat voting in a special election shall have signified by their vote that they desire the authority of the Commission, its master plan and the zoning regulations to apply to their beat. Such an election must be held not less than 30 nor more than 45 days after a petition is filed in the office of the judge of probate seeking such an election and signed by not less than 25 electors who vote in said beat and who also own an interest in real estate that is located in such beat. Notice of such election shall be given by three weeks publication and posting notice in two public places within the beat. The cost of conducting said election shall be paid from the General Fund of Shelby County. The ballot shall be so worded as to give the voter the opportunity to vote either `Yes' or `No' as to whether he wishes the authority of the Commission, its master plan and the zoning regulations to apply to such beat. Only those qualified electors outside of the boundaries of municipal corporations, or where a municipality now or in the future is authorized to exercise, and does, in fact, exercise planning and zoning powers in any area outside its municipal boundaries, or such areas excluded from the jurisdiction of the commission as set out in Section 3, shall be permitted to vote or sign a petition calling for election in the beat concerned and a statement to this fact shall be carried on the ballot and the petition or said ballot and petition shall not be valid.
"Section 9. Subdivision Regulations. The Commission shall adopt a code of regulations applicable to the subdivision of land *446 and plats of subdivisions shall not, after the adoption of such code of regulations, be accepted for filing and recording in the Probate Office until they have been approved in a manner to be designated by the Commission. The Commission is hereby authorized to provide a penalty not to exceed $100 per lot to be paid by anyone who sub-divides property and conveys lots therefrom without first having recorded the plat of such subdivision as is herein provided. The provisions of this section shall apply within the jurisdiction of the Commission as specified in Section 3.
"Section 10. Zoning; Grant of Power. For the purpose of promoting the health, safety, morals, convenience, order, prosperity and general welfare of the County, the Commission is hereby empowered to divide the portion of the county within its zoning jurisdiction into districts of such number, shape and area as may be found best suited to carry out the purposes of this act, and to provide within such districts for standards relating to the use of the land and the types and kinds of structures that may be erected in such districts, excluding all buildings having a cost of under five hundred (500.00) [sic], and all home remodeling or modification in such districts. Such provision shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets and highways; to secure safety from fire, flood, panic and other dangers; to provide health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue mixed use of land; to facilitate the adequate provision of transportation, water supply, sewerage, schools, parks and other public requirements. Such provisions shall be made with reasonable consideration, among other things, of the character of the land and district and its peculiar suitability for particular uses and with a view of promoting desirable living conditions, sustaining the stability of neighborhoods, protecting property against blight and depreciation, securing economy in governmental expenditures, conserving the value of buildings; and encouraging the most appropriate use of land and of buildings and structures throughout the jurisdiction of the Commission. For the purpose of providing for the division of the territory into districts, consonant with the conditions provided in this section, the Commission may make a single zoning plan for all the territory of the area which lies within its jurisdiction or may make and certify separate and successive zoning plans for parts of such territory which it deems suitable for urban or suburban development or which for other reasons it deems to have appropriate territorial unity for a zoning plan; and correspondingly any zoning regulations enacted by the Commission may cover and include the whole territory lying within its jurisdiction or such territory as the commission deems to be appropriate territorial unit for a zoning plan.
"Section 11. Publication of Notice of Proposed Change in Zoning Regulations. Once zoning regulations have become applicable to a beat as provided by Section 8 hereof, such regulations shall not be changed by the Commission until the proposed change has been published for three weeks in a newspaper of general circulation within the county together with a notice stating the time and place that the change in regulations will be considered by the Commission, and stating further that at such time and place all persons who desire shall have an opportunity to be heard in favor of or in opposition to such change in such zoning regulation.
"Section 12. Zoning Regulations Shall not be Retroactive. No zoning regulation adopted by the Commission shall change any use to which land is being made at the time such zoning regulations become applicable in any beat.
"Section 13. Remedies. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, with the exception of those buildings or structures as excluded in Section 10, or any subdivision is established, or land used in violation of this enactment or of any regulation made under the authority conferred hereby, the county attorney, or other appropriate administrative officer of the Commission may institute any appropriate action or proceeding to prevent such unlawful erection, construction, *447 reconstruction, alteration, repair, conversion, maintenance, or subdivision of the land or use of the land to restrain, correct, or abate such violation, or to prevent the occupancy of any such building, structure, subdivision or land or to prevent any illegal act, conduct, business, or misuse in or upon any premises regulated under the authority conferred by this article.
"Section 14. Exceptions to Zoning Regulations. The Commission may in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the zoning regulations in harmony with its general purposes and interest and in accordance with general or specific rules adopted by the Commission. Anyone wishing to appeal from an existing zoning regulation may file a written petition stating the basis for such appeal whereupon the Commission shall fix a date for such hearing, giving notice as to the Commission may seem appropriate, and on such hearing the Commission shall have the following powers: (1) to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Commission or official in the enforcement of this article of any regulation adopted pursuant thereof; (2) to hear and decide on requests for special exceptions to the term or provisions of the regulations upon which such Commission is required to pass; (3) to authorize upon appeal in special cases such variance from the yard, open space, land use, bulk and height requirements of the regulation as will not be contrary to the public interest, where, owing to special conditions of the building site or land, a literal enforcement of the provisions of the regulation will result in unnecessary hardship, all in order that the spirit of the regulations shall be observed and substantial justice done.
"Section 15. Appeals. Any party aggrieved by any final judgment or decision of the Commission pursuant to the provisions of Section 14 may within 15 days thereafter appeal therefrom, which appeal shall rest upon the contention that such zoning regulations in question are unreasonable, discriminatory, unconstitutional, or otherwise invalid, and such appeal shall be addressed to the circuit court or other court having like jurisdiction within the county where the affected property of the aggrieved party is located, by filing with such Commission a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal the Commission shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken.
"Section 16. Anything to the contrary herein, notwithstanding: (1) Act No. 816 (H.952) creating the Shelby County Planning Commission; providing for the organization, membership, powers, personnel, jurisdiction, and financial and legal status of such commission; authorizing the Commission to make subdivision regulations, a master plan, and to adopt zoning regulations for the development of Shelby County; providing for an election in each beat prior to the application of such authority of the Commission in each beat; granting the Commission power to zone certain areas within the County and providing a procedure for the amendment of zoning regulations; prohibiting zoning regulations from being retroactive; providing remedies for the enforcement of the provisions of such act; and providing exceptions to such zoning regulations and for appeals from the decisions of the Commission approved September 2, 1965; and (2) all actions of any kind of the Shelby County Planning Commission, officials of Shelby County, or the electors of Shelby County, or any beat therein, taken under the color of authority of said Act No. 816are hereby in all things ratified, approved, validated and confirmed as of the date they were taken.
"Section 17. Severability. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
"Section 18. Effective Date. This Act shall become effective upon the signature of the Governor."
[1] Section 106 requires the publication of local acts in a newspaper of general circulation in the county to be affected for four weeks prior to the introduction of the bill in the legislature. This appeal presents no question of compliance with § 106.
[2] No issue is made as to whether the two acts constitute separate acts or should be deemed to be merged into one act. We express no opinion on the subject, and shall simply refer to them as "the 1982 acts." | March 6, 1987 |
77bc0591-abee-44ad-b286-43d3e0655d3a | Hill v. Rice | 505 So. 2d 382 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 382 (1987)
Richard O. HILL, Sr.
v.
W.C. RICE.
86-168.
Supreme Court of Alabama.
March 27, 1987.
George H. Howell of Howell, Sarto and Howell, Prattville, for appellant.
*383 J. Robert Faulk and Theron O. McDowell, Jr., Prattville, for appellee.
MADDOX, Justice.
This appeal involves the question of whether a majority of the lot owners in a residential subdivision could remove the restrictive covenants which had been imposed upon the lots when the subdivision was initially platted. The trial court granted summary judgment in favor of the lot owner who was alleged to be in violation of the restrictive covenants, and the plaintiff appealed. We affirm.
Appellant Richard O. Hill commenced this action in the Circuit Court of Autauga County, seeking a declaratory judgment and a permanent injunction against W. C. Rice prohibiting him from violating restrictive covenants in the Forrest Hills subdivision in Autauga County.
The Forrest Hills Subdivision is located in a rural area in Autauga County outside the city limits of Prattville. It was developed in September 1961 by D. L. Yarbrough and Louise C. Yarbrough. In the course of developing the subdivision, the Yarbroughs imposed certain "protective covenants" on the lots. Three of these protective covenants are pertinent to this appeal, and are as follows:
At the time Hill purchased his undeveloped lots in 1985, there had been substantial violations of the covenants. In fact, Rice, the defendant below, had begun placing crosses on his lots (which is the violation complained of by Hill in this lawsuit) as early as 1979, and he has added to them periodically since that date. After Hill purchased lots one and two, but prior to the filing of this case, a majority of the owners of the lots in the subdivision executed a document which eliminated all protective covenants from the subdivision. This was done purportedly in accordance with the specific procedure set forth in the first protective covenant, which states that after January 1, 1980, a "majority of the then owners of the lots" in the subdivision could discontinue or change the covenants in whole or in part. Owners of ten of the twelve lots voted to eliminate the protective covenants. The document entitled "Elimination of Protective Covenants of Forrest Hills Subdivision" was signed May 9-13, 1985, and was filed of record in the office of the judge of probate of Autauga County on May 14, 1985.
After the hearing on the summary judgment motion, the trial court entered the following order:
Hill contends that covenant number one was effective at the time he bought his lot, because the restrictive covenants were to continue until January 1, 1980, and then to automatically continue for 10 years, unless discontinued or modified by vote of "the majority of the then owners of the lots." (Emphasis added.) Hill claims that because there was no election by a majority of the "then" owners, on or before January 1, 1980, the covenants were effective for an additional 10 years, and that the election of May 14, 1985, was ineffective to remove the restrictions.
The law is that where the language of a restriction is clear and unambiguous, it will be given its plain and manifest meaning. Tubbs v. Brandon, 374 So. 2d 1358 (Ala 1979); Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974). It is also well settled that restrictions on the use of land are not favored in the law, and such restrictions are strictly construed in favor of the free use of such property. Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So. 2d 855 (1957); Reetz v. Ellis, 279 Ala. 453, 186 So. 2d 915 (1966). This Court also stated in Springdale Gayfer's Store Co., supra:
281 Ala. 267, 277, 201 So. 2d 855, 865.
Applying these principles of law to the facts of this case, we are of the opinion that while the construction placed on the language of the covenants by Hill is one which could be reasonably made, we cannot say that the language is so clear and unambiguous that a majority of the lot owners could not remove the covenants as they did in this case. While it is clear that the restrictions were binding upon all parties and persons claiming under them until January 1, 1980, it is not clear that the intent of the covenants was that a majority of the owners could not agree to remove the restrictions after that date. Consequently, we cannot agree with Hill's contention that the restrictive covenants were automatically extended for 10 years after January 1, 1980, because a majority of the "then owners" of the lots had not agreed to eliminate or amend them. There is at least some doubt whether this is the meaning of the covenant. Therefore, we are constrained to apply the principle of law applicable to restrictive covenants that they are not favored in law and are strictly construed in favor of the free use of property; we, therefore, affirm the trial judge's judgment.
We have found no case in Alabama, and we have been cited to none, which holds that a covenant which reads as this one does, requires that the change of the restrictive *385 covenants be made on or before the date they are to expire. We did locate one case in which a majority of the lot owners in a subdivision attempted to remove the restrictions under a provision similar to the one here, but they sought to do it before the covenants were to expire. In White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), the Court held that covenants restricting the use of land in a subdivision to residential purposes which were to be binding for 25 years after the date of their recordation, after which they could be automatically extended for successive periods of 10 years, unless an instrument signed by a majority of the property owners was filed in which they agreed to change the covenants in whole or in part, were valid and could not be amended prior to the end of the 25-year period by an agreement signed by a majority of the property owners in the subdivision. The restrictive covenants in that case read:
253 Ark., at 477, 487 S.W.2d, at 616.
Even in White v. Lewis there was a dissent by Justice Fogleman, who was of the opinion that a majority of the property owners could have changed or amended the covenants in whole or in part in that case within the 25-year period, or thereafter. The implication of the majority opinion in the Arkansas case is that had the agreement been made after the expiration of the 25-year period, the court would have reached a contrary conclusion.
We cannot agree with Hill's contention that the protective covenants could be eliminated or modified only every ten years. This interpretation of the first covenant would be inconsistent with this Court's policy that restrictions on the use of land are not favored and are strictly construed in favor of the free use of property. See, Springdale Gayfer's Store Co. v. D.H. Holmes Co., supra.
Because we have decided that the election agreement by the owners was effective when filed, and that the protective covenants were effectively eliminated, there is no need for this Court to address Hill's contention that the crosses, signs, and sheds on Rice's land were not part of the one single-family dwelling allowed by the fourth protective covenant.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON and BEATTY, JJ., concur.
HOUSTON, J., concurs in the result. | March 27, 1987 |
54e32cbe-4114-4a3a-88b5-935b4bce3918 | Lolley v. Howell | 504 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 253 (1987)
Fred R. LOLLEY,
v.
Ruth Ann HOWELL.
85-470.
Supreme Court of Alabama.
February 27, 1987.
*254 Robert Burdine, Jr. of Burdine & Mitchell, Florence, for appellant.
Steve A. Baccus, Larry B. Moore of Almon, McAlister, Ashe, Baccus, & Tanner, Tuscumbia, for appellee.
HOUSTON, Justice.
These proceedings began when Ralph Biernbaum, the sole general partner of Regency Square Associates, Ltd., and Regency Square Merchants' Association, Inc. ("Regency Square"), filed a complaint in Lauderdale County Circuit Court against Fred R. Lolley d/b/a F.J.F. Interiors, seeking the collection of past due rent, real estate taxes, insurance premiums, and membership dues. F.J.F. Interiors is located in Regency Square Mall in Florence, Alabama. Lolley filed a counterclaim against Biernbaum and Regency Square and a third-party complaint against Ruth Ann Howell; the third party complaint alleged interference with the contractual relations between Lolley and Howell and also alleged conspiracy to interfere with those contractual relations. Lolley also filed a separate lawsuit against Howell, alleging, inter alia, fraud and breach of contract. The trial court granted Lolley's motion to consolidate the two cases. Subsequently, Lolley reached a settlement with Biernbaum and Regency Square and all claims between them were dismissed by stipulation. Thereafter, the trial court granted a summary judgment in favor of Howell in both cases. Lolley appeals. We affirm in part, reverse in part, and remand.
This dispute arose out of an agreement which Lolley entered into with Howell for the sale of his store space in Regency Square Mall. Howell gave Lolley a $500 check as earnest money, and Lolley typed two memoranda evidencing the terms of the agreement. The first states:
The memorandum was signed by Lolley and was dated April 11, 1983. The second memorandum reads:
This memorandum was signed by Howell and was also dated April 11, 1983. On April 13, 1983, Howell stopped payment on the check and informed Lolley that she would not purchase his space.
The general nature of the parties' agreement in this case does not appear to be in dispute. Lolley was to sublease his space in the mall to Howell and sell her the leasehold improvements which he had made. In return, Howell was to pay Lolley *255 $30,000. Howell contends, however, that she was not obligated to go through with the purchase because Lolley did not have the right to sublease the space and sell the leasehold improvements at the time the agreement was entered into. She also contends that Lolley made certain material misrepresentations to her during their negotiations. Lolley concedes (and the record shows) that the leasehold improvements were the property of Regency Square Associates, Ltd., under the terms of his shopping center lease at the time he entered into the agreement with Howell. Likewise, at the time he entered into the agreement with Howell, Lolley had not received approval from Regency Square Associates, Ltd., to sublease the space, as he was required under the terms of the lease to do.
However, as we read his brief, Lolley contends that he had an agreement with Howell which was conditioned upon his having an opportunity to secure the necessary approval. This is disputed in the deposition and affidavits submitted by Howell to the trial court.
Lolley's fraud claim is also predicated upon his negotiations with Howell concerning the sale of the store space. Lolley maintains that Howell fraudulently misrepresented her intentions to purchase his space in order to gain valuable trade information. Howell insists that Lolley cannot recover for fraud because he was aware at the time he was negotiating for the sale of the space that he had not obtained approval to sell. Therefore, she argues that Lolley could not have relied on any representations which she made concerning the purchase.
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. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
Lolley's contentions, as well as Howell's, are supported in the record by their depositions and affidavits which were submitted to the trial court. We note that the written memoranda signed by the parties support the proposition that Lolley was to have an opportunity to secure approval for the sale (i.e., the memoranda were signed on April 11, 1983, but the balance of the purchase price did not have to be paid until May 31, 1983). Moreover, Howell admitted in her deposition testimony that her decision not to go through with the purchase was based upon a "business judgment" and not upon Lolley's lack of authority to sell at that time. She also testified by deposition and affidavit that she thought she had an option to purchase and that the earnest money would be forfeited should she not exercise the option.
The parties in this case are simply at issue concerning what they agreed to. There is scarcely a rule more firmly established than that the court, not the jury, will interpret a contract, whether oral or written, unless the court determines the contract to be ambiguous as a matter of law and one of the parties makes an offer of proof as to the surrounding facts and circumstances which would clarify the contract's meaning, in which case it is within the province of the jury to ascertain those facts and draw such inferences from them as are necessary to the interpretation of the contract upon proper instructions by the court. Alpine Construction Co. v. Water Works Board of the City of Birmingham, 377 So. 2d 954 (Ala.1979). It goes without saying that the written memoranda here are incomplete and, thus, ambiguous. Lolley has submitted enough evidence to create a question of fact for the jury as to the substance of the agreement actually reached. Therefore, summary judgment was improper on the breach of contract and fraud claims.
Summary judgment was proper on Lolley's claim against Howell for tortious interference with contractual relations and conspiracy to interfere with contractual relations. Because a breach of contract does not give rise to an action for the tort of intentional interference with business or contractual relations, a party to a contract cannot, as a matter of law, be liable for tortious interference with the contract. *256 See Alcazar Amusement Co. v. Mudd & Colley Amusement Co., 204 Ala. 509, 513, 86 So. 209, 212 (1920) ("A third party who, with knowledge of the existence of a valid contract between others, interferes with its performance ... commits a tort" (emphasis added)); Hudson v. Venture Industries, Inc., 147 Ga.App. 31, 33, 248 S.E.2d 9, 11 (1978), aff'd, 243 Ga. 116, 252 S.E.2d 606 (1979); Prosser and Keeton, The Law of Torts, § 129, at 990 (5th ed. 1984) ("The defendant's breach of his own contract with the plaintiff is of course not a basis for the tort").
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 27, 1987 |
0bc28303-a520-4c62-ad60-5c667863260b | Dixieland Food Stores, Inc. v. Geddert | 505 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 371 (1987)
DIXIELAND FOOD STORES, INC., d/b/a Piggly Wiggly Food Store
v.
Dorothy S. GEDDERT and Nancy L. Ivey.
85-1266.
Supreme Court of Alabama.
March 27, 1987.
*372 Henry F. Lee III of Lee and Fleming, Geneva, and Wyman O. Gilmore, Grove Hill, for appellant.
J. Milton Coxwell, Jr. of Coxwell and Coxwell, Monroeville, for appellees.
BEATTY, Justice.
Appeal by Dixieland Food Stores, Inc., d/b/a Piggly Wiggly Food Store ("Dixieland"), defendant, from a judgment for plaintiffs, Dorothy S. Geddert and Nancy L. Ivey, in plaintiffs' action to recover possession of certain premises alleged to have been wrongfully retained by the defendant. We affirm.
The premises in question consisted of a grocery store building, together with its appurtenant areas and improvements, located in a shopping center in Monroeville. The defendant occupied the premises as assignee of the original lessee, one Louis Shaver. The original lease, prepared by the plaintiffs, was given on November 1, 1979, setting forth a monthly rental payment of $925, and, by its terms, expired on November 1, 1984. The terms of paragraphs 5, 10, and 18 of the lease gave rise to this controversy:
On December 12, 1980, the original lessee, Shaver, with the lessors' consent, assigned his interest in the leasehold to Dixieland. About nine months prior to the expiration of the original lease, the parties began negotiations for a renewal. In the course of these negotiations, plaintiffs prepared a proposed renewal agreement, which by its terms would have renewed the original lease with the following pertinent changes: (1) The term of the renewal was to run from November 1, 1984, through October 31, 1989 (5 years); and (2) The rental was to be $175,500, payable each month in the amount of $2,925. The proposed renewal agreement was mailed to Dixieland's owners on October 24, 1984.
*373 Further negotiations ensued, with Dixieland's owners ultimately sending plaintiffs a letter on January 3, 1985, "confirming our telephone conversation" concerning the renewal lease and referring to certain other terms and amounts as rent. Specifically, this letter called for a "minimum annual rental" of $23,400 payable in monthly installments of $1,195, plus an amount equal to one percent of annual gross sales over $2,340,000 up to $3,640,000. This letter also referred to the necessity for having the lease agreement itself, once executed, reviewed and approved by the lessee's corporate officers. A proposed lease was then prepared by Mrs. Geddert and her lawyer and sent to Dixieland's owners, who executed it and returned it to Mrs. Geddert on March 11, 1985.
The plaintiffs themselves, however, did not execute the lease. Meanwhile, Dixieland remained on the premises and paid the $925 monthly rental called for under the original lease. It was Dixieland's company policy not to pay any increased rental until the renewal instrument had been executed by both parties.
Plaintiffs initiated this action in the district court of Monroe County under Code of 1975, § 35-9-80. That court issued a writ of possession to plaintiffs, subject to defendant's executing a sufficient counter affidavit, which Dixieland timely filed, alleging possession under a lease. Dixieland also moved to transfer the cause to circuit court, and that transfer ultimately took place. The case was tried ore tenus without a jury in the circuit court, which awarded plaintiffs a writ of possession and damages.
The trial court made findings of fact and reached certain conclusions of law. First, it found that the renewal agreement in question providing for a five-year lease was a contract falling within the Statute of Frauds, and, being unsigned by the plaintiffs, was unenforceable. It further found that, because defendant did not pay the increased rental contemplated by that agreement, there had been no part performance sufficient to avoid the Statute.
The trial court also found that by the language of paragraphs 5 and 10 in the original lease, the option to renew amounted to "an agreement to agree in the future," and thus was void.
Finally, the trial court held that there was no estoppel against the plaintiffs in these circumstances because the defendant did not rely upon the terms of the renewal agreement by paying any increased rent, and thus did not act thereon to its detriment.
In accord with these conclusions, the trial court held that upon the expiration of the original lease, defendant became a tenant from month to month, and after 30 days' notice to quit following expiration of its lawful term became liable for double the customary rent, under Code of 1975, § 35-9-100.
The trial court was correct in its analysis of the option provision in the 1979 lease. The provision provided for "an extension" of the lease, "the terms of which to be renegotiated at the time he shall give notice in writing that such extension is desired." This choice of language makes it plain that no definite terms were agreed upon, but that, indeed, the terms of the "extension" or "renewal," except for the length of the lease, were to be agreed upon at a later time. An agreement to agree later is unenforceable. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982); Coley v. Lang, 339 So. 2d 70 (Ala.Civ.App.1976); Cowin v. Salmon, 244 Ala. 285, 13 So. 2d 190 (1943). See also 51C C.J.S. Landlord & Tenant § 56(3) (1968). We have no power to give this provision an interpretation which would be contrary to the requirements of the Statute of Frauds. Thus, this provision of the 1979 lease was unenforceable.
The trial court was correct, moreover, in determining that the 1985 lease came within the Statute of Frauds, Code of 1975, § 8-9-2(1), and was required to be signed by the party to be charged. The parties to be charged in this case were the lessors, since it is against them that the terms of the renewal lease are sought to be imposed. Hammond v. Winchester, 82 Ala. 470, 2 So. 892 (1887). Since the negotiations between the parties did not result in a document signed by both lessors, the "renewal" *374 lease was never executed, as conceded by Dixieland, which, in accord with its "company policy," did not pay the increased rent called for by the renewal lease.
Was there such part performance under an oral 1985 lease agreement, which followed the expiration of the 1979 lease, to take the case out of the Statute of Frauds? Code of 1975, § 8-9-2(5). If Dixieland was put in possession by the lessors and paid the purchase money (rent) or a portion of it, the exception to the Statute of Frauds would have been satisfied. Under the facts, that did not occur, however. Dixieland clearly continued to pay the installments of rent under the 1979 lease, not the 1985 lease. It is conceded by Dixieland, indeed, that it "continued to pay the original amount of $925 per month," the rental under the original lease, and not an amount calculated by the terms of the proposed renewal lease. This was not payment of the "purchase money" called for by the "oral agreement" under which it now claims lawful possession, but was rent to be paid under the original, or 1979, lease.
In order to satisfy the requirements of the exception, the possession must be exclusively referable to the contract in issue. Jones v. Jones, 219 Ala. 62, 121 So. 78 (1929). And,
Reynolds v. Bryant, 281 Ala. 372, 202 So. 2d 734 (1967). Dixieland's possession after the expiration of the 1979 lease term was consistent with that 1979 lease, not with the proposed 1985 lease.
Additionally, the trial court was not in error in finding that no promissory estoppel occurred in favor of Dixieland.
Promissory estoppel as defined in Restatement (First) of Contracts § 90 (1932), has been accepted by Alabama courts, Coley v. Lang, 339 So. 2d 70 (Ala.Civ.App. 1976), and Bush v. Bush, 278 Ala. 244, 177 So. 2d 568 (1964):
Under the facts of this case, it is clear that the plaintiffs, Geddert and Ivey, are not estopped to deny the alleged 1985 oral agreement. That is so because Dixieland was not induced to take any action, nor did it forbear to do so, to its detriment. Quite to the contrary, Dixieland merely continued in possession under the 1979 lease, paying rent under that lease, waiting for the lessors to return the executed lease in order that its corporate officers might approve it, as explained by it in its letter of January 3, 1985. Thus, there was no reliance and change of position as required for promissory estoppel.
Finally, we cannot agree with Dixieland that the trial court erred in not holding the 1979 lease vague, and thus construing it in its favor. Dixieland's argument is that paragraphs 5 and 10, when read together, conflict in their notice requirements, and thus that the interpretation to be given them is that the parties agreed to extend the 1979 lease term.
We find no conflict in the two provisions. Paragraph 5 describes the form of notice required of the lessee should he elect to extend the lease. Paragraph 10, on the other hand, complements paragraph 5 by referring to an extension of the lease, absent any notice by the lessee of his intention to terminate the lease. We find no ambiguity in these terms, and we note, moreover, that notice, or lack of it, was not made an issue in the court below.
It follows that the judgment of the trial court must be, and it is, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | March 27, 1987 |
5a38b65e-5d35-4f86-915c-b1677b581437 | Ex Parte Usrey | 527 So. 2d 732 | N/A | Alabama | Alabama Supreme Court | 527 So. 2d 732 (1987)
Ex parte Margie Lee USREY
(Re: Margie Lee Usrey v. State).
85-1417.
Supreme Court of Alabama.
March 27, 1987.
Rehearing Denied May 8, 1987.
*733 Betty C. Love, Talladega, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
BEATTY, Justice.
Certiorari was granted in this case to consider (1) the conclusion of the Court of Criminal Appeals that the warrantless search of this defendant's residence was executed under exigent circumstances; and (2) that court's conclusion that six cartridges taken from the body of the victim were admissible. As to the first issue, as discussed hereinafter, we remand the case to the Court of Criminal Appeals for further consideration. As to the second issue, we find the result reached by the Court of Criminal Appeals to be correct.
Although the facts pertinent to the search and seizure issue appear in the opinion of the Court of Criminal Appeals, they are reproduced here as an aid to understanding our conclusions:
"Officer Marty Batson of the Sylacauga Police Department was dispatched to the scene in response to Miss Davis' call. One of the women other than the defendant met Officer Batson at the door of the residence and advised him that there had been a shooting inside and that, in her opinion, the subject was deceased. After being advised of this, Officer Batson entered the premises without obtaining either a warrant or the consent of Mrs. Usrey. Upon entering the trailer, Officer Batson secured the scene. Officer Batson testified that after securing the scene he was no longer under any fear or apprehension that some unidentified person might be loose in the trailer. Upon securing the scene, Officer Batson called his station, reported the homicide, and requested the detective division, a photographer, and the chief. During the next four hours Officer Batson and others participated in a warrantless search which involved opening closets and chests of drawers, and looking under clothing and beds. During the search evidence was seized and photographs were taken of the interior of the trailer and its contents. The body of the deceased was transported to Cooper Green Hospital in Birmingham, Alabama, where Dr. Joseph Embry performed an autopsy upon the body on May 13, 1983. During the course of the autopsy Dr. Embry recovered six projectiles from the body of the deceased. The only warrant obtained by police in this case was issued on May 16, 1983, *734 three days after the autopsy and four days after the initial search of defendant's residence.
(Emphasis added.) Usrey v. State, 527 So. 2d at 727 (Ala.Crim.App.1986). These facts were conceded as "substantially correct" by the State.
In its initial opinion upon submission, the Court of Criminal Appeals referred to the following statement contained in the State's brief before that court:
527 So. 2d at 728. That court agreed with that conclusion, without citation of additional authority.
On rehearing, that court, considering this issue again, quoted from the petitioner's brief:
"`In holding that photographs taken during a four hour warrantless search of defendant's residence were admissible under an exigent circumstances exception to the requirements of a search warrant because items photographed could have been surreptitiously removed this Court completely overlooks the fact that, at the time the photographs were taken, the police had taken control of the premises and had established a `crime scene.' According to the first officer on the scene, he posted an officer at the entrance of the residence to prohibit entry by anyone without his prior approval. (RT 291). Upon leaving the scene the back door was `wired' shut and the front door was locked and sealed. (RT 440, 441). Clearly the police had control of the scene and surreptitious removal of evidence was capable of being prevented. Thus the `exigent circumstance' relied upon by the State to justify this warrantless intrusion is not supported by the record. Therefore, this court's opinion in this regard is in error and is due to be reconsidered and amended.'"
527 So. 2d at 730. In analyzing this argument, the Court of Criminal Appeals commented, again without citation of authority:
(Emphasis added.) 527 So. 2d 730.
Thus, on rehearing, the Court of Criminal Appeals found an exigent circumstance in the great "difficult[y]" of the officers, found "almost certainly," to obtain a search warrant because the search itself occurred soon after 8:04 p.m., instead of during daylight (assuming there was a complete absence of daylight at that time on May 12, 1983). In reaching this decision, the Court of Criminal Appeals referred to no additional facts either supported by the record or argued by the State.
*735 Nevertheless, that court, in reaching such a conclusion, apparently conceded that petitioner's argument concerning the search and seizure, and abandoned its original concurrence in the State's position to the effect that the exigent circumstance permitting the search lay in the protection of the evidence. Indeed, the facts as found by the Court of Criminal Appeals suggest that there was no risk of the evidence being removed or otherwise destroyed.
In its argument before this Court, the State now takes a position unlike its initial position. It now argues that the exigent circumstances permitting the questioned search and seizure lay in the danger that others might be harmed: "For all he [Officer Marty Batson] knew, someone could have been hurt and in need of medical attention." Contending that Officer Batson's entry was justified as having been made under exigent circumstances, the State argues that his discovery of all of the other evidence later taken and photographed was admissible under the "plain view" doctrine.
Of course, on certiorari this Court must review the case on the facts found by the lower court, and those facts are expressly conceded by the State in its brief. Under those facts, quoted hereinabove, Officer Batson, upon entering the trailer, secured the scene, and thereupon was under no fear or apprehension that some unidentified person was present in the trailer. Upon securing the scene, Officer Batson reported to his station, requested other officers, together with a photographer, and, subsequently, after the scene had been secured, participated in the search described above without benefit of a search warrant.
Commenting upon what it described as the "fundamental guarantee" of the Fourth Amendment (applicable to the states under the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)), the United States Supreme Court, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), quoted from Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 535, 29 L. Ed. 746 (1886):
It then referred to the "per se" rule of the Fourth Amendment applied by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); and United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); and McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948):
(Emphasis added.) Coolidge, 403 U.S. at 454-55, 91 S. Ct. at 2031-32.
In determining whether an exigent, i.e., urgent, circumstance exists in instances such as the one exhibited here, and specifically whether the mere inconvenience of time presented by early evening hours furnishes *736 such a circumstance, we look to a similar case decided by the United States Supreme Court.
Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), dealt with a search of a "murder scene." In that case, an undercover police officer and several other officers conducted a narcotics raid on the apartment of one Mincey. After all of the officers had entered the apartment, and while the undercover officer was in Mincey's bedroom, shooting occurred in the bedroom. The undercover officer was fatally shot. When the other officers entered the bedroom, they found Mincey himself wounded. After the shooting, the other officers looked for other victims and found a wounded young woman in the bedroom closet and three acquaintances of Mincey in the living room. These officers called for emergency assistance for the wounded persons, but conducted no additional investigation. Within ten minutes of their call, however, homicide detectives arrived at the apartment and oversaw the removal of the wounded, "trying to make sure that the scene was disturbed as little as possible, and then began to gather evidence." 437 U.S. at 389, 98 S. Ct. at 2411. They conducted a warrantless search lasting four days, which included searching, photographing, and diagramming the apartment; opening drawers, closets, and cupboards; digging bullets from the walls; and making other examinations.
The State of Arizona attempted to justify the search on the basis that it was a search of a "homicide scene." The United States Supreme Court considered that argument in an exhaustive manner:
(Footnotes omitted.) (Emphasis added.) 437 U.S. at 392-93, 98 S. Ct. at 2413.
Commenting further on the necessity of avowed exigent circumstances, the Court continued:
"Third, the State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the *737 scene of a rape, a robbery, or a burglary? `No consideration relevant to the Fourth Amendment suggests any point of rational limitation' of such a doctrine. Chimel v. California, ..., 395 U.S. [752], at 766, 89 S.Ct. [2034] at 2041 [23 L. Ed. 2d 685].
(Emphasis added.) 437 U.S. 393-94, 98 S. Ct. at 2413-14.
Since its decision in Mincey, the United States Supreme Court has decided Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct 409, 83 L. Ed. 2d 246 (1984), a case which the Supreme Court found to be in direct conflict with the requirements of Mincey, and which is remarkably similar on its facts to the present case. Because of the factual similarity of these two cases, we quote that portion of the Supreme Court's opinion setting forth the facts:
"The Louisiana Supreme Court states the facts as follows:
Thompson, 469 U.S. at 19, 105 S. Ct. at 410.
After setting forth the general Fourth Amendment principles enunciated by that Court in such cases as Katz v. United States, supra, the Supreme Court noted that it has "consistently reaffirmed [its] understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the `persons, houses, papers and effects' of the citizens." 469 U.S. at 20, 105 S. Ct. at 411. The Court went on to hold that the exigent circumstances present in that case (i.e., assisting petitioner to the hospital and conducting the initial "victim-suspect" search) would have justified only the seizure of evidence in plain view. Because the Court's analysis is apropos to this case, it is set out at length below:
"The Louisiana Supreme Court attempted to distinguish Mincey in several ways. The court noted that Mincey involved a four-day search of the premises, while the search in this case took only two hours and was conducted on the same day as the murder. See State v. Thompson, [448 So.2d] at 671. Although we agree that the scope of the intrusion was certainly greater in Mincey than here, nothing in Mincey turned on the length of time taken in the search or the date on which it was conducted. A two-hour general search remains a significant intrusion on petitioner's privacy and therefore may only be conducted subject to the constraints *739 including the warrant requirementof the Fourth Amendment.
(Footnotes omitted.) (Emphasis added.) 469 U.S. at 20-22, 105 S. Ct. at 411-12.
Just as in Thompson v. Louisiana, supra, the officer in this case who first arrived on the scene, Officer Batson, had already "secured the scene" before the other officers, investigators, photographers, etc., arrived a short time later. In Thompson, two members of a homicide unit conducted a two-hour general exploratory search of the entire house looking for evidence of the crime, during which three items of evidence were taken that obviously were not in plain view. In the present case, several officers conducted a four-hour search of the premises "which involved opening closets and chests of drawers, and looking under clothes and beds." Usrey v. State, supra, 527 So. 2d at 727. During this search, evidence was seized and photographs taken of the interior of the premises. In its statement of the facts, however, the Court of Criminal Appeals does not describe the evidence seized, nor does it describe specifically the subjects of the photographs. Furthermore, even though the State argued in its brief to the Court of Criminal Appeals that "[t]he evidence objected to was in plain view when the police officers arrived at the Usrey residence to investigate the shooting," that court does not give any explanation whatsoever as to whether the State proved at trial that the evidence seized or photographed, and admitted over defendant's objection, was found in plain view. Under the decision of the Court of Criminal Appeals in Teat v. State, 409 So. 2d 940 (Ala.Crim.App.1981), there must be evidence in the record that the evidence seized, literally or by a photograph, was in plain view.
The court notes that in this case "photographs were taken of the interior of the trailer and its contents." Usrey v. State, supra. Under the prevailing view, if the photographs admitted at trial depicted only items or scenes within the plain view of the officers, then the taking of the photographs did not constitute a search. "The camera simply recorded what the officers saw" in plain view. State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981); State v. Anderson, 42 Or.App. 29, 599 P.2d 1225 (1979). See also cases discussed at Annot., 27 A.L.R.4th 533, 533-37 (1984).
The foregoing analysis of Mincey, supra, and Thompson, supra, and the applicability of those cases to the present case, points up that the reasoning of the Court of Criminal Appeals on the validity of the search and seizure based on exigent circumstances, is clearly and unquestionably erroneous. We therefore find it necessary to remand this case to that court with *740 directions that it apply to the record in this case the United States Supreme Court cases and other cases which we have hereby held controlling of this Fourth Amendment issue.
Defendant also claims that the six cartridges removed from her husband's body during the course of an autopsy were inadmissible. She contends that, under Alabama law, as the deceased's surviving spouse, she had a possessory interest in his remains, citing Code of 1975, § 22-19-42, and Rehling v. Carr, 295 Ala. 366, 330 So. 2d 423 (1976). She contends, in essence, that this possessory interest gave her standing to question the legality of the search of the body and the subsequent admission of evidence removed from the body during the autopsy. We hold that, notwithstanding what the defendant's possessory interest in the corpse of her deceased husband may have been, she had no legitimate expectation of privacy in the body of the deceased for Fourth Amendment purposes.
California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 213 (1986).
The Fourth Amendment does not protect the merely subjective expectations of privacy, but only those expectations that society is prepared to recognize as reasonable. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). If the defendant in this case expected that she could prevent the State from examining the body of her spouse, whose death was caused by the defendant, we conclude that her expectation was neither reasonable nor legitimate. See State v. Kelly, 697 S.W.2d 355 (Tenn.Crim.App.1985). Under these facts, any property or possessory interest the defendant may have had in the remains of her husband does not also serve to cloak her with a reasonable expectation of privacy in those remains. We hold, therefore, that defendant's Fourth Amendment rights were not violated by the warrantless removal of the six cartridges from the body of her deceased husband and their subsequent admission into evidence at trial.
REMANDED WITH DIRECTIONS.
JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur in the result.
MADDOX, Justice (concurring in the result).
I concur in the result reached in this case, because the reason stated by the Court of Criminal Appeals for the application of the "exigent circumstances" exception to the warrant requirement is insufficient to justify its application.
I have not gone to the record to determine whether the photographs intoduced into evidence over the defendant's objection were of scenes or articles which were in "plain view."
The majority opinion states the following:
Defendant, on application for rehearing, filed a motion with the Court of Criminal Appeals styled "Motion to Add Statement of Facts" in which she asked that court to include some additional facts in the opinion, (see Rule 39(k), Ala.R.App.P.) but she did not request that court to state specifically what the photographs depicted, nor did she make reference to the pages of the transcript or to exhibits which would have shown that the photographs were of articles or scenes not in "plain view." As the opinion points out, the State argued before the Court of Criminal Appeals that "[t]he evidence objected to was in plain view when the police officers arrived at the Usrey residence to investigate the shooting." If this statement is correct, then the warrantless search was justified, in my opinion. If not, then the State must justify its warrantless search in view of the law as stated in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 290 (1978), and Thompson v. Louisiana, 469 U.S. 17, 105 S. Ct. 409, 83 L. Ed. 2d 246 (1984).
Although I believe that the defendant has failed to comply with the technical requirements of Rule 39(k), I believe that justice requires the reversal of this case on the ground stated, especially in view of the fact that the Court of Criminal Appeals, in its extended opinion on application for rehearing, states that "there was strong evidence to the effect that the conduct of defendant in causing the death of her husband was in self-defense." This case should be decided on whether the photographs were of things in "plain view," as the State contended, not on whether there was technical compliance with the provisions of Rule 39(k). Rule 1, Ala.R.App.P.
TORBERT, C.J., concurs. | March 27, 1987 |
c4f5b9dc-4b58-48ce-b210-687539fd7f3a | Farmers & Merchants Bank of Centre v. Hancock | 506 So. 2d 305 | N/A | Alabama | Alabama Supreme Court | 506 So. 2d 305 (1987)
FARMERS & MERCHANTS BANK OF CENTRE
v.
L.W. HANCOCK and Centre Chain Saw Company, Inc.
85-150.
Supreme Court of Alabama.
March 20, 1987.
*307 W. Eugene Rutledge and Clyde E. Riley of Rutledge & Kelly, Birmingham, and Albert *308 Shumaker of Burns, Shumaker & Davis, Centre, for appellant.
Charles M. Thompson of Thompson & Griffis, Birmingham, for appellees.
MADDOX, Justice.
Farmers and Merchants Bank of Centre (sometimes hereinafter "the Bank") filed suit against L.W. Hancock and Centre Chain Saw Company ("Centre") for a deficiency judgment of $82,582.76, including interest and attorney fees. Centre and Hancock counterclaimed, answered and alleged that there was an accord and satisfaction, and alleging deceit, misrepresentation, bad faith repossession, commercially unreasonable sale, and conspiracy.
Centre Chain Saw borrowed money from Farmers and Merchants Bank to buy two large trucks. Hancock, as the principal owner of Centre, signed as guarantor. The duration of the two notes, which were issued in 1979, was to be 180 days. Both notes were rolled over repeatedly; each time Hancock paid the accrued interest and renewed at the current market rate.
In 1982, Farmers and Merchants Bank, after an FDIC audit and the ousting of the loan officer who generally handled Hancock's accounts, decided to foreclose. Neither of the notes had matured. A vice president of the Bank, J.W. Hampton, requested that Hancock turn the trucks over to the Bank. Hancock delivered the trucks to the Bank. Hampton, then requested that Hancock sign foreclosure releases which allowed the Bank to sell the trucks without a formal foreclosure proceeding. It was Hancock's understanding that by signing the releases and voluntarily relinquishing possession of the trucks, the Bank would relieve him of any further responsibilities on the notes.
One of the trucks was sold at a public auction to Travis James, a member of the loan committee and board of directors of Farmers and Merchants Bank, for $10,000. No one was present at the sale but James and the Bank's attorney. There was evidence presented that this truck had a value of $33,000. The second truck was later sold to L and M Sand and Gravel for $20,000. There was evidence that this second truck had a value of between $46,500 and $47,000.
The trial court charged the jury on three issues:
(1) Did Centre and Hancock owe the Bank a deficiency following the foreclosure sale, or was there an affirmative defense of accord and satisfaction?
(2) Did the Bank act in good faith in concluding that the prospect of payment of this debt had become impaired? (The court instructed the jury that punitive damages were available if it found that the repossession was wrongful, and attended by circumstances of "insult, malice, or oppression," or was "intentionally committed knowing that the act was wrongful.")
(3) Did Farmers and Merchants Bank act in a commercially unreasonable manner in the sale of the two trucks?
At the conclusion of the Bank's evidence, Hancock and Centre filed a motion for directed verdict on the ground that there was an accord and satisfaction, which was denied. At the close of Centre's and Hancock's case, the Bank filed a motion for directed verdict, which was granted in part, and denied in part. The court granted the Bank a directed verdict as to all claims set forth in the counterclaim except the claim of wrongful repossession and the claim of sale and disposition of the collateral in a commercially unreasonable manner. The jury returned a verdict against the Bank and in favor of Hancock and Centre:
Farmers and Merchants Bank filed a motion for judgment notwithstanding the verdict (J.N.O.V.), and, alternatively, motions for a remittitur and for a new trial. All of its motions were denied, and this appeal followed.
*309 Farmers and Merchants Bank raises thirteen issues on appeal. We have consolidated those issues into five.
We will address first the issue of whether Hancock's and Centre's claims of accord and satisfaction was sufficient to deny Farmers and Merchants Bank's motion for directed verdict on its claim for a deficiency judgment. Farmers and Merchants Bank contends that Centre and Hancock failed, as a matter of law, to prove the requisite requirements for an accord and satisfaction. The Bank argues that the meeting of the minds necessary for an accord and satisfaction did not exist.
The defense of accord and satisfaction was based on a conversation that occurred between the Bank's vice president, J.W. Hampton, and Mr. Hancock. The conversation occurred prior to the Bank's securing Mr. Hancock's signature on foreclosure releases that allowed the Bank to sell the trucks without a formal foreclosure proceeding.
Mr. Hancock testified on direct examination concerning the execution of the foreclosure release as follows:
On cross-examination, Mr. Hancock testified:
Mr. Hampton's recollection of the conversation is as follows:
The elements of accord and satisfaction are set forth in Ray v. Alabama Central Credit Union, 472 So. 2d 1012, 1014 (Ala. 1985), quoting from Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271 (1929):
It is clear that for an accord and satisfaction to exist there must be an "assent or meeting of the minds of the parties." This meeting of the minds must extend to every element, including the subject matter, in order to create a valid contract. City of Montgomery v. Maull, 344 So. 2d 492 (Ala. Civ.App.1977).
A directed verdict motion must be viewed in a light most favorable to the opposing party. The case must be presented to the jury if the evidence or the reasonable inferences arising therefrom furnish a scintilla of evidence in support of the theory of the opposing party. Birmingham v. Wright, 379 So. 2d 1264 (Ala.1980). It is clear from the testimony set forth above that a scintilla of evidence was presented to the jury that there was a meeting of the minds between Hancock and Hampton, because Hancock testified that he understood that he would not be sued if he signed the papers. We are of the opinion that the trial court did not err, therefore, when it refused to grant a directed verdict on the Bank's claim for a deficiency, because there was evidence presented that there was an accord and satisfaction.
The second issue presented is whether the trial court erred when it denied Farmers and Merchants Bank's motion for a directed verdict as to Hancock and Centre's counterclaims of bad faith repossession and commercially unreasonable sale. Farmers and Merchants Bank further contends that Hancock was not entitled to recover on the counterclaims in his individual capacity and that the trial court erred when it denied the Bank's motion to dismiss. The Bank also contends that no facts were alleged in the counterclaim to justify the claim of wrongful repossession *311 and commercially unreasonable sale, and that the trial court should have directed a verdict in its favor on these claims.
Both notes had signatures on the "borrower's signature" line of Centre Chain Saw and L.W. Hancock. Hancock also signed as guarantor of the notes and signed individually as borrower on the face of the notes where the note form provides for an insurance disclosure statement. From the face of the notes, it appears that Hancock signed as a borrower, as well as an agent for Centre. He also signed as guarantor. The trial court correctly denied Farmers and Merchants Bank's motion to dismiss Hancock's individual counterclaim, and the Bank's motion for a directed verdict.
The Bank contends that the undisputed evidence shows that it had a right to repossess the trucks because it believed that the prospect of payment of the notes was impaired. The Bank cites § 7-1-208, Code 1975, which provides:
Under this statute, the Bank was charged with the duty to exercise good faith in the repossession process and the evidence at trial was not sufficient for the jury to find that this was a good faith repossession. The notes that the Bank foreclosed on had not matured. There was also testimony presented that the Bank had never foreclosed on a note before the end of its term. There was evidence presented which indicated that Hancock had an excellent credit history with the Bank, that Hancock had done business with the Bank for over 47 years, had never had an overdraft, and had never been late with a payment. He had signed over a thousand promissory notes and had always paid the principal and interest on those notes. The officers who handled the transactions involving the notes testified that they knew of no significant change in Hancock's financial condition from the time the notes in question had been made until the trucks were turned over to the Bank in June 1982. There was testimony presented to indicate that Hampton told Hancock that if he would sign the foreclosure releases, the Bank would not sue him; therefore, there was ample evidence before the trial court to deny the Bank's motion for directed verdict as to the wrongful repossession claim.
We are also of the opinion that the trial court did not err when it refused to grant a directed verdict in favor of the Bank as to the counterclaim which averred that there was a commercially unreasonable sale. This Court stated in First National Bank of Dothan v. Rikki Tikki Tavi, Inc., 445 So. 2d 889, 890 (Ala.1984):
In this case, the evidence reveals that the two trucks, valued together at $75,500 to $80,000, were sold for only $30,000. The jury could have also considered the fact that Travis James, a member of the board of directors of the Bank, purchased one of the trucks for $10,000 although it was *312 worth $33,000. James and the Bank's attorney were the only ones at the sale, and James later traded the equipment and received for it $8,000 more than his purchase price. Consequently, there was much more than a scintilla of evidence in this case that the disposition of the trucks was not made in a commercially reasonable manner.
The third issue presented is whether the trial court erred when it refused to grant Farmers and Merchants Bank's motion for a new trial based on newly discovered evidence. Hancock testified at trial that he was unable to borrow money after his new credit report was released after the foreclosure. Farmers and Merchants Bank contends that it discovered evidence after trial which was in direct conflict with Hancock's testimony that he had been unable to obtain financing after the Bank foreclosed on his property, because of a bad credit rating.
Ordinarily, the granting of a motion for a new trial rests within the sound discretion of the trial court. Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778 (Ala.1984). In order for a party to prevail on a motion for new trial based on newly discovered evidence, the appellant must show that the evidence at issue:
Welch v. Jones, 470 So. 2d 1103, 1112 (Ala. 1985) (second rehearing opinion).
The trial court, in exercising its discretion, could have concluded that Farmers and Merchants Bank could have discovered the evidence if it had exercised due diligence. The Bank could have fully cross-examined Hancock at trial concerning his ability to obtain further loans but failed to do so. We are of the opinion that the trial judge did not abuse his discretion when he failed to grant Farmers and Merchants Bank's motion for a new trial based on newly discovered evidence.
The fourth issue for this Court's consideration is whether the doctrine of "res inter alios acta" applies to this case. Farmers and Merchants Bank contends that throughout the entire prosecution of the counterclaim, Centre Chain Saw and Hancock attempted to arouse the passion and sympathy of the jury for Hancock and his wife. The Bank argues that counsel, in an attempt to arouse the passion of the jury against the Bank, asked the following question of a former employee of the Bank:
The Bank's counsel offered the following objection to the question:
*313 The trial court overruled the Bank's objections and allowed the witness to testify, as follows:
The Bank argues forcefully that the court also erred in permitting testimony of Hancock's wife. The argument of the Bank regarding Mrs. Hancock's testimony is set forth in the brief, as follows:
"Again, the following occurred:
"These two episodes are as prejudicial in a case of this type as any evidence one could imagine. Of course, the object of the adversarial system is for opposing counsel to introduce evidence that is prejudicial to the other side. The proper question, therefore, is whether or not the evidence is relevant and material so that its prejudicial nature is not a subject of consideration. The above testimony by `Miss Leafie' is clearly not material or relevant since the mental anguish or loss of credit rating suffered by Mr. Hancock is not a recoverable item of damages under the only affirmative claim submitted to the jury by the trial court, wrongful repossession and commercially unreasonable sale of the trucks. Under the rules in the cases cited above the Bank is entitled to a new trial because of this prejudicial testimony."
The term "res inter alios acta" means "things done between strangers." *314 "The doctrine is a rule of evidence which excludes evidence of the acts and declarations of non-parties to the lawsuit, or dealings of parties with non-parties, on the ground of irrelevancy." Loftin's Rent-All, Inc. v. Universal Petroleum Services, Inc., 344 So. 2d 781 (Ala.Civ.App.1977). The focus of the rule of "res inter alios acta" is upon the relevancy of the evidence, rather than the fact that the evidence involves the acts or declarations of a non-party. Evidence, even though it be the acts or declarations of a non-party to the suit, is not within the scope of the doctrine. Loftin's Rent-All, Inc. v. University Petroleum Services, Inc., supra.
We are of the opinion that the testimony of the Bank employee was properly admitted into evidence. The Bank employee stated that in the many years that she worked at the bank she had known the practices of the Bank, and that the Bank would repossess collateral only in the event of default when the note was past due and was unpaid. The issue of good faith on behalf of the Bank was one of the critical issues in the case. The Bank employee's testimony established facts from which the jury could find that the Bank showed a lack of good faith in its repossession of the trucks and departed from a longstanding practice of the Bank.
Mrs. Hancock's testimony about her husband's physical and mental health was relevant to prove Hancock's claim for mental anguish. There was no error here.
The final issue presented is whether the damages awarded in this case warrant reversal. Farmers and Merchants Bank contends that the actual damages awarded were excessive. The Bank also contends that the award of punitive damages and damages for mental anguish in this case were improper.
While the trial court did not err when it refused to grant a directed verdict as to Hancock and Centre's counterclaims of wrongful repossession and commercially unreasonable sale, we are of the opinion that the jury was erroneously permitted to award actual damages to Hancock and Centre on their claim for commercially unreasonable sale once the jury found in their favor on their accord and satisfaction defense. As we have previously stated, Hancock and Centre claimed a defense of accord and satisfaction against Farmers and Merchants' claim of a deficiency judgment. This defense was based on a conversation which occurred prior to the Bank's securing Hancock's signature on foreclosure releases. The Bank obtained Hancock's signature on the releases by promising him that if he signed the releases it would take no further action against him.
If the jury determined that an accord and satisfaction existed between the parties, it necessarily found in favor of Hancock and Centre on their claim that the debt was satisfied when Hancock turned over the trucks to the Bank. Because the amount of the debt thus extinguished exceeded the amount the trucks would have sold for if the Bank had conducted a commercially reasonable sale, Hancock and Centre should not be allowed to recover any damages in their claim for commercially unreasonable sale. Damages resulting from the commercially unreasonable sale would have been permitted only if the jury had not resolved the accord and satisfaction issue in Hancock's and Centre's favor. A different result would obtain, however, with respect to damages for any loss of use of the trucks resulting from the Bank's wrongful foreclosure, because wrongful foreclosure damages are not inconsistent with Hancock's and Centre's accord and satisfaction defense.
We will now discuss whether the award of punitive damages and damages for mental anguish in this case were improper.
The trial court charged the jury that if they found the repossession process was wrongful and attended by circumstances of "insult, malice or oppression" or was intentionally committed knowing that the act was wrongful then the jury could award punitive damages. The jury returned a verdict which stated:
In Ott v. Fox, 362 So. 2d 836 (Ala.1978), a wrongful repossession/commercial unreasonableness case, this Court found that the wrongful repossession claim could also be considered as a conversion claim. This Court stated:
Ott v. Fox, at p. 839.
This Court then held that punitive damages may be awarded in an action for conversion, even though not alleged in the complaint, where the evidence justifies such an award. We are of the opinion that the trial court did not err in charging that punitive damages could be awarded in this case, because the jury could have found that the repossession was conducted in an oppressive and insulting manner. See Big Three Motors v. Rutherford, 432 So. 2d 483 (Ala.1983).
We are of the opinion that, based on the same evidence, the jury was authorized to award $20,000 in damages for mental anguish. This Court, in Taylor v. Baptist Medical Center, Inc., 400 So. 2d 369 (Ala.1981), held that recovery may be had for mental suffering caused by culpable tortious conduct, even where there is no accompanying physical injury. There was some testimony that Hancock's physical condition deteriorated as a result of the wrongful repossession; consequently, under the rule announced in Baptist Medical Center, we believe the award was not improper. Courts in other jurisdictions have allowed recovery for mental anguish in wrongful repossession cases. See, Sherwood v. Bellevue Dodge, Inc., 35 Wash. App. 741, 669 P.2d 1258 (1983); Boisdore v. International City Bank & Trust Co., 361 So. 2d 925 (La.App.1978); First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612 (Tex.Civ.App.1973); Ebert v. Babin, 200 So. 2d 672 (La.App.1967).
One problem remains: The jury's verdict for "actual damages in the sum of $98,000" was based upon two separate claimsone for wrongful repossession and one for commercially unreasonable sale. Because the jury, in returning a verdict against the Bank on its deficiency claim, found for Hancock and Centre on their accord and satisfaction defense, that portion, if any, of the $98,000 verdict for actual damages awarded on the commercially unreasonable sale claim is unauthorized; but that portion, if any, of the actual damages awarded on the wrongful repossession claim is authorized. The jury, however, returned a general verdict with respect to the two separate claims; thus, it is impossible to discern which portion, if any, is properly ascribable to which claim. See Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981).
We resolve this problem by permitting Hancock and Centre to elect whether to accept the judgment less the full amount of actual damages, or to suffer a reversal and remand of this cause for a new trial.
*316 For the above reasons, Hancock and Centre shall, within 30 days after this date, file a remittitur, pursuant to § 12-22-71, Code 1975, of $98,000; otherwise the judgment will stand reversed. Let notice issue to Hancock and Centre accordingly. If they shall timely file such a remittitur, the judgment awarding $30,000 punitive damages and $20,000 damages for mental anguish will be affirmed.
AFFIRMED CONDITIONALLY.
JONES, ALMON, BEATTY, HOUSTON and STEAGALL, JJ., concur.
SHORES and ADAMS, JJ., concur in the result.
TORBERT, C.J., concurs, in part; and dissents, in part.
TORBERT, Chief Justice (concurring in part and dissenting in part).
I dissent as to that part of the opinion dealing with the defendants' counterclaim for wrongful repossession. The Bank sued the defendants for a deficiency as a result of the defendants' alleged default on a promissory note and the Bank's subsequent foreclosure and sale of the collateral. The defendants pleaded accord and satisfaction as a defense to the claim of a deficiency. The defendants also counterclaimed for damages based on wrongful repossession and sale of the collateral in a commercially unreasonable manner. Defendants contend that the Bank wrongfully declared the notes in default and therefore that the repossession and disposal of the collateral were wrongful. While it may be that the premise is true, under these facts the conclusion does not follow.
The promissory note at issue authorized the Bank to accelerate the note if the prospect of payment by the defendants was impaired. Code 1975, § 7-1-208, imposes the requirement that the Bank act in good faith in determining whether the prospect of payment is impaired. If the Bank had only declared the loan in default and sued on the note instead of repossessing the collateral,[1] the defendants' means of contesting the propriety of the acceleration of the note would have been through a defense of lack of good faith in the determination that the prospect of payment was impaired. It is not the action of the Bank in declaring the note in default that gives rise to a wrongful repossession action; rather, it is the subsequent taking and disposing of the collateral without right that gives rise to such a claim. Cf. Ford Motor Credit Co. v. Jackson, 347 So. 2d 992 (Ala. Civ.App.1977). The difference between Jackson and this case is that in Jackson the creditor wrongfully declared the debtor to be in default and immediately took possession of the collateral, while in this case, after the Bank concluded that the prospect of payment was impaired, it negotiated with the defendants as to how to rectify the situation.[2] One of the options presentedthe one utlimately acted uponwas for the defendants to turn over the collateral. The defendants did so and then signed several releases, which in pertinent part state:
The defendants having signed this release, I believe that they are prohibited from now asserting that the repossession of the collateral was wrongful; the release clearly shows that the Bank's taking possession of the collateral was authorized and directed by the defendants. The defendants may have had a claim for fraud in the procurement of the releases. However, no claim that the releases were procured by fraud, i.e., that the defendants were induced to sign them by the Bank's misrepresentation that defendants were in default, was presented to the jury. In fact, the defendants depend upon the releases to support their accord and satisfaction defense.
In summary, the Bank was entitled to a directed verdict on the wrongful repossession claim, because the release conclusively proved that the taking of the collateral was not wrongful. Therefore, there was no basis for awarding defendants any compensatory or punitive damages on that claim.
[1] Code 1975, § 7-9-501(1), provides that after default the secured party "may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure." The creditor has the option as to which remedy he will pursue. 9 R. Anderson, Uniform Commercial Code § 9-501:11 (3d ed. 1985). As will be discussed in this opinion, the Bank in fact contemplated several courses of action.
[2] While the jury apparently concluded that the statement "Would you sign a release on these trucks so I can go ahead and sell them so I won't have to sue you and go through that court proceeding?" was an offer not to sue for a deficiency and gave rise to an accord and satisfaction, the statement may have been meant to indicate a desire to avoid reducing the Bank's claim to judgment or enforcing the security interest by judicial foreclosure. | March 20, 1987 |
8a6ac443-c76f-4b16-85eb-daf5aabc64a3 | Lee v. Clark and Associates Real Estate, Inc. | 512 So. 2d 42 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 42 (1987)
James K. LEE, et al.
v.
CLARK AND ASSOCIATES REAL ESTATE, INC.
85-389.
Supreme Court of Alabama.
March 27, 1987.
Rehearing Denied July 24, 1987.
*43 Ruben K. King, Montgomery, for appellants.
W.J. McDaniel and Connie Ray Stockham, of McDaniel, Hall, Conerly & Lusk, Birmingham, and Joe A. Macon, Jr., Wetumpka, for appellee.
MADDOX, Justice.
This appeal involves the question of the legal effect of a release executed by each of the plaintiffs in favor of each of the defendants. The trial court granted a summary judgment for defendants, and plaintiffs appealed. We affirm, in part; reverse, in part; and remand.
Plaintiffs James K. Lee, Joe P. Harwell, and James A. Anderson commenced this action in the Circuit Court of Elmore County against Clark & Associates Real Estate, Inc. ("Clark & Associates"), and Insurance Company of North America ("INA"). This action involves the construction and sale of a house located in Wetumpka, and plaintiffs sought to recover damages for alleged breach of express and implied warranties, fraud, and negligence by the defendants. Plaintiffs, after this suit was filed, received $47,500 as a settlement of the claim from INA and Aetna Insurance Company, and agreed to dismiss the lawsuit with prejudice. They executed a release as to all the appellees.
The house involved in this lawsuit is located at 312 Rosebusch Court in the Blue Ridge North Subdivision in Wetumpka. Clark & Associates built the house in 1976, and it remained vacant until James K. Lee and his wife purchased it in November 1978. Although Lee obtained a VA loan to finance the purchase of the house, he never lived in the house. The first person to move into the house was Tom Laile, who leased the house from Lee, the lease term beginning in December 1978.
While Laile lived in the house, he and Lee sought two arbitration hearings with the Home Owners Warranty Council, pursuant to the provisions of a homeowner's warranty policy. The house was insured through the Home Owners Warranty Corporation and INA, and the claims submitted to arbitration concerned the structural soundness of the house. Laile moved out of the house following the two arbitration hearings.
Lee sold the house to Joe Harwell in March 1981. Harwell, in deposition testimony, stated that at the time he purchased the house, he was not aware of any arbitration. Harwell also testified that he never questioned Lee about the structural soundness of the house or about whether he had had any problems with the house.
Harwell, who never lived in the house, sold it to Col. James Anderson. Anderson, in his deposition, testified that he moved into the house in July 1981 and that he never talked to Lee, Laile, or anyone at Clark & Associates before purchasing the house. Anderson testified that he realized that there were problems with the house about six months after he bought it. He contacted the Home Owners Warranty Council in February or March of 1982. About the same time, he had Ron Mason, a builder, come look at the house and note the problems. Anderson negotiated with Home Owners Warranty Council for several months. Then Home Owners Warranty Corporation hired an independent consultant from Atlanta, and ultimately paid Mason $2,700 to correct the alleged structural problems.
Anderson hired an architect to look at the house in the summer of 1982. The architect had looked at the house for Lee in 1979 or 1980. Anderson testified that the 27 items involved in the original arbitration *44 were basically the same as those he found wrong with the house after he moved into it.
In April 1984, during the pendency of this action, Home Owners Warranty Corporation and INA paid the appellants $47,500, representing settlement of their claims under the "limited warranty agreement," and the plaintiffs executed a release as to all parties.
The first two paragraphs of the release state:
The last paragraph of the release states:
Although the release recites that the appellants received $47,500 as a settlement and agreed to dismiss the lawsuit which is the subject matter of this appeal, with prejudice, they did not dismiss the lawsuit but appealed the trial court's order granting summary judgment based upon the provisions contained in the release.
The first issue raised is whether the trial court erred in granting the summary judgment. The plaintiffs contend that although they gave INA a total release from liability, they did not intend by executing it to totally absolve Clark & Associates from liability, and that the trial court erred in granting summary judgment. We agree.
Of course, summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). Summary judgment cannot be granted if a scintilla of evidence exists to support the non-movant's position. Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala.1982).
Applying these principles of law regarding summary judgment, we are of the opinion that it is not clear from the release that the plaintiffs did intend to release Clark & Associates "from any and all causes of action." The release does state that in accepting the $47,500, the plaintiffs released "any and all claims, `on account of or in any way arising out of the major structural defect claim'" in regard to the house on Rosebusch Court, which was the subject matter over which this lawsuit was brought, and agreed to "dismiss with prejudice the lawsuit known as James K. Lee, Joe P. Harwell and James A. Anderson v. Clark and Assoc. Real Estate, Inc., and Insurance Company of North America, CV-84-52, in the Circuit Court of Elmore County, Alabama." There is no evidence in this record which would support a judgment setting aside the release on the basis of fraud in its execution. Are plaintiffs now precluded from maintaining this particular action against Clark & Associates?
Because of the language used in the last paragraph of the release, that "[i]t is ... understood that this release is not intended to release the aforesaid Clark and Assoc. Real Estate, Inc., from any possible liability for damages not arising out of a part of the aforesaid claim under the Home Owners Warranty Documents, exemplified [sic] but not limited to liability based on common law negligence, breach of implied warranty, or strict liability in tort," we believe that the plaintiffs have shown that the terms of the release are ambiguous and that the intent of the parties to the release cannot be determined, as a matter of law. Consequently, the grant of summary judgment on the basis of the release was erroneous.
Because we hold that there is a fact question presented as to whether plaintiffs reserved the right to sue Clark and Associates for liability based on "common law negligence, breach of implied warranty, or strict liability in tort," we reverse the trial court's summary judgment as to plaintiff James Lee, but we affirm the judgment as to plaintiffs Anderson and Harwell.
Lee was an original purchaser from Clark and Associates, which was the builder/vendor of the house, and if Lee can prove to the satisfaction of a factfinder that he reserved the right to sue Clark and Associates on "common law negligence, breach of implied warranty, or strict liability in tort," then he may be able to maintain an action against Clark and Associates under this Court's decisions in Cochran v. Keeton, 287 Ala. 439, 252 So. 2d 313 (1971), and Sims v. Lewis, 374 So. 2d 298 (Ala. 1979), but not otherwise. Consequently, the trial court erred in granting summary judgment in favor of Clark and Associates as to plaintiff Lee, under the doctrine of Cochran v. Keeton, the only theory of liability, Lee argues, on appeal, he is entitled to prove. Neither appellant argues that a reserved right to sue exists as to any other form of action.
Assuming plaintiffs Anderson and Harwell reserved the right to sue Clark and Associates on a theory of implied warranty, the only theory they argue for on appeal, does such a cause of action exist in their favor? No such action would exist in this case as to them, because they were subsequent purchasers of the house. They contend that the doctrine of caveat emptor should be abolished as to subsequent purchasers of homes within a reasonable time after a house is purchased from a builder/vendor. They argue that Alabama should adopt the view, taken by a minority of states, that builders have a "duty of reasonable care" when constructing homes and that this duty extends to anyone "who may reasonably be endangered by their negligence." We refuse to adopt this minority view.
Alabama still retains the caveat emptor rule as regards the sale of used residential real estate. In Ray v. Montgomery, 399 So. 2d 230 (Ala.1980), this Court stated:
399 So. 2d at 233. See also, Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983); Wells v. Clowers Construction Co., 476 So. 2d 105 (Ala.1985). We are not inclined to depart from the longstanding rule that the doctrine of caveat emptor applies to subsequent purchasers of a house. Plaintiffs Anderson and Harwell, therefore, have no cause of action under the last paragraph of the release, under any theory.
Clark and Associates contends that, even assuming a cause of action was reserved *46 by any of the plaintiffs, any cause of action was barred by the statute of limitations.
Suffice it to say that this Court, in the case of Sims v. Lewis, 374 So. 2d 298 (Ala. 1979), addressed specifically the question of how long a time period the plaintiff had in which to file an action against a builder/vendor for breach of the implied warranty imposed by Cochran v. Keeton. The record before us does not show, as a matter of law, that plaintiff Lee would be barred from maintaining any action against Clark and Associates. The principles of law set out in that case are adequate to guide the trial court in ruling on this defensive issue.
Based on the foregoing, we hold that the judgment of the trial court is due to be affirmed, in part; reversed, in part; and remanded.
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur. | March 27, 1987 |
64652968-45a6-4518-8933-01fde0427a5c | Jones v. First Nat. Bank of Pulaski | 505 So. 2d 352 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 352 (1987)
Gary JONES and Katie Jones
v.
FIRST NATIONAL BANK OF PULASKI, et al.
85-1016.
Supreme Court of Alabama.
March 27, 1987.
*353 Stephanie W. Werdehoff of Stephens, Millirons, Harrison & Williams, Huntsville, for appellants.
Joe W. Henry, Jr., of Henry, Henry & Stack, Pulaski, Tenn., for appellees.
JONES, Justice.
This is an appeal by plaintiffs Gary and Katie Jones from a summary judgment granted in favor of defendants, First National Bank of Pulaski, Tennessee; First National Bank of Pulaski, Ardmore Branch; Barbara Hodges; and Marsha Thornton.
Gary and Katie Jones, husband and wife, are residents of Madison County, Alabama. This case arose out of a series of loan transactions between the Joneses and the First National Bank of Pulaski, Ardmore Branch (hereinafter referred to as the "Bank"). The final transaction occurred on December 21, 1981. On that date the plaintiffs executed to the Bank a promissory note, in the amount of $22,251.32, secured by a real estate mortgage of the same date. Additionally, plaintiffs signed a truth-in-lending disclosure form, a financing statement listing various items of personal property to further secure the loan, and a security agreement listing the personal property which would secure the indebtedness.
When plaintiffs were unable to make payments on the loan, the Bank repossessed farm equipment designated as security for the indebtedness and disposed of the property (which included a Du-All, a foldover disc, and a cultivator) at a sale which netted $362.50.
Plaintiffs brought an action against the Bank, Barbara Hodges as vice president of the Bank, and Marsha Thornton as an employee and agent of the Bank. Plaintiffs charged defendants with trespass, wrongful repossession, sale of personal property in a commercially unreasonable manner, failure to give proper notice of the sale, falsification, forgery of documents, and fraud and deceit.
The Bank denied generally and raised the affirmative defenses of failure to state a cause of action for which relief could be *354 granted, laches, estoppel, right of offset, right of entry upon the premises of plaintiff's pursuant to the terms of the mortgage and consent of plaintiffs. The Bank further affirmatively defended on the grounds of statute of limitations, and the assertion that its actions were in accord with the provisions of the mortgage entered into between the parties. In addition, the Bank counterclaimed for money due and owing because of default on the part of plaintiffs.
Plaintiffs generally denied the allegations of the Bank's counterclaim and raise as affirmative defenses estoppel, fraud, illegality, unconscionability, payment, and satisfaction.
Plaintiffs appeal from a summary judgment in favor of defendants. Although multiple issues are presented, our determination of one issuethat of sufficiency of notice under Tenn.Code Ann., § 47-9-504 is dispositive of this appeal.
Plaintiffs submit that the trial court erred in ruling that Tennessee substantive law is applicable. We disagree. The trial court was correct in ruling that Tennessee substantive law (the Tennessee version of the Uniform Commercial Code) applies, although we conclude that the basis for its reasoning is erroneous.
In analyzing a problem arising under the UCC, we must look initially to the UCC itself, for, as provided in § 1-103, UCC, appearing as § 7-1-103, Ala.Code 1975, and as § 47-1-103, Tenn.Code Ann.:
See Toomey Equipment Co. v. Commercial Credit Equipment Corp., 386 So. 2d 1155, 1159 (Ala.Civ.App.1980). Thus, we must first consult the UCC to see if there are relevant provisions suggesting the appropriate forum for trial of this cause. Here, the UCC covers the question of which state's law will govern. Under the UCC, parties to a security agreement are permitted to stipulate as to the governing law on matters not involving the rights of third parties, provided the law has a reasonable relation to the transaction. Coogan, Secured Transactions Under the Uniform Commercial Code, § 3A.06[1], at 212.9 (1985). Section 1-105(1), UCC, provides:
In each of the security agreements relevant to this action, wherein certain property belonging to plaintiffs was pledged as security for loans made by the Bank, the parties agreed that the Tennessee Uniform Commercial Code would be the applicable law.[1]
We find that Tennessee law has a reasonable relation to the transaction, because the bank from which loans were made is located in Tennessee.
Defendants admit that they did not send plaintiffs written notice that the repossessed *355 property would be sold. Rather, the Bank contends that Barbara Hodges, its agent, called Katie Jones a few days prior to the sale and informed her of the day of the sale.
In its order granting summary judgment on May 1, 1986, the trial judge found that the notice of the sale given to plaintiff Katie Jones was "more than adequate and clearly satisfied the dictates of the U.C.C. as codified in both Tennessee [Tenn.Code Ann., § 47-9-504] and Alabama [Code 1975, § 7-9-504]." The trial judge concluded that, because the debtor's wife was orally notified of the sale and the date of sale by Barbara Hodges, the debtors had actual notice; thus, the court concluded that the notice was valid under the UCC. The trial judge acknowledged that the question whether oral notice is sufficient under § 9-504 of the UCC is one of first impression in both Alabama and Tennessee. The trial court adopted the policy applicable in the state of Ohio, reasoning that the language in the code sections of the three states is virtually the same.
The conclusion drawn by the lower court is that since there was a cooperative effort between Katie Jones and the Bank to dispose of the items, any question of notice of sale would be immaterial under the UCC. Additionally, reasoned the court, because the Joneses had actual notice of the sale, the notice provisions were satisfied. The trial court points out that "the Ohio statute RC Section 1301.07; the Uniform Commercial Code Section 1-201(25); Tenn.Code Ann. § 47-1-201(25)[; and] Ala.Code § 7-1-201(25) all define notice as follows: `a person has notice of the fact when: (1) he has actual knowledge of it; or (2) he has received a notice or notification of it; or (3) from all of the facts and circumstances known to him at the time in question he has reason to know that it exists.'" (Emphasis in the trial court's order.)
Finally, the trial court relies on the definition of "notice" in the UCC, which provides that a person receives notice of something when that thing comes to his attention. (See Tenn.Code Ann., § 47-1-201(26), and Ala.Code 1975, § 7-1-201(26).)
We do not agree with the trial court's analysis.
Tenn.Code Ann., § 47-9-504, deals with a secured party's right to dispose of collateral after default. The particular provision relevant to the instant case reads:
Tenn.Code Ann., § 47-1-201(38), defines "send" as:
We think it clear that "send," as used in § 47-9-504(3), encompasses more than a mere oral communication.[2] As indicated by *356 Professors James J. White and Robert S. Summers in their treatise, Uniform Commercial Code (2d ed. 1980) at 1112-13:
We think the White and Summers analysis to be the better interpretation. And although there are no Tennessee cases on point, in our study of that State's cases construing the notice provision of § 47-9-504(3), we read a general supposition that notice will be in writing.
Tennessee courts have held that "[t]he purpose of the [notice] requirement is to enable the debtor to protect his interest in the property by paying the debt, finding a buyer or being present at the sale to bid on the property or have others do so, to the end that it be not sacrificed by a sale at less than its true value." Commercial Credit Corp. v. Holt, 17 U.C.C.Rep. 316 (Tenn.App.1975), quoting Mallicoat v. Volunteer Finance & Loan Corp., 415 S.W.2d 347 at 350, 3 U.C.C.Rep.Serv. at 1038 (Tenn.App.1966). See, generally, Walker, "Creation, Perfection, and Enforcement of Security Interests Under the `Tennessee' Commercial Code," 48 Tenn.L.Rev. 820, 872-78 (1981). Taking this determination of the purpose of notice as a basic proposition, we next look to the Tennessee courts' treatment of the notice requirement in contexts other than the issue on appeal.
Mallicoat v. Volunteer Finance & Loan Corp., 415 S.W.2d 347 (Tenn.App.1966), is an oft-cited case dealing with the notice requirement of Tenn.Code Ann., § 47-9-504. Mallicoat held that it is not enough that a creditor has sent notice by registered mail, when that creditor is aware that the debtor never received the notice and the creditor had information which would allow the notice to reach the debtor.
Further, in Mallicoat, it was stated that "[t]he requirement of notice is for the benefit and protection of the debtor. This provision of the Act should be construed and applied in a manner to effectuate this salutary purpose and in the light of Tennessee law." 415 S.W.2d at 350-51.
Commercial Credit Corp. v. Cutshall, 28 U.C.C.Rep.Serv. 277 (Tenn.App.1979), is another Tennessee case dealing with the notice requirement of § 47-9-504. In it, the plaintiff, a secured creditor, sued the defendant debtor for a deficiency remaining on a debt owed after a sale of the repossessed property. The debtor contended that the creditor had failed to comply with the notice provisions of Tenn.Code Ann. § 47-9-504 in the sale of the property and that the sale was not conducted in a commercially reasonable manner. The creditor had mailed notices of the sale to Plaintiff and his ex-wife at separate addresses. (Plaintiff and his ex-wife had both signed the note which evidenced the indebtedness.) The letters were sent "Registered Mail, Return Receipt Requested." Plaintiff's ex-wife received her notice; however, plaintiff's letter was returned to the creditor, unopened, and with the notation "unclaimed" written on it. Creditor attempted unsuccessfully to reach plaintiff, by phone, at his place of business. The creditor never attempted, however, to ascertain the plaintiff's correct address or to contact him by letter in care of his place of work. The creditor posted a notice of sale at its office and the repossessed items were sold at private sale.
*357 In discussing the issue of notification, the Tennessee Court of Appeals stated:
The court then held that the creditor had complied with the notice requirements of the UCC because he had sent a letter to the debtor informing him of the private sale, and the date thereof, and "the mailing of that letter constituted the sending of reasonable notification as required by statute. TCA § 47-9-504(3); TCA § 47-1-201(26) and (38)." 28 U.C.C.Rep.Serv. at 281.
It appears, then, that at a minimum, Tennessee courts require that in order to have a commercially reasonable sale, the creditor must send written notice of the proposed sale, and, whether the sending of the notice alone is enough to bring that sale within the requisites of § 47-9-504(3) depends on the facts of the case. Thus, the defendant Bank in this case should have, at a minimum, caused written notice to be delivered or sent to the Joneses. "In Tennessee, in a suit for a deficiency judgment, the creditor bears the burden of proving the commercial reasonableness of his disposition of repossessed property. * * * One aspect of commercial reasonableness is the notice requirement of TCA § 47-9-504(3)." Commercial Credit Corp. v. Holt, supra, at 320.
We find that, because the notice requirement of Tenn.Code Ann., § 47-9-504(3), was not complied with, the sale was not commercially reasonable. Under Tennessee law, the consequence of failure to sell collateral in a commercially reasonable manner is a situation where the secured creditor may recover the deficiency, but the recovery is subject to a reduction for any damages suffered by the debtor as a result of the noncompliance. This principle is outlined in Commercial Credit Corp. v. Holt, supra, at 322:
For the above stated reasons, the summary judgment is reversed, because of the trial court's finding on the sufficiency-of-the-notice issue under Tenn.Code Ann., § 47-9-504(3), and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., and BEATTY, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting):
I respectfully dissent.
The last sentence of Tenn.Code Ann., § 47-1-201(38), provides: "The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending." (Emphasis added.)
Tenn.Code Ann., § 47-1-201(25) defines "notice" as follows: "a person has notice of the fact when: (1) he has actual knowledge of it." (Emphasis added.)
The trial court found that Katie Jones had actual knowledge of the sale three or four days before the sale. Therefore, I would affirm the trial judge's finding that notice was "more than adequate and clearly satisfied the dictates of the U.C.C. as codified in both Tennessee [Tenn.Code Ann., § 47-9-504] and Alabama [Code 1975, § 7-9-504]." I agree with the trial judge.
TORBERT, C.J., and BEATTY and STEAGALL, JJ., concur.
[1] Preprinted documents, dated November 18, 1976, March 31, 1977, February 3, 1978, May 15, 1978, April 20, 1979, January 13, 1981, and December 21, 1981, and entitled "Security Agreement (Chattel Mortgage Form for Use With All Types of Collateral)," evidence agreements between the Bank and Gary Jones. The documents contain the following language:
"Gary Jones hereinafter called `Debtor,' whether one or more, hereby grants to First National Bank of Pulaski, Pulaski, Tennessee, hereinafter called `Secured Party,' a security interest pursuant to the Uniform Commercial Code (Tennessee) in and to the following described property:...."
[2] For a compatible interpretation under Alabama law, see Simmons Machine Co. v. M & M Brokerage, Inc., 409 So. 2d 743 (Ala.1982).
[3] Section 47-9-507(1) reads as follows:
"If it is established that the secured party is not proceeding in accordance with the provisions of this Part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent (10%) of the principal amount of the debt or the time price differential plus ten percent (10%) of the cash price."
[4] This footnote is part of the quoted portion of the case:
"If the collateral is consumer goods, the debtor has the right to recover, in any event, not less than the credit service charge plus ten per cent of the (original) principal amount of the debt, or the time price differential plus ten per cent of the cash price. TCA § 47-9-507(1). Examples of this computation may be found in White & Summers, Uniform Commercial Code § 26-14 at 998 (1972)."
[5] But note the more recent case of Provident Employees Credit Union v. Austin, 31 U.C.C.Rep. Serv. 786, 788 (Tenn.App.1981), where the Eastern Section of the court, in ruling in a deficiency suit, stated:
"[T]his cause will be remanded to the trial court solely to determine what amount if any, is due the Credit Union after offsetting the defendant [debtor] for the fair value of the collateral which was sold with improper notice."
For a discussion of the Holt and Provident cases, see Walker, "Creation, Perfection, and Enforcement of Security Interests Under the `Tennessee' Commercial Code," 48 Tenn.L.Rev. 820, 872-78 (1981). | March 27, 1987 |
1e27be45-f7b1-45dc-bef7-bb600efd1ae5 | Martin v. Watts | 513 So. 2d 958 | N/A | Alabama | Alabama Supreme Court | 513 So. 2d 958 (1987)
Kerri M. MARTIN, Ricky J. Martin, and April Kelli Hazelrig
v.
Richard P. WATTS and Huntsville Jaycees, Inc.
84-1007.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied May 8, 1987.
Charles C. King and Charles A. Sullins, Huntsville, and Francis H. Hare, Jr., and D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
E. Cutter Hughes, Jr., and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee Richard P. Watts.
Don G. DeCoudres, Birmingham, for appellee Huntsville Jaycees, Inc.
PER CURIAM.
This is an appeal from a summary judgment made final pursuant to Rule 54(b), A.R.Civ.P. Defendants, Richard Watts, David Worley, and Huntsville Jaycees, Inc. ("Jaycees"), were alleged to have participated in sponsoring or to have assisted in sponsoring a party at which alcoholic beverages were provided to minors.
Two of the minors became intoxicated and caused an automobile accident in which plaintiffs were injured and another person was killed. The plaintiffs brought an action for damages against these defendants and others. Settlements have been reached with some of the original defendants, while others have been dismissed.
Defendants Watts and Jaycees filed motions to dismiss and motions for summary judgment. The lower court denied the motions to dismiss. In considering the motions for summary judgment, the trial court addressed two issues: First, whether an action for damages under the Alabama Dram Shop Act could be brought against either the Huntsville Jaycees or Watts, and second, whether an action founded upon common law negligence principles would lie against either defendant? Judge Smith, in a lengthy and scholarly order which traces *959 the history of legislation affecting alcoholic beverages in this state, held that an action will not lie on either theory and granted summary judgment for Watts and the Jaycees.
The following facts are taken from Judge Smith's order.
The Huntsville Jaycees, Inc.
The Huntsville Jaycees, Inc., is a service organization created to benefit and improve the city of Huntsville. According to 11 World Book Encyclopedia 51 (1976),
Included among the many community programs which the Huntsville Jaycees conducted was its sponsorship of the Huntsville High School Junior Jaycees.
The Huntsville High School Junior Jaycees
The Huntsville High School Junior Jaycees ("HHS Jr. Jaycees") is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. The following boys were officers of the HHS Jr. Jaycees during the 1981-82 school year: President: John Watts (son of defendant Richard Watts); Vice President: Drew Crow; Secretary: David Vest; and Treasurer: Wes Neighbors (son of William W. "Billy" Neighbors, Jr.). These boys were responsible for planning and preparing the party where the alcoholic beverages were consumed.
Mrs. Sandra Norton was the school faculty sponsor; however, she took no part in the affairs of the club. According to testimony, she was "just a name used by the club to comply with the stated school policy."
David Worley
David Worley is an attorney. He is associated with the Huntsville Jaycees, Inc., and served as "sponsor" for the HHS Jr. Jaycees chapter. In that capacity, he served as liaison between the two organizations and coordinator of their joint activities. To perform those duties, Worley attended meetings of both clubs.
Richard Watts
Richard Watts is the father of John Watts, the president of the HHS Jr. Jaycees. He and his wife, Jean Watts, are part owners of a lake cabin where this party was held.
The Party
Each year for a number of years, the HHS Jr. Jaycees had held "a big social event" for the club members and their invited friends. Thus, at one of the last club meetings during the 1980-81 school year, the members discussed party plans. Someone suggested a place where the beer might be purchased, but Worley, who was present, stated that he could get the club "a special deal." According to deposition testimony of Wes Neighbors,
On Friday, May 15, 1981, following the end of classes for the day, Neighbors drove with David Vest to the law office of Worley with a check drawn on the "Huntsville High School Imprest Account" and made payable to Wes Neighbors. Neighbors endorsed the check and gave it to Worley. He and David Vest then followed Worley to Turner Beverage Company. Worley also endorsed the check, and handed it to Tully Turner, owner of the beverage company. Half-cases of beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. Next, they proceeded to the residence of Worley, where they stored the beer on Worley's back porch.
The following morning, Saturday, May 16, 1981, Neighbors and Vest returned to Worley's home. They loaded the beer into a pick-up truck and covered it with tarpaulins. *960 After meeting fellow club members John Watts and George Mahoney, they transported the beer from Huntsville to the cabin on Guntersville Lake in Marshall County.
When the four boys arrived at the Watts cabin, around noon, they iced the beer down in six coolers. John Watts had obtained these coolers from a building owned by the Jaycees.[1] Soon other HHS Jr. Jaycees and their guests began to arrive. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help himself to as much as he desired. According to Neighbors, just about everybody who attended the party "was pretty much intoxicated." He described the party as "wild, a melee." Four young people passed out totally and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle.
Adults present during the party were: Billy Neighbors, the father of Wes Neighbors; Richard Watts, owner of the cabin and father of club president John Watts; and David Worley, who attended the party in his capacity as club "sponsor." Around 3:30 p.m., Billy Neighbors decided that things were getting out of hand; he and Richard Watts called a halt to the party. Richard Watts told the boys to load the beer back into the pick-up truck. Warren Bradford, age 18, was one of the boys who became intoxicated. Billy Neighbors told John Watts to remove the ignition keys from Bradford's vehicle. The keys were given to Bradford's companion, Mark Pullen, age 17. Pullen was told that he was to drive the vehicle back to Huntsville.
Pullen and Bradford left around 4 or 4:30 p.m., with Pullen driving. After they left, Bradford demanded forcefully that Pullen let him drive the car. Pullen stopped the vehicle and the boys changed positions.
Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, "moving to the [beat of the] music" playing on the car's stereo, laughing, and "in a good mood," Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and into the path of plaintiffs' on-coming vehicle.
Neither Pullen nor Bradford was injured very badly. However, the driver of the other car, Georgia L. Hazelrig, was killed. Her two daughters, Kerri Martin and April Hazelrig, were gravely injured.
Appellants argue that the appellees should be amenable to suit because appellees created and controlled a dangerous and foreseeable risk of harm. They contend that Judge Smith erred in holding as a matter of law that there was no cause of action which would lie against these defendants for their part in promoting a party at which alcoholic beverages were served to minors.
The essential element underpinning Judge Smith's order is an assumption that there can be no right of action against a noncommercial supplier of alcoholic beverages. Appellees go one step further and argue that to hold otherwise would amount to a social host liability. At the outset, a very important distinction should be made. The facts of this case do not require us to consider social host liability. Here we are concerned only with the providing of alcoholic beverages by adults to minor school children, which is a clear violation of law.
Appellants contend that they should have been allowed to proceed under Code 1975, ง 6-5-71(a), Alabama's Dram Shop Act. Appellees contend that this section does not pertain to dispensing outside of the commercial setting.
The relevant portion of the Dram Shop Act provides:
Code 1975, ง 6-5-71(a). Whether an action will lie under this section depends upon a statutory construction of two of the operative terms of the Act. We must determine the effect of the phrases "selling, giving or otherwise disposing of" and "contrary to the provisions of law". Section (a) of the statute contains a compound subject, modified by a dependent clause, and a predicate, modified by a series of prepositional phrases and a dependent clause. Stripped of their modifiers the subject is "every wife, child, parent, or other person," and the predicate is "shall have a right of action." Thus it can be seen that the overall purpose of this sentence is to create a cause of action.
We are concerned here with the effect of the modifiers of the predicate. The right of action is granted "against any person who shall ... cause the intoxication" of the intoxicated person referred to in the dependent clause which modifies the subject. The language represented by the ellipsis in the preceeding quotation consists of a compound prepositional phrase. The gerunds "selling," "giving," and "disposing of" form the compound object of the preposition "by". These gerunds are modified by the phrases "to another" and "contrary to the provisions of law," and take the compound object "any liquors or beverages." By analyzing the sentence grammatically we are able to arrive at the cause of action which has been created. The gerundial phrases act as modifiers of the verb of the dependent clause in the predicate, "who shall ... cause intoxication." The effect of these modifiers is to identify who may be sued and under what circumstances. That is, the right of action is granted "against any person who shall ... cause the intoxication of [the] person [injuring the plaintiff]," (1) "by selling ... to another, contrary to the provisions of law, any liquors or beverages," (2) "by giving ... to another, contrary to the provisions of law, any liquors or beverages," or (3) "by otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages."
Our responsibility is to apply the statute according to the intent of the legislature. In discerning the intent of the legislature the Court looks solely to the language of the act, unless it appears that the wording is ambiguous or leads to a result which the Legislature could not have intended. Alabama Industrial Bank v. State Ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970).
We note that the legislature, in describing the conduct which will trigger the application of ง 6-5-71, has employed words and phrases which have or suggest a general application: "any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law." Had the legislature intended to limit the class of persons against whom an action could be brought, the draftsmen could certainly have employed words much better suited to an expression of such an intent. If it was the intention to create a right of action against only that narrowly defined class of persons, i.e., "commercial dispensers," the draftsmen could have incorporated that term into the act. Or, they could have stopped with the words "by selling." They did not do that. Instead, they included the terms "giving" and "otherwise disposing of." It is hard to imagine a phrase more expansive than "otherwise disposing of."
However, these gerunds are further modified by the phrase "contrary to the provisions of law." Appellees argue that this is evidence of a legislative purpose to regulate those in the business of selling alcoholic beverages. Here also, the choice of words is significant. Elsewhere in the Code, under Title 28, the legislature has enacted an elaborate scheme for regulating the manufacture, dispensing, and consumption *962 of alcoholic beverages. If the purpose was to tie the causes of action allowed under ง 6-5-71 to the legislature's regulation of the industry, that purpose could have been clearly expressed by a specific reference to the provisions under Title 28; the drafters could have provided "in violation of the regulations of Title 28." Such is not the case. Rather, we find the words "contrary to the provisions of law." Again, it is difficult to imagine a compilation of words suggesting a broader application.
Much attention has been devoted to a historical discussion of the Dram Shop Act. Section 6-5-71 is virtually a word-for-word codification of the language of ง 8 of the 1909 Act which first created the cause of action. Act No. 191, ง 8, 1909 Ala. Acts, p. 65. To determine whether the draftsmen of the 1909 Act intended to restrict its application to the commercial setting, we turn to the definitional section of that Act. Section 31 of the 1909 Act defines the term "otherwise dispose of":
Id. at p. 96 (emphasis supplied).
It is important to observe that the 1909 Act, of which the civil remedy was but one small part, was a very broad enactment intended to "suppress the evils of intemperance," p. 63. A perusal of the entire Act, which spans 33 pages, reveals that much of the current law regulating alcoholic beverages may also be traced to the 1909 Act. The fact is, the Act of 1909, just like the current provisions affecting "dry counties," prohibits virtually all use of alcoholic beverages, without regard to their source. But see Code 1975, ง 28-4-200.
Appellees go beyond the specific wording of the statute in search of support for their position. They present three additional factors which they contend provide such support: (1) the fact that the section is listed under the heading "ARTICLE 6. ILLEGAL LIQUOR SALES"; (2) the fact of frequent reference by this Court in prior cases to ง 6-5-71 as the "Dram Shop Act"; and (3) that prior opinions of this Court imply that a commercial sale is a prerequisite to an action under ง 6-5-71. The latter two factors are readily dismissed. The specific question not having been before the court, the prior case law "implying" such an intent of the legislature provides no guidance and amounts to little more than dicta. Likewise, there is no precedential value in the past references by the Court to ง 6-5-71 as the "Dram Shop Act" when that limited question was not being considered. See Ward v. Rhodes, Hammonds & Beck, 511 So. 2d 159 (Ala.1987) (Jones, J., concurring, n. 1) (stating that the label "Dram Shop Act" is a misnomer).
Appellees assert that the legislature's designation "ARTICLE SIX. ILLEGAL LIQUOR SALES" is evidence of an express intent of the legislature to regulate illegal liquor sales. Certainly, if the reader looked at nothing more, the designation would alert in the reader an expectation that Article Six deals with illegal liquor sales. But, appellees attach too much significance to the name given to Article Six. As has already been pointed out, Article Six comes under Chapter 5, "ACTIONS," of Title Six, "CIVIL PRACTICE." Its purpose is to provide a civil remedy for a civil wrong arising out of a violation of law. The designation given by the legislature does no more than alert the reader to the general subject matter covered by the provisions of the Article. See Alabama Constitution 1901, Art. IV, ง 45. The designation is not accorded greater dignity than the substantive provisions of the Article. It is to be read consistent with those provisions, not vice versa, and should not impute a meaning different from that provided by the language of the statute. Where most acquisitions of alcoholic beverages originate from a commercial transaction, *963 it would not be unreasonable to anticipate that most acts giving rise to a civil remedy under ง 6-5-71 would also originate from a commercial transaction. Nor would it be unusual for the draftsmen to reflect that fact by designating the Article "ILLEGAL LIQUOR SALES." We think that the legislature did no more than seize upon a label which would succinctly state the general nature of the causes of action covered under Article Six.
Section 6-5-71 creates a civil remedy against persons who, contrary to law, cause the intoxication of another by providing the other person with alcoholic beverages, when the plaintiff is injured because of the intoxication. The term which most narrowly limits this cause of action is the requirement that the providing of the alcoholic beverages be contrary to law.
The legislature has prohibited all use of alcoholic beverages by minors. Code 1975, ง 28-3A-25(a)(19). Pullen and Bradford were both minors when the lake party was held. See Code 1975, ง 28-3A-2(18); cf. Acts 1986, No. 86-212, ง 2, effective April 1, 1986. It was the clearly stated intent of the legislature that these minors not have access to alcoholic beverages. It has long been recognized that "The sale or furnishing of prohibited alcoholic beverages to a minor is ... unlawful whether made by a licensee in a wet county, or by a nonlicensee in any territory in this State." Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951).
The trend in recent decisions of other jurisdictions is to allow causes of action where adults have assisted in furnishing alcoholic beverages to minors. See the appendix to this opinion.
There are no facts to support an allegation that Watts provided any of the alcoholic beverages consumed by the minors. One of the elements of the cause of action under the Dram Shop Act is that the defendant provide alcoholic beverages to the intoxicated person who caused the injury to the plaintiff. Appellee Watts states in his brief that his only connection to the HHS Jr. Jaycees lake party was his ownership interest in the cabin and his presence during the party; that he took no part in providing the minors with alcoholic beverages. This has not been contested by Appellants in their brief. Therefore, summary judgment was properly granted for Watts.
We hold that a common law cause of action does not lie in this case, notwithstanding the case of Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984). See Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So. 2d 159 (Ala.1987).
Therefore, the judgment for Watts is affirmed. The judgment for Huntsville Jaycees, Inc., is reversed, and the cause is remanded for trial.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result insofar as it affirms the summary judgment for defendant Watts, and insofar as it holds there is no liability under common law negligence, but otherwise dissents.
Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir.1986). (Applying Pennsylvania law, Court of Appeals held that questions of material fact existed as to whether persons helped organize party for purposes of serving alcoholic beverages to minors, and whether they provided substantial assistance to minor in his consumption of alcoholic beverage, thus precluding summary judgment.)
Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985). (Analogizing to the rule that an owner of an automobile is liable when he entrusts it to an intoxicated individual, the court held that a person who encouraged an intoxicated minor to have *964 more drinks, knowing the minor would be driving an automobile, could be liable to a third person injured by the negligence of the intoxicated minor.)
Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974). (Violation of statute providing "No alcoholic beverages shall be sold, bartered, exchanged, given, provided or furnished, to any person [under age]" is negligence per se. Cause of action existed where adult acquiesced in minors' helping themselves to liquor from her refrigerator.)
Williams v. Klemsrud, 197 N.W.2d 614 (Iowa 1972). (Court found right of action under Dram Shop Act, against person "not engaged in liquor traffic" for having provided liquor to minor.) See also, Lewis v. State, 256 N.W.2d 181 (Iowa 1977).
Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985). (Violation of sections of liquor statute prohibiting furnishing of liquor to minor gave rise to action in favor of minor who was served and later injured himself.)
Reinert v. Dolezel, 147 Mich.App. 149, 383 N.W.2d 148 (1985). (Cause of action lies against defendants who furnished alcoholic beverages to persons under the legal drinking age.)
Lover v. Sampson, 44 Mich.App. 173, 205 N.W.2d 69 (1972). (Though the Dram Shop Act applied only to commercial vendors, nevertheless an action can be brought by an injured party against a non-commercial supplier who provides alcoholic beverages to a minor.)
Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972). (Court found liability against individuals who purchased liquor for 19-year-old and held that Dram Shop Act, though never before applied in a non-commercial setting, imposed liability on all violations.)
Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (1976). (Without reference to any statute, Court held that furnishing of alcoholic beverages to minors in a social setting may give rise to a suit for injuries to third parties.)
Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984). (Violation of statute prohibiting dispensing of alcoholic beverages to minors gave rise to action by third parties injured by intoxicated minor.)
Huyler v. Rose, 88 App.Div. 755, 451 N.Y.S.2d 478 (1982). (Court found no cause of action under Dram Shop Act, but a common law duty to control the conduct of minor who was intoxicated, argumentative, and combative.)
Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). (Cause of action lies against fraternity that hosted party and served alcoholic beverages to minors and knew, or should have known, that minors were being served.)
Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). (Though court held in companion case that ordinarily there exists no liability on the part of a social host, an action does lie where the server provides alcohol to a minor.)
Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). (Following Congini, court held that "Defendants were more than mere social hosts furnishing liquor, they were knowledgeable persons providing alcohol to a minor....")
Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985). (In action against hosts of high school graduation party, it was negligence per se to furnish liquor to a minor.)
United Services Automobile Ass'n v. Butler, 359 So. 2d 498 (Fla.Dist.Ct.App.1978). (Deferring to the State legislature, the Court noted that historically there has not been a common law action against the dispenser and that Florida has no Dram Shop Act.)
Cory v. Shierloh, 29 Cal. 3d 430, 174 Cal. Rptr. 500, 629 P.2d 8 (1981). (California statute explicitly bars suit against all dispensers.)
Holmquist v. Miller, 367 N.W.2d 468 (Minn.1985). (Civil Damage Act preempts a cause of action against non-commercial *965 dispenser, whether recipient was an adult or a minor.)
Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979). (Citing public policy grounds, the court distinguished between the justifications supporting imposition of liability on the commercial vendor and on the non-commercial dispenser and held that the justifications were not sufficient to warrant extension of liability to the non-commercial vendor. Overruled in Nehring v. LaCounte, 712 P.2d 1329 (Mont.1986) (not involving a minor or a non-commercial dispenser), insofar as Runge holds that "the drinking of the intoxicating beverage, not the furnishing thereof, is the proximate cause of any subsequent injury.")
HOUSTON, Justice (concurring in part and dissenting in part).
I withdraw my original opinion (concurring in part and dissenting in part, issued May 1, 1987) and in its place substitute the following:
Dram Shop Act actions brought under ง 6-5-71(a), Code 1975, are recognized in Alabama against licensed vendors and purveyors of alcoholic beverages. Certainly there was a scintilla of evidence that Turner Beverage sold beer to minors who were members of the Junior Jaycees; that Turner Beverage accepted a check drawn on the Huntsville High School Imprest Account for this beer; that the check contained the notation "For Jr. JC'sโ"Lake Party Expenses"; and that the beer was removed from Turner Beverage's warehouse by these minors and Turner's employees. Turner Beverage was a licensed vendor and purveyor of alcoholic beverages. Clearly, an action under the Alabama Dram Shop Act against Turner Beverage would have withstood a motion for summary judgment. Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984). However, that is not the case before this Court. Here the plaintiffs sought to extend the Dram Shop Act to reach the Huntsville Jaycees, Inc., a service organization, which is neither a licensed vendor nor purveyor of alcoholic beverages, and as such in my opinion had no liability under the Alabama Dram Shop Act. The majority opinion permits this.
The majority opinion extends the Alabama Dram Shop Act to social hosts if minors are involved. The Jaycees neither sold nor gave the beer to the minors. In some way, without any evidence of authorization or ratification that I can find in the record, an honorary member, not an active dues paying member served as sponsor of the Junior Jaycees and otherwise disposed of beer to minors by assisting the minors to purchase the beer. How an illegal act of an honorary member of a service organization which is not authorized or ratified becomes the act of the service organization is not addressed by the majority opinion.
I am persuaded that Judge Lynwood Smith's "Memorandum of Opinion and Order on Motions for Summary Judgment" is correct and should be affirmed. Judge Smith presented, in complete and masterful fashion, the reasons for his decision. To the extent that I dissent, I adopt Judge Smith's opinion as my own. It is as follows (omitting citations to the relevant pages of the trial record):
"These consolidated actions are before the Court on the motions for summary judgment filed by defendants Huntsville Jaycees, Inc., and Richard P. Watts. Upon consideration of the pleadings, affidavits, depositions, and briefs of counsel, the Court renders the following memorandum of opinion and order.
"On May 16, 1981, the Huntsville High School Junior Jaycees club hosted a party at the lake cabin of defendant Richard P. Watts. The cabin is situated on Guntersville Lake in Marshall County, Alabama, a `dry county.' All but a handful of the persons who attended the party were minors. Nonetheless, a large quantity of iced *966 beer was freely available to all who desired to consume it. The beer had been purchased for the Junior Jaycees by an adult, defendant David E. Worley, with funds provided him by the Junior Jaycees club. David E. Worley was a non-voting, semi-retired, `honorary member' of defendant Huntsville Jaycees, Inc., but he had been approved by that organization as `sponsor' of (or liaison to) the Huntsville High School Junior Jaycees club. Mr. Worley was present at the lake party for a portion of the afternoon it was held, but he personally made no effort to restrict the consumption of beer by the minors present. Moreover, even though defendant Richard P. Watts was present for all but thirty minutes of the party, he also made no effort to restrict the consumption of beer until it became obvious that matters were getting out of hand. As subsequent events proved, however, it was by then too late. One of the young persons present, who had consumed beer to the point of intoxication (former defendant Warren Lee Bradford) was involved in an automobile collision while driving back to Huntsville. The driver of the vehicle he struck was killed, and her two daughtes were seriously injured. Hence, these consolidated actions.
"The motions raise a number of troublesome questions. In the main, however, there are two, overwhelming questions. One, does an action for damages under the Alabama dram shop act lie against either the organization that established and sponsored the Huntsville High School Junior Jaycees club, or the property owner who permitted the party to be held on his premises? Two, if not, does an action founded upon common law principles lie against either defendant?
"Surprisingly, neither question has been squarely answered by the appellate courts of this State. There is no decision on all fours. Consequently, close attention must be paid to those appellate decisions and other authorities which may be found, in order to glean a direction for reasoning. Hence the following detailed analysis of the facts and law applicable to these actions.
"A. THE HUNTSVILLE JAYCEES, INC.
"`The Huntsville Jaycees, Inc. is a service organization created to benefit and improve the City of Huntsville.' It is affiliated with a national organization founded in 1920, and then known as the `Junior Chamber of Commerce.' (The name was changed in 1965 to the `United States Jaycees.')
11 World Book Encyclopedia 51 (1976). Jaycees believe, as a creed ...:
"Ernest C. Kaufmann II was President of the Huntsville Jaycees, Inc., from June 1, 1980, through May 31, 1981. That year, the local Jaycees had `a minimum' of 300 members. The general membership met twice each month, as did the Board of Directors (but on dates different from the general membership meeting).
"The Huntsville Jaycees, Inc., conducted a number of community programs during 1980-1981. At least one of those programs (the Northeast Alabama State Fair) generated a large cash flow. Nonetheless, the `corporation' was loosely structured. Minutes of meetings were kept only on a `sporadic basis.' There was neither a central depository for, nor any member designated to preserve, corporate documents on a `permanent basis.' Rather, all organizational *967 records were `kept ... loose,' in the home or garage of the individual who was secretary during any particular organizational year.
"B. THE HUNTSVILLE HIGH SCHOOL JUNIOR JAYCEES
"The Huntsville High School Junior Jaycees (HHS Jr. Jaycees) is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. All general meetings of the club (with the exception of the year-end Awards Banquet and Lake Party) are held in Huntsville High classrooms. Election of new members to the club and of officers for the succeeding year, occurs near the end of each school year. Thus, in late April or early May of 1981 the following young men were elected officers of the HHS Jr. Jaycees for the forthcoming 1981-1982 school year:
"PRESIDENT: John Watts (son of Richard P. Watts);
"VICE-PRESIDENT: Drew Crow;
"SECRETARY: David Vest; and,
"TREASURER: Wes Neighbors (son of Wm. W. `Billy' Neighbors, Jr.). This new slate of officers was responsible for planning and preparing both the 1980-81 year-end Awards Banquet and [the] Lake Party.
"C. DISTINCTIONS BETWEEN THE TWO ORGANIZATIONS
"The defendant Jaycees did not control the day-to-day activities of the HHS Jr. Jaycees. There really is no question about that. Rather, as David Vest (Secretary of the HHS club) testified, the Junior Jaycees did not seek the `input' or `permission' of the Huntsville Jaycees, Inc., for every club activity. `It was our club to run as we saw fit in an orderly and respectful manner.' Thus, the HHS Jr. Jaycees engaged in school activities, and, conducted community service projectsโ"such as helping at `an old folks' home'โ"independent of the defendant Jaycees.
"Moreover, the Huntsville Jaycees, Inc., did not provide any financial assistance to the HHS Jr. Jaycees. The high school organization was `self-sustaining.' Each school year, the club would raise its own funds by means of such things as `a talent... or gong show,' or firewood sale. The proceeds from those projects were deposited to the `Imprest Account' maintained by the administration of Huntsville High School, and drawn on as necessary to meet club expenses. The expenditures occasioned by the year-end Awards Banquet and Lake Party, for example, were paid by means of checks drawn on that account.
"Nonetheless, there were seven significant connections between the defendant Jaycees and the HHS Jr. Jaycees during 1980-1981. And it is those connections that now shall be discussed.
"D. CONNECTIONS BETWEEN THE ORGANIZATIONS
"First among such connections, of course, is ... the fact that both organizations share the name of `Jaycees.' The implications of that shared title are obvious, in spite of the many ways in which the defendant Jaycees have sought to disavow any relationship. Nevertheless, it is undisputed that the Huntsville Jaycees, Inc., `established' and `organized' the Junior Jaycee chapters in area high schools. [Testimony of Randy Morris.][1] Moreover, it is not disputed that the parent organization appointed individuals to `stay in touch with' the high school chapters for the purposes of coordinating common community activities (discussed infra), determining whether the junior clubs needed assistance from the senior club, and also ensuring that the high school chapters `keep [to] that purpose' for which they were established.
"Second, the HHS Jr. Jaycees assisted each year in the `March of Dimes Walkathon' *968 sponsored by the Huntsville Jaycees, Inc. In that activity, the Huntsville Jaycees solicit area elected officials, personalities, dignitaries, and other `residents [to] walk 15 miles and get money donated per mile' for the benefit of the March of Dimes. Members of the HHS Jr. Jaycees were stationed at each of the fifteen-mile checkpoints, and stamped each participant's card for verification of the distance walked.
"Third, the HHS Jr. Jaycees assisted every year in the conduct of the `Northeast Alabama State Fair' by:
In other words, from Monday through Saturday night of each Fair week, the HHS Jr. Jaycees performed many of the same functions as members of the Huntsville Jaycees, Inc., `[w]ith the exception of handling money.'
"Fourth, each organizational year the Huntsville Jaycees, Inc., designated one general membership meeting as `Junior Jaycee Night.' The officers of Junior Jaycee chapters were invited to attend, and were recognized at that meeting.
"Fifth, in return for the assistance they rendered the parent Jaycee organization during the March of Dimes Walkathon and the Northeast Alabama State Fair,
[Emphasis added by Judge Smith.][2]
"The sixth connection is an ironic one. The defendant Jaycees took credit for sponsoring and promoting the laudable community service projects of the HHS Jr. Jaycees. In award competitions among State and National Jaycee organizations, the defendant Jaycees, on at least three occasions, listed the HHS Jr. Jaycees program as an example of their youth development programs in this City. `We won a state award and a national award for the Huntsville High chapter.' David E. Worley contends that prior to 1980-81, he, personally, was given an award by the defendant Jaycees in his capacity as sponsor of the high school chapter, `for having one of the better projects, or the best project' during the year.
"The seventh, and possibly the most significant, connection is that David E. Worley served as `sponsor' for the HHS Jr. Jaycee chapter. In that capacity, he served as liaison between the two organizations, and coordinator of their joint activities. To perform those duties, Worley periodically attended meetings of both clubs.
"Of course, for summary judgment purposes the question of whether David E. Worley was the principal link in the chain connecting the defendant Jaycees to the high school chapter is a `material fact.' And in that regard, the defendant Jaycees have gingerly attempted to imply there is a `genuine issue' about that fact, without *969 flatly stating such.[3] But, in spite of the understandably cautious manner in which they approach the question, in the final analysis they do not deny that Worley was the club's sponsor.[4] Indeed, as the following summary of the evidence should make clear, they really can not deny that connection.
"(1) Worley, himself, asserts that he was the sponsor of the club, practically from its inception. While admitting that he had passed the age of 36 by the year 1981, and thus could no longer vote or hold elected office in the Huntsville Jaycees, Inc., Worley insisted that he continued to attend the meetings, and to participate in the activities of that organization as `an honorary member.' Furthermore, Worley asserts that, during the `first three or four years' of the club's existence, he was asked by either the President or the `external Vice-President' of the defendant Jaycees to serve as sponsor for the HHS Jr. Jaycees. But, `in the last couple, two, three years that I was [sponsor], it was at the request of the Junior Jaycees, and okayed by the Jaycees.' [Emphasis supplied by Judge Smith.]
"(2) All members of the HHS Jr. Jaycees who have been deposed state, unanimously, that David E. Worley was their sponsor.
"(3) Joe L. Anglin, Jr., the Principal of Huntsville High School, has stated that Worley was the club's sponsor.
"(4) Finally, counsel for defendant Huntsville Jaycees, Inc. stipulated during pre-trial conference that David E. Worley `was one of the sponsors of the Junior Jaycees.'
"Thus, when all of the evidence is summarized, the links in the organizational chain connecting the defendant Jaycees with the HHS Jr. Jaycees may be depicted *970 by the diagram shown [at a later point in this opinion.]
"E. PREPARATIONS FOR THE HHS JR. JAYCEES LAKE PARTY
"Each year for a number of years, the HHS Jr. Jaycees had held `a big social event' for club members and their invited friends. [The year] 1981 was no different. Thus, at one of the last club meetings during the 1980-1981 school year, the members discussed party plans. Someone suggested that beer be purchased `from Ragland's place,' but David E. Worley, who admits he was present, allegedly stated he could get the club `a special deal.'
"On Friday, May 15, 1981, Wes Neighbors obtained from `Mrs. Pukl' in the main office a check drawn on the `Huntsville High School Imprest Account' in the amount of $270, and drawn payable to the order of `Wes Neighbors.' The check shows that it was `FOR Jr. JC'sโ"Lake Party Expenses.'
"Later that same afternoon, following the end of classes for the day,[5] Wes drove with David Vest to the law office of David E. Worley. Wes endorsed the back of the check and gave it to Worley. Wes and David Vest then followed Worley to Turner Beverage Company. They arrived late in the day, just as the business was closing. Worley also endorsed the back of the check, and handed it to `Tully' Turner, owner of the beverage company. Half-cases of Budweiser beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. That done, the boys followed Worley to his residence. The beer was stored on Worley's screened, back porch.[6] When unloading the beer, the two boys were surprised to learn they had purchased not 30 full cases, but 51.
"The following morning of Saturday, May 16, 1981, Wes Neighbors and David Vest returned to Worley's home. They loaded 31 to 35 cases of the beer into the bed of George Mahoney's black Ford pick-up truck, which they had borrowed for the purpose, and covered it with tarpaulins. Wes and David Vest, after meeting John Watts and George Mahoney at another location, then drove the beer from Huntsville to the cabin of Richard P. Watts on Guntersville Lake, in Marshall County.
"Richard P. Watts is the father of John Watts, the newly elected President of the HHS Jr. Jaycees. He and his wife, Jean Cummings Watts, own an undivided one-third interest in the lake home where this party was to be held. The other two-thirds interest is owned by Jean Watts' two sisters and their husbands. The cabin is situated in a `dry' county. But, Richard Watts was under the impression that it was permissibleโ"even for minorsโ"to consume beer in a dry county, `if it was on private property.' Moreover, Richard Watts asserts that he was not asked, nor did he give his son permission, to hold the HHS Jr. Jaycee party at the cabin. Rather, he contends, his wife (and John's mother) was the one who gave permission, and he did not learn of the plans until two days before. In any event, the party was held at that cabin, and Richard P. Watts was present throughout most of the day.
"When the four boys arrived at the Watts cabin around noon, they iced the beer down in `long legged' metal Coca-Cola coolers. John Watts had, apparently surreptitiously, obtained those coolers from the Bonn Building at the Jaycees' fairgrounds. `I don't think they knew we had them ...' [said Wes Neighbors]. They then spread out barbecued pork and other edibles left over from the annual Awards *971 Banquet, held the previous week, and waited for everyone else to arrive.
"F. THE PARTY ITSELF
"And arrive they did. Estimates of the number who attended vary from a low of forty to a high of 110. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help him or herself to as much as desired.
[Wes Neighbors.] Consequently, things began to get out of hand, as Wes Neighbors later implied by his choice of the words `wild' and `melee' to describe the scene.
"According to Wes Neighbors, just about `everybody' who attended the party `was pretty much intoxicated, except for Mark Pullen and John [Watts]....' Four young people `passed out totally,' and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle. Warren Lee Bradford was among those.
"`Late in the morning, maybe ten-thirty, eleven' o'clock on May 16, 1981, Warren Lee Bradford (son of Dr. Ivan B. Bradford) called at the home of Dr. Joe R. Pullen for his son, Mark. The two boys then drove from the Pullen residence to Guntersville Lake in Dr. Ivan Bradford's 1978 International `Scout,' a four-wheel drive vehicle. Lee Bradford, the driver, was eighteen years old. His friend, Mark Pullen, was 17. They arrived at the Watts cabin around noon. From then until 3:30 that afternoon, the boys admittedly consumed some beer. Pullen said he drank four cans of Budweiser. Lee Bradford estimated he drank five or six cans, in conjunction with `three or more' barbecued pork sandwiches. Whatever the true facts may be, Lee Bradford became noticeably intoxicated. According to Wes Neighbors, Bradford's speech was slurred, he staggered, he kissed a girl that `wasn't his girlfriend,' and `he couldn't run a race.'
"Former [University of] Alabama All-American (and NFL All-Pro) football player Billy Neighbors also drove to the Watts cabin that afternoon. He went to check on his son, Wes, and arrived about 1:30. For a while he talked with Richard Watts and David E. Worley, who attended the party in his capacity of club `sponsor' and father of Jonnie Worley, the `Sweetheart' of the HHS Jr. Jaycees. By 3:30, however, Billy Neighbors decided that enough was enough. He and Richard Watts stopped the flow of beer. According to Wes Neighbors, his father `laid down the law.... [A]nd my dad got a lot of respect from everybody, to say the least.' Richard Watts told the boys to load the beer back into the bed of the pick-up truck. And Billy Neighbors told John Watts to remove the ignition keys from Warren Lee Bradford's Scout. The keys were given to Mark Pullen with instructions that he was to drive the vehicle back to Huntsville. Billy Neighbors told Bradford that he would `kick his tail' if he tried to drive home.
"The two boys followed those instructions, after a fashion. Pullen and Bradford remained at the cabin for possibly as much as another hour, drinking no more beer. They left `around four [or] four-thirty,' with Mark Pullen behind the wheel. At the point where U.S. Highway 431 changes from a two-lane to a four-lane roadway, however, Lee Bradford `demanded,' `forcefully,' that Pullen let him drive the car. Mark pulled onto the shoulder of the road, and the boys changed positions.
"The boys almost made it safely home. Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, `moving to the [beat of the] music' playing on the car's stereo/radio, laughing, and `in a good mood,' Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and *972 into the path of plaintiffs' oncoming vehicle.
"Neither Mark Pullen nor Lee Bradford was injured very badly. It was another story with the plaintiffs, however. The driver, Georgia L. Hazelrig, died. Her two daughters, Kerri M. Martin and April Kelli Hazelrig, were horribly injured.
"Warren Lee Bradford was subsequently indicted and prosecuted for manslaughter. He was convicted by a jury of criminally negligent homicide. And, of course, these civil actions were brought against those defendants listed in paragraph 1 of this Court's Order on Pre-Trial Hearing. Since then, however, a substantial out-of-court settlement was reached with certain defendants. And the claims against Warren Lee Bradford, Ivan B. Bradford, and Mark Edward Pullen have been dismissed, by stipulation, with prejudice. This Court also granted Billy Neighbors's motion for summary judgment. Which brings us, then, to the instant motions.
"G. HUNTSVILLE JAYCEES, INC. AND HHS JR. JAYCEES ORGANIZATIONAL DIAGRAM
*973
"A. DOES THE DRAM SHOP ACTION LIE?
"The Alabama legislature first enacted a dram shop act in 1909. It came into being as section 8 of Act Number 191, passed during the 1909 Special Session. It read as follows:
1909 Acts of Alabama, Act No. 191, ง 8 at 65-66 (Aug. 25, 1909) (emphasis supplied).
"The troublesome phrase in the statute is emphasized: i.e., `selling, giving or otherwise disposing of....' (the same language now is found at Ala.Code, ง 6-5-71(a) (1975)). The moving defendants contend they did not sell, give, furnish, or otherwise dispose of the intoxicating beverages consumed by Warren Lee Bradford, or any other member of the HHS Jr. Jaycee Club. Plaintiffs contend the statutory language is un ambiguous, and clearly applicable to the facts of this controversy. These conflicting positions raise the question of what the Alabama Legislature intended when it employed the disputed language. Surprisingly, the answer to that question requires a more intensive inquiry into the history of our dram shop act than this Court initially surmised.
"1. The Historical Common Law Position
"At common law, no action to recover damages for injuries caused by intoxication could be brought against the person who furnished liquor to another, whether by sale, by gift, or by other means. The reason generally given for the common law rule was simple. The voluntary consumption (and not the dispensing) of liquor was deemed the proximate cause of injuries sustained as a result of intoxication. See, 45 Am.Jur.2d, Intoxicating Liquors งง 553, 554 (1969). `The rule was based on the obvious fact that one cannot be intoxicated by reason of liquor being furnished him if he does not drink it.' Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967).
"The common law rule was enunciated in Alabama in King v. Henkie, 80 Ala. 505 (1876). Mrs. King, the widow of a man who died as a result of excessive consumption of alcohol, brought suit under the wrongful death statute against the owners of a Tuscumbia saloon. She alleged that her husband had stumbled into the bar one day `in a hopeless state of intoxication' and, while `in this condition of helplessness and mental darkness,' the proprietors ...
Id., at 506. The `violation of law' to which plaintiff referred in her complaint was a provision of the 1876 Code of Alabama which made it a misdemeanor to furnish any quantity of liquor to `persons of known intemperate habits except upon the requisition of a physician for medicinal purposes....' Id., at 508. In affirming the trial court's dismissal of the action, the Supreme Court said:
King v. Henkie, supra, at 510.
"2. Remedial Legislation
"The common law rule expounded by such cases as King v. Henkie eventually was overthrown by legislative enactments *975 in a number of states.[7] But such remedial legislation was not generated as much by a legislative rejection of the courts' rationale,[8] as it was encouraged by both the temperance and prohibitionist movements.[9]
"Referred to as either `civil damage acts' or, more commonly, `dram shop acts,' such statutes create a cause of action against the suppliers of liquors under specified circumstances, and in favor of specified persons. The language of such statutes varies from state to state. See, generally, the authorities cited in note 7, supra. Consequently, each act must be closely studied to determine who is entitled to sue, who may be sued, under what circumstances suit may be brought, and for what damages. Generally speaking, however:
45 Am.Jr.2d Intoxicating Liquors ง 561 (1969) (emphasis supplied). See also footnote 16, infra.
"In addition, there is one other principle upon which the authorities are generally consistent: liability under such dram shop acts extends only to those engaged in the business of manufacturing, distributing, or selling intoxicating liquors.
Annot., 8 A.L.R.3d 1412, 1413 (1966) (emphasis supplied). An instructive case on this point is Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300, 8 A.L.R.3d 1402 (App.Ct.1964).[10]
*976 "3. The Alabama Dram Shop Act: Its Judicial Interpretation
"Unfortunately, the appellate courts of Alabama have not squarely addressed the question of whether our dram shop act provides an action against persons (such as defendants herein) who are not engaged in the business of manufacturing, distributing, or selling liquor. Even so, the case of DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979), supports (at least inferentially) the argument that the question would be answered negatively.
"In DeLoach, defendant Mayer Electric hosted an `open house' and `New Products Show' on its premises. Food, soft drinks, and beer were gratuitously provided for consumption by those who attended. Mayer Electric's employees were among the invited guests. One such employee became intoxicated. After leaving the function, he drove his automobile onto the wrong side of Interstate 59, and into the motorcycle of a uniformed policeman. The policeman was seriously injured, and brought suit against both Mayer Electric and the business entity (Britling's) which had catered the function. Id., at 733-34. He contended the Alabama dram shop act applied because those defendants had `sold' liquor without being licensed to do so. See Ala. Code งง 28-3-260(10), 28-3-1(16) (1975). In an opinion affirming the trial court's entry of summary judgment in favor of defendants, the Supreme Court did not write expansively. Rather, in speaking for the Court, Mr. Justice Bloodworth said only that `there was no "sale" within the meaning of' the Code sections referred to above and, therefore, `the Dram Shop Act is not applicable.' Id., at 734-35.
"Admittedly, the DeLoach opinion is susceptible to conflicting interpretations. On one hand, it may be argued that the decision should be limited to its facts, and to its specific holding of no `sale,' because no compensation changed hands between the drunk and the supplier of the liquor. On the other hand, it also may be persuasively argued that DeLoach should be read more broadly, and as holding that the Alabama dram shop act normally does not apply in the absence of a sale (e.g., when the liquor is furnished gratuitously, in a social setting).
"In choosing between these conflicting interpretations, this Court is persuaded by the following authorities that the latter is the correct one.
"The broader holding suggested by DeLoach is supported by Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951). In that case, the Alabama Court of Appeals stated that Alabama's dram shop act:
Id. at 246, 54 So. 2d at 321 (emphasis supplied). The Phillips court emphasized the commercial focus of the Act by utilizing the words `sale,' `sell,' and `sold' no less than thirteen times in the course of two pages.
"In like manner, an early Supreme Court decision construing the dram shop act indicated that the action lay only against one in the businessโ"albeit, the illegal business โ"of selling liquor. Thus, in Webb v. French, 228 Ala. 43, 152 So. 215 (1934), after first noting that the Act had come into existence as part of a sweeping `prohibition enforcement measure,' the Alabama Supreme Court held that the dram shop act:
creates a cause of action against the bootlegger (to use a modern term) for personal injuries to third persons at the *977 hands of one to whom the bootlegger has furnished prohibited liquor and the injury is the proximate consequence of intoxication from such liquor.
Id. at 44, 152 So. at 216 (emphasis supplied).
"Moreover, Alabama Pattern Jury Instructionsโ"Civil 36.92 begins with the following language: `Because public policy discourages [the] illegal sale of alcoholic beverages....' (Emphasis supplied.)
"Finally, the most recent pronouncement of our Supreme Court on the dram shop act contains this statement: `Alabama's dram shop statute creates a civil action against a purveyor of alcoholic beverages....' Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121, 122 (Ala.1984) (emphasis supplied). Webster's Third New International Dictionary (1971 unabridged ed.) defines `purveyor' as `one who provides victuals or whose business is to make provisions for the table,' at 1848 (emphasis supplied).
"However, the keys which unlock the statutory scope intended by the Alabama Legislature when it inserted the phrase `selling, giving or otherwise disposing of' into the dram shop act will not be found in the foregoing authorities. Rather, those interpretive keys are found in the history of the temperance and prohibitionist movements in Alabama, and in the statutory changes which those movements impressed upon public policy (of which the dram shop act is but one).
"4. The Alabama Dram Shop Act in Historical Context
"The question of liquor regulation pre-dates statehood. It was an important issue of government from the time settlers first moved into the region which eventually became the State of Alabama. `[E]ach colonial government ... found it necessary to devise ways and means of handling the problem of liquor control.' J.B. Sellers, The Prohibition Movement in Alabama 1702-1943, at 1 (1943) (hereinafter Sellers). From then until now, the questions of whether, and how, to control liquor have been persistent issues of our political history.
"But, the prohibition issue virtually dominated State politics during the first two decades of the twentieth century. The explanations for that political phenomenon are varied, and interesting.[11] Even so, an exploration of the socio-economic bases of the temperance and prohibitionist movements ultimately would prove a non-productive, ambiguous digression.[12] On the other hand, an examination of legislative action on the issue (and judicial construction of such acts) provides important information for interpreting the intended scope of our present dram shop act.
"As the last Federal troop trains crossed Alabama's northern border at the end of Reconstruction, the temperance and prohibitionist forces began to stir. See, Sellers 40-51. From then until 1909, the movements steadily grew, both in the number of their adherents and in the intensity of their demands. Id., at 52-100.
"Initially, the efforts of the prohibitionist forces to impress their ostensible, moralistic *978 views[13] upon public policy met with only limited success. During the 1880s and 1890s, the movements succeeded only in the enactment of sporadic special acts of legislation prohibiting the `manufacture, or sale, or other disposition of ... intoxicating liquors within the limits of' particular counties, or particular areas of a county.[14]
"Nonetheless, for two reasons, those early efforts at prohibition on a local level provide important precedents for construing the scope of our present dram shop act.[15] First, some of those local prohibition acts contained statutory phrases identical, or strikingly similar to the phrase that is so troublesome in the present case: i.e., `selling, giving or otherwise disposing of....' And second, a number of cases arising under those acts, and requiring a construction of such language, were appealed to the Supreme Court of Alabama. A review of those decisions furnishes helpful interpretive insights.
"The first significant decision is Reynolds v. State, 73 Ala. 3 (1882). In Reynolds, the defendant was indicted and convicted for violating a local act of the legislature which made it a crime to `make, sell, or otherwise dispose of any spirituous or malt liquors' in Dale or Henry Counties. The evidence against him showed that the defendant `gave' two drinks of whiskey to the prosecution's witness at his home. There had been no sale, in the sense of compensation changing hands. On appeal, the Supreme Court reversed, saying:
Reynolds v. State, supra, at 4.
"Three aspects of the Reynolds opinion are worthy of note. First, the Supreme *979 Court did not liberally construe the language of a statute in derogation of the common law.[16] Second, the Court applied the `ejusdem generis rule' when holding that the phrase `otherwise dispose of' meant only a disposition in the nature of a sale.[17] And third, the court reserved for later decision the construction of the phrase `sell, give, or otherwise dispose of.' The opportunity to construe that phrase was presented the Court within a year.
"In Amos v. State, 73 Ala. 498 (1883), the defendant had been indicted and convicted of violating a local act of the legislature which made it a crime to `sell, give away, or otherwise dispose of spirituous, vinous or malt liquors' in Conecuh County. At trial, the prosecution had shown that defendant's father owned a store in Conecuh County, and that the father had ordered five gallons of whiskey for a man named `Bethea.' When the whiskey arrived, Bethea `had no way to take it all away,' so he persuaded the defendant's father to store it for him in a small building the storekeeper used to keep `other things incident to his business.' From time to time, Bethea would come to the store and defendant, or defendant's father, would draw off a portion of the stored whiskey, and give it to Bethea. The evidence further disclosed that defendant, though frequently about his father's store, `was not connected with his father's business in any capacity....' `Id., at 499-500.' On appeal, the Supreme Court reversed, holding that on the foregoing state of the evidence the defendant could not be said to have violated the statute. The defendant had not sold the whiskey to Bethea; his father had.
"Moreover, the defendant had not given the whiskey to Bethea (in the sense of parting with the ownership of property) because Bethea already owned it. And finally, it could not be said that the defendant had `otherwise disposed of' the whiskey because, under the principle of ejusdem generis, that phrase had to be construed as applying only to transactions that fell within the classification of a sale or gift.
Amos v. State, supra, at 501-02 (emphasis supplied).
"The next case of significance is that of Norris v. Town of Oakman, 138 Ala. 411, 35 So. 450 (1903). In Norris, the defendant had been convicted of violating a city ordinance which made it a misdemeanor to `sell, give away, ... or cause to be ... delivered' any liquors on a Sunday. The evidence at trial established that Norris was both an employee of, and a boarder in the house of, a man named Coudan. Mr. Coudan owned a saloon. One Sunday afternoon, Mr. Coudan instructed Norris `to go down to the saloon and bring up some beer for him and the defendant.' Norris did so, and `he and Coudan and son drank the beer as they desired it' for the rest of the afternoon. For these acts, the defendant Norris was convicted. On appeal, however, the Supreme Court reversed. The Court first noted that Norris could not be convicted for having sold the beer because Coudan owned it. For the same reason, Norris did not `give away' the beer, because one cannot give what one does not own. All of which brought the Court to the word `delivered.'
Norris v. Town of Oakman, supra, at 414-15, 35 So. at 451 (emphasis supplied).
"The last case to be considered, Maxwell v. State, 140 Ala. 131, 37 So. 266 (1904), arose out of the following facts.
Id. (Emphasis supplied.) On these facts, Buck Maxwell, then sixteen years of age, was convicted on an indictment charging that he `sold, gave away, or otherwise disposed of whiskey without a license, and contrary to law.' On appeal, the Supreme Court reversed, citing Amos v. State, supra. The defendant had not sold the whiskey because Harmon had not paid for it. The twenty-five cents given defendant was in the nature of a tip, because the whiskey was worth fifty cents. Furthermore, defendant had neither sold nor given away the whiskey, because he did not own it. His father did. And, therefore, defendant had not parted with `possession or ownership of property.'
"The importance of the Reynolds, Amos, Norris, and Maxwell line of cases lies simply in this. In each, the Supreme Court construed statutory language strikingly similar to the dram shop phrase that is so troublesome in the case before this Court, and, in the context of legislative enactments prohibiting the sale, gift, or other disposition of intoxicating liquors. Moreover, all of these cases were decided long before the legislature enacted the dram shop act. Consequently, when our Supreme Court has repeatedly construed particular statutory language, and the legislature enacts another statute employing that same language, there arises a strong presumption that the legislature has acquiesced in the Court's interpretation of the legislature's intent in the use of such language.
"Alabama temperance forces were strengthened considerably by two events in the first decade of this century: (1) the formation of the Alabama contingent of the Anti-Saloon League of America in 1904, Sellers 102; and (2) the election of Braxton Bragg Comer as Governor of Alabama in 1906.
"Following the end of Reconstruction, `Bourbon Democrats' from the Black Belt counties and the increasingly influential `Big Mule' industrial interests in Birmingham and Mobile tightened their grip upon state government. See, e.g., V.O. Key, Southern Politics in State and Nation, 42, 46 (1949).
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 10 (1974).
"Once in a long while, however, a `progressive' candidate for Governor would successfully defy that conservative coalition. B.B. Comer was such a man. Although stigmatized by the press as a radical, a self-willed, impetuous, self-seeking, and generally dangerous man' [A.B. Moore, History of Alabama 664 (1934)], Comer handily won the 1906 gubernatorial election. In the process, many men committed to `progressive' programs rode into the legislature on his coattails. `Not since the development of factionalism within the *982 Democratic party had the progressive wing been so victorious.' Id. 666. Both Comer and his legislative lieutenants were dominated by a `passion for reform.' Id. 667.
Prohibition was among the most important issues (if not the most important issue) used by Comer to achieve his phenomenal political success. That issue tapped the strength of `the aggressive and powerful Anti-Saloon League.' Sellers 102. The focus of the Alabama Anti-Saloon League's opposition to liquor traffic was implicit in its name. League members felt that saloons bred destitution, prostitution, and other deleterious social institutions (e.g., gambling and racial equality).[18]
"Thus, the cry for the end of the `day of the saloonkeeper, gambler, harlot, and pimp domination in government,' Sellers 130, was pregnant with many connotations. But, without question, racism was prominent among the meanings telegraphed by such `code words.' Even so, that despicable truth should not blind the modern observer to the fact that the primary objective of the prohibitionist forces was the abolition of the business of selling alcohol.
"In the first Regular Session of the Legislature following Comer's election, the prohibitionists succeeded in passing the State's first, general local-option law. 1907 Acts of Alabama, Act No. 149, at 200 (Feb. 26, 1907). That act `permitted the temperance legions to force local option elections with petitions signed by one-fourth of the voters in a county.' S. Hackney, Populism to Progressivism in Alabama 303 (1969). Significantly, the Act provided that the issue to be submitted to the voters of a county was whether they approved, or disapproved of the sale of liquor.
1907 Acts of Alabama, Act No. 149, ง 6 at 202 (Feb. 26, 1907) (emphasis supplied). If a majority cast ballots `against the sale of liquor,' then the act provided that
Id., ง 14, at 204 (emphasis supplied).
"Clearly, therefore, this State's first general local-option law was aimed at the business of selling intoxicating liquors, and the phrase `or other disposition' should be construed in that context. If there is any doubt about that, it is dispelled by the following provision of the Act.
Id., ง 16, at 205 (emphasis supplied).
"The 1907 local-option act was more successful than the temperance forces had hoped. Under its auspices, prohibitionists forced, and won, elections in 58 of Alabama's 67 counties. S. Hackney, supra, 304. See also, Sellers 114.
"`Rather than satisfying the urge for temperance, [however,] the new laws stimulated demand for stricter controls.' S. Hackney, supra, 304. During a special session of the legislature commencing November 7, 1907, the Alabama Anti-Saloon League and its allies pressed their advantage. They demanded the passage of a statewide, general prohibition law. Sellers 118-20.
"Such a bill was introduced by the Speaker of the House of Representatives, A.H. Carmichael of Colbert County, and passed both houses in rapid succession. It was signed into law by Governor Comer on November 23, 1907, and provided that:
1907 Acts of Alabama (Special Session), Act No. 53, ง 1, at 72 (Nov. 23, 1907) (emphasis supplied).
"Without any question, Alabama's first statewide prohibition act was aimed at those engaged in the business of manufacturing, selling, or distributing liquor. It did not attempt `to restrain a man's private indulgence in drink....' Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 247 (1909). Rather, it specifically provided:
1907 Acts of Alabama (Special Session), Act No. 53, ง 12, at 76.
"For a while, the passage of a statewide prohibition act satiated the prohibitionists' lust for stricter State controls on the business of liquor. By mid-1909, however, it was obvious that the law was not working well, and that remedial enforcement measures were necessary. `Things got so bad' that the Sheriff of Jefferson County begged Governor Comer
Sellers 126 (emphasis supplied).
"With the accumulation of such evidence indicating the failure of the statewide prohibition law, Governor Comer acted. On July 15, 1909, he called for the legislature to convene in a special session that same month. In his address to both houses at the beginning of the session, the Governor `frankly declared the statutory prohibition *984 law "inadequate of enforcement."' Sellers 132. He urged firm legislative action in two areas: strict enforcement legislation, and, an amendment to the State Constitution prohibiting the manufacture or sale of alcoholic liquors. The history of both proposals provides important information for interpreting the scope of our present dram shop act and, hence, each proposal will be discussed separately.
"In that portion of his speech calling for `more strenuous prohibition' enforcement legislation, Governor Comer told the Legislature that:
The Huntsville Weekly Mercury, July 28, 1909, p. 1 at col. 2. See also, Sellers 132.[19] In response to the Governor's call, two of his chief lieutenants in the House (Speaker A.H. Carmichael and Representative J.T. Fuller) introduced companion bills to stanch the flow of liquor. Both bills passed without difficulty.
"Speaker Carmichael's bill passed first, and was signed into law by the Governor on August 9, 1909. 1909 Acts of Alabama (Special Session), Act No. 7, at 8 (Aug. 9, 1909). It declared that
Id. ง 3, at 9. The contemporary value of the legislation lay in the fact that it increased both the period of imprisonment and the amount of fines that might be imposed for violation of its provisions, and, the provisions of the first statewide prohibition act which had taken effect on November 23, 1907. It further provided that each day that a business operated a brewery or distillery or `vender of intoxicants' constituted a separate offense.
"For present purposes, however, the chief importance of the Carmichael bill is found in that proviso which stated that
Id. Thus, it is beyond dispute that the Carmichael bill was aimed at those engaged in the business of manufacturing, selling, or distributing liquor for a profit.
"Although the Carmichael bill was called `radical,' critics had to get out their dictionaries to find stronger invectives to describe its companion legislation. The Fuller bill was described by the Montgomery Journal as `the most drastic prohibition bill ever brought to the attention of any legislature.' Sellers 133. It was an omnibus, prohibition enforcement measure. It contained 39 sections, spilling ink over 33 pages of the statute book. It outlawed everything from the manufacture of intoxicants to the advertisement of liquor, and covered just about everything in between.[20]
*985 "But, for present purposes, the primary importance of the Fuller bill lies in the fact that section eight created the Alabama dram shop law. 1909 Acts of Alabama (Special Session), Act No. 191, ง 8, at 65-66 (Aug. 25, 1909): quoted herein, supra. That fact, then, leads one back to the question of what the legislature intended when it first said, in section eight of the Fuller bill, that certain plaintiffs injured in their person, property, or means of support by an intoxicated person had a right of action for damages against
Id. Two considerations indicate that the legislature only intended for such action to lie against commercial vendors of liquor.
"The first consideration comes from the fact that the Carmichael and Fuller bills were `companion laws ... to be construed together.' Grace v. State, 1 Ala.App. 211, 56 So. 25, 26 (1911); Priest v. State, 5 Ala.App. 171, 59 So. 318, 319 (1912). Consequently, the express provision of the Carmichael Act stating that it did not apply to `the social serving of ... liquors or beverages in private residences in ordinary social intercourse' must be read in pari materia with the provisions of the Fuller Act.
"The second considerationโ"found in the text of the Fuller Act itselfโ"buttresses the first. Thus, section four of the Fuller Act provided:
1909 Acts of Alabama (Special Session), Act No. 191, ง 4, at 64 (Aug. 25, 1909) (emphasis supplied). This provision now is codified at Ala.Code ง 28-4-92 (1975). In like manner, section 22(12) of the same Act provided in part that:
Act No. 191, ง 22(12), supra, at 81 (emphasis supplied).
"Of course, both provisions created evidentiary presumptions. But, a fair reading of them indicates that the reverse of the presumption also is true: i.e., that the keeping of `prohibited liquors' in any building used exclusively for a dwelling is not prima facie evidence that the liquor was kept for the purpose of selling, or otherwise disposing of the same, `contrary to law.' The Alabama Court of Appeals so held.
Strickland v. State, 20 Ala.App. 600, 104 So. 351 (1925). See also, Carmichael v. State, 11 Ala.App. 209, 65 So. 694, 695 (1914); Hauser v. State, 6 Ala.App. 31, 60 So. 549, 552 (1912).
"It follows, therefore, that the Fuller Act (like the companion Carmichael Act) was not aimed at social hosts who dispensed alcohol in the privacy of their own home to guests, as an act of social hospitality. While no appellate decision has been found which expressly holds that such a logical *986 progression is true, two in particular hint that this court's interpretation is correct.
"For example, in Salley v. State, 9 Ala. App. 82, 64 So. 185, 187 (1914), the Alabama Court of Appeals held that the discovery of 55 gallons of whiskey in a building located some 20 to 30 feet from the defendant's residence:
"In another case, the same court held that evidence showing the defendant had delivered whiskey to the prosecution's witness in a shed adjoining a poolroom:
utterly repudiate[d] the idea that the case falls within the exception applying to gifts by one at his private residence, as an act of hospitality in ordinary social intercourse. ... [T]he defendant... can hardly be fancied by the most imaginative as in the role of a host in his private residence, in ordinary social intercourse, dispensing hospitality.
Grace v. State, 1 Ala.App. 211, 213, 56 So. 25 (1911) (emphasis supplied). See also, Toole v. State, 170 Ala. 41, 54 So. 197, 199 (1911).
"If there was any doubt lingering in the mind of this court over the correctness of the conclusion that the legislature did not intend for the dram shop act to apply to social hosts, or other non-commercial suppliers of liquor, then it was dispelled by the history of the constitutional amendment battle of 1909.
"In his speech to both houses of the legislature at the beginning of the 1909 special session, Governor Comer recommended that an amendment to the Alabama Constitution be submitted to the voters
Sellers 130-31 (emphasis supplied). A bill proposing such an amendment passed the legislature in short order, and was signed by the governor on August 18, 1909. In pertinent part it provided that the following question should be submitted to the voters at a special election to be held that year:
1909 Acts of Alabama (Special Session), Act No. 21, ง 3, at 21 (Aug. 18, 1909) (emphasis supplied).
"Opposition to the proposed amendment centered on the emphasized language. Those opposed to the amendment charged that the language was designed to close the loophole in the Carmichael-Fuller Acts which allowed private individuals to keep liquor in their homes, and to dispense liquor as an act of hospitality in ordinary social intercourse. Emmet O'Neal of Florence, who would be elected Governor of Alabama in 1910, largely as a result of his leadership of the anti-amendment forces,
Sellers 135.
"The campaign over the amendment was intense, bitter, and heated. Every major politician in the State was drawn into the fray, and publicly chose sides. Id. 141-42. Many considerations for and against were debated, but the focus of discussion and decision was section two, and the question of whether the legislature should be constitutionally empowered to prevent individuals from keeping liquor in the privacy of their homes. See id. 133-48; A.B. Moore, History of Alabama 673-74 (1934).
Sellers 147.
"5. Conclusions on the Scope of the Dram Shop Act
"Not only did the `will of the people' seem clear in their rejection of the prohibition amendment, but, with the clarity of hindsight, the intent of the legislature when it passed the Carmichael-Fuller Acts also now seems clear. Even though the dram shop section contains the phrase `giving or otherwise disposing of to another,' those wordsโ"when placed in the context of their legislative and judicial historyโ"clearly do not have a scope of operation as broad as would first appear. Rather, the words properly were intended to apply only to those who furnished liquor owned by them to another person in return for monetary compensation or other consideration.
"The foregoing conclusion is not weakened by the fact that the Alabama Legislature defined the phrase `otherwise dispose of' in the Fuller Act. Tucked away in section 31 of that Act, one finds the following:
1909 Acts of Alabama (Special Session), Act No. 191, ง 31, at 91. This provision now is codified at Ala.Code, 28-4-1(4) (1975). The words `barter' or `exchange' are just terms which refer to another species of a `sales' transaction. In a sale, the consideration for the transfer is money. In a `barter' or `exchange,' the consideration is either other property, or services, of equivalent value. See, 45 Am.Jur.2d Intoxicating Liquors งง 239-241 (1966). The phrase `giving away,' as noted by the decisions of the Alabama appellate courts discussed earlier ..., would denote the transfer of property owned by one person to another person without consideration that could be measured in terms of money or other indices of value. See, e.g., id. ง 247. See also, Clark v. State, 167 Ala. 101, 52 So. 893 (1910) (Mayfield, J., dissenting). The concluding words of the statutory definition would, in accordance with the ejusdem generis rule of statutory construction, have to be read as applying only to transactions of the same general kind or class as barter, exchange, or gift.
"It follows from all that has been said thus far, therefore, that a dram shop action does not lie against either the Huntsville Jaycees, Inc., or Richard P. Watts, because:
*988 "(1) Neither defendant is a commercial vendor, nor did either sell the beer to the HHS Jr. Jaycees (or Warren Lee Bradford); rather, Turner Beverage Company did.
"(2) They did not give the beer to the HHS Jr. Jaycees (or Warren Lee Bradford) because they had no ownership or property interests in the beer. Rather, Turner Beverage Company owned the beer, and, all monies used to acquire the beverage company's property interest in the beer came from Jr. Jaycee funds.
"(3) They did not otherwise dispose of the beer because, as discussed above, that phrase must be construed [under the ejusdem generis principle] with the words `sell' and `give,' and neither the Jaycees nor Richard Watts disposed of any ownership or property interests in the beer.
"B. DOES A COMMON LAW NEGLIGENCE ACTION LIE?
"Having concluded that a dram shop action does not lie against the Huntsville Jaycees, Inc., and Richard P. Watts, the second question must be addressed: Does an action grounded on common law negligence principles lie against either defendant?[21]
"Until just recently, the answer to that question would have been an easy, unequivocal `no.' For example, it was only a few years ago that the plaintiff in DeLoach urged the Alabama Supreme Court to `recognize an action for common law negligence for [dispensing] alcohol....' He argued that King v. Henkie should be cast onto the scrap heap of history because
social attitudes and public policy have changed since King was decided, and ... this court should change the law to meet society's change.
DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733, 735 (Ala.1979). The Supreme Court rejected that plea, saying tersely: `The rule expressed in King is as viable today as when first expressed.' Id. In a prescient phrase, however, Mr. Justice Bloodworth added:
Id. (Emphasis added.) Mr. Justice Bloodworth's portentous phrase may now, several years after his death, have come to pass.
"In Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), the Alabama Supreme Court partially overruled King v. Henkie, and recognized a common law negligence action against a commercial licensee for the on-premises sale of alcoholic beverages to a visibly intoxicated patron. The facts of the case were summarized by Mr. Justice Faulkner as follows:
Id. at 122. The son of the deceased brought suit against the corporation which did business as the `Checkers Lounge.' The action was founded on the dram shop act. Ala.Code ง 6-5-71 (1975).
"However, defendant had clever counsel who discovered that, in 1980, when amending the Alabama Alcoholic Beverage Licensing *989 Code, the Legislature had inadvertently repealed that statute which made it unlawful for an on-premises licensee to `sell, furnish or give any beverages to any person visibly intoxicated....' Ala.Code 23-3-260(2) (1975) (repealed by Act No. 80-529, 1980 Acts of Alabama, effective Sept. 30, 1980). Hence, plaintiff could not prove one of the essential elements of the dram shop action: a sale `contrary to law.' The trial court, accordingly, granted defendant's motion for summary judgment.
"On appeal, therefore, the Alabama Supreme Court was `faced with an anomalous situation,' `id. at 124, in which the facts were egregiously hard, but in which the trial judge had unquestionably ruled correctly. Due to the `emasculation of the dram shop statute by the passage of the new alcohol licensing act' (id. at 123), no action arose under the statute. And yet, the court was convinced that the loophole through which defendant had squiggled was `the result of legislative oversight, not legislative wisdom'; and that the legislature had not intended to
Id. at 123-24 (emphasis supplied).
"Toothless though it might be, the Court could not `rewrite the dram shop statute. It exists, regardless of intent, as written.' Id. at 124. Therefore, the Court was forced to consider the question of whether the plaintiff might proceed under a negligence theory. A bare majority of the Court held that he could. (Buchanan is a five-four decision.) The clearest statement of the majority's holding is found in the following extract.
Id. at 127 (emphasis supplied).
"In effect, the majority held that the law imposed a duty upon licensees for on-premises consumption to refrain from continuing to sell alcohol to visibly intoxicated patrons, in order to protect a class of third persons which included plaintiff's decedent.
"Thus, King v. Henkie was overruled. But only just enough to allow `this plaintiff to have his day in court.' Id. at 128. The court expressly limited its holding, and its overruling of King v. Henkie, to cases involving the on-premises sale of liquor by licensed, commercial vendors. The limited nature of the majority's holding is demonstrated by the following extracts from the opinion:
"The extremely limited scope of the Buchanan holding also is demonstrated by the majority's choice of supporting authorities.
Id. at 124. Later in the opinion, the majority cites the following decisions as examples of instances in which `other states have ... recognized common law negligence actions under similar facts' (id. at 127): Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983) (en banc) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) (allowing negligence action against social host who personally and `directly serves' liquor to a visibly intoxicated guest, and `continues to do so even beyond the point at which the host knows that the guest is intoxicated, and does this knowing that the guest will shortly thereafter be operating a motor vehicle'); Hutchens v. Hankins, 63 N.C. App. 1, 303 S.E.2d 584 (1983) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron, with knowledge that patron will drive from the premises); Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984) (allowing negligence action against a retail establishment for knowing sale to a minor); and, McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983) (allowing negligence action against commercial vendor for knowing sale to a minor).
"One must ask, what does the majority's choice of authorities tell us about its decision? What do the six cases have in common? Only one (Kelly) involves social host liability; so that is not the point. Two (Sorensen and McClellan) involve minors; so that might be, but probably is not, significant. Five of the six (i.e., all but Kelly) involve sales of liquor by commercial vendors; so that obviously is a significant common denominator. However, there is one factor which all of the cited cases share, and that is: all arose either in jurisdictions that had no dram shop statute, or under circumstances in which no dram shop act was in force and effect.
"For example, in Waynick, neither the Michigan nor the Illinois dram shop statute applied to the peculiar facts of that case. (See the Buchanan majority's discussion of Waynick at 124-25.) In Sorensen, the Wisconsin dram shop act had been repealed by that state's legislature in 1982 (see 350 N.W.2d at 113 and n. 8). In Ontiveros, Arizona had no dram shop act (see 667 P.2d at 211-12). In McClellan, Wyoming had no dram shop act (see 666 P.2d at 411). At the time of plaintiffs' injuries in Hutchens, North Carolina did not have a dram shop *991 act (see 303 S.E.2d at 588). And New Jersey did not, and does not now, have a dram shop act (see Kelly, 476 A.2d at 1221).
"Moreover, counting the decision of our supreme court in Buchanan, the decision of the Wisconsin Supreme Court in Sorensen, and the decision of the North Carolina Court of Appeals in Hutchens, one finds that a majority of the states (twenty-seven in all) now have allowed a negligence action against commercial vendors of liquors for injuries sustained by third persons as a result of the acts of an intoxicated person. Significantly, however, the overwhelming majority of those states (22 out of 27) did not have a dram shop, or civil damage, act in force on the date the action arose. Compare the list of decisions in the `Appendix' to Sorensen v. Jarvis, 350 N.W.2d at 119-20, with 12 Am.Jr. Trials 729, "Dram Shop Litigation" ง 2 (1966).
"There can be little doubt, therefore, that the absence of a statutory, dram shop remedy has been a substantial factor influencing those courts which have extended negligence liability to commercial vendors of intoxicating liquor. As the New Jersey Supreme Court observed in Kelly:
Kelly v. Gwinnell, 96 N.J. at 554, 476 A.2d at 1227 (emphasis supplied).
"The statutory vacuum created by legislative inadvertence, in which the Buchanan majority operated, now has been filled by administrative regulations promulgated by the A.B.C. Board. Regulation 20-X-6-.02. Thus, in one sense, the Buchanan decision may be sui generis. We may never see its like again. (At least, in the absence of a similar legislative (or administrative) error.) That also is an argument against expanding the Buchanan negligence action beyond commercial vendors, to encompass defendants such as those before this Court. The majority hinted as much when they said:
Buchanan v. Merger Enterprises, Inc., supra, at 127-28 (emphasis supplied).
"Therefore, this Court concludes that an action based upon common law negligence principles does not lie against either of the moving defendants. In view of the clear legislative intent gleaned from the history of the Carmichael-Fuller Acts, and, the carefully limited holding of the Buchanan majority, it is not the province of this court to define a new cause of action against non-commercial entities. That law-making prerogative lies either with the Alabama Supreme Court or, more properly, the Alabama Legislature.
"Accordingly, it is ORDERED, ADJUDGED, and DECREED that the motions for summary judgment of defendant HUNTSVILLE JAYCEES, INC., and, defendant RICHARD P. WATTS be, and the same hereby are, GRANTED.
"In accordance with Rule 54(b), Ala.R. Civ.P., the Court determines there is no just reason for delay, and expressly directs that judgment be entered in favor of the HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and against plaintiffs on all claims.
"In accordance with the foregoing, it also is CONSIDERED, ORDERED, ADJUDGED, and DECREED that plaintiffs have and take nothing of defendants HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and that these consolidated actions be, and the same hereby *992 are, DISMISSED with prejudice as to said defendants. Costs are taxed to plaintiffs, for which execution may issue.
"DONE and ORDERED this 14th day of May, 1985.
"S/Lynwood Smith
"Circuit Judge"
[1] Permission had been sought to use the building for the party. Though the HHS Jr. Jaycees had been allowed to use the building on at least one prior occasion, permission was denied. The evidence suggests the possibility that the request was denied because the adult organization knew that alcoholic beverages would be served at the party.
[1] Randy Morris, Youth Assistance Director of the defendant Jaycees during the administration of Ernest Kaufmann, testified during deposition that one of his goals that year was that of establishing `a Junior Jaycee Chapter in each of the area high schools, based on the Jaycee Creed.' During the 1980-81 organizational year, only two of the City's five high schools had Junior Jaycee Chapters: S.R. Butler High School and Huntsville High School."
[2] This emphasized language raises the question of `why' the request was refused. Was it because the defendant Jaycees were aware that alcohol beverages were consumed by the Junior Jaycees at their `senior party' and for that reason refused the request? The record on this point is ambiguous.
"Ernest Kaufman testified that some unidentified members of the HHS Jr. Jaycees
came to our Board meeting and made a request that year [i.e., 1981] for two items. One being their annual awards banquet, number two, being able to use our building for an additional party of which they were refused the second request.
Kaufman stated the second request was refused `[b]ecause we wanted to have them one time a year for an annual awards banquet and that was it.'
"On the other hand, Randy Morris (Kaufmann's Youth Assistance Director) acknowledged that the second request for use of the Bonn Building was for the party ultimately held on Guntersville Lake, but he could not `remember' whether the request was refused because the Board had knowledge that beer was dispensed at that party."
[3] See, for example, page 2 of the `Brief in Support of Defendant, Huntsville Jaycees, Inc.'s Motion for Summary Judgment,' where counsel says:
The allegation has been made that at the time of the occurrence, May 16, 1981, David Worley was a Huntsville Jaycees' sponsor for the Huntsville High Junior Jaycees and was the person who arranged for the beer to be purchased for the party. * * * * [Emphasis supplied (by Judge Smith).]"
[4] Ernest Kaufmann does not deny that Worley was the sponsor. Rather, he states that Randy Morris appointed John Zachary `to oversee' the activities of the two high school chapters; and he thus `assumes' that Zachary served as the liaison; but admits he did not `personally know' that to be true.
"In like manner, while Randy Morris began his deposition by denying that David E. Worley was sponsor, he finally admits: (1) that he does not know; and (2) that John Zachary would have been in charge of designating the sponsor for each of the two high school chapters."
[5] On May 15 and 16, 1981, the city schools still were in session for the year."
[6] It should be noted that defendant David E. Worley denies any knowledge of how, or where, the beer was purchased. Without question, that is a material fact. But this Court doubts that a genuine issue has been made of it. In any event, this court will jump over Worley's denial for the moment, in order to reach the questions of law which are raised by the pleadings."
[7] For a list of those states which have Dram Shop Acts, see 12 Am.Jr. Trials ง 2 ["Dram Shop Litigation"]. See also, Note, 9 Cumber.L.Rev. 613, 615 & nn. 16-20 (1978)."
[8] Indeed, another common law principle, closely related to the rationale of cases such as King v. Henkie, was that which held an intoxicated person to the same standard of conduct as if he were sober. See, Prosser, Handbook of the Law of Torts ง 32 (4th ed. 1971).
This rule was premised on the belief that intoxication would be too easy to assert as an excuse for any misconduct. Thus, the inebriate alone was held responsible for his acts causing injury.
Note, 14 Cumber.L.Rev. 411, 413 (1984). The point was referred to by the Alabama Supreme Court in King when it said:
A drunkard, or one in a state of voluntary intoxication, can scarcely claim so much charity from the law ... as imbeciles and lunatics, because he has by his own agency, either wantonly or negligently, brought about his own misfortune. As drunkenness is no excuse for crimes, or for torts, no more should it be a basis for the liability of another in an action brought against him by the victim of such inebriety.
King v. Henkie, supra, at 511. Thus, it is doubtful that the common law courts' position would have been any different, even it it had not occurred to them to lay the `proximate cause' of injury in the cup of the drinker, rather than the bottle of the seller."
[9] For a discussion of the temperance movement and its role in the movement for dram shop acts, see Ogilvie, History and Appraisal of the Illinois Dram Shop Act, 1958 U.Ill.L.F. 175."
[10] The plaintiffs in the Miller case were injured by an automobile driven by a person who became intoxicated while attending a picnic sponsored by a voluntary association of employees of the Owens-Illinois Glass Company at its Madison, Illinois, plant. The picnic was held on premises owned by the employer, with its consent. Suit was brought against the employees' association and the employer under the Illinois dram shop act. In pertinent part, that act provided:
Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; * * * *
Miller v. Owens-Illinois Glass Co., supra, at 419, 199 N.E.2d at 304, 8 A.L.R.3d at 1409.
"The defendants filed motions for summary judgment grounded on affidavits asserting that neither was engaged in the business of selling liquor. The motions were granted and plaintiffs appealed. Thus, the Illinois Appellate Court was presented the question of whether that State's dram shop act applied: (1) to a voluntary club or association which holds a social function at which intoxicating liquors are served to the members and guests; or (2) to the owner of property who permits a voluntary club or association to hold a social function on its property, at which intoxicating liquors are served to members and guests. The appellate court responded negatively to each question, and held that the Illinois dram shop act was intended to regulate the business of selling, distributing, manufacturing and wholesaling alcoholic liquors for profit. In other words, it was to regulate those in the business, not the social drinker or the social drinking of a group.
Id. at 423, 199 N.E.2d at 306, 8 A.L.R.3d at 1411 (emphasis supplied)."
[11] See, e.g., W.J. Cash, The Mind of the South 231-233 (1941: Vintage ed.); S. Hackney, Populism to Progressivism in Alabama 302-305, 316 (1969); A.B. Moore, History of Alabama 666-679, 753-757 (1934)."
[12] Prohibition is not presently regarded as a `progressive' measure. But the historic reality of Progressivism [as a political movement] is sometimes at odds with the
value-laden adjective `progressive.' Prohibition sentiment had been strong among the Progressive forces in the South. Prohibition was just one among the many economic, political, and social reforms that constituted the curiously polyglot movement, Progressivism. The strength of its appeal in the South may represent, as Dewey Grantham suggests, an enduring conservatism in matters moral and social, an essentially romantic willingness to be distracted from the hard, real problems of economics and class interest by quixotic crusades for some mystical goal of publicly enforced moral purity.
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 25 (1974). See also, id., at 9-10, 160 & n. 13."
[13] As is so often the case when public figures self-righteously assume the cloak of virtue, one finds they have other vices aplenty. In this case, the prohibitionists' clay feet were molded from the grimy soil of racism. In the name of protecting a `traditional way of life,' they struck at Blacks.
Another [reason for the rapid growth of the prohibition movement] was the will to [master] the Negro [who], when primed with a few drinks of whiskey, was ... lamentably inclined to let his ego a little out of its chains and to relapse into the dangerous manners learned in carpetbag days.... And it seems genuinely to have been believed that to forbid the sale of legal liquor, and so presumably to force up the price of the bootleg product, would be to deprive him of alcohol altogether and so make it easier to keep him in his place.
W.J. Cash, supra, note 11, at 232."
[14] See, e.g., Sellers 67-68 & n. 104; S. Hackney, supra, 302."
[15] A perusal of the general, special and local laws regulating the sale of intoxicating beverages prior to 1907 shows the growth and development of the desire on the part of the people of Alabama to restrict the sale thereof.
`Editor's Note,' The Alabama Code of 1928, at 742 (Michie 1929) (not adopted by Legislature) (emphasis supplied)."
[16] Indeed, the early decisions of the Alabama appellate courts were very restrictive in their interpretation of language found in the prohibition statutes. For example, in Coker v. State, 91 Ala. 92, 8 So. 874 (1891), the Alabama Supreme Court was presented a case in which the defendant had been convicted for `selling or giving' liquor to a minor in violation of a local prohibition act. The evidence at trial showed that the minor had attempted to purchase whiskey from the defendant, but the defendant `told him that he had no whiskey for sale, and refused to sell him any.' The minor testified that he then `borrowed' a pint of whiskey from the defendant; and that several days later, when he happened upon the defendant who was en route to Montgomery in his wagon, he (the minor) told defendant that he did not have:
any whiskey on hand to return the whiskey he had borrowed from the defendant as before stated, [and] he handed the defendant some money, and requested him to buy as much whiskey in Montgomery as the [minor] witness had borrowed from him, and in that way returned the whiskey he, witness, had borrowed from him.
Id. The Supreme Court reversed the conviction because the trial court had erred in charging the jury that the transaction was a `giving' or `selling' contrary to law, rather than a `loan' or `barter.'
The statute is a highly penal one, and cannot be extended beyond its letter by the result, necessarily more or less uncertain, of speculations into the realms of supposed legislative intent, or the supposed evils aimed at by the law-makers. The alleged offender must be tried upon what the law-giving power has said, and not by what it may be inferred, with greater or less assurance of safety, it has intended beyond the language employed.
Coker v. State, supra at 94-95, 8 So. at 875."
[17] On this point, Black's Law Dictionary 464 (5th ed. 1979) says:
In the construction of laws, wills, and other instruments, the `ejusdem generis rule' is, that when general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned....
See also, Maples v. Chinese Palace, Inc., 389 So. 2d 120, 124 (Ala.1980); Brook v. Cook, 44 Mich. 617, 7 N.W. 216 (1880)."
[18] This attitude is capsulized in the following:
The saloon is a place of rendezvous for all classes of the low and vulgar, a resort for degraded whites and their more degraded negro associates, the lounging place for adulterers, lewd women, the favorite haunt of gamblers, drunkards and criminals. Both blacks and whites mix and mingle together as a mass of degraded humanity in this cess-pool of iniquity. Here we have the worst form of social equality, but I am glad to know that it is altogether among the more worthless of both races.
J.F. Clark, `The Saloon and Racial Equality,' in Alabama Christian Advocate, January 4, 1906: quoted Sellers 101."
[19] In stating that the issue confronting the legislature was `whether whiskey shall dominate and control the State, or the State dominate and control whiskey,' Governor Comer was speaking of the whiskey lobbyists, representing those businesses which profited from the manufacture, sale, and distribution of liquor."
[20] This was a sweeping bill. Buildings should not be let for the sale or making of intoxicants or such violation permitted in them. Tenants violating this act forfeited their leases.... [I]t was made unlawful to advertise liquor in any public place. The keeping of liquors in any place but a residence was prima facie evidence that they were kept for sale, or intended for sale. Delivery of liquor to any public place was an evidence of sale. It was a misdemeanor for any railroad or boat employees to be intoxicated while on duty. In case of injury to any person caused by one who was drunk, damages could be obtained from the man who sold the liquor. Heavy fines were imposed for selling liquor from behind screens or other obstructions. Judges were required to charge, and grand juries which had testimony had no discretion but to indict. Witnesses who refused to testify were in contempt of court, and even servants could not be excused from testifying against principals. Storage of liquor in any public place was a violation of the law. The law prohibited soliciting from without the state. Sheriffs were authorized to procure lists of United States liquor licenses every month and have them published in heavy black type, with the name and location of the business. Prohibited liquors were contraband when they were stored in violation of the law. Search could be made by warrant, and the presence of government license was prima facie evidence of guilt....'
Sellers 133 n. 30 (emphasis supplied."
[21] Plaintiffs have neither pled, nor does the Pre-Trial Order recite, a negligence claim against either defendant. Rather, the clear thrust of plaintiffs' claims against these defendants is the dram shop act. Nevertheless, applying notice pleading principles [Rule 8, Ala.R. Civ.P. (and the committee comments thereto)], this Court believes the question of whether a common law negligence action will lie under the circumstances of this case also should be addressed." | April 10, 1987 |
418d1ead-5517-4aae-8948-c76088daca7b | Johnson v. Allstate Ins. Co. | 505 So. 2d 362 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 362 (1987)
Henry P. JOHNSON
v.
ALLSTATE INSURANCE COMPANY.
85-1129.
Supreme Court of Alabama.
March 27, 1987.
*363 Henry L. Thompson, Birmingham, for appellant.
Henry E. Simpson and Sally S. Reilly of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
HOUSTON, Justice.
Henry P. Johnson appeals from a summary judgment in favor of Allstate Insurance Company.
Johnson was president of a nonprofit corporation, Kiddie Kollege Day Care Center, Inc. ("Kiddie Kollege"), which operated a day care center for children in Birmingham. Sometime in 1980 or 1981, Kiddie Kollege started rendering a daily pick-up service to transport children to and from the day care center. Those parents who wanted their children to use this transportation service signed a form indicating this. Kiddie Kollege charged $1.00 each way for each child transported to and from the center. On September 10, 1984, a van transporting children enrolled in Kiddie Kollege was involved in an accident and several children were injured as a result. Kiddie Kollege had liability insurance with USF & G that covered the children while in Kiddie Kollege's care, whether at the center or being transported in the van. The question involved in this action is whether Johnson has coverage under an Allstate policy.
Sometime in 1978 or 1979, Johnson as an individual obtained insurance for his personal vehicles through Allstate from its agent, Johnny Angry. In 1981, Kiddie Kollege obtained the use of the van involved in the accident. The title to the van was in the State of Alabama. Johnson added this van to his personal Allstate policy.
In a written statement given by Johnson four days after the accident, he said:
In his deposition, Johnson testified that he did not recall if he ever told Angry the purpose or use to which he planned to put the van. Nor did he recall if he ever told Angry that a charge was being made for transporting children in it. Johnson did not inform Angry that title to the van was held by the State, not by Johnson personally, because that question never came up.
The contract of insurance issued by Allstate to Johnson (the "contract") contained various exclusions from coverage. Part I of the contract, pertaining to liability coverage, provides that Allstate will pay all damages a person insured is legally obligated to pay because of bodily injury or property damage. Specifically excluded from coverage is the following:
"This coverage does not apply to liability for
Part VI provides protection against loss to the "auto," including collision, towing, and labor costs and rental reimbursement coverage. However, Part VI provided that these coverages do not apply to "any auto used for the transportation of people or property for a fee," and that "This exclusion does not apply to shared expense car pools."
Johnson filed a declaratory judgment action, alleging that a number of parents and guardians of the children involved in the accident had filed claims for injuries and expenses resulting from the accident; that the policy issued by Allstate provided liability coverage for personal injury and property damage and automobile collision coverage for the van; that Allstate refused to recognize Johnson's "coverage for either collision and or bodily injuries resulting from the accident." Johnson prayed for a judgment "declaring that the defendant [Allstate] has a duty to honor, defend, and satisfy any claims arising out of the accident mentioned herein to the extend [sic] of terms and conditions of the policy."
The complaint was amended to allege fraud. Johnson alleged that Allstate, through Angry, falsely represented that the van was "fully insured by the Defendant [Allstate] to the extent of the policy issued from the date of issuance" and that this representation was relied upon by Johnson in purchasing the policy. Johnson alleged that Allstate "still refuse[s] to honor valid claims presented by" him. The complaint as amended also alleged bad faith: "Allstate has failed and refused to abide by the terms and conditions of its contract and through its conduct has acted in bad faith in providing compensation for plaintiff's losses as agreed upon" in the contract.
On February 18, 1986, Allstate filed a motion for summary judgment. The motion was set for hearing on March 21, 1986. After oral argument on the motion and briefs had been filed in support of and in opposition to the motion, Johnson filed an affidavit. The affidavit flatly contradicted the written statement given by him to Allstate and generally contradicted his deposition testimony. The trial court refused to consider Johnson's affidavit to determine whether it created a genuine issue of material fact which would preclude summary judgment. Rule 56(c), Ala.R.Civ.P., provides that affidavits submitted in opposition to a motion for summary judgment shall be served prior to the day of the hearing on the motion. Johnson had 30 days' notice of the hearing on the motion but did not serve his affidavit on Allstate until after the hearing. Consequently, it was within the circuit court's discretion not to consider the affidavit. Our standard of review is whether the trial court abused its discretion. See Real Coal, Inc. v. Thompson Tractor Co., 379 So. 2d 1249 (Ala.1980); State v. Norman Tie & Lumber Co., 393 So. 2d 1022 (Ala.Civ.App.1981); 2 C. Lyons, Alabama Rules of Civil Procedure Annot., § 56.3, at 248 (2d ed. 1986). In the absence of a showing of excusable neglect, the trial court does not abuse its discretion when it refuses to accept out-of-time affidavits. Farina v. Mission Investment Trust, 615 F.2d 1068, 1076 (5th Cir.1980); Jones v. Menard, 559 F.2d 1282, 1285 (5th Cir.1977). There was no showing of excusable neglect.
The liability provision of Johnson's Allstate policy excluded liability for the insured auto "while used to carry persons or property for a charge," but the exclusion did not apply to "shared expense car pools."
The collision provision of Johnson's Allstate policy excluded coverage for "any auto used for the transportation of people or property for a fee," but that exclusion "does not apply to shared expense car pools."
The amended complaint alleged that Allstate provided liability coverage for bodily injuries and automobile collision coverage for the van and that Allstate refused to recognize such coverage.
A "car pool" is "a joint arrangement by a group of private automobile owners or drivers in which each in turn drives his car and *365 takes the other passengers." Webster's Third New International Dictionary, Unabridged (1971).
At the time of the accident made the basis of this complaint, the van which was covered under this policy was being used to transport children to and from Johnson's day care center for $1.00 each way. Is liability and collision coverage excluded because of this?
Any ambiguities in an insurance contract must be construed liberally in favor of the insured. United States Fidelity & Guaranty Co. v. Baker, 24 Ala.App. 274, 134 So. 894, cert. denied 223 Ala. 172, 134 So. 896 (1931). A corollary to this rule is that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage to the insured. However, courts are not at liberty to rewrite policies to provide coverage not intended by the parties. Newman v. St. Paul Fire & Marine Insurance Co., 456 So. 2d 40, 41 (Ala.1984). In the absence of statutory provisions to the contrary, insurance companies have the right to limit their liability and write policies with narrow coverage. United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. of Alabama, 424 So. 2d 569, 573 (Ala.1982). If there is no ambiguity, courts must enforce insurance contracts as written and cannot defeat express provisions in a policy, including exclusions from coverage, by making a new contract for the parties. Turner v. United States Fidelity & Guaranty Co., 440 So. 2d 1026, 1028 (Ala.1983).
We have consistently held that coverage under an insurance policy cannot be enlarged by waiver or estoppel, since these doctrines can have a field of operation only when the subject matter is within the terms of the policy. Mooradian v. Canal Insurance Co., 272 Ala. 373, 379, 130 So. 2d 915, 920 (1961). The reason behind this rule is that waiver and estoppel cannot operate to change the terms of a policy so as to cover additional matter. Hanover Fire Insurance Co. of New York v. Salter, 254 Ala. 500, 505, 49 So. 2d 193, 197 (1950). We stated in Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45, 50-51 (Ala. 1980):
This policy has precluded the application of waiver or estoppel to exclusion clauses in insurance contracts in several Alabama cases. See, e.g., Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45 (Ala. 1980); Inland Mutual Insurance Co. v. Hightower, 274 Ala. 52, 145 So. 2d 422 (1962) (on rehearing). See also McGee v. Guardian Life Insurance Co., 472 So. 2d 993 (Ala.1985) (coverage provisions of an insurance contract are not subject to waiver; the fact that the insurer accepted the premiums does not make the insurer liable on the contract).
Allstate denied liability and collision coverage on the basis of exclusionary provisions in the contract, that exclude from coverage an insured automobile while used to carry persons or property for a "charge" or a "fee."
In construing exceptions to coverage of vehicles used to carry persons for a "fee" or a "charge," courts have enumerated various standards for determining whether a particular use of an automobile falls within the exclusion. Some jurisdictions, including Alabama, have stated that one of the determining factors is whether the occupants of the automobile are engaged in a cooperative enterprise to which the parties make contributions that are, to at least some degree, related to the expenses of the journey. In United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59 (1936), the insured made arrangements with friends to travel to the Rose Bowl in his car. The friends were to pay the expenses of the trip, including the insured's living expenses, 233 Ala. at 34, 170 So. at 61. When in a cooperative enterprise for conveyance, some parties contribute to the expenses of the journey while another contributes his car and his personal *366 services in its operation to the others. This Court held that the parties were engaged in a common enterprise and that the insured's automobile was not being used within the exclusion of "carrying passengers for a consideration."
In Myers v. Ocean Accident & Guarantee Corp., 99 F.2d 485 (4th Cir.1938), the court stated that the test of liability of an insurance company under a clause excluding an automobile "carrying passengers for a consideration" turned on whether the amount paid by the passengers was only a proportionate part of the expenses of the journey or was a definite sum paid as consideration or profit to the driver and not directly related to the expenses of the trip. The court found two of the passengers on this journey, who were friends of the driver and who, along with the driver, contributed jointly to the expenses of the journey, did not fall within the scope of the exclusion. 99 F.2d at 490. However, the court held that the remaining three passengers, who were strangers to the driver and who paid the driver a set fee, did fall within the provision:
99 F.2d at 493. See also Eason v. Weaver, 557 F.2d 1202 (5th Cir.1977) (construing Georgia law) (exclusion does not apply to "expense-splitting passenger" who contributed $5.00 to offset the cost of renting the car); Burgess v. Holder, 362 Mich. 53, 106 N.W.2d 379 (1960) (exclusion "clearly covers a case where proofs show that the passengers paid a definite amount").
Other courts have looked at the totality of circumstances surrounding the journey and the amount paid to determine if a paying passenger falls within the exclusion. In State Farm Mutual Automobile Insurance Co. v. Self, 93 F.2d 139, 140 (5th Cir.1937), the court took into consideration the relationship of the parties; the existence, or lack, of a common interest; pleasure or benefit in making the journey; and the relationship of the amount paid to the actual cost of the journey. The court determined that the parties to the journey in question had no common interest other than procuring transportation to their several and different destinations. The set fee paid by the passengers was not fixed with reference to the actual expense of the trip, but was instead the motivating influence for the driver to provide the transportation. The court held the trial court should have granted the insurance company's motion for a directed verdict, and reversed and remanded the case. See also Jeffry v. Allstate Insurance Co., 161 Me. 94, 207 A.2d 402 (1965) (construing Canadian law) (exclusion applied to passengers who paid driver a set fee for transportation with no significant regard to the expenses involved, who were not relatives or friends of the driver, and who had no common interest other than a desire to reach a common destination).
Some courts have looked at the nature of the contribution paid by the passenger. In Sleeper v. Massachusetts Bonding & Insurance Co., 283 Mass. 511, 186 N.E. 778, 779 (1933), the court stated that whenever there is a contract for transportation between the driver and the passengers based on a valuable consideration, the insurer is not liable for damages under an insurance contract which excludes automobiles "carrying passengers for a consideration." The court also stated that the commercial adequacy or inadequacy of the consideration, or want of profit to the driver, is immaterial under the terms of the policy. 283 Mass. at 515, 186 N.E. at 780. See also Eason v. Weaver, 557 F.2d 1202 (5th Cir.1977) (construing Georgia law) (exclusion does not apply to passenger who was a friend of the insured and who made an "incidental, casual" contribution to the expenses of an undefined journey for the mutual pleasure of both); Standard Accident Insurance Co. v. Cloutier, 92 N.H. 449, 32 A.2d 684 (1943) (exclusion applies where the amount contributed was consideration for the contract of carriage rather than a voluntary contribution).
*367 Applying these standards to the case at hand, there is no question that the van which was being used to transport children daily to and from Kiddie Kollege was "carrying passengers for a fee" and "carry[ing] persons ... for a charge" within the scope of the liability and collision exclusions of the contract. Those parents who wanted their children to be picked up by the van signed a contract with Kiddie Kollege. They paid the day care center $1.00 each way for each child for this service. If the parents got behind in their payments, Johnson would attempt to collect the amount due. Following the accident, Johnson terminated this transportation service. As a result, the day care center lost some children because there was no transportation. Johnson's deposition and the exhibit thereto establish that Kiddie Kollege provided a transportation service for its children under a contract for "a fee" or "a charge."
Johnson asserts that his deposition testimony creates a genuine issue of material fact as to whether the dollar received by Johnson for transporting students to and from the day care center was a "fee" or a "charge."
In his brief, Johnson asserts that the dollar per trip "was used to defray the expenses of operating the van." Johnson stated in his deposition that the amount collected for the transportation service was inadequate to support the operation of the van. Johnson's contention that the dollar per trip was a contribution rather than a fee rests upon his assertion that the dollar was primarily used to defray the cost of operating the van and was inadequate to support such operation.
These circumstances, however, are immaterial to the inquiry on the contract claim, and thus do not create a genuine issue of material fact precluding summary judgment. The actual use to which the amount collected by the driver was put, whether to defray expenses or otherwise, is not relevant to this appeal. Presumably, all the money collected by the drivers in the cases cited above was used to defray expenses. Nor is it important whether the driver makes a profit on the journey.
What is central to this appeal is whether the amount charged was a definite amount, whether it was proportionate to the actual expenses of the trip, whether it was voluntary or, rather, was paid as consideration to the driver, and whether the driver and passengers were engaged in a common enterprise. Johnson's deposition demonstrates that the dollar per trip was a definite amount unrelated to his actual expenses, paid as consideration for transporting students who were not engaged in a common enterprise with him. Under this evidence, there is no question that any claims arising out of this accident are excluded under the liability and collision coverages of the policy.
The automobile liability insurance policy at issue here clearly limits the risks covered by excluding from coverage vehicles which are used to transport paying passengers. Under Alabama law, insurers have the right to so limit their liability. Courts which have interpreted policies with similar exclusionary clauses have recognized this limitation on coverage by determining that, although the limitation does not apply to pleasure trips made by friends or relatives or to car pool situations where the amount collected by the driver is proportionate to the expense of the journey, the risks associated with vehicles used to carry paying passengers for a set fee do not come within the risks covered by such policies.
In this case, a van was used to provide a daily pick-up service for children enrolled at Kiddie Kollege. The children who were transported to and from the day care center were not friends or relatives engaged on an isolated pleasure trip and had no common interest other than reaching a common destination. The use of the van in this manner clearly expanded the risks of liability beyond those risks covered by the insurance policy. As a matter of law, a vehicle used to transport children to and from a day care center every day for a fee *368 or charge does not come within the coverage provided by the insurance policy at issue here. There is no genuine issue of material fact, and the trial court did not err in granting summary judgment in favor of Allstate on the contract count.
The occupants of the van at the time of the accident were made parties to Allstate's declaratory judgment action, which was consolidated with Johnson's declaratory judgment, fraud, and bad faith action against Allstate. The trial court granted summary judgment in favor of Allstate as to all issues raised in both lawsuits. Only Johnson appealed. Therefore, the issue of whether the occupants of the van were entitled to medical payments coverage under the Allstate policy is not before us.
There was no evidence that the van was not "fully insured by the Defendant [Allstate] to the extent of the policy issued from the date of issuance," which is the representation allegedly made by Allstate that is the basis of Johnson's fraud claim. In order to recover for fraud in Alabama a plaintiff must prove, among other things, that there was a false representation. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985). Since there is no genuine issue of material fact as to this element of the actionit being clear that there was no false representationthe trial court did not err in granting summary judgment to Allstate on Johnson's fraud count.
There was a lawful basis for refusal to provide liability and collision coverage for the accident made the basis of this suit, and there was no evidence of an intentional failure to determine whether there was any lawful basis for the refusal to provide liability and collision coverage. Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981). Therefore, there is no genuine issue as to a material fact on Johnson's bad faith count, and the trial court did not err in granting summary judgment to Allstate on that count.
AFFIRMED.
TORBERT, C.J. and MADDOX, and BEATTY, JJ., concur.
ALMON, J., concurs in result. | March 27, 1987 |
bcc7dbd3-b2d6-42d0-b0cf-8cbd303fa336 | McLaughlin v. Pannell Kerr Forster | 504 So. 2d 264 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 264 (1987)
M.V. McLAUGHLIN, et al.
v.
PANNELL KERR FORSTER, et al.
85-992.
Supreme Court of Alabama.
February 27, 1987.
James J. Duffy, Jr., and Dennis P. McKenna of Inge, Twitty, Duffy & Prince, Mobile, for appellants.
Broox G. Holmes and David A. Bagwell of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
HOUSTON, Justice.
This is a fraud action. A summary judgment was granted to the defendants on their affirmative defense that the action was time barred. The plaintiffs appeal. We reverse and remand.
This action was filed in April 1984, at which time fraud claims were governed by Alabama's one-year statute of limitations. See § 6-2-39(a)(5), Code 1975 (repealed by Act 85-39, Ala.Acts 1984-85, effective January *265 9, 1985; causes of action governed by that one-year statute were transferred to the two-year statute, § 6-2-38). This appeal involves the § 6-2-3 exception to the statute of limitations for fraud, which provides:
In Gonzales v. U-J Chevrolet Co., 451 So. 2d 244, 247 (Ala.1984), this Court held:
In State Security Life Insurance Co. v. Henson, 288 Ala. 497, 504, 262 So. 2d 745, 751 (1972), this Court wrote:
This Court has decided that under certain circumstances the time of the discovery of the fraud or the time the fraud should have been discovered can be determined as a matter of law. In so determining, this Court does not make delphic pronouncements, but has before it either uncontroverted evidence that plaintiffs had such notice. Davis v. Davis, 494 So. 2d 393 (Ala. 1986); Kelly v. Smith, 454 So. 2d 1315 (Ala. 1984); Retail, Wholesale, & Department Store Employees Union, Local 453 v. McGriff, 398 So. 2d 249 (Ala.1981); Moulder v. Chambers, 390 So. 2d 1044 (Ala.1980); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala.1979), or uncontroverted evidence that a plaintiff, with the ability to read, had in his/her possession a document from which the fraud could have been ascertained by a simple investigation, Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So. 2d 1131 (Ala.1986); Cooper Chevrolet, Inc. v. Parker, 494 So. 2d 386 (Ala.1985); Gonzales v. U-J Chevrolet Co., supra; Sexton v. Liberty National Life Ins. Co., 405 So. 2d 18 (Ala.1981).
The plaintiffs in this fraud action are shareholders in Ono Development Company, Inc., and Ono East, Inc., who on behalf of themselves and other shareholders of those companies, have brought suit against Pannell Kerr Forster, an independent certified public accounting firm and two of its CPA employees (the firm and the CPAs will be referred to as "defendants-accountants"), for misrepresentations made in connection with annual audits by defendants-accountants of Ono Development and Ono East relating to the improper manner in which commissions were paid to and by Jere Austill, Evan Austill, and Phillip Schock, three of the principal officers and directors of Ono Development.
Defendants-accountants moved for summary judgment "on the ground that as to the running of the statute of limitations there is no dispute as to any material fact."
The motion for summary judgment was not supported by affidavits. A defendant may file a motion for summary judgment with or without supporting affidavits. Rule 56(b), Ala.R.Civ.P. However, this motion, based on the statute of limitations defense, should not have been granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," showed that there was no genuine issue as to the statute of limitations defense.
The complaint, as amended, does not show on its fact that the claim is time-barred. *266 The only filing in this case, other than the complaint and the motion for summary judgment, is the motion to dismiss, which challenges plaintiffs' standing under Rule 23.1, Ala.R.Civ.P., "Derivative Actions by Shareholders," and which does not raise the statute of limitations defense.
There were no depositions taken, interrogatories propounded or answered, or admissions made in this case insofar as this court can determine from the record.
Five exhibits are attached to the motion for summary judgment. We first must determine whether it was permissible for the trial court to consider any of these exhibits in ruling on the motion. Welch v. Houston County Hospital Board, 502 So. 2d 340 (Ala.1987).
The first exhibit was what purported to be minutes of a July 27, 1973, stockholders' meeting of Ono Development. These were not authenticated or certified in any way, and their authenticity was not established by the sworn testimony of a custodian. Ordinarily these minutes could not be considered by the trial court in ruling on this motion. However, in the motion for summary judgment it was asserted that these minutes were offered in evidence in the trial of McLaughlin v. Austill, CV-84-832-Z, in the same court as that in which the motion for summary judgment was pending. Likewise, Exhibit B was the docket sheet in that prior proceeding, and Exhibits C, D, and E were designated pages from depositions taken in that prior proceeding.
In Garrett v. Gilley, 488 So. 2d 1360 (Ala. 1986), this Court wrote:
488 So. 2d at 1362.
Having reviewed these minutes, the docket sheet, and the designated pages from the depositions, we are not persuaded that the time of the discovery of the fraud or the time the fraud should have been discovered can be determined as a matter of law.
Defendants-accountants were not parties to the McLaughlin v. Austill lawsuit. It appears from the record before us that that lawsuit, and the proceedings at the July 27, 1973, stockholders' meeting *267 involved the acquisition by the Austills and Schock of a certain corporate opportunity which should have inured to Ono Development. The suit was a successful attempt to recapture for Ono Development the stock of the Austills and Schock in Ono East. It appears to us that that previous lawsuit involved questions relating to the acquisition and holding of Ono East stock and did not involve questions of how commissions were being paid to the Austills and Schock on sales of lots which they made for Ono Development. We cannot say as a matter of law that the plaintiffs should have discovered the fraud of the defendants-accountants during the course of the McLaughlin v. Austill lawsuit. The annual audits are the very things which persons of ordinary prudence would rely on to determine if the principal officers and directors are properly discharging their fiduciary duty. To hold as a matter of law that stockholders have a duty to discover misrepresentations in unqualified audit reports prepared by reputable CPAs, merely because the stockholders had employed attorneys to represent them in a complicated action, not directly involving the matters allegedly misrepresented, would go farther than this Court has gone or is willing to go.
The plaintiffs filed the following affidavit of Shelby Trice, a CPA retained by plaintiffs' attorney to review the corporate records and to testify in the preceding lawsuit, in opposition to the motion for summary judgment:
This suit was filed within one year of April 26, 1983. The trier of fact may determine that the plaintiffs "ought to or should have discovered" more than one year before this action was filed "facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered." Gonzales v. U-J Chevrolet Co., supra; but this cannot be determined as a matter of law from the record before us.
The trial court erred in granting summary judgment for defendants-accountants on their statute of limitations defense.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
[1] Act 85-39, Ala.Acts 1984-85, effective January 9, 1985, also changed the "one year" provision in § 6-2-3 to "two years." | February 27, 1987 |
99f770f3-c611-453f-8f63-20523232c817 | City of Tuscaloosa v. Bryan | 505 So. 2d 330 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 330 (1987)
CITY OF TUSCALOOSA, et al.
v.
C.H. BRYAN, Sr., et al.
84-1348.
Supreme Court of Alabama.
March 27, 1987.
*331 Dena Byrd and Robert W. Ennis IV of the City of Tuscaloosa Legal Dept., for appellants.
Ralph I. Knowles, Jr., of Drake, Knowles & Pierce, Tuscaloosa, for appellees.
HOUSTON, Justice.
This case involves the proposed development of an apartment complex on a 10.1acre tract of land adjoining the Cherokee Hills, Woodland Hills, and Beech Hills subdivisions of the City of Tuscaloosa. The appellees are owners of residential property located in those subdivisions. The appellants are the City of Tuscaloosa; the city's mayor, Al Dupont; and city commissioners Hilliard Fletcher and Banks Quarles. The appellees filed their complaint in the Circuit Court of Tuscaloosa County, seeking a declaratory judgment and an injunction against the development of the apartment complex as proposed. The trial judge, Honorable John M. Karrh, after hearing ore tenus evidence, found in favor of the appellees and granted the injunction. We affirm.
Judge Karrh's judgment reads as follows:
"This case arises out of a decision by the City of Tuscaloosa to allow an extension of a currently existing ninety-unit apartment complex onto approximately 10.1 acres of currently vacant land which is zoned R-1 and adjoins or is close to the homes of the plaintiffs. The plaintiffs filed this action and have asked declaratory and injunctive relief which will declare the action of the City to be illegal and permanently enjoin the building of the said apartment complex. Essentially, they maintain that the City violated its own Zoning Ordinance and related Subdivision Regulations by: (A) approving the said extension by calling it a Planned Unit Development (PUD) when it does not meet the requirements of a PUD; and, (B) not following mandatory procedural requirements. Although the owners and putative developers of the 10.1 acres were not originally named as defendants, they have been allowed to intervene as defendants and have participated fully in the defense of the case.
"A full ore tenus hearing before the Court was held on all issues on June 25 and 26, 1985. Numerous witnesses were heard and voluminous maps, charts, plats, photographs and documents were admitted into evidence. In addition, at the specific request of all parties, the Court conducted an on-site inspection of the current existing apartment complex, the area proposed for the expansion, and the surrounding area.
"Based upon the pleadings, all evidence legally presented (including the Court's tour), and the applicable law, the Court *332 makes the following findings of fact and conclusions of law:
"1. In the mid to late 1960's the developer/intervenor (hereinafter `developers') successfully petitioned the City to rezone approximately 9.2 acres of land they owned on Loop Road from R-1 to a designation that would allow an apartment complex to be built. The acreage adjoined Loop Roada major traffic arteryand was buffered from most of the residential areas behind it, including Cherokee Hills and Woodland Hills, by the 10.1 acres which is the subject of this litigation and which remained zoned R-1.
"2. Within a couple of years of the rezoning, an apartment complex of ninety units was constructed on the 9.2 acre plot. This was done in two stages. The complex is generally known as Williamsburg East but in some exhibits is called Williamsburg I and II. Although the apartments of Williamsburg East would generally be deemed to be nice and desirable apartments, the land was cleared of trees and there is almost no usable open space within the complex. A relatively small swimming pool and incidental clubhouse was included at the back of the 9.2 acres for the use of the residents.
"3. Subsequently, the owners of Williamsburg East purchased the 10.1 acres between the apartment complex and the surrounding residential property. The developers knew at the time of purchase that the property was zoned R-1.
"4. The residential lots surrounding the 10.1 acres vary somewhat in terms of the size of the lots and the houses as well as their condition. However, in general, the lots are large with a great deal of vegetation and resultant privacy. All are single family residences. The Court accepts the testimony of the homeowner plaintiffs who believe their property will be devalued economically or aesthetically if an apartment complex is built on the 10.1 acres. During the entire period relevant to this litigation, the 10.1 acres has been zoned R-1 or its equivalent.
"5. The City of Tuscaloosa has duly adopted a Zoning Ordinance and Subdivision Regulations pursuant to the enabling statutes provided by the Alabama legislature. See §§ 11-52-70 and 11-52-30, Code of Alabama.
"6. If the City of Tuscaloosa chooses to regulate land use then it must follow its own rules and regulations as are established in the Zoning Ordinance and Subdivision Regulations. Lynwood Property Owners [Ass'n] v. Lands Described, 359 So. 2d 357, 359 (Ala.1978); Smith v. City of Mobile, 374 So. 2d 305, 307 (Ala.1979); City of Guntersville v. Shull, 355 So. 2d 361 (Ala.1978).
"7. In early 1985, the developers decided to expand the currently existing Williamsburg East apartment complex into the 10.1 acres and to build ninety additional apartment units thereon. The apartments were to be similar in design to the existing units and the two developments were to be operated as an integral unit. No recreational or other amenities of any kind were ever planned to be provided on the 10.1 acre plat [sic].
"8. An `R-1 Resident District' is defined by the Tuscaloosa Zoning Ordinance as follows:
"9. The developers applied to the Tuscaloosa Zoning Commission to have the 10.1 acres rezoned to RMF-1 so that the apartment units could be built.
"10. An `RMF-1 Multi-Family Residence District' is defined by the Tuscaloosa Zoning Ordinance as follows:
*333 "11. The developers were turned down in their attempt to get a rezoning of the property to RMF-1 (the primary zoning designation for apartment complexes). Nonetheless, shortly thereafter they decided to attempt to get the apartment complex extension approved as a Planned Unit Development since PUD's are `permitted uses' under the R-1 designation, if the requirements of the Zoning Ordinance related to PUD's are met.
"12. A `Planned Unit Development' under the Tuscaloosa Zoning Ordinance is defined as:
"§ 35-5(41), Zoning Ordinance of the City of Tuscaloosa. Article XII of the Zoning Ordinance includes §§ 35-121 through -126 and specifies the standards that must be followed if a developer is to be permitted to use land in an R-1 area as a PUD for other than single-family residences.
"13. Statutes and ordinances providing for land use restrictions are to be strictly construed. Smith v. City of Mobile, 374 So. 2d 305, 307 (1979).
"14. § 35-4 of the Zoning Ordinance of the City of Tuscaloosa explicitly states that the standards established therein are the `minimum requirements' and that the regulations which require the greatest restrictions are always to be controlling. Further, the General Development Plan for the City of Tuscaloosa, at page 105, states that `Subdivision, building, housing and zoning ordinances should be strictly enforced.'
"15. § 35-5 of the Zoning Ordinance of the City of Tuscaloosa states that as used in the Zoning Ordinance: `The word "may" is permissive; the word "shall" is mandatory.'
"16. § 35-122 of the Zoning Ordinance provides the specific `criteria' that must be met by any proposed PUD in Tuscaloosa.
"17. § 35-122(b) requires that `a tract proposed for PUD should consist of a single contiguous tract ...' of at least 15 acres unless the design of the PUD `possesses extraordinary merit.'
"The proposed PUD is to contain sixty units instead of the original ninety planned. Other than the small increase in the space for yards behind and around the apartment units which the decrease provided, no other changes of substance were made in the proposed development before it was submitted as a PUD. The large area of space on the proposed plat set aside as `permanent open area' to be dedicated for the use of the community is in fact primarily composed of a steep and deep ravine which is not usable for any purposerecreation or otherwise. Although there are designations within this `open area' of two `lakes' on the plat submitted to the Planning Commission and the City, there are, in fact, no lakes on the plat. Those areas were referred to in other plats as `silt collecting ponds.' In any event, the area is of no usable benefit to the residents. Consequently, the trade-off usually made between the City and the developers to allow a higher density of living units for creative development of usable common space does not exist.
"Almost all of the usable acreage within the 10.1 acres will be denuded and excavated and will be consumed with the apartments, streets, and parking places. As has been found above, the apartments will be similar in design to those in the existing apartments. Some of them will be as close to adjoining R-1 property lines as thirty feet.
"The proposed extension of the apartment complex would be a `nice' apartment complex but is neither unusual nor extraordinary in merit. The planning Commission found in its written report to the City Commission that the site plan is not extraordinary. This is not a fairly debatable issue.
"18. § 35-122(C) of the Zoning Ordinance mandatorily requires that there be *334 no more than 4 dwelling units per gross site acre in an R-1 district. The proposed PUD would have 60 units in 10.1 acres even if the developers are allowed to count the acreage in the ravine area. Thus, there are 5.94 units per gross site acreapproximately 1/3 more than allowed.
"The developers point to the provision of § 35-122(C) of the Zoning Ordinance that provides for an increase of two dwelling units per gross site acre if the tract plan also includes `major recreational amenities' such as swimming pools or tennis courts. However, there are no recreational amenities provided within the proposed PUD tract. The fact that there is a small swimming pool that may be available to the residents outside the tract does not address the mandatory requirement of § 35-122(C). Moreover, even if the swimming pool were erroneously considered by viewing the existing complex and the proposed extension as one development, the dwelling unit density would be 7.7 units per gross site acre and would still be above that allowed by the Zoning Ordinance.
"19. § 35-122(D) of the Zoning Ordinance requires in mandatory terms that the `open space' designated in a plat shall have not less than twenty feet of frontage on a public street. This is not provided in the proposed PUD.
"20. § 35-122(F) of the Zoning Ordinance requires that `the provision of streets ... shall be as required by the Tuscaloosa Subdivision Regulations.' § 4.3 of the Tuscaloosa Subdivision Regulations provides for a minimum of a 30-foot width for `local service streets,' the most narrow of all streets allowable. The width of the major access street in the proposed PUD is 24 feet.
"21. § 35-123 of the Zoning Ordinance provides for certain mandatory procedures to be followed before tentative and/or final approval can be given to a PUD. These mandatory provisions were violated in numerous ways in the process of giving final approval to this apartment complex extension.
"Contrary to the clear language of § 35-123, the scale utilized in the Preliminary Plat of Williamsburg East, Phase III was one (1) inch equals fifty (50) feet; nor were the heights of the buildings shown on the site plan.
"Contrary to the mandatory language of §7.1 Preliminary Plat Requirements, the following data [were] omitted:
"Sub-paragraph 4 of § 35-123(A) provides that a statement is required to be filed by the developer, setting forth the approximate cost of each dwelling to be contained in the planned unit development. This was simply not done.
"23. § 35-123(D) of the Zoning Ordinance states:
"Contrary to the mandatory language of § 7.3 Final Plat of the Subdivision Regulations, the following data [were] omitted.
"The Subdivision Regulations in § 6.7 clearly state that ... `The Planning Commission shall not approve the Final Plat until they are notified by the City Engineer...' (emphasis added [by Judge Karrh]) that an improvement bond has been filed, in accordance with § 35-123(D)(3). As stipulated by the parties in open court, no improvement bond was made by the developers. Failure to provide the improvement bond violated 35-123(D)(3) of the Zoning Ordinance.
"24. The City of Tuscaloosa has clearly acted in violation of its own ordinances and regulations in approving the development of the extension of the apartment complex in the proposed tract.
"25. The City of Tuscaloosa acted arbitrarily and capriciously in approving the development of the extension of the apartment complex in the proposed tract.
"26. The City of Tuscaloosa deprived the plaintiffs of due process of law under Article 1, §§ 1, 6, and 22 of the Constitution of Alabama. See, e.g., Lynwood Property Owners [Ass'n], supra. (In light of the Court's ruling, it is unnecessary to decide whether the plaintiffs' federal constitutional claims are viable.)
"WHEREFORE, PREMISES CONSIDERED, it is hereby Ordered, Adjudged and Decreed as follows:
"1. The actions of the City of Tuscaloosa in giving preliminary and final approval for the proposed Planned Unit Development known as Williamsburg East Phase II (or sometimes referred to as Phase III) are declared to be null and void;
"2. The City of Tuscaloosa is enjoined from issuing a building permit for the development of said plat as proposed;
"3. The intervenor/defendants are strictly enjoined from taking any steps to begin construction on the said 10.1-acre plat based upon any prior tentative or final approval of the proposed PUD by the City of Tuscaloosa;
"4. All defendants are enjoined from taking any action inconsistent with the findings and conclusions herein;
"5. Costs are taxed in equal share to the City and the intervenor/defendants."
The appellants contend that the judgment of the trial court is due to be reversed because the PUD, as proposed, is not in violation of the applicable zoning ordinance. For the following reasons, we disagree.
We recognize that the PUD is a novel zoning concept, representing a modern, flexible approach to progressive municipal planning. 82 Am.Jur.2d Zoning and Planning § 106 (1976); R. Anderson, American Law of Zoning, § 5.16 and § 8.38 (1968); Dillon Companies, Inc. v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973); Lutz v. City of Longview, 83 Wash. 2d 566, 520 P.2d 1374 (1974). In effect, ordinances such as the one in the present case provide for the reclassification of a relatively small area within a large zoned area. Such a reclassification may be *336 approved but only if certain procedures are followed and various conditions are met. These prerequisites are, in part, necessary to insure that such a reclassification scheme does not come into conflict with our well established prohibition against piecemeal or spot zoning. Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593 (1950); R. Anderson, American Law of Zoning § 5.14 (1968). Notwithstanding its flexibility, a PUD must still fit into a municipality's comprehensive zoning plan. Clearly, ordinances regulating PUD's are intended to protect neighboring property owners by setting out specific prerequisites which must be met by applicants prior to approval. Compliance with these prerequisites serves to insure that a PUD, as proposed, will fit into the municipality's existing comprehensive zoning plan. Therefore, there must be compliance with the ordinance. 82 Am.Jur.2d Zoning and Planning, supra.
The traditional view of zoning or rezoning is that it is essentially a legislative function. The passage of a zoning ordinance is a legislative act, and it is well established that municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable. If the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity. Cudd v. City of Homewood, 284 Ala. 268, 224 So. 2d 625 (1969). In other words, after hearings and as the result of studies, certain municipal areas as a matter of legislative policy are designated for residential use, some for commercial use, and some for variations on those uses which are compatible with the objective sought to be achieved by the municipality.
The often cited case of Episcopal Foundation of Jefferson Co. v. Williams, 281 Ala. 363, 202 So. 2d 726 (1967), sets out in detail the very well settled legal principle that if the question of zoning or rezoning is fairly debatable, a court will not substitute its judgment for that of the municipal government body acting in a legislative capacity. In the Episcopal Foundation case, the Birmingham City Council, by amendment to its zoning ordinance, rezoned certain property from residential use to general business, office, and institutional use. Adjoining property owners brought suit, seeking a decree declaring that the amendment to the zoning ordinance constituted spot zoning and therefore violated their constitutional rights. After the Circuit Court of Jefferson County declared the ordinance void, Episcopal Foundation appealed. As its rationale for reversing the lower court's judgment and determining that the amendment of the ordinance was, in fact, valid, the Court stated:
281 Ala. at 367, 202 So. 2d at 730.
This case involves a question of first impression in this state, and that question is: What is the scope of judicial review of a municipality's action in approving a planned unit development? A few jurisdictions have considered the question, and the scope of judicial review of a municipality's action in approving a PUD is discussed in 2 American Law of Zoning 3d, § 11.11 (1986), as follows:
Our standard of review of the approval of a PUD application should be the same as our standard of review of the rezoning of an area. In both cases, the ordinance has been adopted. The action reviewed is the change of use of property. In Episcopal Foundation, we held that in rezoning an area the standard of review should be whether the reclassification is sound and fair. If it is fairly debatable as to whether the reclassification is sound and fair, the Court will not substitute its judgment for that of the city council.
In the present case, the trial judge determined that the approval of the PUD application, as proposed, was not supported by the evidence and was thus void as being contrary to law. In making that determination he was required to construe and apply various provisions within the ordinance. The appellants' arguments are directed specifically to paragraphs 17 through 24 of the judgment. With respect to paragraph 17, they argue that the trial judge erred in substituting his findings for theirs on the question of whether the PUD, as proposed, possessed "extraordinary merit." With respect to paragraphs 18 through 24, the appellants maintain that the trial judge misinterpreted the various sections of the ordinance. For purposes of our discussion, we will begin with paragraph 18.
With respect to paragraph 18, the appellants argue that it is not mandatory that "major recreational amenities," such as swimming pools and tennis courts, be provided within the PUD itself. They cite to the ordinance, which states only that such facilities must be "provided" in order for the developer to qualify for a density bonus. We cannot accept this interpretation.
The cardinal rule for the construction of a statute is to ascertain the legislative intent, which must be determined by examining the statute as a whole in light of its general purpose. Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So. 2d 1211 (Ala.1985). The same rule applies with respect to the construction of an ordinance. Custred v. Jefferson County, 360 So. 2d 285 (Ala.1978).
*338 Based upon our examination of the ordinance, its general purpose, in our view, is to provide a means by which a developer may secure the reclassification of a relatively small area within a large zoned area. The ordinance undertakes to strictly regulate the development of this "area within an area." Accordingly, we agree with the trial judge that the intent of the ordinance, notwithstanding the way the appellants treated it, is to require that recreational facilities be "provided" within the PUD itself.
With respect to paragraph 19, the appellants contend that the trial judge erred in applying § 35-122(D) of the ordinance under the particular facts of this case. That section reads as follows:
The appellants argue that since the proposed PUD is to consist of an apartment complex, there will be no individual "lost area reductions." We must agree. The requirements of this section are limited to open space generated by lot area reductions. The PUD, as proposed, is not subdivided into individual lots. Therefore, this section would seem to have no application.[1]
We find the appellants' arguments with respect to paragraphs 20 through 24 to be unpersuasive. The ordinance is very clear concerning the width of the streets required within a PUD, as well as concerning the application procedures to be followed before tentative and/or final approval can be given.
Finally, going back to paragraph 17, a proposed PUD which, like this one, fails to comply substantially with the conditions and requirements of an ordinance, cannot, as a matter of law, possess "extraordinary merit"; and the permitting of a PUD which does not comply substantially with the conditions and requirements of the ordinance permitting PUDs is not sound and fair and that is not fairly debatable. As a result, the plaintiffs were deprived of procedural due process when the appellants approved the PUD. Lynnwood Property Owners Ass'n v. Lands Described, 359 So. 2d 357 (Ala.1978). The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C. J., and MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] We note that "open space" is contemplated within the PUD as depicted on the preliminary plat. While the requirements of § 35-122(D) of the ordinance do not apply to this "open space" so as to require at least 20 feet of frontage on a public street, this should have no effect on the requirement that the dimensions of "open space" which is contemplated be set out in the preliminary plat. See paragraph 22 of the trial court's judgment. | March 27, 1987 |
e779daa8-b53f-4850-9bf8-56665ad124bc | Clark v. Houston County Com'n | 507 So. 2d 902 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 902 (1987)
A.B. CLARK
v.
HOUSTON COUNTY COMMISSION.
85-516.
Supreme Court of Alabama.
March 20, 1987.
Rehearing Denied May 15, 1987.
W. Terry Bullard, Dothan, for appellant.
Richard H. Ramsey III, Dothan, for appellee.
PER CURIAM.
This is an appeal by A.B. Clark from the denial of his petition for writ of mandamus. We reverse.
This case involves the interpretation of Ala. Code 1975, §§ 36-22-60 through -65, concerning supernumerary sheriffs.
Clark, who is presently over 55 years of age, was elected to the office of sheriff of Houston County, Alabama, in 1966. He took office in January 1967 and served until January 16, 1983. On September 24, 1985, Clark was issued a commission by the governor of Alabama appointing him supernumerary sheriff of Houston County. On that same date, the probate judge of Houston County administered the oath of office of supernumerary sheriff. In compliance with Ala. Code 1975, § 36-22-63, Clark tendered a check, dated September 24, 1985, in the amount of $5,412.97 to the Houston County Commission for the purchase of credit for service prior to July 19, 1979. The Houston County Commission returned the check to Clark's attorney on May 23, 1986, contending that Clark was not entitled to benefits under the supernumerary sheriff's program.
Clark contends that he meets the age and tenure-in-office requirements of Ala. Code 1975, § 36-22-60; that he has been issued a commission as supernumerary sheriff; that he is entitled to be paid benefits as provided for in Ala. Code 1975, § 36-22-62; *903 and that he is entitled to be paid such benefits effective September 24, 1985.
The Houston County Commission contends that Clark does not meet the statutory requirements for receiving the benefits of a supernumerary sheriff because he was not serving as sheriff of Houston County on May 20, 1985, the effective date of the amendment of Ala. Code 1975, § 36-22-63, and was not serving as sheriff on the date he made his election to participate in the program.
The qualifications necessary to participate in the supernumerary sheriff's program are stated in Ala. Code 1975, § 36-22-60. This section states in part:
In order for Clark to have the necessary 16 years of creditable service as a law enforcement officer, he must purchase credit for service prior to July 19, 1979, which is provided for in Ala. Code 1975, § 36-22-63. A 1985 amendment to this section provides that "[a]ny prior service credit must be purchased within two years of May 20, 1985." The 1985 amendment substituted "two years of May 20, 1985" for "one year of July 19, 1979." This amendment merely created a new time period for the purchase of prior service credit in the event it had not been purchased within one year of July 19, 1979.
The trial court held: that the 1985 amendment allowed sheriffs, who were serving on July 19, 1979, and on May 20, 1985, to purchase prior service credit in the event they had not purchased prior service credit within one year of July 19, 1979; that the amendment did not allow the purchase of prior service credit by a former sheriff who was no longer serving as sheriff; that the supernumerary program was created for "sheriffs" who during their tenure in office elected to vacate the office and assume the office of supernumerary sheriff; and that no provisions are made for "former" sheriffs to elect to participate in the program subsequent to leaving office.
The trial court's interpretation of the provisions of the supernumerary sheriff's statute is a determination of law, which is not entitled to a presumption of correctness on appeal. Donnelly v. Doak, 346 So. 2d 414 (Ala.1977).
We must determine whether the provisions of Article 3, Chapter 22, Title 36, of the Alabama Code 1975 allow a "former" sheriff to elect to participate in the supernumerary sheriff's program.
The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So. 2d 850 (Ala.1978). If the statute is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the statute and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So. 2d 139 (Ala. *904 1978); League of Women Voters v. Renfro, supra.
Although there are no specific provisions for "former" sheriffs to elect to participate in the supernumerary program, there is also nothing in the statute to indicate that the legislature intended to prohibit a former sheriff, who was serving in office on July 19, 1979, from purchasing prior service credit and thus participating in the supernumerary program.
Section 36-22-60, which sets forth the qualifications necessary to participate in the program, does not require that Clark be in office on May 20, 1985, or at the time he elects to participate in the program. The only importance May 20, 1985, has is in relation to the time for purchasing prior service credit. Ala. Code 1975, § 36-22-63.
It is undisputed that Clark meets the qualifications set out in § 36-22-60 to participate in the supernumerary program. He was 59 years of age at the time he made the election, had served 16 years as sheriff of Houston County, was serving as sheriff on July 19, 1979, and had filed a written declaration with the governor. This Court does not believe that the legislature intended to prohibit a person who meets all the necessary qualifications for supernumerary sheriff from participating in the supernumerary program simply because he chooses or is forced to make the election at some time after he leaves office.
Based upon the foregoing, the judgment of the trial court is reversed and the cause remanded for entry of an order consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES and STEAGALL, JJ., concur.
TORBERT, C.J., and BEATTY and HOUSTON, JJ., dissent.
HOUSTON, Justice, dissenting.
I dissent.
The majority opinion contains the following statement, with which I must disagree: "Although there are no specific provisions providing for `former' sheriffs to elect to participate in the supernumerary program, there is also nothing in the statute to indicate that the legislature intended to prohibit a former sheriff, who was serving in office on July 19, 1979, from purchasing prior service credit, and thus, participating in the supernumerary program." (Emphasis added.) The trial court in its order stated that the 1985 Amendment to § 36-22-63, Code 1975, provided that the payment for purchase of prior service credit is based on a percentage of a sheriff's "current salary as sheriff." Section 36-22-63, Code, provides:
The trial court in its order wrote: "In order for a sheriff to have a current salary as sheriff, one would have to be currently serving as sheriff." I believe that the trial court has interpreted the statute the only way that it can be logically and correctly interpreted. I agree with the trial court.
TORBERT, C.J., and BEATTY, J., concur. | March 20, 1987 |
c9aebe61-d54b-4cdd-8b95-dda24b50926a | Lomax v. Speed | 507 So. 2d 455 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 455 (1987)
James P. LOMAX
v.
Ted SPEED and Aubrey Wilkerson.
85-1127.
Supreme Court of Alabama.
March 13, 1987.
Rehearing Denied May 8, 1987.
*456 W. Kenneth Gibson, Fairhope, for appellant.
Davis Carr, Mobile, for appellees.
HOUSTON, Justice.
James P. Lomax sued his co-employees Ted Speed and Aubrey Wilkerson for injuries which he sustained in 1979 during the course of his employment by Bryson Environmental Services, Inc. At the conclusion of a day-and-a-half trial, at which sixteen witnesses testified, the Honorable Robert L. Byrd directed a verdict for Speed and Wilkerson on Lomax's wantonness claim. The jury found Lomax, Speed, and Wilkerson guilty of negligence and signed a verdict form indicating a verdict for Speed and Wilkerson. Lomax appeals. We affirm.
Our standard for reviewing the trial court's granting of a directed verdict is the same standard used by the trial court in ruling on a motion for a directed verdict. Great Southwest Fire Insurance Co. v. Stone, 402 So. 2d 899 (Ala.1981).
The standard by which the trial court must determine the propriety of granting a motion for a directed verdict is the "scintilla evidence rule." Rule 50(e), Ala.R.Civ.P. Admitting the truthfulness of all evidence favorable to Lomax, are there facts from which the jury could reasonably infer that Speed and Wilkerson consciously did some act or consciously omitted some duty while under knowledge of existing conditions, and while conscious that, from the doing of such act, or the omission of such duty, injury to Lomax would likely or probably result or that with reckless indifference to the consequences Speed and Wilkerson consciously and intentionally did some wrongful act or omitted some known duty which produced Lomax's injury? Roberts v. Brown, 384 So. 2d 1047 (Ala. 1980). The inferences do not have to be the most likely inferences which would be drawn from the evidence; all inferences must be conceded which are not logically unreasonable. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985).
Lomax was 26 years old at the time of the accident. He was physically strong, very athletic, able to lift heavy weights, reasonably smart, and had common sense. He had a high school education and had worked in manual labor following graduation from high school. He had been an equipment operator; he had operated farm tractors, front end loaders, backhoes, and dozers; and he had worked in constructing roads. He had worked as a deep well pusher and as a pumper on an oil rig. He had worked around drilling rigs, including climbing such rigs. He had worked as an outside machinist at Ingall's Shipyard; and for approximately seven months before the *457 accident, he worked in "hydro-blasting," which is the use of high pressure water to clean lines, heat exchangers, and various pieces of equipment.
Speed was the branch manager of Bryson Environmental. We find no evidence that one of his personal job duties, as opposed to a general duty of safety owed by the employer, was to provide a safe place for Lomax to work. Kennemer v. McFann, 470 So. 2d 1113 (Ala.1985); Welch v. Jones, 470 So. 2d 1103 (Ala.1985); Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala.1980).
Wilkerson's duty involved a personal responsibility for safety of the workers.
Lomax fell while climbing out of tank which had been constructed on the back of a flatbed truck. This was the first time Lomax had been in this tank. Wilkerson, Speed, and a co-employee, William D. Johnson, had been in and out of that particular tank many times before Lomax fell. They testified with particularity as to how they entered and exited the tank without incident. There is a conflict in the evidence as to whether Lomax was instructed on how to enter and exit the tank. Resolving this in his favor, we will assume that he was not so instructed and was not violating instructions at the time of his injury. Lomax chose to exit the waist-high tank by pushing up with his arms on one side of the 22-inch opening at the top of the tank and bringing his feet to the other edge of the opening so that he formed an inverted V, with his hands and feet balanced on a two-inch rim. While in this position, he lost his balance and fell.
We cannot find any evidence that Wilkerson's or Speed's action in having Lomax clean out a tank, which Wilkerson had entered and exited many times without injury, was done with the consciousness that Lomax would likely be injured. Without this, an essential element of wantonness is missing.
There was no error in directing a verdict for Speed and Wilkerson on the wantonness count.
Lomax contends that the trial court committed reversible error in the manner in which it handled instructions to the jury regarding the necessity of reaching a decision in this case. We disagree.
Lomax did not object to the trial court's instruction. In Ott v. Smith, 413 So. 2d 1129, 1132 (Ala.1982), this Court wrote:
After the jury had been out a short time, it reported that it was unable to reach a decision. Judge Byrd made the following statement to the jury:
Judge Byrd's instruction did not exceed the bounds of the trial court's discretion in expediting the trial of cases. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913). Judge Byrd admonished the jurors not to deviate from their consciences, but to take a break, come back, give and take, and try to resolve this matter. They did. The jury was polled and each of them said that the jury's verdict was his/her verdict.
*458 On direct examination, the plaintiff elicited evidence about pain clinics from a physician, who was his witness:
On cross-examination, the following colloquy occurred:
Section 12-21-137, Code of Alabama 1975, provides a right to a "thorough and sifting" cross-examination. This right is not limited to criminal cases. Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So. 2d 314 (1964).
The scope of cross-examination must of necessity be committed to the discretion of the trial court, and in the absence of abuse of discretion, the trial court's ruling will not be reversed. See the numerous citations at 19A Alabama Digest, Witnesses, key number 267.
Lomax opened the door for this testimony. The trial court did not abuse its discretion in permitting the physician to answer the question propounded to him on cross-examination.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
ADAMS, J., not sitting. | March 13, 1987 |
f6538489-c4a7-482b-803b-acc1634cd158 | Super Valu Stores, Inc. v. Peterson | 506 So. 2d 317 | N/A | Alabama | Alabama Supreme Court | 506 So. 2d 317 (1987)
SUPER VALU STORES, INC.
v.
Thomas J. PETERSON.
85-484.
Supreme Court of Alabama.
March 27, 1987.
*319 James A. Harris, Jr., Thomas H. Brown, Charles R. Driggars, and Kay K. Houser, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, and Patrick W. Richardson and Schuyler H. Richardson III, of Bell, Richardson, Herrington, Sparkman & Shepard, Huntsville, and James C. *320 Stivender, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
Andrew W. Bolt II, W. Kirk Davenport, and Paula Ivey Cobia, of Bolt, Isom, Jackson & Bailey, Anniston, and Gregory S. Cusimano, Larry Keener, and Michael L. Roberts, of Floyd, Keener & Cusimano, Gadsden, and Fournier J. Gale III, Kirby Sevier, Lee E. Bains, Jr., and Maibeth J. Porter, of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee.
MADDOX, Justice.
Hardin and Co., Warehouse Markets, Inc., Mary-Beth, Inc., Mary Hardin, Mary Lee Hardin, and Nettie Elizabeth Hardin (all these parties shall be referred to as "Hardin") commenced this action in March 1984 by filing a complaint against Super Valu Stores, Inc. ("Super Valu" or "Appellant") and Peterson ("cross-claimant" or "appellee"). Hardin claimed that Peterson, acting on behalf of Super Valu, had promised it the right to operate a certain type of grocery store (known as a "County Market") to be built at a particular location in Oxford, Alabama, and that Super Valu and Peterson had acted to deprive Hardin of this right. Hardin sought damages and injunctive relief to prevent the store from being constructed and from being operated by anyone else. The plaintiffs' claim in that lawsuit was settled and both Super Valu and Peterson were fully released from all potential liability to Hardin.
In that action Peterson filed a cross-claim against Super Valu in November 1984. That cross-claim arose out of an alleged willful failure by Super Valu to construct and lease to Peterson a discount grocery store, known as the Oxford County Market. Briefly stated, Peterson's substantive claims at trial were twofold: (1) that Super Valu's deliberate decision not to build this store as previously agreed constituted a material breach of an express contract, destroying Peterson's career plans and causing him to lose millions of dollars, and (2) that certain misrepresentations and nondisclosures by Super Valu resulted in enormous damages to him. On August 7, 1985, the jury returned a verdict against Super Valu and in favor of Peterson in the amount of $5,000,000 and a judgment was entered on the same date.
The facts pertinent to this action follow: Super Valu purchased a parcel of property in Oxford, Alabama, in 1981, and eventually made plans for its development as a "County Market." The County Market concept was a new one; the first County Market opened in 1981. The basic concept of the County Market is that it must be the lowest priced store in the market and operate on a high volume, low profit structure; thus, it must draw customers from a larger market area than a traditional supermarket. Since Super Valu was a wholesaler, it planned to have an independent retailer operate the County Market planned for Oxford. Peterson (who at this time was president of the Anniston Division of Super Valu) presented several potential operators, including Hardin, to Super Valu for consideration. Hardin was initially rejected by Super Valu as a retailer for the proposed Oxford County Market. Subsequently, Hardin was approved, conditioned upon acceptable financing being arranged, without credit assistance from Super Valu. Hardin thereafter failed to secure the required financing.
At least three other prospective retailers other than Peterson considered operating the Oxford County Market; however, none of these men decided to undertake the project. At this point (May 1983), Peterson decided to become a formal applicant for the retailer's position at the proposed County Market. In January 1984, Peterson was approved as the retailer of the proposed Oxford County Market. This approval required Peterson to retire from his job at Super Valu, because Super Valu policy would not allow an employee to own an interest in a retail grocery store.
In January 1984, a representative of Super Valu told Hardin that Peterson, not Hardin, would be the retailer of the proposed store. On February 14, 1984, Peterson received a letter from Hardin's attorney threatening suit because Hardin was not going to be the operator of the proposed store. In the meantime, progress *321 continued for the development of the store with Peterson as the retailer. Peterson retired from Super Valu on February 29, 1984. In March 1984, Super Valu's attorney spoke to Peterson and asked him to hold off on going forward with the store until the Hardin situation could be resolved. Peterson agreed to do so. On April 3, 1984, Peterson was served with a complaint filed by Hardin against Super Valu and Peterson.
Shortly after the filing of the Hardin lawsuit, Peterson, through his attorney, made demands upon Super Valu to continue with the building of the proposed County Market. He later withdrew the demands that the development of the store proceed. On November 19, 1984, Peterson filed a cross-claim against Super Valu, alleging that Super Valu had entered into a binding contract with him whereby he would become the retailer of the proposed County Market in Oxford.
Super Valu raises twelve issues on appeal.
The first issue raised is whether the trial court erred to reversal in excluding from evidence all communications between the parties after April 3, 1984, the date Peterson was served with the Hardin complaint.
The trial court ruled that all communications between Peterson and Super Valu after April 3, 1984, were inadmissible because the court considered them to be offers of compromise of the preceding litigation against Super Valu and Peterson. Super Valu argues that this ruling deprived it of the opportunity to prove to the jury that: (a) Peterson and his attorneys agreed to the delay in proceeding to build the store until the Hardin claim for injunctive relief, and possibly specific performance, could be resolved; (b) Super Valu, on several occasions, after April 3, 1984, offered to perform its obligations under the contract; and (c) Peterson refused to go forward with the obligations under the contract. Super Valu contends that two letters that were excluded were clearly not offers of compromise; rather, that the letters confirmed an alleged modification of the alleged contract. Super Valu also argues that many of the communications excluded from evidence by the trial court's ruling were offers of performance, not offers of compromise, and should not have been excluded.
The Alabama law regarding the admissibility of settlement communications between parties is well established. The general rule is that offers of compromise by one party to another in a civil action, whether before or after the litigation is begun, is inadmissible. Glaze v. Glaze, 477 So. 2d 435 (Ala.Civ.App.1985). Alabama courts also recognize that conversations in connection with settlement negotiations are inadmissible. Chandler v. Owens, 235 Ala. 356, 179 So. 256 (1938). Negotiations looking to a compromise of controversies are privileged and inadmissible. See, Ford v. Bradford, 212 Ala. 515, 103 So. 549 (1925). Likewise, offers to perform that are conditional amount to mere efforts to settle a pending claim and are thus inadmissible. Yeager v. Hurt, 433 So. 2d 1176 (Ala.1983).
After numerous telephone conversations with Super Valu representatives, Peterson's attorney, A.W. Bolt, wrote a letter to Patrick Cashin, in-house counsel for Super Valu, on April 13, 1984. This letter stated, in pertinent part:
The three demands raised in this initial letter(a) completion of the Oxford store, (b) an agreement to indemnify, and (c) payment of expenses of defensewould continue to permeate all future negotiations and discussions between the parties. The trial court refused to permit this letter to be introduced into evidence.
In the midst of trial, Super Valu also sought to introduce the testimony of Peterson, Cashin, Gene Hoffman (Peterson's immediate supervisor), and Mike Wright regarding certain conversations occurring after April 3, 1984. Super Valu also sought to introduce selected letters between the parties written after that date. The trial court heard argument by counsel, examined the documents in camera and heard testimony, outside the presence of the jury, and reviewed a number of letters during an overnight recess. After reviewing the evidence, the court granted Peterson's motion in limine and refused to admit evidence offered by Super Valu of selected communications between the parties or their attorneys after the service of the Hardin complaint. The court concluded that all proffered communications were in the nature of settlement negotiations.
Super Valu heavily concentrates its argument on the two letters dated April 13, 1984,[1] and May 18, 1984,[2] from Peterson's counsel to Super Valu. Super Valu contends strenuously that these letters contained "absolutely no offers of compromise." When one reads the letters in context, however, it is immediately evident that they were integral parts of the parties' settlement efforts.
At the time these letters were written, settlement negotiations were actively underway in connection with the ongoing dispute about Super Valu's obligation to "take care of Peterson in the Hardin lawsuit, which included building the store for him in accordance with the contract. Bolt's letter of April 13 unequivocally demanded that Super Valu commence work on the County Market, indemnify Peterson in the Hardin suit, and pay his attorney fees. Davenport's letter confirming Bolt's telephone conversation on May 18 with Cashin merely withdrew Peterson's demand that Super Valu immediately honor its obligation to build the store. The letter specifically noted that the withdrawal was without prejudice to Peterson's right "to force Super Valu to expeditiously proceed forward with the store plans at some point in the future." The letter did not withdraw Peterson's demand for indemnity and attorney fees. This is underscored by Cashin's May 22 letter to Bolt, confirming the same May 18 telephone conversation in which Cashin noted that "perhaps resolution of our differences covering the site and defense expenses for Tom Peterson can be worked out in the future."
Super Valu's contention that the parties had no actual dispute on April 13, 1984, about Super Valu's obligation to build the store, we believe, is not supported by the facts. The April 13 letter from Bolt to Cashin demanded that the store be built on the Oxford site, indemnification, and a defense. *323 These three issues remained in dispute before and after the filing of Peterson's cross-claim. Cashin testified that prior to the April 13 letter, he and Bolt had already engaged in several telephone conversations. If Peterson had, in fact, "agreed" on March 29 to a delay in construction of the Oxford site and there was no dispute, there would have been no reason for his attorney to demand that the store be completed as outlined in the April 13 letter. The evidence was sufficient for the trial court to find that at least by March 28, 1984, the present dispute existed which prompted the demand. Consequently, we find that the April 13 letter, which was written in an attempt to resolve the controversy, was properly excluded from evidence by the trial court.
Considering the May 18, 1984, letter in conjunction with the prior and subsequent settlement discussions of the parties, as well as the Cashin letter of May 22, we believe the trial court did not err in its holding that it, too, was inadmissible. The court could have found that the May 18 correspondence "confirmed" a telephone conversation between the parties on that date, and that prior to that time, both parties had exchanged unaccepted settlement proposals. As was stated in the May 18 letter: "Our previous offer of compromise to you on Monday, May 14, is now withdrawn and no offers are presently outstanding." Although this particular offer was withdrawn, there was no indication that the settlement process had ended; Cashin's letter of May 22 expressed hope that the parties could settle their differences regarding the store and Peterson's attorney fees at a later date. Bolt's letter to Cashin of June 18, and Cashin's reply of June 26, clearly reflected the parties' continued efforts to reach an accord.
The trial court could have concluded that the letter of May 18 was one link in the chain of negotiations between the parties, and involved compromise considerations, even though it was a withdrawal of an earlier compromise proposal, and that the withdrawal of the demand to immediately proceed with development of the Oxford site was not an admission of any fact in light of the previous settlement negotiations and Peterson's position that he had an enforceable contract with Super Valu. This position is further strengthened by the ample evidence from which the jury found that Peterson had not agreed to delay the store's development. We are of the opinion that the trial court's exclusion of the April 13 and May 18 letters from evidence on the ground that they were integral parts of the parties' settlement negotiations was manifestly correct.
A complete review of the parties' communications after the filing of the Hardin suit underscores the correctness of the trial court's decision to exclude such evidence as settlement negotiations. Super Valu never made an unconditional offer to build the County Market. Any offer to build the store was intertwined with the unresolved issues of indemnity against liability and payment of Peterson's defense costs in the Hardin suit. Even the October 26, 1984, letter of Cashin to Bolt, which Super Valu highlights as its "unconditional" offer, contained the following language:
In addition to the approval of Super Valu's board of directors, the letter further conditioned the offer on the negotiation and preparation of at least six "definitive agreements." The letter also rejected as "unacceptable and nonnegotiable" the contents of the "Items for Discussion" list, which contained numerous issues to be addressed by the parties in their ongoing settlement negotiations.
As we have previously stated, this Court's case of Yeager v. Hurt, supra, clearly stands for the proposition that conditional offers of compromise are inadmissible. A review of the pertinent facts in the instant case reveals that the trial court *324 did not err to reversal by excluding this evidence.
We reach this result, because we find that the trial court was authorized to conclude that the letters from Peterson's counsel to Super Valu eliminated all doubt that the three issuesa defense in the Hardin suit, indemnification, and the Oxford site were inseparable for purposes of settlement. Bolt's letter of April 13, 1984, initially set forth these three issues as problems for resolution. These three requirements were reiterated in his proposal of May 3, 1984. This letter called for Super Valu to provide Peterson with defense counsel of his own choice and conditioned any decision regarding the store on an acceptable indemnity agreement.
Bolt's letter of June 26, 1984, further revealed the related nature of the three issues:
Bolt's letter to Cashin approximately three months later, on September 12, 1984, after the parties had exchanged six more letters, again highlighted the dispute:
The rationale and public policy underlying the privileged nature of settlement negotiations is the encouragement of extrajudicial settlement of disputes. Indemnity Co. of America v. Pugh, 222 Ala. 251, 132 So. 165 (1931). A reversal of the trial court's exclusion of Super Valu's proffered evidence would tend to defeat this policy and make the settlement of disputes less likely.
Second, Super Valu contends that in closing arguments Peterson's counsel exploited the lack of evidence to argue false inferences from the evidence that was allowed. Super Valu contends that the jury was left with the erroneous impression that the only reason the store was never built was because Super Valu refused to build it, without having the benefit of the evidence regarding Peterson's refusal to go forward with the project. The argument which Super Valu contends was improper is as follows:
Later, counsel for Peterson continued this line of argument:
Closing arguments may encompass two separate and distinct areas. First, argument may rest upon facts in evidence. Second, arguments may extend to inferences arising from those facts in evidence. Seaboard Coast Line R.R. v. Moore, 479 So. 2d 1131 (Ala.1985). Whether the closing argument exceeds these limits is determined by the trial court in its discretion. Because of the nature of closing arguments, "much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings." Adams v. State, 291 Ala. 224, 228, 279 So. 2d 788 (1973). "Substantial injury" must occur before a trial court's rulings will be reversed. Costarides v. Miller, 374 So. 2d 1335, 1337 (Ala.1979).
We find no abuse of the discretion given the trial judge. Peterson's closing argument appears to be based on the facts in evidence, and inferences therefrom.
Super Valu attacks principally two isolated remarks. First, Bolt argued that "Peterson has been on hold for sixteen months." Second, Cusimano responded to Super Valu's attack on the accuracy of Peterson's evidence relating to profit projections by arguing that actual figures would have been available if Super Valu had built the store. We see nothing improper about these, because they relate to matters based upon Peterson's claim that Super Valu failed to build the Oxford County Market. We find no reversible error here.
The third issue presented is whether the trial court erred when it overruled Super Valu's motion for a new trial, and its motion for judgment notwithstanding the verdict (JNOV) directed to Peterson's contract claim on the ground that there was insufficient evidence of a breach of the alleged contract by Super Valu. Super Valu also argues that an agreement by both parties to a contract to delay performance does not constitute a breach of that contract by either of the parties. Super Valu contends that because the undisputed evidence heard by the jury was that both parties agreed to halt development of the store there was no evidence of a breach by Super Valu.
Super Valu's contention that both parties agreed to halt the construction of the store is based on Cashin's testimony, which the jury may have accorded little credibility. The jury could have concluded from Peterson's testimony, on the other hand, that he never agreed to anything with Cashin concerning halting the construction of the store. In other words, the jury could have concluded that in his March 29 telephone *326 conversation with Peterson, Cashin presented the halting of the store as having already been accomplished. In short, the jury could have concluded from the evidence that Super Valu had unilaterally stopped Peterson's store before telling him. There is some testimony in the record that would support Super Valu's contention as to what occurred, but there is also testimony that Peterson believed that any delay in the store would be brief. There is some testimony regarding the actions he took immediately before and after his telephone conversation with Cashin. For example, Peterson testified that he had already been informed of Super Valu's halting of the store on March 28, and that he had immediately called his former boss and complained about it. There is also evidence that on the day after Cashin's telephone call, March 30, Peterson interviewed a prospective County Market employee and contacted his attorney, Bolt, for the first time. The jury could have concluded, based upon this action by Peterson, that he did not mutually agree to halt the project.
The standard of review with regard to a motion for a new trial is set forth in City of Tallassee v. Harris, 431 So. 2d 1177, 1181 (Ala.1983), quoting Jacks v. City of Birmingham, 268 Ala. 138, 142-43, 105 So. 2d 121, 125-26 (1958), as follows:
We are of the opinion that there was sufficient evidence before the jury for the jury to find that Super Valu breached its contract with Peterson. There was evidence from which the jury could have found that Super Valu unilaterally stopped Peterson's store before telling him. Peterson testified that he thought any delay would only be for "several days." It is also clear from the evidence that there was no mutual assent, definiteness, or certainty in the understanding of Peterson and Super Valu as a result of the telephone conversation between Peterson and Cashin regarding the halting of the store. Thus, the trial court correctly denied Super Valu's motion for a new trial regarding the contract claim.
The fourth issue presented is whether Peterson presented competent evidence proving with "reasonable certainty" the lost profits that he suffered as a result of Super Valu's conduct.
Super Valu contends that the trial court erroneously allowed "expert" testimony, and other evidence to the effect that the hypothetical County Market would have earned profits of $20,000,000 in fifteen years of operation by Peterson. Super Valu argues that this Court follows the general rule of damages that anticipated profits of a commercial business are too speculative, remote, and uncertain to permit their recovery. Super Valu argues that the "per se" rule of lost profits should apply to this case. The "per se" rule of lost profits is that anticipated profits of a new or hypothetical business can never be recovered, because they are inherently too speculative and conjectural.
Super Valu also contends that there are no Alabama cases that have allowed a plaintiff to recover anticipated profits of a hypothetical business that never operates. Super Valu contends that proof of lost profits must satisfy the "reasonable certainty" test. Super Valu argues that under this test a plaintiff must prove a subsequent profit history and that any uncertainty that plaintiff would in fact have made a profit is fatal to the lost profits recovery. Super Valu also argues that the plaintiff must also establish that he has a profitable, substantially similar business in the same geographic area. Finally, Super Valu contends that Peterson's profit projections constitute remote, speculative, and conjectural evidence.
*327 We are of the opinion that the jury's award of compensatory damages to Peterson is completely consistent with the law of Alabama and with the evidence in this case. Current Alabama law, like the law of other states, authorizes recovery of anticipated profits of an unestablished business, if proved with reasonable certainty. See, Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985). In this case, Peterson's evidence of lost profits is sufficient to meet the "reasonable certainty" standard and supports the jury award.
This Court confirmed that the reasonable certainty standard for proving profits of an unestablished business prevails in Alabama in Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985). In Morgan, as in the present case, plaintiffs sued on theories of fraud and breach of contract, seeking to recover for damages to their business. Plaintiffs presented evidence as to the profits they would have earned but for the defendants' actions. In ruling that "there was sufficient evidence to support the jury's award of compensatory damages for lost profits," this Court explained the operation of the reasonable certainty rule for recovery of lost profits:
Morgan v. South Central Bell, at 115-16.
This Court's explicit rationale for applying the reasonable certainty rule was its recognition that to disallow damages for loss of reasonably certain future profits "would encourage breach of contract with new businesses." 466 So. 2d at 116.
The holding in Morgan is that Alabama jury verdicts awarding lost profits will be affirmed if the plaintiff provides a "basis upon which the jury could, with reasonable certainty, calculate the amount of profits which were lost as a result of" defendant's wrongful actions. Morgan, at 116 (emphasis original). This principle is completely consistent with two earlier Alabama cases that affirmed jury awards of lost anticipated income involving unestablished business relationships.
In American Life Ins. Co. v. Shell, 265 Ala. 306, 90 So. 2d 719 (1956), this Court permitted the recovery of anticipated lost income by a new business. There, 16 days after plaintiff had entered into a business relationship with one Forsyth, Forsyth terminated the relationship because of actions taken by the defendant. Plaintiff sued the defendant, seeking to recover the income he had hoped to earn from his contract with Forsyth. There is no mention of evidence concerning any income that plaintiff may have earned while his business relationship existed with Forsyth. Instead, the trial testimony focused on the income that Forsyth generated during the six months after the end of his business relationship with plaintiff. Although the business relationship between plaintiff and Forsyth was essentially unestablished and the damages testimony dealt with matters that did not occur during the time of the relationship, this Court affirmed plaintiff's jury award based on lost anticipated income:
265 Ala. at 311, 980 So. 2d at 722. In reaching its decision, the Court quoted the United States Supreme Court decision in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931), as establishing the rule of damages that will control whenever a defendant's wrongful act has made it difficult for the plaintiff to show with "reasonable certainty" the amount of his loss:
265 Ala. at 311-12, 90 So. 2d at 723-24 (emphasis added in Shell.)
The Court of Appeals affirmed a verdict awarding lost anticipated income from a business relationship that was never established. Western Union Tel. Co. v. Tatum, 35 Ala.App. 478, 49 So. 2d 673, cert. denied, 255 Ala. 13, 49 So. 2d 678 (1950). In Tatum, a shipping company sent a telegram to plaintiff, offering him a position as master of a ship and requesting an immediate response. The defendant, Western Union, was tardy in delivering the telegram so that when plaintiff was finally able to make contact with the shipping company, he learned that the position had been filled. Plaintiff sued Western Union, seeking to recover the anticipated lost income from his unestablished business relationship with the shipping company. The evidence established both the salary that plaintiff *329 would have earned from his unestablished business relationship and the terminable-at-will nature of plaintiff's anticipated employment. In rejecting Western Union's argument that the damages flowing from plaintiff's unestablished business relationship were too speculative, the court stated:
35 Ala.App. at 481, 49 So. 2d at 675. The Court also stated:
35 Ala.App. at 482, 49 So. 2d at 676.
A leading commentator on the issue of lost profits expressly recognized in 1981 that the "trend of the modern cases is plainly toward" adopting the "reasonable certainty" standard in awarding lost profits for unestablished businesses. R. Dunn, Recovery of Damages for Lost Profits 2d 188, 196 (1981). A review of the relevant case law, both shortly before and in the six years since that statement was written, seems to confirm it.
For a review of the Alabama law regarding lost profits in new or unestablished businesses, see, Comments, The Evolution of the New Business Rule, 17 Cum.L.Rev. 239 (1986-87); Roberts, Profit Recovery for the New or Unestablished Business, 48 Ala.Law. 78 (1987).
In Lee v. Seagram & Sons, Inc., 552 F.2d 447, 455 (2d Cir.1977), the court affirmed a verdict for lost profits that would have been earned from a liquor distributorship that defendant had agreed to provide plaintiff. Although the business was completely unestablished, the court held that profits had been established with reasonable certainty through expert testimony projecting profits over ten years, which was the "assumed" life of this type of business. The court rejected defense arguments that this proof was speculative:
Lee v. Seagram & Sons, Inc., at 456.
In Chung v. Kaonohi Center Co., 62 Hawaii 594, 618 P.2d 283 (1980), the court affirmed a lost profits recovery for a restaurant that never commenced operations because of defendants' breach of an agreement to lease mall space. Plaintiff's expert testimony involved a one-day "survey" of a comparable business's sales, industry averages, and projections of profits over the ten-year lease. In holding that the plaintiff satisfied the "reasonable certainty" standard for proving lost profits for its unestablished business, the court explained:
62 Hawaii at 605, 618 P.2d at 291.
In Welch v. United States Bancorp Realty & Mortgage Trust Co., 286 Or. 673, 596 P.2d 947 (1979), the court allowed a recovery for lost profits by an unestablished business:
286 Or. at 704, 569 P.2d at 963 (citations omitted). The court noted that expert testimony regarding plaintiff's anticipated return in future years from a complex real estate development venture was all that could be expected in the circumstances of this case. 286 Or. at 705, 596 P.2d at 964. To require more "would be tantamount to holding that the defendant could breach *330 this particular contract with impunity." 286 Or. at 705, 596 P.2d at 964.
In Fera v. Village Plaza, Inc., 396 Mich. 639, 242 N.W.2d 372, 376 (1976), the court affirmed a lost profits verdict for an unestablished store because the anticipated profits were proven with reasonable certainty. The court observed that the verdict amount was well within the ranges of proofplaintiff's proof of profits based on its expert's ten-year projections as opposed to defendant's proof of no profits.
As these cases demonstrate, the weight of modern authority does not predicate recovery of lost profits upon the artificial categorization of a business as "unestablished," "existing," or "new," particularly where the defendant itself has wrongfully prevented the business from coming into existence and generating a track record of profits. Instead, the courts focus on whether the plaintiff has adduced evidence that provides a basis from which the jury could with "reasonable certainty" calculate the amount of lost profits. As held in Fera and Chung, the risk of uncertainty must fall on the defendant whose wrongful conduct caused the damages.
The fundamental basis for Peterson's evidence as to damages was Super Valu's own projections of profits, produced in its normal course of business long before this dispute arose. These projections were the product of an intense, exhaustive process involving many different Super Valu personnel. Super Valu's projections resulted from the application of a scientific methodology that for many years had accurately predicted the future performance of stores associated with Super Valu. These projections were also based upon the prior successful performance of the Super Valu business system, of which the Oxford County Market would have become a standardized part. The jury could have found that Super Valu and Peterson relied upon these profit projections in making their initial decision to go forward with the Oxford County Market store. Super Valu's three-year profit projections were analyzed and extended by Peterson's expert market analyst, Roger Walker. Peterson's expert used Super Valu's figures as a base in order to make further profit projections for the 12 subsequent years of the 15-year lease that Super Valu had allegedly agreed to grant Peterson. This evidence was sufficient, in our judgment, to satisfy the "reasonable certainty" standard established in Alabama law for satisfactory proof of lost profits.
In considering claims by unestablished or new businesses for lost profits, courts have consistently given special deference to a party's pre-dispute projections of anticipated profits. As one court succinctly noted, pre-dispute projections are "no mere `interested guess' prepared with an eye on litigation. Instead, they [are] ... the product of deliberation by experienced businessmen charting their future course." Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556, 566 (2d Cir.1970) (affirming profits award for new business).
The courts have shown even more deference in a situation, such as exists in the present action, where plaintiff's proof of lost profits is based on pre-dispute projections prepared by the defendant. For example, in a closely analogous case, a substantial verdict for lost profits was upheld where plaintiff's proof was based upon the defendant's "projected profit-and-loss statement" for plaintiff's anticipated second year of operation as one of defendant's distributors. Computer Systems Eng'g, Inc. v. Qantel Corp., 740 F.2d 59, 66 (1st Cir.1984). Similarly, lost profits have been awarded based on sales "projections, prepared by the defendant's market expert, [that] were not put together with an eye to litigation." Perma Research & Dev. Co. v. Singer Co., 402 F. Supp. 881, 898-902 (S.D. N.Y.1975), aff'd, 542 F.2d 111 (2d Cir.1976), cert. denied, 429 U.S. 987, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976).
The courts have permitted pre-dispute projections to be extrapolated into future years in order to determine the full measure of lost profits. In Computer Systems Eng'g, Inc. v. Qantel Corp., plaintiff's expert took defendant's profit projections for plaintiff's anticipated second year of operation as one of defendant's distributors and *331 "extrapolated [plaintiff's] projected profits over the five-year term of the extended contract." 740 F.2d at 66. The defendant raised many of the same objections raised by Super-Valu in this case; objections to the methodology used by plaintiff's expert in deriving his lost profit projections and an objection that the plaintiff's proof of lost profits was too speculative to support an award because plaintiff had no previous earnings history as a distributor for the defendant. In rejecting the defendant's arguments, the court explained that the defendant's objections would have been better aired through cross-examination of plaintiff's expert or through testimony by an expert for the defendant. In Perma Research & Dev. Co. v. Singer Co., 402 F. Supp. at 901, the court held that it was "eminently rational" to project that the sales figures that the defendant expected to attain after the first two years would at least have been maintained for the second five years of the ten-year contract. See also Lee Shops, Inc. v. Schatten-Cypress Co., 350 F.2d 12, 16 (6th Cir.1965), cert. denied, 382 U.S. 980, 86 S. Ct. 552, 15 L. Ed. 2d 470 (1966) (pre-dispute profit projections for proposed discount department store extrapolated by expert over the 15-year term of the lease).
These cases provide strong support for the upholding of the jury verdict for Peterson. Here, Super Valu developed projections as to the anticipated profits that Peterson would earn from the Oxford County Market. As in the Autowest v. Peugeot case, these pre-dispute projections were "no mere `interested guess' prepared with an eye on litigation. Instead, they were the product of deliberation by experienced businessmen charting their future course." 434 F.2d at 566. Using a methodology embraced by the courts, Peterson's expert used Super Valu's own calculations and extrapolated those projections into future years in order to determine the full measure of lost profits.
Introduced into evidence was Super Valu's description of the proven accuracy of its sales projections, as follows:
The jury could have found that Super Valu's comments concerning the accuracy of its projections were well-founded in fact, because there was evidence that Super Valu conducted follow-up reports comparing actual performance to the sales projections. Total actual sales as a percentage of projected sales for the category of "stores in new buildings" ranged from 92.1% to 125.6%.
Applying its proven research and analytical techniques to the proposed Oxford County Market, Super Valu concluded that the new store would achieve average weekly sales of $377,160, $433,734, and $471,450 in its first three years of operation. One of Super Valu's employees acknowledged that the analysis was "good, solid" and had been performed in the customary manner. Based on its extensive research and lengthy reports, Super Valu concluded that the "County Market for Anniston/Oxford looks like a winner."
Super Valu's sales projections for the Oxford County Market were incorporated into a pro forma profit and loss statement for the proposed store. Before this dispute arose, Super Valu generated its pro forma profit and loss statement for the purpose of deciding whether to enter a contract with Peterson. Super Valu's own pro forma *332 statement projected profits of $124,684, $619,267 and $750,198 during the first three years of operation of the Oxford County Market. Super Valu's director of market analysis expressly acknowledged that this pro forma statement was "reasonable" and saw no reason to challenge its bottom line figures.
As already stated, Peterson's market expert relied on Super Valu's pre-dispute profit projections and extrapolated those figures through the full term of the 15-year lease. The projected profits for the 15-year lease term totaled over $19 million. Peterson's market expert testified that the profit projections provided a "reasonably certain" basis for calculating lost profits for the Oxford County Market.
The sophistication of these projections of lost profits, we believe, equals or exceeds that of the projection methodology approved by this Court in Morgan v. South Central Bell Tel. Co., 466 So. 2d 107 (Ala. 1985). In Morgan, one of the plaintiffs, who had some qualifications as a statistical researcher, conducted a survey that consisted of asking "full-mouth surgery patients" whether they had come to the offices as a result of Dr. Speed's Yellow Pages advertisement. During the first week of the three-week sample, one of five new patients came because of the ad; during the second week, it brought two of six; and during the third week, it brought two of seven. Plaintiff thus concluded that 1.6 patients per week came because of the ad, and multiplied this by 48 weeks, and by the $700 "normal fee," producing a total 1978 loss of $55,760. An expert in statistical research examined plaintiff's survey and opined that it was "reliable" and that the sample of people was large enough that the inferences could be projected onto plaintiffs' total number of patients. Plaintiffs' expert concluded that "Dr. Morgan's data were reasonable and the projections derived from the data were reasonable." After reviewing plaintiff's evidence of lost profits, this Court concluded that the evidence provided a reasonable basis for the jury to approximate the damages sustained.
The differences between the Morgan evidence and the Super Valu evidence demonstrate that the Oxford County Market profit projections were far stronger and far more supportive of the verdict than the Morgan evidence.
We are of the opinion that the jury verdict of $5 million was supported by credible evidence.
The fifth issue presented is whether the trial court erred when it submitted Peterson's fraud claims to the jury. Peterson's fraud claims are based on a statement that he claims was made by his Super Valu supervisor, Hoffman. Peterson testified that he received a demand letter from Hardin on February 14 and that he called Hoffman at Super Valu headquarters and told him about the letter. He testified that after he told Hoffman about the letter, Hoffman told him "we will take care of it up here."
Super Valu contends principally that Peterson failed to prove that he reasonably relied on the statement. Of course, reliance upon an alleged misrepresentation is an essential element of a fraud claim, and the person claiming injury must show that his reliance was reasonable under the circumstances. Super Valu also contends that there was no evidence of intent to defraud, another essential element in a fraud claim. Super Valu claims that there was not a scintilla of evidence showing an intent not to go forward in accordance with the statement allegedly made to Peterson by Hoffman. Finally, Super Valu contends that there was no evidence of any damage to Peterson as a result of Super Valu's alleged misrepresentation. It argues that there was no evidence whatsoever of damages resulting to Peterson by any reliance on Hoffman's alleged statement regarding "taking care of" the matter during the relevant time frame.
We cannot agree with Super Valu that there was no evidence that Peterson relied on Hoffman's statement that they would take care of the matter. There was *333 testimony also that Peterson relied, to his detriment, on Super Valu's misrepresentations. Peterson testified that had Super Valu told him the truth, he would have immediately hired an attorney to protect his interests. Peterson also testified that he expended great amounts of time, energy, and money in undertaking the necessary actions to properly equip, staff, and outfit the store in anticipation of its construction and opening. Of course, the evidence seems clear that Peterson gave up his $100,000 per year job with Super Valu, based upon the representations made to him by Super Valu. Peterson testified that had he been honestly told in February 1984 that an enormous controversy was developing over the new store, and that he would not "be taken care of" by Super Valu, he would not have quit his job.
In this connection, it should be noted that this Court has repeatedly sustained similar claims of reliance in fraud cases. For example, as was pointed out in Pugh v. Kaiser Alum. & Chem. Sales, Inc., 369 So. 2d 796 (Ala.1979), this Court has "approved an action for fraudulent misrepresentation where the plaintiff proved that the defendant induced him to forgo a business opportunity." 369 So. 2d at 797, citing Cities Serv. Oil Co. v. Griffin, 357 So. 2d 333 (Ala.1978). Similarly, in Winn-Dixie Montgomery, Inc. v. Henderson, 353 So. 2d 1380 (Ala.1977), an employee was promised another business opportunity with his employer and undertook preparations in reliance on his employer's promise. This Court held that plaintiff's proof of reliance was adequate. If Peterson had done nothing else, his resignation as president of the Anniston Division was more than sufficient reliance. See Hollis v. Warehouse Groceries Management, Inc., 481 So. 2d 374, 376 (Ala. 1985); Pugh v. Kaiser Alum. & Chem. Sales, Inc., 369 So. 2d at 797.
The evidence also shows that the jury could have found that Peterson's reliance on Super Valu's promise to take care of the matters raised in the Hardin letter was reasonable. First, there was testimony that Peterson had been an outstanding employee of Super Valu for 24 years, and the jury could infer that he would have, based on this long association, trusted the assurances of his corporate employer. Second, the evidence shows that the jury could have found that Peterson had a right to believe and rely on the word of his own supervisor. The evidence shows that, when informed of the problem relating to the mutual interests of Super Valu and a longtime trusted employee who had been tapped to be a new Super Valu retailer, Peterson's supervisor assured Peterson that Super Valu would handle everything. Third, there was evidence that Super Valu characterized its relationship with its retailers as a partnership. The jury could have concluded that, as the planned operator of the County Market, Peterson had a right to reasonably rely upon the statements made by his employer, Super Valu. Fourth, there was evidence that after Peterson received this assurance, he was not informed of Super Valu's activities with regard to the Hardin-Oxford County Market controversy. In other words, the jury could have determined that Peterson was kept in the dark by the very people he trusted, and that he thus learned no further facts which would have compelled him to take action to protect his own interest, until it was too late. We believe the jury was entitled to find that Peterson's reliance upon Super Valu's statement was reasonable under these circumstances.
The issue of a defendant's intent to deceive, of course, is a matter "peculiarly within the province of the trier of facts." Walker v. Woodall, 288 Ala. 510, 513, 262 So. 2d 756, 759 (1972). In proving a defendant's intent to deceive, a plaintiff may meet this burden by circumstantial evidence. Marshall Durbin Farms, Inc. v. Landers, 470 So. 2d 1098 (Ala.1985). This Court has held that a plaintiff may establish intent to deceive through circumstantial evidence relating to events occurring after the representation was made. See, Southeastern Properties, Inc. v. Lee, 368 So. 2d 288 (Ala. 1979). In Mall, Inc. v. Robbins, 412 So. 2d 1197, 1200-01 (Ala.1982), this Court held that the defendant's actions after the misrepresentation supported "the jury's finding that [the defendant] possessed the requisite *334 present intent to deceive with respect to a future event."
There is ample evidence of events both before and after Super Valu's misrepresentation of February 14, 1984, from which the jury could infer that Super Valu had an intent to deceive when it represented that it "would take care of" Peterson's interests. The evidence reveals that on three separate occasions Peterson asked Hoffman's permission to publicly announce his new status as the Oxford County Market retailer, and that each time Peterson was directed not to make any such announcement. There was also evidence that Super Valu concealed from Peterson certain meetings its representatives had with Hardin in early 1984 that directly affected both Peterson's interest in the Oxford County Market and his interest in the Hardin lawsuit, and that Super Valu knew, as early as 1984, that Hardin was threatening suit and that Peterson was a prime target. There was also evidence that Peterson was not informed of Hardin's remarks until after the date of the Hardin demand letter, and that in March 1984 a meeting was once again held between representatives of Super Valu and Hardin. At this meeting, according to the evidence, Cashin proposed that Super Valu not develop the Oxford site. Peterson testified that he was never told of the meeting; nor did Super Valu reveal to him its proposal that it not develop the Oxford site.
We are of the opinion that the evidence clearly justified the jury's determination that Super Valu did not intend to "take care of" the Hardin matter and to protect Peterson's interest at the time the representation was allegedly made.
Peterson's evidence in this case easily satisfies the legal standard of proof of damages in a fraud claim, another element which Peterson was required to prove. This Court has explained that an expanded proximate causation standard applies in fraud cases:
Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortgage Co., 390 So. 2d 601, 607 (Ala.1980). In a decision consistent with this standard, the 11th Circuit Court of Appeals recently explained Alabama damages principles applicable to fraud claims:
P & S Business Machines, Inc. v. Olympia U.S.A., Inc., 707 F.2d 1321, 1323-24 (11th Cir.1983). Alabama law is, of course, clear that if the plaintiff shows that he sustained actual damages as a result of the fraud, even though the exact amount may not be shown, the plaintiff is entitled to recover nominal damages, and, where appropriate, punitive damages. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
A review of the record reveals that as a result of Super Valu's fraud, the jury could have found that Peterson not only retired from his position as Anniston Division president, which was worth $100,000 a year, but never received the Oxford County Market with its $19,000,000 of projected profits for the 15-year life of Super Valu's lease commitment. As already pointed out, the *335 evidence showed that after being assured that Super Valu would take care of his interests, Peterson expended time, energy, and money in undertaking the necessary actions to properly equip, staff, and outfit the County Market, and that in reliance on Super Valu's misrepresentation, he failed to contact Mary Hardin and refrained from hiring an attorney immediately. He became a defendant in a $13 million lawsuit, and was ultimately prevented from receiving the Oxford County Market. This evidence was sufficient for the jury to find that Peterson suffered damages because of the alleged misrepresentations made to him.
The sixth issue presented is whether the fraud claim and the contract claim were properly submitted to the jury. Super Valu contends that the trial court erred when it entered a judgment on the general verdict in favor of Peterson in the amount of $5,000,000. Super Valu contends that the fraud claim was specifically challenged by motion for directed verdict; therefore, Super Valu argues, under City of Huntsville v. Certain, 453 So. 2d 715 (Ala.1984), cert. denied, 472 U.S. 1027, 105 S. Ct. 3499, 87 L. Ed. 2d 631 (1985), a general verdict cannot stand, because, it says, the fraud claim was not supported by the evidence. Of course, we have already determined this issue adversely to Super Valu.
The legal principle governing the sixth issue has been explained by this Court, as follows:
Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala.1981).
The general verdict in this case must stand for two reasons. First, Super Valu's motions for directed verdict failed to satisfy the Aspinwall requirements of "detailing with specificity the grounds upon which the particular count is not supported by the evidence." In its motion for directed verdict, Super Valu committed the same error as the Aspinwall defendant and "did not preserve error as to the [fraud and contract claims] because the insufficiency of the evidence was not argued with sufficient specificity." 405 So. 2d at 138. Super Valu did not file a motion for a directed verdict as to the fraudulent concealment claim. Super Valu did not raise the general insufficiency of the evidence as a ground in support of its motion for a directed verdict as to the contract claim, or as to the misrepresentation or deceit claim. Regarding the misrepreentation or deceit claim, Super Valu failed to raise specifically the issue of reliance. Since Super Valu failed to detail with specificity the grounds upon which Peterson's claims were not supported by the evidence, this Court "will presume that the [general] verdict was returned on a valid count." Aspinwall v. Gowens, 405 So. 2d at 138.
Second, even assuming that Super Valu satisfied the Aspinwall requirements, this general verdict cannot be set aside, because the contract and fraud claims were supported by far more than sufficient evidence to be presented to the jury.
Seventh, Super Valu contends that the trial court erred when it excluded from evidence a release executed by the Hardins, releasing Peterson and Super Valu from all claims which they may have had against him. Super Valu alleges that the release was highly relevant to prove that if Hoffman (Super Valu's representative) made the statement to Peterson, then Super Valu did what Hoffman said it would do, by "taking care of" the Hardin matter. Super Valu contends that the release proves that there was no misrepresentation by Super *336 Valu and that there were no damages to Peterson.
Eighteen days after commencement of the trial in this case, Super Valu's attorneys revealed that Super Valu had obtained a release of Peterson from Hardin on May 9, 1985, in conjunction with Hardin's release of Super Valu. On May 9, the trial court also entered summary judgment in favor of Peterson on Hardin's claims. When Super Valu revealed the existence of the release in the middle of this trial, its apparent reason was to attempt to show that it had been responsible for Peterson's dismissal from the Hardin suit.
The attorneys and the trial court discussed extensively Super Valu's offer of the release at trial, and we see no value in setting out this discussion. We are of the opinion that the trial court was of the opinion that it was Peterson's motion for summary judgment, not the release, which caused Peterson's dismissal from the Hardin suit. At the time Peterson was dismissed from the Hardin lawsuit, he was represented by his own counsel. We are of the opinion, therefore, that the trial court did not err in holding that the release should not be admitted.
The eighth issue presented is whether the trial court erred when it charged the jury on punitive damages. Super Valu contends that the court erred in allowing the jury to consider the subject of punitive damages because there was no evidence upon which an award of punitive damages could be based. In Alabama, Super Valu argues, punitive damages may be awarded only if the fraud is gross, oppressive, committed with intent to injure, or aggravated.
It is well settled law in this state that if the evidence establishes an intent to deceive or defraud, then punitive damages are available. American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985).
After examining the record, and the evidence, much of which is digested above, we are of the opinion that the evidence was sufficient to support a jury finding of an intent to deceive or defraud, and that the trial court properly submitted the issue of punitive damages to the jury.
Ninth, Super Valu contends that the trial court's action in refusing to allow it to present the defense of the Statute of Frauds was clearly an abuse of discretion and in conflict with this Court's clearly enunciated requirement that the court allow an amendment unless there is a showing of actual prejudice by the amendment.[3] Super Valu claims that Peterson had abundant notice of the Statute of Frauds defense. It argues that the Statute of Frauds was specifically pleaded in its answer and that it was set forth and argued in response to Peterson's motion for summary judgment.
Trial judges have discretion to allow or refuse amendments to pre-trial orders. Arfor-Brynfield, Inc. v. Huntsville Mall Associates, 479 So. 2d 1146 (Ala. 1985). The trial court should not allow amendments to pre-trial orders where the trial will be unduly delayed or the opposing party unduly prejudiced. Metropolitan Life Ins. Co. v. Sullen, 413 So. 2d 1106 (Ala.1982). In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Guthrie, 338 So. 2d 1276 (Ala.1976), this Court upheld the denial of a belated amendment to add another defense, noting that the defendant had had ample time to review the complaint and prepare a response. In Vernon Carpet Mills, Inc. v. Rossville Spinning Corp., *337 344 So. 2d 1205 (Ala.1977), this Court affirmed the trial court's exercise of discretion in rejecting an amended answer filed four days before trial.
The trial court did not abuse its discretion when it refused to allow Super Valu to present its Statute of Frauds defense. Super Valu had many opportunities prior to the pre-trial order to raise its Statute of Frauds defense. Super Valu failed to raise this defense in a detailed six-page statement of position on the issues. This statement, submitted at the court's insistence, made no reference whatsoever to the Statute of Frauds. With ample time to assess the desirability of raising the Statute of Frauds, Super Valu apparently decided to omit this defense as to Peterson, although it expressly included this defense against Hardin in the very same statement. After submitting their respective statements of position, the parties thoroughly reviewed all the issues at the lengthy pre-trial conference. Super Valu again failed to assert the defense against Peterson. Super Valu thereafter filed a revised statement of position, again not asserting that Peterson's claim was subject to the Statute of Frauds. From the time it filed its amended statement until a summary judgment hearing two days before trial, a period of 100 days, Super Valu made no mention of the Statute of Frauds in relation to Peterson's claim.
It is clear that Peterson would have been unduly prejudiced had the trial court allowed Super Valu to assert the Statute of Frauds as a defense. Peterson had not taken any depositions concerning the Statute of Frauds and had not requested any documents on the issue. Interrogatories, filed immediately after the pre-trial conference, did not inquire into the Statute of Frauds defense, since this defense was not included in Super Valu's two statements of position or in the pre-trial order. Super Valu had five months to anticipate the defense, but the first suggestion of the possibility that Super Valu would attempt to raise the issue occurred only two working days prior to trial.
The trial court's denial of Super Valu's motion to amend the pre-trial order was clearly a discretionary ruling. The trial court carefully reviewed the transcript from the summary judgment hearing and determined that Peterson's position revealed no anticipation of, or preparation for, the Statute of Frauds defense. Because of the prejudice to Peterson and the untimely nature of the motion, the trial judge clearly did not abuse his discretion.
The tenth issue presented is whether the trial court's exclusion of documents and testimony relating to other stores was an abuse of discretion. Super Valu contends that the trial court erred when it refused to allow testimony regarding the actual experience of stores similar to the proposed County Market insofar as meeting sales and profit projections was concerned. Super Valu states that a party has a fundamental right to introduce evidence which is competent, otherwise admissible, and relevant to the material issues being tried. It is Super Valu's position that the evidence which it attempted to introduce met these criteria.
On a number of occasions, Super Valu offered testimony regarding the actual experience of stores similar to the proposed County Market insofar as meeting sales and profit projections was concerned. The trial court ruled that this testimony concerning the Montgomery County Market and other price impact stores in Alabama, such as the Mega Market in Birmingham, would not be allowed into evidence. The court allowed testimony that both of the stores did not achieve their projected sales, but would not allow specific testimony of their actual or projected sales figures. The trial court also restricted testimony regarding the experiences of other price impact stores.
There is an additional reason why the trial judge did not err here. The pre-trial order required Super Valu to exchange, in advance of trial, all exhibits it intended to submit at trial. The parties exchanged thousands of documents prior to *338 trial. The profit projections and actual profit data on the Montgomery County Market and on the Mega Market in Birmingham were not exchanged prior to trial, as the pre-trial order required. We are, therefore, of the opinion that the trial judge did not abuse the discretion vested in him, particularly since his pre-trial order warned the parties of the consequences of any violations of his pre-trial order. See, Hughes v. Arlando's Style Shop, 399 So. 2d 830 (Ala.1981).
Admission of these proposed exhibits, and oral testimony relating thereto, would have caused Peterson considerable hardship. The financial statements in question related to other hand-picked stores, located in other geographic markets, and subject to other competitive and economic situations. Peterson was totally unprepared to distinguish such factors and minimize the impact of these unrelated financial statements. Notwithstanding this hardship to Peterson, the court did allow Super Valu's witnesses to state that the actual profits of the Mega Market were lower than its profit projections. The real thrust of Super Valu's defense theorythat profit projections are not accuratewas, therefore, allowed into evidence. Consequently, no error to reverse is shown here.
The eleventh issue presented is whether the trial court erred when it refused to allow one Craig Anderson to testify. Super Valu sought to call Craig Anderson as a witness to rebut the testimony of Peterson's expert, Roger Walker. Peterson's attorney objected to Anderson's being called as a witness, based upon the Court's pre-trial order, which provided:
Super Valu contends that this action by the trial court was an abuse of discretion, because Super Valu was prevented from utilizing an available and necessary rebuttal witness, although no prejudice to Peterson was shown from allowing Anderson to testify. Super Valu argues that a pre-trial order is not intended to prevent the full admissibility of otherwise admissible evidence when no prejudice to the opposing party is shown.
The entire purpose of the pre-trial order is to "control the subsequent course of the action." Rule 16, Ala.R.Civ.P. Such control necessarily extends to limitations on expert witnesses, which are expressly contemplated by Rule 16. The refusal to permit expert witnesses to testify because of a party's failure to comply with the pre-trial order is clearly a matter of discretion, not subject to reversal. Electrolux Motor AB v. Chancellor, 486 So. 2d 414 (Ala.1986).
Super Valu contends that the trial judge abused his discretion because Super Valu dutifully disclosed Anderson's identity as an expert rebuttal witness two days after his appearance at trial was confirmed by Super Valu. The record makes it clear, however, that the trial judge could have found that the need for Anderson's testimony became "reasonably apparent" one month before trial, immediately after the deposition of Peterson's expert, Roger Walker. Super Valu's counsel admitted that it first contacted Anderson, a former employee of Walker's, about three weeks before Anderson appeared at trial. Numerous contacts followed in the next three weeks. Anderson testified that he informed Super Valu one week before it attempted to call him to testify that he would "probably come," but that he "committed" to testify on Tuesday, July 30, 1985. Super Valu still did not disclose his identity until moments before it attempted to call him.
Super Valu's sole basis for not disclosing Anderson's identity sooner was that it did not have a firm commitment that he would testify. We cannot say that this might not be a good ground under differing *339 facts, but we cannot hold, in this case, that the trial judge erred by not allowing Anderson to testify.
The final issue presented for our review is whether the trial court committed reversible error by commenting on the evidence in the presence of the jury. Super Valu contends that a comment by the trial court, to the effect that Food World's competitive response to the hypothetical County Market had no bearing on the issues in the case, undermined the position of Super Valu. Super Valu alleges that in commenting on the evidence, the court committed reversible error, as the jury, not the court, is granted the important and exclusive right of weighing the evidence.
The allegedly prejudicial comment came at the conclusion of a line of questions on cross-examination relating to Peterson's potential response to hypothetical price-cutting by a Food World store. Peterson initially stated his anticipated response to hypothetical price-cutting by a Food World store. Peterson initially testified concerning his anticipated response if Food World cut its gross profit margin to ten percent. He then articulated his anticipated response if that store cut its gross profit margin to nine percent. At a hypothetical gross profit margin of eight percent, however, Peterson's counsel objected to this testimony. The court sustained the objection, stating:
Even assuming this constituted a comment on the evidence as opposed to a statement of the reason for his ruling, it is well settled that a trial judge's comment on the evidence justifies reversal only if it causes "discernible prejudice." Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478, 482 (Ala.1984).
The short statement made by the trial judge, directed to counsel, in the context of a proceeding spanning over 3,000 pages of transcript, could not, in our opinion, have caused "discernible prejudice" to Super Valu. Even if the court's isolated remark to counsel, standing alone, could somehow be deemed prejudicial, the court immediately cured any possible problem, with the following instruction:
The court's explanation of its statement makes it clear that the comment was merely one of relevance concerning the specific question at hand. Just prior to the curative instruction, the court had reiterated, in the presence of the jury, "I am not commenting upon the fact they may not be competitive in the market. I make my statement in respect to the question that you are asking." Given the court's clarification of its ruling as one of relevance, its immediate curative instruction, its jury charge, and the nature of the statement in the context of over 3,000 pages of trial transcript, we are of the opinion that Super Valu could not have suffered "discernible prejudice."
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs as to Issues II, III, V, VI, VIII, IX, and XI.
HOUSTON, J., concurs in the result as to Issues I, IV, VII, X, and XII.
[1] The pertinent part of the letter of April 13, 1984, is previously set forth in the fourth paragraph of Part I.
[2] The letter of May 18, 1984, states, in pertinent part:
"In part, to confirm the telephone conversation between my law partner, A.W. Bolt, and yourself, on Friday, May 18, as well as to further inform you as to Mr. Peterson's position at present, please accept the following:
"Our previous offer of compromise to you on Monday, May 14, is now withdrawn and no offers are presently outstanding. Moreover, our demand for you to immediately proceed with appropriate action in order to begin construction on the store site is withdrawn at the present time. This withdrawal is made without any prejudice to any later action which Mr. Peterson may elect to take in order to protect his interest. Specifically, Mr. Peterson does not waive the right he has to force Super Valu to expeditiously proceed forward with the store plans at some point in the future.
"Additionally, please be again advised of our position that Mr. Peterson has an unequivocal [sic] and irrevocable right to the Oxford store and a contractual obligation is clearly present between Super Valu and Mr. Peterson regarding this store and location."
[3] Super Valu presented its Statute of Frauds defense as follows:
"This document is invalid under Code of Alabama 1975, § 8-9-2, the Alabama Statute of Frauds, which requires that the document affecting an interest in real estate be signed by the party to be charged therewith or an agent having written authority to bind the party." Super Valu contended that its agent, Dennis L. Weubker, lacked written authority to bind Super Valu to a contract affecting an interest in land (lease agreement with Peterson), and, therefore, that the contract between Super Valu and Peterson was void. | March 27, 1987 |
cdf9d13b-6d3e-44b4-b794-c0df29df8a6d | Bahakel v. Tate | 503 So. 2d 837 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 837 (1987)
Sahid BAHAKEL
v.
Franklin TATE.
85-190.
Supreme Court of Alabama.
February 20, 1987.
*838 Alfred Bahakel, of Bahakel & Bahakel, Birmingham, for appellant.
Herbert Jenkins, Jr., Birmingham, for appellee.
ALMON, Justice.
This appeal arose from an action for unlawful arrest brought by Sahid Bahakel against the City of Birmingham, city magistrate Franklin Tate, and Marva Gibbs.
On September 14, 1981, Tate, in his capacity as a magistrate of the City of Birmingham, received a complaint from Marva Gibbs. Gibbs requested a warrant for the arrest of a person who she alleged had presented a pistol at her. Gibbs provided Tate with a tag number of the vehicle which she claimed was driven by the gunman. She also told Tate that a police officer investigating the incident had informed her that the car was registered to Bahakel.
Based on this information, Tate issued a warrant for Bahakel's arrest. Bahakel was placed under arrest and was required to post bond to secure his appearance in court. Two weeks later, the charges were dismissed.
Bahakel's complaint alleges that he was "illegally, maliciously, negligently, and/or wantonly" arrested. His complaint against Tate and the City of Birmingham was dismissed, and this Court affirmed that dismissal as to the City of Birmingham, in Bahakel v. City of Birmingham, 427 So. 2d 143 (Ala.1983). In that prior appeal, we reversed the trial court's dismissal of Magistrate Tate and remanded. The trial court has now granted summary judgment for Tate. Defendant Gibbs has not moved for dismissal or summary judgment. Therefore, we are concerned on this appeal only with the trial court's summary judgment for Tate, rendered after remand and made final pursuant to Rule 54(b), A.R.Civ.P.
The issue is whether Tate is shielded from liability by judicial immunity. Magistrates are "vested with judicial power reasonably incident to the accomplishment of the purposes" for which the position of magistrate is created, Code 1975, § 12-14-50. One of the powers of magistrates is to issue arrest warrants. § 12-14-51.
In the prior appeal of this case, six members of this Court voted to reverse the portion of the judgment dismissing the claim against Tate. The two Justices joining the main opinion reserved the question of whether judicial immunity would apply to magistrates, but the four Justices concurring specially and the three dissenting from that portion of the opinion accepted the proposition that Tate would be immune from civil suit "and [could] be held liable only if the plaintiff show[ed] the commission of some willful and intentional wrong apart from his official duties." 427 So. 2d at 146 (Shores, J., concurring specially). The cause was remanded for a further factual determination.
The dissenting Justices thought the judgment should be upheld because the legal effect of the trial court's consideration of matters outside the pleadings was to convert the Rule 12(b)(6) motion to dismiss into a motion for summary judgment. Certainly, the reasons the Chief Justice set forth in the dissent as supporting summary judgment then are appropriate now. See Bahakel, supra, at 146-48. He compared this case to an earlier case which was factually similar, but which involved a justice of the peace. In the earlier case an affidavit made before the justice of the peace was insufficient to charge a criminal offense but was a legitimate attempt to do so. The Court concluded:
Broom v. Douglass, 175 Ala. 268 at 283, 57 So. 860 at 865 (1912). The Court in Broom *839 made important distinctions between courts of general jurisdiction and those of limited jurisdiction. For present purposes, the following point is sufficient: if a judge of a court of limited jurisdiction has subject matter jurisdiction and a colorable claim of personal jurisdiction, he is immune so long as he acts in good faith.
The differences between the facts in Broom and those in this case are minor. In Broom, a justice of the peace issued the warrant, while here it was a magistrate. In Broom the facts presented were insufficient to support the crime charged; here the elements of the offense were sufficiently alleged, but the wrong party was charged.
According to the undisputed facts, Magistrate Tate received Marva Gibbs in his office and heard her statements reciting facts sufficient to constitute the crime of presenting a firearm at another, an offense within his jurisdiction. She swore to these facts by affidavit so as to procure a warrant. The materials submitted on the summary judgment motion indicate that Tate pointed out to Gibbs that someone other than Bahakel could have been driving the car, but that she was insistent that he be arrested. Tate's affidavit states that he issued the warrant because "I deemed it probable that the owner was the driver." Bahakel has presented nothing to overcome the presumption of good faith incident to judicial action, see Broom, supra, and so the summary judgment is due to be affirmed. The facts do not leave room to question that Magistrate Tate was acting with judicial authority, and he is, therefore, immune from suit.
AFFIRMED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur. | February 20, 1987 |
2fc15970-3320-4626-ac7e-e293737f20d4 | Burnham Shoes, Inc. v. West American Ins. Co. | 504 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 238 (1987)
BURNHAM SHOES, INC.
v.
WEST AMERICAN INSURANCE COMPANY and American Fire and Casualty Company.
85-709-CER.
Supreme Court of Alabama.
January 30, 1987.
Application for Rehearing Stricken March 4, 1987.
Dissenting Opinion March 16, 1987.
William J. Baxley and Joel E. Dillard, of Baxley, Dillard & Dauphin, Birmingham, for appellant.
Robert S. Lamar, Jr., of Lamar & McDorman, Birmingham, for appellees.
BEATTY, Justice.
This Court consented to answer the following questions certified by the United States Court of Appeals for the Eleventh Circuit, 784 F.2d 1531:
(1) Is an insurance provision, which otherwise would obligate the insurer to defend the insured in a lawsuit based upon intentional wrongs alleged to have been committed by the insured, void as against the public policy of the state of Alabama?
(2) Does an insurer, who undertakes to defend an insured without reserving the right to withdraw its defense, thereby waive its right to do so? If so, is the insurer obligated to continue providing a defense even if to do so would otherwise be against public policy?
The following statement of the facts of this case is taken from the certification from the Eleventh Circuit:
In its order, the district court found the case of St. Paul Ins. Cos. v. Talladega Nursing Home, 606 F.2d 631 (5th Cir.1979), to be controlling of the present case. In St. Paul Ins. Cos., the Fifth Circuit, construing Alabama law, held that insurance contracts purporting to obligate an insurer to indemnify an insured in civil actions alleging slander, interference with business relations, and violations of federal antitrust laws (i.e., intentional wrongs), violate the public policy of this state, and are, therefore, invalid. With respect to the additional question of the insurer's obligation to defend an insured in such cases, which is the dispositive question posed here, the Court held in St. Paul Ins. Cos. that there was "no duty to defend the cases in their present posture." 606 F.2d at 635. In so holding, the Fifth Circuit relied primarily on this Court's decision in Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100 (Ala.1977). However, no question of a public policy constraint on the insurance contract was presented in Ladner & Co., although only intentional acts were alleged against the insured. There, this Court simply reiterated well established principles of law and held that, in that case, there was nothing in the allegations of the complaint nor in the record before the Court which tended to establish that the alleged injury or occurrence came within the coverage of the policy (which expressly excluded intentional acts), so as to obligate the insurer to defend regardless of the ultimate liability of the insurer to pay:
347 So. 2d at 102-03. Accord, United States Fidelity & Guaranty Co. v. Armstrong, 479 So. 2d 1164 (Ala.1985).
Although the insurance policy in St. Paul Ins. Cos., supra, required the insurer to defend the insured against "`both bodily injury and personal injury claims (such as libel, slander, invasion of privacy, false detention, etc.),'" the Fifth Circuit apparently concluded that this contractual obligation to defend also violated Alabama's public policy, as it had concluded that the contractual obligation to indemnify the insured for intentional acts for which he is found *241 liable, violates our public policy.[1] The Fifth Circuit cited no authority for its holding in St. Paul Ins. Cos. with respect to the insurer's obligation to defend. Nor have we been cited to any authority holding that it is or should be a violation of the public policy of this state to require an insurer to uphold its contractual obligation to defend its insured against claims alleging intentional wrongs. Furthermore, we have found no authority concerning the public policy aspects of the insurer's contractual obligation merely to provide its insured a defense to such claims. However, "[i]t is well established [in this state] that the insurer's duty to defend is more extensive than its duty to pay," Ladner & Co., supra, and we fail to perceive how requiring an insurer to meet its contractual obligation to provide a defense to claims alleging intentional acts violates the public policy of this state. Indeed, where the insurance contract in question expressly provides for such coverage (and the insurer has collected a premium therefor), we see no reason whatsoever to allow the insurer, on public policy grounds, to avoid these provisions in its own contract, which would otherwise obligate it to defend.
As noted, the district court in the present case followed St. Paul Ins. Cos., supra, and held that "even if the insurance contracts required defendants to indemnify and defend plaintiff in the earlier action, such contract [sic] would be void in Alabama as against public policy." Thus, apparently, there has been no factual determination as to whether the contracts in question obligate the insurer to provide a defense against the specific claims alleged in this case. We do not presume to make this determination here.
Should it be subsequently determined that the policy in question, by its terms, does not obligate the insurer to provide a defense in this case, then the question becomes whether the insurer waived this lack of coverage by undertaking to provide a defense without reserving the right to withdraw. However, we do not presume to decide whether, in fact, there has been a waiver in this case. Rather, we answer the second question, as certified, objectively. Nevertheless, having answered the first question in the negative, we need only address the first part of the second question, viz., whether an insurer who undertakes to defend an insured without reserving the right to withdraw its defense, thereby waives its right to do so.
In Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So. 2d 766 (Ala. 1977), this Court adopted the general rule with respect to the right of an insurer to withdraw a defense already undertaken without a reservation of the right to question at a later time its obligation to defend under the contract:
Cases from thirty jurisdictions are said to follow this general rule.
342 So. 2d at 770-71. This Court held that, under the circumstances of that case, the insurer could not withdraw its defense:
342 So. 2d at 470-71. Accord, Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45, 51-52 (Ala.1980).
Thus, under Alabama law, if an insurer does, in fact, undertake to defend an insured without reserving the right to withdraw its defense, it thereby waives its right to do so.
QUESTIONS ANSWERED.
All the Justices concur.
JONES, Justice (dissenting as to the order striking the application for rehearing).
Implicit in the Court's order "striking" (as opposed to "overruling") the insurer's application for rehearing is the holding that applications for rehearing are not authorized in certified question cases. Because the case came to this Court from the federal court by the certified question route, this Court reasons that it lost jurisdiction upon submission of its answer to the inquiring court, and that only that court can seek reconsideration or clarification.
Respectfully, I disagree with this analysis of this Court's role in this kind of case. It is the office of an application for rehearing to afford the nonprevailing party an opportunity to seek reconsideration by the reviewing court, and to afford the reviewing court one final opportunity to correct any errors in its opinion.
The federal court, in diversity cases, is interested only in being informed on state law issues, not in having certified questions answered in a particular manner. Only the parties have an interest in how the question is answered. Thus, it is only the parties and their counsel that have an interest in seeking rehearing, and not the court. Then, too, I find no wisdom in this Court's shielding itself from reconsideration of its own opinion. After all, the application for rehearing affords this Court its final opportunity to get it right.
I find nothing in the certified question procedure that requires us to deviate from our traditional procedure in regard to applications for rehearing. I would accept the application and consider it on its merits.
TORBERT, C.J., and MADDOX and ADAMS, JJ., concur.
[1] We express no opinion here as to the correctness of the Fifth Circuit's conclusion that insurance contracts in which the insurer agrees to indemnify its insured for intentional acts violate the public policy of this state. | March 16, 1987 |
1c6a0889-575d-4990-b48c-35b015040e23 | United Merchants & Mfrs., Inc. v. Sanders | 508 So. 2d 689 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 689 (1987)
UNITED MERCHANTS & MANUFACTURERS, INC.
v.
Elbert SANDERS.
86-203.
Supreme Court of Alabama.
May 29, 1987.
Patrick H. Graves, Jr., and Stuart M. Maples, Bradley, Arant, Rose & White, Huntsville, for appellant.
L. Thomas Ryan, Jr., of Simpson, Hamilton & Ryan, Huntsville, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, Elbert Sanders.
Sanders is president, chairman of the board, and sole stockholder of Designex, Inc. This dispute arises from a contract between Sanders's corporation, Designex, and United Merchants and Manufacturers, Inc., hereinafter referred to as "United," for the design and manufacture by Designex of two pieces of equipment, a turret unwind assembly and a material handling assembly, at a total contract price of $135,000.00.
As agreed, three invoices were sent to United during production of the equipment for progress payments totaling $81,000.00. These invoices were paid in September, October, and November of 1984 on behalf of United by CC Leasing, a company lending money to United for purchase of large equipment. Due to an administrative error *690 by United in May of 1985, United sent CC Leasing, among other invoices due that month, those previously-paid invoices from Designex totaling $81,000.00. As a consequence thereof, one set of invoices, totaling $81,000.00, was paid twice. It was not until the end of July 1985, that United discovered the overpayment. However, by that time, Designex had deposited the check and filed a Chapter 11 U.S.C. § 301 bankruptcy petition.
Nettie Hughes, office and business manager for Designex, testified that she received the mistaken payment of $81,000.00 on May 22, 1985. Mr. Sanders was out of town that day, and did not return until May 27, 1985. Hughes testified that she followed her customary procedure of making out a deposit slip, stamping the back of the check "For Deposit Only to the Account of Designex, Inc.," and depositing the check in Designex's bank account.
Ms. Hughes testified that she could not remember whether she told Mr. Sanders about the $81,000.00 payment when he returned to the office. Normally, she said, she would sit down with Sanders at the end of the month and go over all of the checks that had been received in order to match them with each client's account sheet; however, May 1985 was an unusually hectic month at Designex due to its impending bankruptcy. With permission of the bankruptcy court, Designex's accountants cut off their books at midnight on May 21, 1985. Designex then filed a petition for Chapter 11 bankruptcy proceedings on May 22, 1985, the same day that the $81,000.00 payment from United was received and deposited by Ms. Hughes into the Designex corporate bank account.
Sanders denied any personal knowledge or suspicion of the $81,000.00 overpayment until the end of July 1985, when David Rubin, assistant general counsel for United, called and told him that United had just discovered the error. At that time, Sanders did not deny receiving the check; rather, he told Rubin that he would look into it and get back in touch with him.
Sanders testified that on the 20th of each month, under normal circumstances, he would receive a statement from Designex's accountants detailing the various receipts and payments of the corporation from the month before. When he received the financial record of May 1985 payments and receipts, it did not set out those monies paid and received from May 22 to May 31, 1985. Sanders testified that he called the Designex accountants to inform them that the record of the 10-day period at the end of May had been omitted from his statement, and they told him that the omission was deliberate because the accounting was cut off at midnight on May 21, 1985. The accountants told Sanders that the payments and receipts from May 22 to May 31, 1985, would appear in the year end summary to be printed in September.
United, in the capacity of an involuntary general creditor, filed an action in the bankruptcy court against Designex to recover the money that had been paid to it by mistake. In that proceeding, the bankruptcy court awarded United $53,367.00 for money mistakenly paid. The award was to be paid out under Designex's Chapter 11 plan. The bankruptcy court found against United on the conversion, fraud, and breach of contract claims.
About the same time that the action in bankruptcy court was filed against Designex, United filed this action in the Madison County Circuit Court against Sanders in his capacity as president, chairman of the board, and sole shareholder of Designex, alleging that Sanders had received and converted $81,000.00 belonging to United, to the use of Designex and to his own personal use. United also alleged as follows:
On the eve of the circuit court trial, United amended its complaint to include two additional theories: money paid by mistake to Elbert Sanders, individually, and money paid by mistake to Elbert Sanders, chairman of the board, president, and sole shareholder of Designex, Inc.
Prior to trial, Sanders filed a motion to dismiss, alleging that he, as president, chairman of the board, and sole shareholder of Designex, had substantial identity with the corporation, and should be able to avail himself of the bankruptcy court judgment denying relief on theories of fraud, conversion, and breach of contract. In response thereto, United filed a motion for summary judgment alleging that if Sanders and Designex were in substantial identity, then Sanders should be collaterally estopped from denying liability under the money-mistakenly-paid theory of United's complaint. Both motions were denied.
At the close of United's case, Sanders and United each moved the trial court for a directed verdict. Sanders's motion was granted on all counts of United's complaint. This appeal followed.
Fletcher's Cyclopedia of Corporations § 1135, at 267-68, (1986) summarizes the general rule as to liability of directors and officers to third persons for torts as follows:
An action for conversion will lie if there has been a wrongful exercise of dominion over property in exclusion or defiance of the plaintiff's rights and the plaintiff has an immediate right to possession of the property. Empiregas, Inc., of Gadsden v. Geary, 431 So. 2d 1258 (Ala.1983).
The evidence will not support a conversion action against Sanders. First, there is no evidence that Sanders ever handled the money in any manner. The $81,000.00 payment was received and deposited by Ms. Hughes into the Designex corporate account while Sanders was out of town. There is also no evidence that Sanders had any knowledge of the overpayment until Rubin's phone call in July prompted an investigation. Even if he did have knowledge of the overpayment, by the time the mistaken payment was received, Sanders was not at liberty to pay any creditors, voluntary or involuntary, without direction of the bankruptcy court (11 U.S.C. § 362). This conduct cannot be characterized as a wrongful exercise of dominion over property.
*692 In addition, a long line of decisions holds that "trover lies for the conversion of `ear marked' money or specific money capable of identification". Hunnicutt v. Higginbotham, 138 Ala. 472, 475, 35 So. 469, 470 (1903) (quoting from 21 Enc.Pl. & Prac., 1020, 1021); Lewis v. Fowler, 479 So. 2d 725 (Ala.1985); Moody v. Keener, 7 Port. 218 (Ala.1838); Humana of Alabama, Inc. v. Rice, 380 So. 2d 862 (Ala.Civ. App.1979), cert. denied, 380 So. 2d 864 (Ala. 1980). However, when a relationship of debtor-creditor exists absent any obligation to return the identical money, an action for conversion of the funds representing the indebtedness will not lie. Lewis v. Fowler, 479 So. 2d 725 (Ala.1985). Accordingly, United's conversion claim against Sanders must fail.
Likewise, there is no of evidence to support the fraud claim. It is not entirely clear from reading United's complaint and brief on appeal whether United is basing its fraud claim on alleged misrepresentations or on suppressions of material fact or on fraudulent deceit.
Under Alabama law, in order to maintain any claim for fraud, it is essential that there be a material misrepresentation or a concealment of fact that is reasonably relied upon by the complaining party to his detriment. United States v. Burgreen, 591 F.2d 291 (5th Cir.1979); Bowman v. McElrath Poultry Co., 468 So. 2d 879 (Ala. 1985); American Pioneer Life Insurance Co. v. Sherrard, 477 So. 2d 287 (Ala.1985).
United points to no misrepresentation or concealment on the part of Sanders which induced it to send the $81,000.00 overpayment to Designex. The evidence indisputably shows that the overpayment was solely an internal accounting mistake on the part of United. United was listed at Schedule B-3-6 "Executory Contracts under which Debtor Claims an Equity," in the bankruptcy petition, and was notified of the petition by the bankruptcy court. There is no evidence that Sanders induced United to send an $81,000.00 overpayment knowing that United would be able to recover that money, if at all, only under a bankruptcy plan. We find no error in the trial court's directing a verdict in favor of Sanders on this claim.
United also argues that Sanders is collaterally estopped from denying liability for the overpaid funds, because he is in "substantial identity" with Designex, which has been found liable to United in the bankruptcy court. Sanders should be bound individually by the judgment of the bankruptcy court holding Designex liable, argues United. This contention is based on Sanders's pretrial motion to dismiss in which he argued that he, as president, chairman of the board, and sole stockholder of Designex, and Designex are in "substantial identity" with each other. Accordingly, Sanders argued, United is precluded from asserting claims against him which sound in breach of contract, conversion, and fraud because of the collateral estoppel effect of the prior bankruptcy proceeding.
In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979), the United States Supreme Court held that the doctrine of res judicata operates to bar a suit involving parties or their privies that are the same as those in a prior suit that proceeded to judgment on the merits. The parties in both suits need not be identical, however, for the doctrine to apply. If the parties in the first action are "substantially identical" to the parties in the later action, that is, if a non-party's interests were adequately represented by a party in the original suit, or if a party to the original suit is so closely aligned to a non-party's interest as to be his virtual representative, then judgments can bind that person not party or privy to the original action. This principle has been adopted in Alabama. In Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764 (Ala.1981) the Court said:
We hold that Sanders, as president, chairman of the board, and sole stockholder of Designex, is in substantial identity with Designex. Accordingly, since the parties in this case and in the bankruptcy action are substantially identical, we hold that United's action against Sanders is barred by the doctrine of res judicata.
United's final contention on appeal is that the trial court erred in not allowing United's counsel to impeach his own witness, Nettie Hughes, by way of her prior deposition testimony.
In Pope & Quint, Inc. v. Davis, 485 So. 2d 1134 (Ala.1986), this Court noted and approved of Dean Gamble's interpretation of Rule 32(a)(1), A.R.Civ.P., that "any party can use a deposition to impeach any witness at any time" as long as a proper foundation is laid and the proffered evidence relates to a material issue. C. Gamble, McElroy's Alabama Evidence § 165.01(6) (3d ed. 1977).
After a thorough review of the record, we hold that no error was committed by the trial court. United's counsel was given wide latitude in his direct examination of Ms. Hughes, and once a proper predicate was laid by him, Ms. Hughes's prior deposition testimony was thoroughly explored.
Because we find no error, the judgment of the trial court is affirmed.
AFFIRMED.
JONES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 29, 1987 |
49324a59-f980-4a14-8142-d1daa4bae85c | Ward v. Rhodes, Hammonds, and Beck, Inc. | 511 So. 2d 159 | N/A | Alabama | Alabama Supreme Court | 511 So. 2d 159 (1987)
Anthony W. WARD
v.
RHODES, HAMMONDS, AND BECK, INC., d/b/a The Brass Monkey.
85-930.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied July 10, 1987.
*160 Gary L. Blume, Tuscaloosa, for appellant.
Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellee.
BEATTY, Justice.
The question presented by this appeal is whether a person injured by an intoxicated person, to whom alcoholic beverages have been sold contrary to the provisions of law, has a claim either under Alabama's Dram Shop Act (Code of 1975, § 6-5-71), or for common law negligence, or under the doctrine of premises liability. The trial court granted summary judgment in favor of the licensee as to all claims. We hold that the plaintiff stated a claim under the provisions of Alabama's Dram Shop Act; therefore, we reverse and remand as to that claim, but we affirm as to the other two claims.
At the time of the incident in question, plaintiff Ward was a 24-year-old officer in the United States Marine Corps. While on leave in Tuscaloosa, he and two brothers visited a restaurant, where he consumed one bottle of beer with dinner. Subsequently, before 1:00 a.m., the three of them went to a local lounge, The Brass Monkey, which was owned by defendant Rhodes, Hammonds, and Beck, Inc. At approximately 1:00 a.m., Marvin Rex Shotts, Jr., another lounge patron, struck Ward in the left eye. Ward was treated without hospitalization. Subsequently, Ward brought this action against Shotts; Rhodes, Hammonds, and Beck, Inc.; Charles D. Rhodes, James Harry Hammonds, and Henry Wyman Beck, both individually and as stockholders of the corporate defendant; and several fictitious parties.
Ward's complaint contained several counts. As against the corporation, Ward alleged in Count Three that its employees served alcoholic beverages to Shotts while he was in an intoxicated condition, and that while Shotts was in that condition, he assaulted Ward, to Ward's injury. Ward also alleged that the corporation was thus in violation of the Dram Shop Act, Code 1975, § 6-5-71.
In Count Four, Ward alleged that the corporation, through its employees, "willfully, negligently, and wantonly" served alcoholic beverages to Shotts while Shotts was intoxicated, and that while intoxicated Shotts "intentionally, wantonly and maliciously" assaulted Ward, to Ward's injury.
In Count Five, plaintiff charged that the corporation and its employees "had actual or constructive knowledge or could have reasonably foreseen" that Shotts was of violent habit or that when intoxicated he was likely to commit violent acts. Despite this knowledge, he alleged, the corporation's employees "willfully, negligently and wantonly" served intoxicating beverages to Shotts and, as a proximate result, plaintiff Ward was injured.
Count Six alleged that Ward was a business invitee of the corporation and that the corporation owed him a duty to maintain reasonably safe premises, which duty it *161 negligently and/or wantonly breached; and that that breach proximately caused injury to plaintiff Ward.
Following an answer by the defendants and the answering of interrogatories filed by both sides, the corporation, and Rhodes, Hammonds, and Beck, individually and as stockholders, moved for summary judgment based upon the pleadings, the answers to interrogatories, and the affidavits of Rhodes and Loribeth Hirsberg. The moving parties and the opposing party filed memoranda pertaining to summary judgment. Plaintiff also filed the affidavit of Vincent Paul Ward in opposition to these defendants' motion. Apparently this affidavit was filed on the day the hearing was held on defendants' motion, i.e., March 26, 1986. Following that hearing, the trial court granted summary judgment in favor of the corporation and Rhodes, Hammonds, and Beck, individually and as stockholders. The trial court entered a proper Rule 54(b), Ala.R.Civ.P., certification of finality and this appeal ensued.
Plaintiff does not argue on appeal that summary judgment was improper as to Rhodes, Hammonds, and Beck, individually and as stockholders. Accordingly, our review reaches only the propriety of the trial court's order with regard to Rhodes, Hammonds, and Beck, Inc.
The pertinent part of Code of 1975, § 6-5-71, states:
The original legislative Act which granted a right of action to a person who was injured in consequence of the illegal sale or disposition of intoxicating liquor or beverages was adopted by the legislature in 1909. This Court, commenting on the intent and purpose of the 1909 Act in Webb v. French, 228 Ala. 43, 44, 45, 152 So. 215 (1934), stated the following:
The difficulty in the interpretation of § 6-5-71 arises out of the first words of the section"Every wife, child, parent or other person." (Emphasis added.) However, under the separate constructions given to the language in § 6-5-71, "other person who shall be injured in person ... *162 by any intoxicated person," in this Court's plurality decision in Maples v. Chinese Palace, Inc., 389 So. 2d 120 (Ala.1980), the "injured person," the plaintiff in this case, falls within the class of persons to whom the legislature intended to give a cause of action by the enactment of the Dram Shop Act.
In Maples, supra, four Justices concluded that:
(Emphasis added.) 389 So. 2d at 124. In further concluding that "other person" did not include the intoxicated person,[1] those Justices approved
(Emphasis added.) Id. But the complete quotation from Judge Cooley's opinion in Brooks v. Cook, supra, was not included in the Maples opinion. A further reading of Brooks reveals that Cooley's construction of the class of persons intended by the term "other person" would, indeed, include the plaintiff in this case, who was allegedly directly injured in person by the intoxicated person:
In his concurrence in part and dissent in part in Maples, supra, Justice Jones, joined by Justices Shores and Beatty, offered a construction of the Dram Shop Act as to the classes of persons intended to be given a cause of action thereunder. That construction would also put the plaintiff in this case within the class of claimants designated in the act as "other persons":
(Footnotes omitted.) (Emphasis added.) 389 So. 2d at 126-27. This construction of "other persons" comports with that given by Judge Cooley in Brooks v. Cook, supra, which, as explained above, was expressly adopted by four Justices in Maples, supra.
In his opinion in Brooks v. Cook, supra, decided over 100 years ago, Judge Cooley concluded that by its enumeration in the act of "wife, child, parent, guardian, [and] husband," the Michigan legislature intended this class of potential plaintiffs to "stand in some one of the domestic relations to the person to whom the liquor is sold, given or furnished." (Emphasis added.) 7 N.W. at 217. He also concluded that "any other person, who shall be injured in person or property" might well include a creditor, contractor or servant of an intoxicated person, or "the master of a vessel, or a traveler passing him [the intoxicated person] in the street, and so on." Id.
What did the Alabama legislature intend by its enumeration of "wife, child, [and] parent" in the predecessor to § 6-5-71(a)? Significant to our ascertaining this legislative intent is the language of subsection (c) of § 6-5-71, which was contained in the original Dram Shop Act of 1909:
(Emphasis added.) When the Dram Shop Act was enacted, the common-law rule of intra-family tort immunity still prevailed in Alabama. It was not until 1917 that this Court abolished husband-wife tort immunity by construing statutes enacted in 1907 giving the wife separate property rights. Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917). The common law rule of tort immunity still prevails in Alabama as between parent and child. See Hill v. Giordano, 447 So. 2d 164 (Ala.1984).
Thus, in 1909, the common law rule of intra-family immunity would have precluded the spouses, parents, and children of the intoxicated person from bringing an action against the intoxicated person. In other words, if the "wife, child, [and] parent" referred to in § 6-5-71(a) were intended to include only those of the intoxicated *164 person, then subsection (c) would have abrogated the common law by permitting an action by this class of persons, for personal injuries or property damage, against not only the dram shop but also the intoxicated person. While that may have been the intent of the legislature in 1909, such a legislative intent is not made clear by virtue of the failure to indicate to whom these classes of individuals were related. Nevertheless, in view of the prevailing rule of intra-family immunity and the fact that there was no expression of an an intent to the contrary, we think the 1909 legislature must have intended that "wife, child, [and] parent" refer to those of the party injured in person by the intoxicated person.
However, insofar as the class of potential plaintiffs designated as "other person," we hold that, just as the statute says, this category of plaintiffs includes anyone who is proximately "injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person." And, as foreseen by Judge Cooley in Brooks, supra, this category of plaintiffs is as broad as proof of proximate cause will permit.
In this case, we hold that plaintiff was a member of a class the Dram Shop Act was designed to protect; consequently, we hold that the plaintiff here has stated a claim under the provisions of the Dram Shop Act, because he has alleged that he was injured in person by an intoxicated person by reason of the sale by Rhodes, Hammonds, and Beck, Inc., of intoxicating liquor or beverages "contrary to the provisions of law."
In finding that plaintiff stated a cause of action under the provisions of the Dram Shop Act, we point out that the incident giving rise to the claim here did not occur during the hiatus when there were no provisions making it unlawful for a licensee to dispense alcohol to a person who was visibly intoxicated. See Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), and Putman v. Cromwell, 475 So. 2d 524 (Ala.1985).[2]
Plaintiff may be able to prove that Rhodes, Hammonds, and Beck, Inc., violated the Dram Shop Act because, in September of 1982, the Alcoholic Beverage Control Board promulgated Regulation 20-X-6-.02, which reads, in part, as follows:
Alabama Administrative Code, Vol. 1, Alcoholic Beverage Control Board Regulations.
Based on the foregoing, we are of the opinion that the trial court erred in granting summary judgment on plaintiff's claim based upon the provisions of the Dram Shop Act.
Does an injured person have a direct common law cause of action against one who served alcoholic beverages to another, who, in turn, caused the injury? Under the facts of this case, we think not.
As pointed out in Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), and DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979), this jurisdiction, *165 like the majority of jurisdictions in our nation, does not recognize a common law cause of action for negligence in the dispensing of alcohol. See also Hatter v. Nations, 480 So. 2d 1209 (Ala.1985).
Plaintiff contends that in Buchanan, supra, this Court created a new cause of action "for negligent dispensing of alcoholic beverages by a licensed vendor." We respectfully disagree with that position.
The narrow application of the Buchanan decision was further amplified in Putman v. Cromwell, 475 So. 2d 524, (Ala.1985), wherein this Court noted, at 525:
We conclude that no common law action exists under the facts alleged.
Did the trial court err in granting summary judgment against plaintiff's premises liability claims? We think not. The answer to this issue depends on whether plaintiff adduced any evidence, on the motion for summary judgment, that defendant Rhodes, Hammonds, and Beck, Inc., "knew or should have known of the likelihood of conduct on the part of a third person such as this assailant which would endanger the invitee." Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984). The affidavit of Charles Daniel Rhodes, one of the three stockholders and directors of Rhodes, Hammonds, and Beck, Inc., established that within one year prior to the incident in question he had received no reports of assaults on patrons by third persons on the corporation's premises. He denied any knowledge of any violent disposition possessed by Shotts, or any knowledge that Ward would be assaulted by Shotts.
According to Loribeth Hirsberg, who was sitting next to Shotts, the assault occurred without warning. Arguendo, even if Shotts was intoxicated immediately before the altercation, this in itself would not have made the attack foreseeable. The answer was aptly stated by the Indiana Court of Appeals in Welch v. Railroad Crossing, Inc., 488 N.E.2d 383, 388 (Ind.Ct. App.1986):
Under the facts of this case, therefore, the trial court was not in error in granting summary judgment on the premises liability claims.
Based on the foregoing, the judgment is due to be affirmed in part, and reversed in part, and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON, SHORES and STEAGALL, JJ., concur.
JONES and HOUSTON, JJ., concur in the result.
ADAMS, J., not sitting.
JONES, Justice (concurring in the result).
I concur in the holding, but I write separately to express my concern with the Court's treatment of Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), and Putman v. Cromwell, 475 So. 2d 524 (Ala.1985). The holding, applying Code 1975, § 6-5-71(a) (the so-called Dram Shop Act[1]), expressly rejects plaintiff's common law claim under these circumstances. In other words, in unmistakable language, this case stands four-square for the proposition that, unless the facts fall squarely within the specific language of § 6-5-71(a), there is no cause of action. Yet, in spite of Buchanan's express creation of a common law right of action (for whatever reason), followed by a unanimous Court in Putman, the Court in this opinion "respectfully disagree[s]" with "plaintiff[`s] conten[tion] that in Buchanan ... this Court created a new cause of action `for negligent dispersing of alcoholic beverages by a licensed vendor'"; but, in a "tippy, tippy-toe, sidestep" exercise, the opinion does not overrule Buchanan and Putman, pretending, instead, that these cases still have a "narrow application."
Does the Court not really mean to say this: Because the ABC Board, by its regulations, has now "fixed" the "contrary to the provisions of law" problemstatutory gap that existed at the time of Buchanan and Putmanwe abandon the common law concept of liability created by Buchanan and relied upon and applied in Putman, and look solely to the public policy as expressed by the legislature and implemented by its regulatory agency, the ABC Board. Indeed, how can the opinion in this case reasonably be interpreted as holding anything different?
Although I voted with the majority in Buchanan, I have now agreed to compromise *167 my position; and I now agree that the statute, along with the implementing regulations, and not the common law, provides the exclusive remedy in these cases. Having thus agreed, I would forthrightly declare that Buchanan and Putman no longer have a field of operation.
BEATTY, Justice.
The basis of the defendant's application for rehearing is that, on original deliverance, this Court did not address its argument that, even if the plaintiff had stated a claim under the Dram Shop Act, summary judgment as to that claim was nevertheless proper because there was not a scintilla of evidence to support that claim. We shall address this argument by defendant.
The proper standard to be applied to summary judgment motions is well settled: A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; Fountain v. Phillips, 404 So. 2d 614, 618 (Ala.1981). Furthermore, all reasonable doubts concerning a genuine issue of material fact must be resolved against the moving party. Couch v. Dothan-Houston County Airport Authority, Inc., 435 So. 2d 14 (Ala.1983). The movant's burden is markedly increased by the scintilla rule, which requires that summary judgment be denied if there is a scintilla of evidence, a mere gleam, glimmer, spark, or smallest trace, supporting the non-movant's position. Fountain v. Phillips, supra.
Defendant argues that the evidence in this case does not provide even a scintilla of evidence to support a reasonable inference that Shotts was acting in such a manner as to appear intoxicated at the time the defendant sold alcoholic beverages to him. We disagree. The affidavit of Vincent Paul Ward, brother of the plaintiff, quoted from below, provides the requisite scintilla and basis for the reasonable inference that if Shotts appeared intoxicated at the time of the altercation, he also appeared intoxicated at the time he was served the bottle of beer he was drinking from just prior to the altercation:
The defendant also contends that the evidence fails to provide a scintilla of evidence that it sold to Shotts the beer he is claimed to have been drinking. Suffice it to say that plaintiff alleged that the defendant sold the intoxicating beverages to Shotts contrary to law, and that in support of its motion defendant has adduced no evidence to negate that allegation by plaintiff. See Braswell Wood Co. v. Fussell, 474 So. 2d 67 (Ala.1985). We have considered the other arguments made by defendant concerning the timeliness and adequacy of plaintiff's submission of his brother's affidavit in opposition, and find them to be totally without merit.
Accordingly, we hold that, applying the scintilla rule of evidence, summary judgment was improper as to plaintiff's dram shop claim.
OPINION EXTENDED; APPLICATION OVERRULED.
*168 TORBERT, C.J., and MADDOX, ALMON, SHORES and STEAGALL, JJ., concur.
JONES and HOUSTON, JJ., concur in the result.
ADAMS, J., not sitting.
[1] The actual result reached by a majority of this Court in Maples was that the mother of a deceased minor could not maintain an action against the establishment that allegedly served alcohol to her minor child, who allegedly became intoxicated, and, as a result, was killed. Four Justices, following the Brooks v. Cook interpretation concluded that, since the intoxicated person has no right of action under § 6-5-71, neither does the mother as the personal representative. Three Justices reasoned that because the mother "was neither injured in person or in property, nor did she suffer any loss of support in consequence of the intoxication of her minor daughter ... she is not a member of either of the ... protected classes" under § 6-5-71. Maples, supra, 389 So. 2d at 127, Justice Jones, concurring in part and dissenting in part, joined by Justices Shores and Beatty.
[2] Prior to September 30, 1980, § 28-3-260(2) made it unlawful for a licensee to dispense alcohol to a person "visibly intoxicated." In September 1980, of course, the legislature repealed that statute, and substituted for it a new Alcoholic Beverage Licensing Code, in particular §§ 28-3A-1 through -26. The new Code excluded any reference to sales to visibly intoxicated persons, and left it to the Alcoholic Beverage Control Board to formulate regulations governing the subject.
The reason for the dissent by Justice Shores in Buchanan, in which Chief Justice Torbert and Justices Maddox and Almon concurred, was that the incident which was the basis of the suit in Buchanan occurred during a time when "there existed neither a statute nor a regulation which made it unlawful to sell alcohol to a person either `visibly intoxicated' or `acting in such a manner as to appear to be intoxicated.'" 463 So.2d, at 128.
[1] I have referred to § 6-5-71(a) as the "so-called Dram Shop Act," because this is a misnomer, leading to considerable confusion. Indeed, it has led to the common misconception that it only targets licensed retailers of intoxicated beverages. In fact, the target of the Act is "any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication...." (Emphasis added.) Neither the word "licensee" nor any other word denoting "Dram Shop" appears anywhere in the statute.
The difficult words of application are not to be found in "any person" but in "contrary to the provisions of law." For example, during the Prohibition era, virtually every transaction involving liquor was "contrary to the provisions of law." Since the repeal of Prohibition, however, only statutorily proscribed transactions fall within the purview of the Act.
It is only natural that the licensed vendor should become the primary focus of § 6-5-71(a), because the Alcoholic Beverage Control Act prohibits specific licensee conduct. It is to these statutory prohibitions and regulatory rules that the injured party most commonly looks for relief. But this does not mean that it is only the licensee who may sell, give, or otherwise dispose of intoxicating beverages to another "contrary to the provisions of law." One obvious example of this is where "any person" knowingly sells or gives liquor or beer to a minor. Even if we assume the absence of any specific statute prohibiting such sale or gift, the "contrary to the provisions of law" element is supplied by the unqualified statutory prohibition against a minor's use of intoxicating beverages. One who furnishes the forbidden drink is an equal participant with the minor in the commission of the proscribed conduct, and thus "any person" who knowingly furnishes intoxicating beverages to a minor necessarily does so "contrary to the provisions of law." | April 10, 1987 |
89bd0887-9c00-49dd-bf11-359ddb7e33b6 | Davis v. COFFEE COUNTY COM'N | 505 So. 2d 329 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 329 (1987)
Johnnie H. DAVIS and Donald W. Davis
v.
COFFEE COUNTY COMMISSION, et al.
Paul D. DAVIS and Patricia Ann Davis
v.
COFFEE COUNTY COMMISSION, et al.
84-1192, 84-1193.
Supreme Court of Alabama.
March 27, 1987.
John L. Knowles of Kelly & Knowles, Geneva, and G.A. Lindsey, Elba, for appellants.
W.H. Albritton IV of Albrittons & Givhan, Andalusia, for appellees.
ALMON, Justice.
These appeals raise the question of whether a county may be held liable for failing to erect a stop sign at an intersection of two county roads. Plaintiffs filed two suits arising out of a single accident in which Mrs. Johnnie H. Davis and Mrs. Patricia Ann Davis were injured when their car ran off County Road 67 in Coffee County. At the time of the accident County Road 67 was being used as a detour around construction work on County Road 6. At the place of the accident, County Road 67 terminated at an intersection with another road, although apparently not at a right angle with the other road. The vehicle travelled across the intersection and struck an embankment. The two occupants sued Coffee County and its commissioners to recover for their injuries and their husbands sued for expenses and loss of consortium. The trial court granted summary judgment for the county, relying on City of Prichard v. Kelley, 386 So. 2d 403 (Ala. 1980).
In City of Prichard v. Kelley, this Court held that a city may not be held liable under the provisions of Code 1975, § 11-47-190, for failing to maintain a traffic sign, because a defective traffic sign is not a physical obstruction or defect within the meaning of that statute, which is applicable to municipalities but not to counties. The Court then proceeded to determine whether the city could be held liable under general tort principles. The Court, citing Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689 (1936), held that the city had no duty to erect a stop sign because such a decision was purely discretionary, but that it could be held liable if it erected one and failed to maintain it properly.
Plaintiffs cite Jefferson County v. Sulzby, 468 So. 2d 112 (Ala.1985), as providing a basis for holding that the trial court erred in the instant case. We find that there are distinguishing factors which leave the principle of Kelley as controlling here. In Sulzby, the physical condition of the road was a major factor in the accident. At the scene of the accident, a church parking lot apparently joined the county road on the right side, with no indication of the border between the two; at the same point, the road took a left turn at the top of a hill. Sulzby testified that he had been using the center line of the county road to maintain his position on the road, but that the center line disappeared as he came to *330 the curve at the top of the hill. Thus, there was also evidence in that case that the county had painted a center line on the road but had failed to maintain it properly.
The Court in Kelley quoted from 18 McQuillin, Municipal Corporations § 53.42 (3d ed. rev. 1984), a statement of the law in jurisdictions, such as Alabama, where the distinction between proprietary and governmental functions no longer determines liability:
Elsewhere in the McQuillin treatise the rule is said to be that "Neither is a city required to barricade or erect signs at all jogs or T-turns in its streets to prevent [their] users from proceeding onto private property abutting such turns." 19 McQuillin, op. cit., § 54-94g (3d ed. rev. 1985). In Cooper v. City of Fairhope, 263 Ala. 619, 83 So. 2d 321 (1955), this Court found no cause of action stated where the alleged
Id., 263 Ala. at 622, 83 So. 2d at 323.
The rule as stated by McQuillin fits the instant case precisely and may appropriately be applied to counties, which administer many miles of roads under conditions which make it impracticable to post traffic signs at every turn or intersection. Therefore, the trial court did not err in granting summary judgment. The judgment in each case is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result. | March 27, 1987 |
2424297c-c49c-4fc5-a7e4-af5214805d48 | Ex Parte Owens | 531 So. 2d 21 | N/A | Alabama | Alabama Supreme Court | 531 So. 2d 21 (1987)
Ex parte Charles Edward OWENS
(Re: Charles Edward Owens v. State of Alabama).
85-1008.
Supreme Court of Alabama.
March 27, 1987.
Michael J. Bellamy, Phenix City, for petitioner.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
SHORES, Justice.
Our opinion of January 9, 1987, is withdrawn and the following is substituted for it.
Charles Owens was convicted of murdering Rebecca Heath during a kidnapping in the first degree, in violation of Code 1975, § 13A-5-40(a). He was sentenced to death by electrocution. Pursuant to Rule 39(c), A.R.A.P., the defendant's petition for certiorari was granted as a matter of right.
After a careful review of all the questions raised in Owens's petition, we find *22 that the only issue with merit concerns the striking of his jury at trial. Defendant contends that the prosecution impermissibly used peremptory strikes to exclude all blacks from the jury because of possible racial bias.
We remand this case to the Court of Criminal Appeals with instructions to that court to remand the cause to the trial court on the authority of Ex parte Jackson, 516 So. 2d 768 (Ala.1986). If the trial court determines that the facts establish a prima facie case of purposeful discrimination and the prosecution does not come forward with race-neutral explanations for its strikes, then Owens is entitled to a new trial.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS; APPLICATION OVERRULED.
TORBERT, C.J., and MADDOX, JONES, ALMON, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ.,
concur. | March 27, 1987 |
8b3d0712-a754-49bb-8590-368679497ba7 | Gurley v. American Honda Motor Co., Inc. | 505 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 358 (1987)
John B. GURLEY, a Minor Suing By and Through His Mother and Next Friend, Janet GURLEY; and Janet Gurley, Individually
v.
AMERICAN HONDA MOTOR COMPANY, INC., and Longshore Cycle Center, Inc.
85-1071.
Supreme Court of Alabama.
March 27, 1987.
*359 Charles D. Rosser, Tuscumbia, for appellants.
De Martenson and D. Alan Thomas of Huie, Fernambucq & Stewart, Birmingham, for appellees.
MADDOX, Justice.
Plaintiff, a minor, was injured while riding as a passenger on a Honda motorcycle. He, by and through his mother as best friend, and his mother, individually, sued American Honda Motor Company, the manufacturer, and Longshore Cycle Center, the dealer, claiming that the motorcycle was defectively manufactured and that American Honda and Longshore failed to adequately warn him of the dangers of riding the motorcycle as a passenger. The trial *360 court granted the defendants' motion for summary judgment. We affirm.
On June 3, 1984, John Gurley was riding as a passenger on a Honda XL100S motorcycle, which was owned and operated by Dan Bevis, Jr. As Bevis and Gurley went over a set of railroad tracks on a city street in Sheffield, they hit a bump which caused Gurley's right leg to bounce backward; the leg became caught between the motorcycle's rear tire and the fender/muffler assembly, causing him to suffer burns and abrasions to his foot. At the time of the accident, both Gurley and Bevis were 14 years of age.
The motorcycle involved in this accident was a 1983 model Honda XL100S. This vehicle was designed for "dual purpose" on-road/off-road use. It was purchased from Longshore Cycle Center by Dan Bevis, Jr., approximately two weeks prior to the accident in question and was sold by Longshore exactly as it had come to it from American Honda. The gas tank had a decal affixed to it which read: "WARNING OPERATOR ONLYNO PASSENGERS." Another decal affixed to the gas tank read: "Remember: Preserve Nature/Always Wear Helmet/Ride Safely/Read Owner's Manual Carefully Before Riding." The inside front cover of the owner's manual read as follows:
Bevis received the owner's manual, but did not read it or the warning on the inside front cover.
Bevis testified, in deposition, that he had read and understood the warnings on the gas tank. He had even informed Gurley that the motorcycle was built for only one rider. Gurley had operated this particular motorcycle by himself at least one week prior to the accident. Despite these warnings, Gurley and Bevis rode double on the motorcycle.
Summary judgment is proper when the pleadings and affidavits submitted by the movant show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981). If a scintilla of evidence exists which supports the position of the party against whom the motion for summary judgment is made, summary judgment may not be granted. Harold Brown Builders, Inc. v. Jordan Co., 401 So. 2d 36 (Ala.1981).
Plaintiffs contend that the Tennessee case of Evridge v. American Honda Motor Co., 685 S.W.2d 632 (Tenn.1985), controls this case. In Evridge, the Tennessee Supreme Court construed a similar "Operator Only/No Passenger" warning, and reversed the trial court's grant of summary judgment. Even assuming we should otherwise follow the reasoning of the Tennessee court, the facts in Evridge can be distinguished from the facts in this case. In Evridge, the motorcycle was a Honda Express, not a Honda XL100S. The motorcycles are not similar in design or appearance. The Honda Express is what is commonly called a "moped." The Honda XL100S is a street and trail bike. The only things the two have in common are that they are both designed for one rider and each has a warning sticker to that effect on the gas tank. In addition, the Honda Express has a chain guard and a muffler guard "which [are] flat enough to be used as foot rests for a passenger seated on the luggage rack." Evridge v. American Honda Motor Co., at 634. The Honda XL100S has no place for a passenger to put his feet. The Honda Express in Evridge was bought used, and the purchasers were given no owner's manual. Because of these differences, we are of the opinion that the Evridge case, even if it correctly states the law, does not control this case.
Plaintiffs contend that American Honda and Longshore failed to warn, or to adequately warn, John Gurley of dangers associated with riding passengers on the Honda XL100S motorcycle.
*361 It is well settled law that in order to make out a prima facie case of negligent failure to give adequate warning, the plaintiff must provide at least a scintilla of evidence that defendant breached a duty, and that the breach proximately caused plaintiff's injury. E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963 (Ala.1985). A manufacturer is under a duty to warn users of the dangerous propensities of a product only when such products are dangerous when put to their intended use. McCaleb v. Mackey Paint Mfg. Co., 343 So. 2d 511 (Ala.1977). It is also well settled that a manufacturer is under no duty to warn a user of every danger which may exist during the use of the product, especially when such danger is open and obvious. General Electric Co. v. Mack, 375 So. 2d 452 (Ala.1979). The objective of placing a duty to warn on the manufacturer of a product is to acquaint the user with a danger of which he is not aware, and there is no duty to warn when the danger is obvious. Ford Motor Co. v. Rodgers, 337 So. 2d 736 (Ala.1976).
The Honda XL100S was designed as a one-person-only vehicle. Its small size, its lack of rear foot pegs, and its gas tank label stating "WARNINGOPERATOR ONLYNO PASSENGER," as well as the owner's manual, make it clear that the XL100S was designed as an "operator only" vehicle. It is thus clear that the practice of riding double is an unintended use of this motorcycle. In this case, it is undisputed that John Gurley was riding as a passenger on the Honda XL100S, a motorcycle clearly not intended to carry passengers, and that at the time of the accident he was riding with his feet in an extended position out away from the motorcycle, because there was nothing even remotely designed as a footrest.
The element of proximate cause is essential to the plaintiff's prima facie case of negligent failure to adequately warn. A negligent-failure-to-adequately-warn case cannot be submitted to a jury unless there is some evidence that the allegedly inadequate warning would have been read and heeded and would have kept the accident from occurring. E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963 (Ala.1985).
Given the undisputed facts of this accident, we are also of the opinion that the warnings provided by American Honda and Longshore on the motorcycle and in the owner's manual were adequate, as a matter of law.
Where a warning is necessary, the warning need only be one that is reasonable under the circumstances and it need not be the best possible warning. There is no duty to warn of every potential danger or to explain the scientific rationale for each warning, but only a duty to warn of those dangers which the owner or user would not be aware of under the particular circumstances of his use of the product in question. Levin v. Walter Kidde & Co., 251 Md. 560, 248 A.2d 151 (1968); General Electric Co. v. Mack, supra.
American Honda and Longshore discharged their duty to warn in this case by placing the label reading "WARNINGOPERATOR ONLYNO PASSENGERS" on top of the Honda XL100S's fuel tank, where it was clearly visible at the time of the accident. The owner's manual prominently displayed the warning "OPERATOR ONLY. NO PASSENGERS." This manual was provided by Longshore at the time of purchase and was received by the owner, Dan Bevis. Here, it is also undisputed that John Gurley had operated this motorcycle by himself at least one week prior to the accident in question, and Dan Bevis testified that he knew and understood that the motorcycle was built as an operator-only model and had informed John Gurley of this fact prior to the accident.
The plaintiffs argue that the seat of this motorcycle was large enough for two persons, thereby inviting the practice of riding double. We are of the opinion that this argument is without merit. This motorcycle was designed as a multi-purpose on-road/off-road vehicle. For the anticipated off-road use, the operator's seat must be large enough to allow shifting of the operator's weight from front to back, compensating for rough and uneven conditions. *362 Any product when misused could be dangerous, but we are of the opinion that the manufacturer cannot be held to absolute liability. Clearly the dangers of the practice which caused this accident (riding double) are obvious.
The plaintiffs also contend that American Honda and Longshore breached a duty imposed by § 32-5A-244(a), Code 1975, which requires that any motorcycle carrying a passenger be equipped with footrests for the passenger. The plaintiffs submit no authority in support of this theory. Furthermore, § 32-5A-241(a) states:
Because the Honda XL100S was not designed for passengers, it is clear that it was not required that the motorcycle be equipped with rear footrests.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur. | March 27, 1987 |
676b7d16-303b-4528-8549-66af0f2a1df4 | Lynn Strickland Sales & Serv., Inc. v. AERO-LANE FAB., INC. | 510 So. 2d 142 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 142 (1987)
LYNN STRICKLAND SALES AND SERVICE, INC.
v.
AERO-LANE FABRICATORS, INC.
85-263.
Supreme Court of Alabama.
March 13, 1987.
Rehearing Denied June 26, 1987.
*143 Andrew P. Campbell and Jack W. Selden of Leitman, Siegal & Payne, Birmingham, for appellant.
James J. Bushnell, Jr. of Rives & Peterson, Birmingham, for appellee.
PER CURIAM.
Plaintiff Lynn Strickland Sales and Service, Inc. ("Strickland"), appeals from the trial court's judgment for defendant Aero-Lane Fabricators, Inc. ("Aero"), following a jury verdict in favor of Aero, and the Rule 59.1, Ala.R.Civ.P., denial by operation of law of Strickland's motion for a new trial. The appeal is also directed toward the court's directed verdict for Aero on Strickland's wantonness and willful misrepresentation claims.
The case was presented to the jury on two counts: negligence and "innocent fraud" (mistaken misrepresentation).[1] The jury heard the evidence over a three-day period and returned a general verdict in favor of Aero.
Strickland filed a motion for a new trial in which it asserted that the finding of the jury "is contrary to the great weight of the evidence." This motion was overruled by the trial court and thus the first issue is presented to us for review: Was the jury verdict contrary to the preponderance of *144 the evidence on the negligence and mistaken misrepresentation claims?
A jury verdict is presumed to be correct and will not be reversed unless the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it is wrong and unjust. Coleman v. Steel City Crane Rentals, Inc., 475 So. 2d 498 (Ala.1985), cert. denied, Illinois C.G.R.R. v. Coleman, ___ U.S. ___, 106 S. Ct. 1946, 90 L. Ed. 2d 356 (1986).
We have carefully reviewed the evidence and are not persuaded that the verdict on either the negligence or the mistaken misrepresentation claim is so decidedly against the preponderance of the evidence as to be wrong and unjust. Therefore, we reject Strickland's contention with respect to these claims.
The second issue is whether the trial court erred to reversal by improperly instructing the jury on damages. The case went to the jury on negligence and mistaken misrepresentation. Strickland alleged that the negligence proximately damaged Strickland's Rockwell Commander 114 aircraft.
Strickland's only objection to the instruction on damages was as follows: "We would also object to the instruction on fair market value. We believe it was overly broad and too demanding and did not follow the law ... in the State of Alabama."[2] The trial court instructed the jury on the measure of damages applicable to personal property, as follows:
The correct measure of compensation for damage to noncommercial personal property is the difference in the fair market value (Robbins v. Voigt, 280 Ala. 207, 191 So. 2d 212 (1966)), or reasonable market value (Shackleford v. Brumley, 437 So. 2d 1044 (Ala.Civ.App.1983)), immediately before and the corresponding value immediately after the damage occurs. The terms "fair market value" and "reasonable market value" are substantially synonymous. Housing Authority of Birmingham District v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So. 2d 835 (1942).
We hold that the trial court's instruction on damages was not "overly broad" or "too demanding" and that the instruction was in accordance with the law of damages in Alabama. Robbins v. Voigt, supra.
The next issue is whether the trial court committed reversible error when it restricted the expert testimony of two of Strickland's witnesses, Alan C. Peine and Leroy Harris. Strickland did not disclose these individuals as experts to be used at trial, nor did it specify what opinions they had formulated, in response to Aero's Rule *145 26(b)(4), Ala.R.Civ.P., discovery request. Aero objected to their testimony as experts because of Strickland's failure to comply with Aero's discovery request. It was within the discretion of the trial court to restrict such testimony, and we find nothing to indicate that the trial court abused its discretion. Electrolux Motor AB v. Chancellor, 486 So. 2d 414 (Ala.1986).
The final issue raised is whether the trial court erred to reversal in directing a verdict against Strickland on its claims for wantonness and willful misrepresentation.
Aero contends that any error committed by the trial court in directing a verdict in its favor on Strickland's wantonness claim at the close of all the evidence would be harmless error because the jury returned a verdict in favor of Aero on Strickland's negligence claim.[3] Particularly is this true, asserts Aero, where, as here, there was no affirmative defense which would be a defense to negligence but not to wantonness. See Chance v. Dallas County, 456 So. 2d 295 (Ala.1984); and Burns v. Moore, 494 So. 2d 4 (Ala.1986). We disagree.
Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury. The element of intent, or knowledge, is not present in simple negligence, and the element of intent does not raise a person's conduct to merely a greater degree of negligence as, for instance, gross negligence. As the Court stated in Smith v. Roland, 243 Ala. 400, 403, 10 So. 2d 367, 369 (1942), quoting 5 Mayfield's Digest, p. 711, § 6:
Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. "Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted." McNeil v. Munson S.S. Lines, 184 Ala. 420, 425, 63 So. 992 (1913). "Simple negligence, `the inadvertent omission of duty,' is not an element of wantonness." Atlantic Coast Line R.R. v. Barganier, 258 Ala. 94, 101, 61 So. 2d 35 (1952).
The distinction between wantonness and negligence has a long history in our case law. In Sington v. Birmingham Ry., Light & Power Co., 200 Ala. 282, 284, 76 So. 48 (1917), the Court stated:
*146 In a 1963 case, Thompson v. White, 274 Ala. 413, 420, 149 So. 2d 797, the Court stated:
In Coleman v. Hamilton Storage Co., 235 Ala. 553, 559, 180 So. 553 (1938), an action for personal injuries, the Court specifically held: "The fact that defendant's servant was not guilty of negligence would not preclude a finding by the jury that he was guilty of willful or wanton conduct." (Emphasis added.)
The definition of negligence is stated as follows in Black's Law Dictionary (5th ed. 1979):
This "difference in quality rather than in degree" is well recognized and firmly established by leading authorities on tort law. Restatement (Second) of Torts § 500 comment g (1965), provides, in part, that "[t]he difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind." (Emphasis added.)
In Prosser & Keeton on Torts (5th ed. 1984) at 212, it is stated:
A clear-cut distinction is made between negligence and wantonness in Dooley's Modern Tort Law, § 4.22 (1982) at 117:
Again, the distinction is discussed in Speiser, Krause, and Gans, 3 The American Law of Torts, § 10.1 (1986) at 358:
*147 To say that simple negligence is merely a lesser degree of wantonness is to say that one who commits a wanton act also, at the same time, commits a negligent act; or stated otherwise, that every wanton act necessarily includes negligence. As is clear from the above cited authorities, this is not so. A jury could find wanton misconduct on the part of an individual, even though it does not find that that individual's conduct was negligent.
The same rationale applies with equal force to the distinctions between mistaken misrepresentation and willful misrepresentation.
Because the trial court erred in directing a verdict for Aero on Strickland's claims of wantonness and willful misrepresentation, the judgment is reversed and this cause is remanded for a new trial. Further, because the claims of negligence and mistaken misrepresentation were adjudicated in Aero's favor, and because we find no error with respect thereto, we hold that the retrial of this cause shall be limited to the wantonness and willful misrepresentation claims. McMurray v. Johnson, 481 So. 2d 887 (Ala.1985).
REVERSED AND REMANDED WITH INSTRUCTIONS.
JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and HOUSTON and STEAGALL, JJ., concur in part; dissent in part; and concur in the result in part.
MADDOX, J., dissents.
HOUSTON, Justice, concurring in part; dissenting in part; and concurring in the result in part:
I concur in the Court's opinion as to all issues except the negligence/wantonness issue as to which I dissent, and the mistaken misrepresentation/willful misrepresentation issue, as to which I concur in the result.
What is the nature of negligence? Alabama Pattern Jury Instructions: Civil, charge 28.01 (1974) states, "[N]egligence is the failure to do ..., or, the doing of something..." In this Court's cases, "Simple negligence is the inadvertent omission of duty," McNeil v. Munson S.S. Lines, 184 Ala. 420, at 423, 63 So. 992 (1913) (emphasis in original). Again, in Atlantic Coast Line R.R. v. Barganier, 258 Ala. 94, at 102, 61 So. 2d 35, at 42 (1952), this Court defined "simple negligence," as "the inadvertent omission of duty." (Emphasis added.) In McNeil v. Munson S.S. Lines, supra, after negligence had been defined as the inadvertent omission of duty, the following observation was made: "[A]n act or omission may be simple negligence, or wanton or willful wrong, according to the presence or absence of the mental state of the person who did or omitted to do that which duty required in the premises." (Emphasis added.) There is a long line of cases, which are cited in the per curiam opinion, that support this latter proposition of law. Webster's Third New International Dictionary defines "inadvertent" as "not turning the mind to a matter."
If our pattern jury instruction is correct and if our cases are correct which hold that a plaintiff need not show the presence or absence of the mental state of the person who did or omitted to do that which duty required, then I would hold that where there is no affirmative defense involved, as there is not in this case; when the same action or inaction is relied upon to support a wantonness count that is relied upon to support a negligence count; and when there is a verdict for the defendant on the negligence count, this Court should infer that since the same action or inaction is an essential part of the wantonness count, the jury would have found for the defendant on the wantonness count as it did on the negligence count. Therefore, I would hold that any error in directing a verdict in favor of the defendant on the wantonness count would be harmless error, which would not require a reversal.
However, if negligence requires a state of mind different from the state of mind required for wantonness, then this would not be correct, because the jury, in finding for the defendant, could find the absence of *148 that particular state of mind required for an act or omission to be "negligence."
What is the nature of negligence? Is negligence conduct or is negligence conduct accompanied by indifference or inadvertence? The titans of torts have fought over this issue for generations. This Court must be consistent in its approach and not have negligence as mere conduct for some purposes, e.g., instructions on negligence, and as conduct accompanied by indifference or inadvertence for other purposes, such as in this case.
There is a view, a generally accepted view, which I would adopt, that negligence is conduct conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Holmes, The Common Law 110 (1881); Restatement (Second) of Torts §§ 430-431 (1965); Pollock, Torts 350 (4th ed. 1939); Beven, Negligence 3 (4th ed. 1928); 2 Harper and James, The Law of Torts 896 (1956); Terry, Negligence, 29 Harv.L.Rev. 40 (1915); Edgerton, "Negligence, Inadvertence and Indifference," 39 Harv.L.Rev. 849 (1926); Alabama Pattern Jury Instructions: Civil 28.01 (1974) ("`[N]egligence' is the failure to do ..., or the doing of something"); 57 Am.Jur.2d 351, Negligence § 10 (1971) ("The wrong lies in the conduct of the person charged and the liability imposed is an incident of his act or omission to act").
Under this theory, unreasonably dangerous conduct is negligence, without any requirement that it be accompanied by any particular state of mind, and no particular state of mind needs to be proven by the plaintiff to recover on a cause of action for negligence.
Professor Edgerton in "Negligence, Inadvertence, and Indifference," 39 Har.L. Rev. 849, 867 (1926), wrote: "By imposing liability for the consequences of dangerous conduct, and of dangerous conduct only, the law of negligence discourages such conduct, and thereby protects the general security, with a minimum of interference with individual freedom of action."
If negligence is conduct, then it naturally follows that that conduct for which liability is avoided by the contributory negligence doctrine and the guest passenger doctrine and which permits the imposition of punitive damages is wanton negligence or willful negligence, which would be conduct done with the particular mens rea necessary to make it wanton or willful.
There is another view, which has strong support and which the majority adopts and contends is the established law in Alabama; and certainly as of the release of this opinion, this is the law. According to it, negligence involves the state of mind of indifference or inadvertence. Conduct is not negligent unless it is accompanied by indifference or inadvertence. Salmond, Jurisprudence 538 (9th ed. 1937); Wharton, Negligence § 3 (2d ed. 1878); Street, Personal Injuries in Texas § 34 (1911); Winfield, Law of Tort 436 (2d ed. 1943); 57 Am. Jur.2d 350, Negligence § 10 ("Negligence, as the term is used in the law, is, under the modern rule, a wrong which constitutes a ground of legal liability, even though the fault upon which it is predicated is attributable to imprudence or to lack of skill rather than conscious design to do wrong").
Professor Edgerton postulates that this second theory is an outgrowth "of the nineteenth-century attempt to Romanize the common law by making all liability rest, not simply and directly upon the social advantage of discouraging certain conduct and compensating certain harms, but upon a guilty mind or will. `The wilful wrongdoer' says Salmond, `is he who desires to do harm; the negligent wrongdoer is he who does not sufficiently desire to avoid doing it;' and `negligence ... is rightly treated as a form of mens rea standing side by side with wrongful intention as a formal ground of responsibility.'" 39 Harv.L.Rev. at 869.
Under the state-of-mind theory, there could never be such a thing as "wanton negligence," for this would be wanton inadvertent or indifferent conduct; nor could there be such a thing as willful negligence, for this would be willful inadvertent or indifferent conduct. Such concepts would be contradictions.
*149 Dean Thayer in "Public Wrong and Private Action," 27 Harv.L.Rev. 317 (1914), at 317-318, wrote: "Much of the confusion in the cases has come from obscurity as to fundamental conceptions of the law of negligence.... Today some things can to advantage be reexamined and restated.... The very breadth of the subject [negligence] has made it easy to hide confusion of thought behind ambiguous and question-begging phrases."
Certainly "some things can to advantage be reexamined and restated," for we have opinions which would be authority for both views. See, McNeil v. Munson S.S. Lines, supra: "Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted. The conceptions are essentially distinct, for an act or omission may be simple negligence, or wanton or willful wrong, according to the presence or absence of the mental state of the person who did or omitted to do that which duty required in the premises." 184 Ala. at 423, 63 So. at 993. (Emphasis supplied.)
Since I view negligence as conduct, I would hold that the same action or inaction which constitutes negligence also constitutes wantonness if the tort feasor is conscious of his inaction or action and is conscious that by such inaction or action injury will likely or probably result.
I would also affirm the judgment of the trial court and hold that where there is no affirmative defense, such as contributory negligence, and a jury finds for a defendant on a negligence count, this Court will infer that the jury found the absence of that conduct. In this case, since the same facts that supported the negligence count were relied on by Strickland to support the wantonness count, this Court should infer that if the wantonness count had been presented to the jury, the jury would have found for Aero on that count, as it did on the negligence count. Therefore, any error in directing a verdict in favor of Aero on the wantonness count was harmless error, which would not require a reversal.
Under the majority's view, a plaintiff must prove that a defendant's conduct was inadvertent or indifferent. Can a defendant now defend on the fact that his conduct was not caused by indifference or inadvertence, but ignorance, stupidity, bad judgment, timidity, excitability, or forgetfulness? Is a defendant entitled to a directed verdict if there is no evidence of inadvertence or indifference? Is our pattern jury instruction on negligence erroneous?
The jury found for Aero on Strickland's mistaken misrepresentation count. Strickland argues that the trial court erred to reversal in directing a verdict for Aero at the close of all the evidence on Strickland's counts alleging willful misrepresentation and reckless misrepresentation. Aero insists that when the same facts are relied upon to support counts alleging mistaken, reckless, and willful misrepresentation, and only the mistaken misrepresentation count is submitted to the jury, as here, a verdict for the defendant on that count renders the directing of a verdict on the reckless and willful misrepresentation counts harmless error, even if there is a scintilla of evidence that the representation was made recklessly or willfully.
All three of Strickland's misrepresentation counts were predicated upon Aero's completion of a yellow maintenance release tag in accordance with FAA requirements, after repairing a muffler for Strickland's plane. Regardless of whether the representations made by Aero in completing this yellow maintenance tag were made mistakenly, recklessly, or willfully, in order for there to be actionable fraud (1) there must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon that false representation; and (4) the plaintiff must be damaged as a proximate result of such reliance. Cotton States Mutual Insurance Co. v. Thigpen, 448 So. 2d 314 (Ala.1983). To recover compensatory damages, the plaintiff need only present a scintilla of evidence as to each of the foregoing elements. In other words, the plaintiff need only establish actionable fraud. Mahoney v. Forsman, 437 So. 2d 1030 (Ala. *150 1983); Ex parte Smith, 412 So. 2d 1222 (Ala.1982); Fidelity & Casualty Co. of New York v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943); Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928); Foster v. Kennedy's Adm'r, 38 Ala. 359, 81 Am.Dec. 56 (1862).
To recover punitive damages, the plaintiff must present, in addition to the four elements essential for actionable fraud, evidence (under our existing cases, only a scintilla of evidence) that the representation was either made recklessly and heedlessly without any regard to the consequences, Ex parte Smith, supra; Winn-Dixie Montgomery, Inc. v. Henderson, 395 So. 2d 475 (Ala.1981), or with the knowledge or belief on the part of the defendant that the representation was false, Ex parte Smith, supra; Kaye v. Pawnee Construction Co., 680 F.2d 1360 (11th Cir.1982). See also Ollie R. Blan and J. Mark Hart, Fraud in Insurance Contract LitigationA Defense Viewpoint, 16 Cum.L. Rev. 447, 449 (1986) ("The question of whether the misrepresentation is made willfully, recklessly without regard to its truth or falsity; or whether it is made innocently, or by mistake, is pertinent only to the issue of punitive damages").
As can be seen, where the alleged misrepresentation consists of the same facts (completion of a maintenance release tag), reckless and willful misrepresentations are merely higher in degree of culpability. In other words, each requires only an additional "scienter" element. Therefore, if the jury is instructed only on the four elements essential for actionable fraud and a verdict for the defendant is returned, the directing of a verdict on reckless and/or willful misrepresentation counts would be harmless error even if there is a scintilla of evidence supporting those counts. However, in this case the jury was instructed as follows:
This instruction was apparently taken directly from the Alabama Pattern Jury Instructions: Civil, Charge 18.03 "Fraud" (1974). However, this instruction is misleading in that it purports to require a plaintiff to prove a misrepresentation to be "innocent or mistaken" in order to recover for actionable fraud. This is not the case. Once the four elements essential for actionable fraud are proven, at least a mistaken misrepresentation is established. Therefore, *151 for purposes of clarity, the instruction should read as follows:
Because the jury was incorrectly instructed that it could not return a verdict for Strickland unless it found an additional element (that Aero acted "innocently" or by "mistake"), it cannot be inferred that Strickland failed to prove to the jury's satisfaction one or more of the four essential elements of actionable fraud. Therefore, we could not hold as a matter of law that the directing of a verdict on the reckless and willful misrepresentation counts was harmless error because the four essential elements of actionable fraud could have been proven to the jury's satisfaction and if so, its verdict could mean only that Aero was not guilty of an "innocent" or "mistaken" misrepresentation.
TORBERT, C.J., and STEAGALL, J., concur.
MADDOX, Justice (dissenting).
I am of the opinion that the judgment of the trial court is due to be affirmed. Any error committed by the trial court, in my opinion, would be harmless error. Rule 45, Ala.R.App.P. Consequently, I cannot agree that the trial court's judgment is due to be reversed on either the negligence/wantonness issue or on the mistaken misrepresentation/willful misrepresentation issue. The whole concept behind our new Alabama Rules of Civil Procedure and our Alabama Rules of Appellate Procedure is that cases are decided upon their merits as justly, speedily, and inexpensively as possible. Rule 1, Ala.R.Civ.P.; Rule 1, Ala. R.App.P. To order a retrial of this case, in my judgment, violates the spirit behind both of those rules; therefore, I must respectfully dissent.
[1] "Innocent fraud" is an oxymoronic term. The American Heritage Dictionary of the English Language (1969) defines "innocent" as "uncorrupted by evil, malice, or wrongdoing, sinless; untainted; pure." The same dictionary defines "fraud" as "a deception deliberately practiced in order to secure unfair or unlawful gain; a piece of trickery; a swindle." Because Code 1975, § 6-5-101, defines one species of fraud as a misrepresentation "made by mistake, and innocently," it is preferable to speak in terms of "mistaken misrepresentation" or "legal fraud."
[2] No claim for damages to a commercial vehicle was made by Strickland. The measure of damages in such cases is set out in Dean v. Johnston, 281 Ala. 602, 606, 206 So. 2d 610, 614 (1968); Rowell v. Treadwell Ford, Inc., 511 F.2d 164 (5th Cir.1975).
[3] By so contending, Aero does not concede that the trial court erred in directing a verdict as to either the wantonness or the willful misrepresentation claim. We address the harmless error issue because we are of the opinion that Strickland was clearly entitled to have these claims submitted to the jury. | March 13, 1987 |
6da23480-e5b8-4b24-9172-462e7d179573 | Ex Parte Peoples | 510 So. 2d 574 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 574 (1987)
Ex parte John W. PEOPLES, Jr.
(Re John W. Peoples, Jr. v. State).
85-1295.
Supreme Court of Alabama.
April 3, 1987.
Rehearing Denied June 19, 1987.
*575 William A. Short, Jr., Bessemer, for petitioner.
Charles A. Graddick, Atty. Gen., and Rivard Melson and William M. Whatley, Asst. Attys. Gen., for respondent.
STEAGALL, Justice.
This is a capital murder case. The facts in this case are fully reported in the opinion of the Court of Criminal Appeals, 510 So. 2d 554 (Ala.Cr.App.1986).
The petitioner, John W. Peoples, Jr., was convicted of capital murder in the deaths of Paul G. Franklin, Sr., his wife Judy C. Franklin, and their son Paul G. Franklin, Jr. Peoples was sentenced to death. The Court of Criminal Appeals affirmed his conviction and overruled his application for rehearing. We granted certiorari as a matter of right. Rule 39(c), A.R.App.P.
Petitioner presents fifteen issues for review, all of which were discussed by the Court of Criminal Appeals. We deem it sufficient to address specifically two of these issues, both of which involve the admission of evidence at trial and both of which are central to the appeal.
The first issue we discuss is based on petitioner's contention that his detention on July 11, 1983, by the Childersburg police amounted to an illegal arrest without probable cause. See Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). Consequently, petitioner asserts that any evidence flowing from his arrest was inadmissible at his trial. Wonq Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Petitioner claims that the Corvette automobile, the bill of sale, photographs of the Corvette, photographs of blood stains found in the car, and articles of clothing found at his apartment pursuant to a consent to search were all products of an illegal arrest and should not have been admitted into evidence.
With regard to this issue, the Court of Criminal Appeals addressed each item of evidence claimed by petitioner to be inadmissible and properly recognized that "the admissibility of the fruits of the search of the car, as well as its seizure, and likewise the admissibility of the other items of evidence, is dependent upon the validity of the arrest." That court concluded as follows: "We find that there was probable cause for the arrest. We do not agree with the appellant that the arrest occurred when he was confronted in the store in Childersburg. Therefore, the above items of evidence were not inadmissible as fruit of the poisonous tree."
Petitioner insists that his initial detention at the drug store constituted an arrest under Alabama law. He cites Glass v. State, 424 So. 2d 687, 689-90 (Ala.Crim.App.1982), for its definition of "arrest": "An arrest consists in taking, under real or assumed authority, custody of another person for the purpose of holding or detaining him to answer a criminal charge or civil demand."
Captain Lewis Finn, a Childersburg police officer, testified that he went to Wesson's Drug Store on July 11, after receiving a call from the police chief, "[b]ecause there was suppose [sic] to be a car down there fitting the description that we were looking for." Captain Finn also testified as follows:
The Childersburg police chief, Ira Finn, testified that petitioner was not under arrest at the time he was brought from the drug store to the police station. According to Chief Finn, petitioner was free to go at that time, but did not say he wanted to leave. Chief Finn told petitioner that he was not arrested.
Based on the unusual circumstances of this case, we agree with the Court of Criminal Appeals that the arrest did not occur when petitioner was confronted in the store in Childersburg. As we will discuss, we find that the Childersburg police were justified in their stop of petitioner to ask him questions and to detain him briefly to obtain more information.
In Terry v. Ohio, 392 U.S. 1, at 22, 88 S. Ct. 1868, at 1880 (1968), the United States Supreme Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." In making such an investigatory stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, at 21, 88 S. Ct. at 1879.
At the time petitioner was approached in the store, Childersburg police knew that a man was at the drug store attempting to sell a red 1968 Corvette with a tag number and vehicle identification number identical to that of a missing car listed with the National Crime Information Center (NCIC). They also knew that a car matching this description had been publicized in newspaper reports concerning a missing family in an adjoining county. Petitioner claims this information was insufficient to warrant the action taken by the Childersburg police.
The United States Supreme Court, in United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985), considered the issue of an investigatory stop of a person by officers of one police department in reliance on another police department's bulletin that the person was wanted for investigation of a felony. After determining that "[t]he same interests that weigh in favor of permitting police to make a Terry stop to investigate a past crime ... support permitting police in other jurisdictions to rely on flyers or bulletins in making stops to investigate past crimes," the Court concluded: "[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, ... to pose questions to the person, or to detain the person briefly while attempting to obtain further information." Hensley, 469 U.S. at 232, 105 S. Ct. at 682. The Hensley Court held that "[a]ssuming the police make a Terry stop in objective reliance on a flyer or bulletin, ... evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop, United States v. Robinson, [536 F.2d 1298 (9th Cir.1976)], and if the stop that in fact occurred was not significantly more intrusive than would have been permitted *577 the issuing department." Hensley, 469 U.S. at 233, 105 S. Ct. at 683.
In the present case, the Childersburg police had received an NCIC report concerning a red Corvette that had been listed as missing by St. Clair County authorities. Their reliance on this report was proper. In Cotton v. State, 481 So. 2d 413, 415 (Ala.Crim.App.1985), the Alabama Court of Criminal Appeals reiterated that "information received by officers over the radio in regard to a suspect constitutes sufficient cause to make an investigatory stop to question the suspect about suspected criminal activity. Kemp v. State, 434 So. 2d 298 (Ala.Crim.App.1983); Crawley v. State, 440 So. 2d 1148 (Ala.Cr.App.1983)." An officer may rely on a police dispatch in stopping a vehicle. Pickett v. State, 417 So. 2d 589 (Ala.Crim.App.1982). A report from the NCIC relayed over police radio that an automobile was stolen, when in fact the NCIC report was erroneous, has been held to support a search and seizure of the automobile by officers in reliance on the report. Daniels v. State, 290 Ala. 316, 276 So. 2d 441 (1973).
According to Hensley, supra, the propriety of the stop made by the Childersburg police in reliance on the NCIC report depends on whether the issuing officers in St. Clair County possessed a reasonable suspicion justifying the stop. We find that at the time of petitioner's detention in Childersburg on July 11, the St. Clair County officials investigating the disappearance of the Franklin family and their automobile possessed a reasonable suspicion, based on specific and articulable facts, that petitioner was involved in a completed crime.
We must also determine whether the stop and detention were no more intrusive "than would have been permitted the issuing department." Hensley, supra, 469 U.S. at 233, 105 S. Ct. at 683. We are of the opinion that the detention of petitioner at the Childersburg police station was justified under the circumstances. The Childersburg police had located an automobile that had been particularly described and that was wanted by authorities in St. Clair County. When petitioner told the officers that this car belonged to him, he became the legitimate subject of investigation. See United States v. Longmire, 761 F.2d 411 (7th Cir.1985). At that point, it was appropriate to relocate the investigation to the police station, as good police work in this instance demanded that the officers have an extended conversation with petitioner concerning the particular car that he was attempting to sell. The detention that occurred was no more intrusive than would have been a detention allowed the St. Clair County authorities.
Having determined that the detention of petitioner was a valid investigatory stop, we find that the bill of sale produced by petitioner during this stop was admissible. Further, the facts which were uncovered as a result of information contained in the bill of sale supplied probable cause to arrest petitioner for theft of the automobile by deception. The evidence obtained as a result of the valid investigatory stop and the subsequent arrest of petitioner based on probable cause was properly admitted into evidence.
The second issue we address is the claim by petitioner that the evidence from the scene where the bodies of the Franklin family were found should not have been admitted into evidence. Petitioner urges that the statement which he made on July 13, 1983, resulting in the discovery of the bodies, was not voluntary, but was made as a result of a promise by the State that was conveyed to petitioner through his attorney. Regardless of whether any such promise or agreement was made, we find that the evidence from the scene where the bodies were found was admissible. We agree with the determination of the Court of Criminal Appeals that Timothy Gooden independently led police to the location where the bodies had been found two days earlier, based on petitioner's statement. This evidence would have been discovered through Timothy Gooden as an independent source. See Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). Petitioner's contention that Gooden cannot be an independent source because his name was revealed as a result of an *578 illegal arrest has no merit in light of our determination that petitioner's detention and arrest were valid. Thus, the evidence from the site where the bodies were located was properly admitted.
We have carefully reviewed the remaining issues raised by petitioner that are not directly addressed by our opinion. Having considered the record, the briefs, and the oral argument in this case, and having considered the propriety of the death sentence pursuant to the requirements of Ala.Code 1975, § 13A-5-53(a), and Beck v. State, 396 So. 2d 645 (Ala.1980), we find no errors adversely affecting the rights of petitioner. The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur. | April 3, 1987 |
bd21f78d-60b7-4385-8faa-3638a98f4a4e | Deupree v. Ruffino | 505 So. 2d 1218 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1218 (1987)
James L. "Skip" DEUPREE and Bay Development Corporation of Destin, Inc.
v.
Anthony RUFFINO, et al.
James L. "Skip" DEUPREE and Bay Development Corporation of Destin, Inc.
v.
Roy ANDERSON, Jr., and Louise Milner Anderson.
85-407, 85-408.
Supreme Court of Alabama.
April 3, 1987.
*1219 Michael W. Landers of Bell and Landers, Sylacauga, for appellants.
J. Clewis Trucks of Trucks and Trucks, Fairfield, for appellees Anthony Ruffino and Doris Ruffino.
R. Carlton Smyly of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellees Roy Anderson, Jr., Louise Milner Anderson, and Daniel W. Gibson.
BEATTY, Justice.
These consolidated appeals ensue from judgments against James L. "Skip" Deupree and Bay Development Corporation of Destin, Inc. ("BDC") entered in two lawsuits which themselves were consolidated for trial. Roy Anderson, Jr., Louise Milner Anderson, and Daniel W. Gibson were awarded damages in one action. Anthony Ruffino and Doris Ruffino were awarded damages in the other action. The consolidated trial was held ore tenus without a jury, based upon allegations of breach of contract and fraud. We affirm.
The litigation arose out of purchases by the Andersons, the Ruffinos, and Gibson of townhouse units in a complex known as Pointe South located in Destin, Florida. Deupree, doing business as BDC, developed Pointe South, which fronted on a body of water known as Old Pass Lagoon. Each of the sales contracts contained a clause pertaining to the seller's constructing and furnishing a boat slip to each purchaser. Pertinent parts of this clause are quoted below:
*1220 Gibson, who purchased one unit, executed his purchase contract on October 8, 1982; the Andersons executed their purchase contract for two units on May 1, 1983; and the Ruffinos executed their purchase contract for one unit in August of 1982. Gibson's purchase was closed on May 11, 1983, while the Andersons' purchase was closed on May 26, 1983, and the Ruffinos' purchase was closed on June 10, 1983. At the time of these closings, the boat docks in question were approximately 90% completed. Deupree told the purchasers that he had not obtained final approval for the boat slips, but that the documentation would be forthcoming; he said he was expecting approval at any time.
Notwithstanding the terms of the contract pertaining to the escrow account, Deupree and the Andersons agreed that only $1,500 per unit should be withheld, or a total of $3,000. Gibson, however, would not agree to pay Deupree the $10,000 amount designated for escrow, because his boat slip was incomplete, whereupon Deupree insisted that Gibson execute a promissory note and mortgage for $10,000 payable within seven days of completion of the boat slip. Gibson acquiesced in that proposal and executed the documents. The Ruffinos placed $8,000 in the escrow account.
The "approval" referred to above was a submerged land lease from the State of Florida. Florida law required approval from the Florida Department of Natural Resources, Bureau of Land Management, in the form of a submerged land lease, for construction of boat slips or structures over public waters, of which the water in question was a part. Deupree applied for such a lease in August 1982. As required by Florida law, his application was advertised publicly. Some objections having been received by the responsible public officials, Deupree was notified that a public hearing would be required. Deupree was asked to furnish a meeting place and select a date for the hearing. In a subsequent telephone conversation with the bureau director, Deupree inquired as to whether anyone else had gone through a public hearing, and, upon being informed that no recent hearings had occurred, Deupree requested a bureau representative to place his application on "hold," which was done.
Nevertheless, Deupree initiated construction of the boat docks without official approval. When the Bureau of Land Management learned of this construction and asked for an explanation, Deupree stated that he had had nothing to do with the development and had turned everything over to the condominium owners. At that time, none of the sales of the units had been closed. Deupree was informed that he would have to assign his application for a submerged land lease to the unit purchasers. No assignment was made. Instead, Deupree began closing the units, representing to the purchasers that he expected approval at any time.
Later, in July 1984, after their closings, the purchasers learned from representatives of the Department of Natural Resources that Deupree had told them that the individual purchasers were responsible for the construction. And, in 1985, while these suits were pending, the purchasers learned that Deupree himself had put the application for the lease "on hold."
On October 9, 1984, two interpleader actions were filed in Talladega County by the escrow agent, Mark E. Frederick, an attorney in Destin. One petition named Deupree, individually, who is a resident of that county; BDC; and the Ruffinos, whose $8,000 escrow account held for completion of the boat dock was paid into court. The other petition named Deupree, individually; BDC; and the Andersons, whose $3,000 escrow account was paid into court.
The Andersons answered by claiming entitlement to the funds, as did BDC. The Andersons amended their answer to add a cross-claim against BDC and Deupree, claiming breach of contract. Gibson intervened and made a similar claim against Deupree and BDC. The Andersons and Gibson later amended their claims to allege fraud by Deupree in the sale of the units. BDC and Deupree made general denials. Likewise, the Ruffinos claimed breach of contract and fraud against Deupree.
*1221 Trial was had ore tenus without a jury, following which the trial court found for the plaintiffs against Deupree and BDC and awarded damages as follows: The Andersons: $40,000 compensatory and punitive damages; the Ruffinos: $20,000 compensatory and punitive damages; Gibson: $15,000 compensatory and punitive damages. The escrow deposits of the Andersons and the Ruffinos were adjudged credits on their judgments, while the cancellation of Gibson's note and mortgage were adjudged a credit on his judgment.
The defendants present three issues for our consideration, which will be addressed seriatim:
(1) Whether the trial court erred in finding that BDC and Deupree had breached the contract relative to the delivery of the boat slips.
(2) Whether the trial court erred in finding that Deupree and BDC defrauded the appellees.
(3) Whether the trial court erred in "piercing the corporate veil" of BDC and finding Deupree personally liable.
(4) Whether appellees' claims are barred by the statute of limitations.
Our review of these issues is governed by the principle of ore tenus review. That is, the trial court has wide discretion, and there is a strong presumption of correctness in its factual findings, which will not be disturbed on appeal unless they are unsupported by evidence or found to be clearly erroneous or against the great weight of the evidence. Ex parte Coughlin, 455 So. 2d 18 (Ala.1984).
It is clear from the express language of the contract, as quoted above, that, "in consideration of the purchase price of the unit," the seller promised that "a boat slip ... shall be included and use thereof shall be transferred to the Purchaser." Other terms of the contract pertaining to the boat slip (or dock) referred to when it should be furnished, e.g., the money would be held in the escrow account "until said slip is constructed," but not to the obligation to furnish the slip. Even though there was no definite time stated in the contract for the completion of the boat docks, nevertheless "the law requires it to be done within a reasonable amount of time," Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So. 2d 792 (Ala.1978), and "[w]hat is a reasonable time depends upon the nature of the act to be done and all the circumstances relating to that act." Ibid. This question is one for the trier of fact. Drake v. Goree, 22 Ala. 409 (1853). Under the circumstances attendant, the trial court could have found, and doubtless did find, that the completion of the boat docks was a material condition to the purchasers, and that the non-performance of that condition in the time between the execution of the contracts, i.e., August and October 1982 and May 1983, and the filing of these lawsuits, i.e., October 1984, was unreasonable and thus a breach of contract. Clearly such a finding was not palpably wrong under the evidence.
The finding of the trial court on this issue is also clearly supported by the evidence. That evidence has been referred to earlier in this opinion, and, without repeating it, we note that it discloses that Deupree assured the purchasers at closing that he was expecting final approval for the boat docks "at any time" although: (1) he already knew that the applications for submerged land leases on Old Pass Lagoon were being closely scrutinized; (2) he knew that local objections to his application had been received by the approving governmental agency; (3) he knew that a public hearing would be required; (4) he himself had asked that his application be suspended; (5) his unauthorized construction had been discovered by the approving authority; and (6) he had informed the approving authority that he no longer was involved and that the individual owners were responsible for the unauthorized construction. That evidence *1222 establishes that Deupree's misrepresentation and concealment concerning the boat docks was material to the purchasers. Each testified that he would not have closed the sale had Deupree disclosed the impediments to approval.
Applicable under the evidence is Code of 1975, § 6-5-102:
The evidence discloses that rather than acquainting the purchasers at the time of closing with the difficulties he had encountered in obtaining the submerged land lease, Deupree misled them with an expectation of approval "at any time." As seller of the property under contracts which obliged him to furnish boat docks for each purchaser, having initiated the process by which approval would be forthcoming, and having been informed during that process of the impediments to that approval, Deupree stood in a special relationship to his purchasers, who had no knowledge of those impediments, but who relied upon him; therefore, Deupree had an obligation to disclose his knowledge of those impediments at the time he took their money. As this Court stated in Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 86 (Ala. 1980): "A duty to speak depends upon the relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances." Accord, American Bonding Co. v. Fourth National Bank, 206 Ala. 639, 641, 91 So. 480 (1921), quoting 12 R.C.L. § 70, 71: "[I]f one willfully conceals and suppresses such [material] facts, and thereby leads the other party to believe that the matters to which the statements may relate are different from what they actually are, he is guilty of fraudulent concealment." See also Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So. 2d 591 (1975).
Whether or not the corporate form will be disregarded in a given case is governed by the principle expressed in Barrett v. Odum, May & DeBuys, 453 So. 2d 729, 732 (Ala.1984):
This Court added that the issue of separate corporate existence vel non was one for the trier of fact. Ibid. Accord, Tri-State Building Corp. v. Moore-Handley, Inc., 333 So. 2d 840 (Ala.Civ.App.1976).
The appellants maintain that Deupree should not have been held liable because "all activities among these parties were transacted in the name of [BDC]." There was evidence, however that BDC, although a corporation on paper, in fact never operated as such. It had neither issued stock nor adopted by-laws. It had no books of account, neither a ledger nor a journal. It had hired no employees. The evidence disclosed a number of business enterprises of various kinds through which personal and corporate funds were comingled and expended by Deupree himself as needs arose. Many of these transactions were made without any records on which to base allocations between business enterprises. For *1223 example, the testimony of Mr. Deupree's father disclosed:
Under the evidence, this Court cannot find that the trial court committed error in holding James L. "Skip" Deupree liable for fraud and breach of contract.
Finally, Deupree argues that the running of the statute of limitations barred the purchasers' fraud claims. This position is untenable. The purchasers' claims were based upon the impediments to the approval of the boat slips, which Deupree concealed. There is evidence that the purchasers did not learn of Deupree's disclaimer of responsibility to the appropriate officials until sometime in July 1984. Whether the purchasers were put on notice at the closings in 1983 or in 1984 was an issue of fact. There was sufficient evidence from which the trial court could have found that the claims were not barred. Code of 1975, § 6-2-3; Mitchell Homes, Inc. v. Tew, 294 Ala. 515, 319 So. 2d 258 (1975).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | April 3, 1987 |
a5a99525-ec70-43c1-8d81-376e3a5d367f | Mid-Continent Ref. Co. v. Fulton Groc., Inc. | 503 So. 2d 1222 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 1222 (1987)
MID-CONTINENT REFRIGERATOR COMPANY
v.
FULTON GROCERY, INC., et al.
85-931.
Supreme Court of Alabama.
February 20, 1987.
Robert H. Allen of Allen & Fernandez, Mobile, for appellant.
Norman J. Gale, Jr., of Clay, Massey & Gale, Mobile, for appellees.
HOUSTON, Justice.
Mid-Continent Refrigerator Company ("Mid-Continent") filed a suit to recover from Fulton Grocery, Inc., on a contract to purchase commercial refrigeration equipment and to recover from Mildred L. Paris and Bobby J. Hall on their personal guaranties of that contract. The defendants defended on a claim that Mid-Continent had breached implied and express warranties and on a claim of misrepresentation. Fulton Grocery counterclaimed for breach of implied and express warranties and for misrepresentation.
*1223 Mid-Continent appeals from an adverse judgment based on a jury verdict. The issues presented are whether the jury's verdict was against the great weight of the evidence and whether it was reversible error to admit, over objection, testimony of a witness as to his experience with refrigeration equipment purchased from Mid-Continent.
Upon review, we presume that a jury's verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; we indulge such reasonable inferences as the jury was free to draw from the evidence; and 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. Harris v. Meadows, 477 So. 2d 374 (Ala.1985); S.S. Steele & Co. v. Pugh, 473 So. 2d 978 (Ala.1985); Strait v. Vandiver, 472 So. 2d 1034 (Ala.1985); Kent v. Singleton, 457 So. 2d 356 (Ala.1984).
The jury heard all of the evidence, including the amount paid by Fulton Grocery as a down payment on the equipment; the many problems encountered with the equipment; the failure of Mid-Continent to honor its warranties and to repair the equipment; the losses, both in time and money, suffered by Fulton Grocery and Ms. Paris because of the problems with the equipment. The jury could logically infer therefrom that Mid-Continent breached its contract with Fulton Grocery and that Fulton Grocery was not liable on that contract, and, therefore, that Ms. Paris and Mr. Hall, as individual guarantors of Fulton Grocery's performance of that contract, were not liable. The trial court charged that the breach of warranty by Mid-Continent would be a defense to its claim against the defendants. This was not objected to by any party. The evidence against this verdict is not so much more credible and convincing to the mind of this Court than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust. This issue is without merit.
Over the continuing objection of Mid-Continent the trial court allowed James Warwick to testify about his experience in purchasing, and about the performance of, a refrigeration unit similar to one of the units purchased by Fulton Grocery from Mid-Continent. Warwick purchased his unit approximately a year before Fulton Grocery purchased its units. Warwick's and Fulton Grocery's units were pictured and described in the same sales brochure, which went to the jury as an exhibit. The same agent for Mid-Continent sold Warwick and Fulton Grocery their units. The unit Warwick purchased was for keeping vegetables cool. One unit purchased by Fulton Grocery was a multi-purpose unit for keeping vegetables in one end and dairy products and lunch meats in the other end. There was evidence that the vegetable end of the unit purchased by Fulton Grocery was practically the same as the unit purchased by Warwick. Both units were supposed to have an automatic temperature control, but that control did not work on either unit. The units were equipped with automatic defrost features and both encountered the same or similar problems with this feature. The problems encountered by Warwick and some of the problems encountered by Fulton Grocery were similar. Both units were sold for use in convenience stores and were so used.
The trial court allowed Warwick's testimony on authority of C. Gamble, McElroy's Alabama Evidence, p. 188, § 83.07 (3d ed. 1977):
The rule stated in McElroy's is essentially the same as the general rule stated in 29 Am.Jur.2d Evidence § 302 (1967):
The similarity was sufficient to give Warwick's testimony probative value; and other circumstances as to place, care, and use were not so materially different as to introduce collateral issues.
Mid-Continent had the opportunity to fully cross-examine Ms. Paris and Mr. Warwick as to any differences in the use and operation of the equipment. The jury had pictures of both refrigeration units. The jury could give what weight it felt should be given to Warwick's testimony. The problems pointed out in Mid-Continent's brief relate more to the weight of Warwick's testimony than to its admissibility. The trial court did not err in admitting this testimony.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
46aeb9d1-b6c0-4363-9bd6-d2a58e895e60 | Jones v. Dearman | 508 So. 2d 707 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 707 (1987)
William Ray JONES and Joan O. Jones
v.
Roger A. DEARMAN and Marcia K. Dearman.
85-1204.
Supreme Court of Alabama.
June 5, 1987.
Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for appellants.
Blake A. Green and Joe A. Macon, Jr., Wetumpka, for appellees.
BEATTY, Justice.
This is an interlocutory appeal under Rule 5(a), A.R.App.P., from the trial court's denial of defendants' motions for summary judgment.
The plaintiffs, Roger A. Dearman and Marcia K. Dearman, are the purchasers of a used house. The defendants, William Ray Jones and Joan O. Jones, are the sellers of the residence.
Prior to the purchase, the plaintiffs were shown the Joneses' house by a real estate agent. Thereafter, plaintiffs viewed the house several times and, ultimately, a purchase and sale contract was executed. This contract named Roger A. and Marcia K. Dearman as purchasers. The body of the contract itself identified Ray Jones as sole seller; however, Joan D. Jones executed the contract as seller along with her husband, who signed as William Ray Jones.
*708 Among the printed provisions of this contract were three which concern the present litigation. Paragraph 17 of the contract provides in pertinent part:
Paragraph 19 provided:
And, Paragraph 24, in part, recited:
The contract of purchase and sale was entered into on September 19, 1983. The plaintiffs took possession of the residence on October 21, 1983. About one month later, sometime during the week of November 20, 1983, some problems developed with the septic tank, i.e., toilets backing up and sinks overflowing. Plaintiffs ultimately filed this lawsuit against the Joneses, alleging three causes of action: breach of contract, breach of an express warranty, and fraud by misrepresentation.
In their breach of contract claim, the plaintiffs alleged:
On their breach of express warranty claim, plaintiffs averred:
The defendants answered, and discovery ensued by depositions and interrogatories. The defendants then moved separately for summary judgments, which were denied; hence, this interlocutory appeal.
The parties agree that the principal issues presented deal with (1) the effect of the ultimate deed containing no survivability language upon prior representations, and (2) whether there was any evidence of fraud.
As to the first of these issues, defendants' position is that plaintiffs' knowing acceptance of the deed by the defendants merged all prior negotiations and representations into the deed, and that, barring its procurement by fraud, the deed itself became the measure of the parties' respective rights.
Such a result is mandated by our decisions. In Alger-Sullivan Lumber Co. v. Union Trust Co., 207 Ala. 138, 92 So. 254 (1922), this Court stated the controlling doctrine:
207 Ala. at 142, 92 So. at 257.
For applications of this principle, see Russell v. Mullis, 479 So. 2d 727 (Ala.1985); and Roberts v. Peoples Bank & Trust Co., 410 So. 2d 393 (Ala.1982). Indeed, the doctrine has been applied in a suit to reform a deed which contained a provision that plaintiff-grantee assumed a mortgage, when plaintiff contended that he never agreed to such an undertaking. This Court stated in McKleroy v. Dishman, 225 Ala. 131, 135, 142 So. 41, 44 (1932):
In this case, it affirmatively appears that both Roger and Marcia Dearman, plaintiffs, were familiar with the terms of the deed, even if they did not actually read their deed in its entirety. In her deposition, Mrs. Dearman testified:
Mr. Dearman's testimony is also revealing:
Under this evidence of the grantees, there was neither mistake nor fraud practiced upon the grantees in the execution and delivery of the deed itself; hence, that deed, whose language contains no expression on the survival of any covenants or warranties respecting the plumbing, contains the "exposition of the agreement between the parties." Alger-Sullivan Lumber Co., supra, 207 Ala. at 142, 92 So. at 257. Thus, the effect of the disclaiming language of Paragraph 17 of the contract of sale, together with the absence of any warranties or covenants relative to plumbing in the deed itself, forecloses a finding of any warranties or other contractual obligations upon the sellers of this residence.
*711 Moreover, there is absent any evidence of fraudulent misrepresentation by the Joneses which induced the Dearmans to purchase the residence. Specifically, the record contains no evidence that the Joneses misrepresented the working order of the plumbing system at the time of possession.
Roger Dearman, himself, was unclear on the date of his conversation with the Joneses concerning the septic tank system. In his answers to interrogatories, Dearman stated as follows:
Dearman then conceded that the conversation in question occurred on the 15th or 16th, that is, before the sale was closed. He then testified:
Later, Dearman was deposed upon the basis of his claim of fraud against the Joneses:
(Emphasis added.)
This evidence, we respectfully observe, does not raise a reasonable inference that the Joneses themselves were responsible for a defective septic tank, or that they knew it was deficient, or indeed, that the system itself was defective at the time the contract was entered into, September 19, 1983, or before, or at the time the sale was closed on October 21, 1983. The record discloses that the Joneses contracted with a builder for the construction of their home, which included construction of the septic tank system. Except for placing a drainage pipe in front of his house to take away surface water, it was not shown that the Joneses did anything to that system. Roger Dearman's testimony itself establishes that the basis for his claim of fraudulent misrepresentation is based upon his own speculation that, because he experienced a problem about one month later, the Joneses' earlier representation that it was in good working order must have been fraudulent. A conclusion based upon speculation or conjecture regarding liability does not satisfy the scintilla rule. Alabama Power Co. v. Smith, 409 So. 2d 760 (Ala. 1981).
Thus, we conclude that the trial court erred in denying summary judgment on the contract, warranty, and fraud counts. Accordingly, the order of the trial court must be, and it is, reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur.
ALMON and ADAMS, JJ., concur in the result. | June 5, 1987 |
09058aa4-eefb-4377-aeda-dec10b14c787 | Howell Petroleum Corp. v. Holliman | 504 So. 2d 277 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 277 (1987)
HOWELL PETROLEUM CORPORATION, et al.
v.
Cecil R. HOLLIMAN, et al.
85-1363.
Supreme Court of Alabama.
February 27, 1987.
Mary R. McKay of Watson & Harrison and Andrew J. Smithart III of Lee, Barrett, Mullins, Smithart & Bradford, Tuscaloosa, and Louis P. Moore of Holder, Moore & Grocholski, Fayette, for appellants.
Candice J. Shockley of Holliman & Tucker, Bessemer, and Charles E. Pearson, and James J. Sledge of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellees.
TORBERT, Chief Justice.
This is a deed construction case. The only issue is whether the trial court erred in construing a 1924 deed from J.M. Holliman to the Citizens Bank of Fayette to effect a mineral exception for the benefit of the grantor.
In 1917, the United States granted a land patent for the subject property to William Aldridge; the patent reserved to the United States all the coal in the described property. Aldridge mortgaged the property, without mineral reservation, to the Citizens Bank of Fayette. In 1923, the mortgage was foreclosed, and the property was conveyed to J.M. Holliman, the highest bidder at the sale. In 1924, Holliman executed a deed to the Citizens Bank of Fayette; the deed states, "It being the intention of the grantor to convey to Citizens Bank of Fayette such interest and title as acquired from said Citizens Bank of Fayette. It is understood that the mineral rights are excepted." The 1924 deed contained an error in the property description, which was remedied in 1925 by the execution of a corrective deed; that corrective deed made no mention of the mineral interests in this property.[1]
Both the plaintiffs, who claim through Holliman, and the defendants, who claim through a 1944 deed from the bank to E.A. Bagwell, moved for summary judgment. The trial court found that the 1924 deed excepted to the grantor Holliman the mineral interests (other than coal) in this property and entered summary judgment in favor of the plaintiffs.
None of the parties in this case disputes the facts alleged in any of the documents submitted with the summary judgment motions. This Court has held that when the facts of a case are undisputed and the trial court's judgment is to be based solely upon a legal interpretation or conclusion, then the court may grant summary judgment. Walker v. Wilson, 469 So. 2d 580, 582 (Ala. 1985).
*278 As this Court stated in Financial Investment Corp. v. Tukabatchee Area Council, Inc., 353 So. 2d 1389, 1391 (Ala.1977):
The defendants argue that Holliman intended to convey to the bank all of his interest in the property because the deed states, "It being the intention of the grantor to convey to Citizens Bank of Fayette such interest and title as acquired from said Citizens Bank of Fayette." This argument ignores the rules that intention is to be ascertained from the entire instrument, Financial Investment Corp., supra, and that every distinct provision in a conveyance is presumed to have been inserted for a purpose. Martin v. Smith, 404 So. 2d 341, 344 (Ala.1981). The deed in question also states, "It is understood that the mineral rights are excepted." Defendants claim that this statement, if it is given effect, makes the deed ambiguous, and thus that this Court must resort to the contemporaneous and subsequent actions of the parties in order to determine the intention of the grantor.
This Court has held that when it clearly appears in the deed that the grantor intended to reserve or except certain mineral rights in the property, the reservation or exception will be valid even though the granting clause contains words of inheritance. Holmes v. Compton, 273 Ala. 554, 142 So. 2d 697 (1962). In Union Oil Co. v. Colglazier, 360 So. 2d 965 (Ala.1978), we examined a number of cases from other jurisdictions in regard to what kind of language would work a valid exception of mineral rights. Two of these cases are illustrative:
360 So. 2d at 968.
In Sanford v. Alabama Power Co., 256 Ala. 280, 284-85, 54 So. 2d 562, 565 (1951), *279 this Court looked at the following clause in a deed:
This Court held that from the above language "it appears that the grantor, Key, intended to and did except the mineral interests from the conveyance." 256 Ala. at 285, 54 So. 2d at 566.
We find that Holliman's deed to the bank, taken as a whole, is not ambiguous and clearly expresses an intention to except the mineral rights from the grant. Because the deed is not ambiguous, we do not need to resort to the contemporaneous and subsequent actions of the parties to aid construction.
Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ALMON, BEATTY and HOUSTON, JJ., concur.
[1] The 1925 corrective deed corrected only an error in part of the property description; it did not act as a complete revision of the 1924 deed. See Hays v. Hagen, 274 Ala. 128, 145 So. 2d 818 (1962). | February 27, 1987 |
2ff465b9-d6e8-483f-a588-80a511aba153 | Hall v. Harris | 504 So. 2d 271 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 271 (1987)
George E. HALL
v.
R.D. HARRIS and Ron Cunningham.
85-1224.
Supreme Court of Alabama.
February 27, 1987.
Jim L. DeBardelaben of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellant.
William I. Hill II and Alex L. Holtsford, Jr., Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees.
SHORES, Justice.
This is an appeal from summary judgments granted in favor of defendants Ron Cunningham and R.D. Harris in a co-employee liability suit.
The plaintiff, George E. Hall, was employed as a "head tapper" at Ohio Ferro-Alloys' facility in Montgomery. His job was to clean dross from a furnace tap hole so that hot liquid metal could flow out of the furnace. This was accomplished by firing an 8-gauge kiln gun into the tap hole.
On April 23, 1984, the plaintiff was cleaning out the tap hole when some type of projectile or object passed through his safety *272 goggles and hit his right eye. Presently, the plaintiff is without sight in that eye.
Plaintiff filed a lawsuit in which he claimed workmen's compensation benefits and sought damages based on co-employee liability against three persons, none of whom are parties to this appeal. The workmen's compensation claim was severed and tried separately, and later defendants Cunningham and Harris were added as defendants on the co-employee liability claims.
On separate motions for summary judgment, the trial court found that neither Cunningham, as president of Ohio Ferro-Alloys Corporation, nor Harris, as assistant vice-president of production of the same company, could be liable under Alabama's co-employee liability law, since their duties were strictly administrative. Pursuant to Rule 54(b), A.R.Civ.P., the trial court directed the entry of a final judgment as to defendants Harris and Cunningham, and this appeal followed.
On summary judgment, the movant must show that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. Cunningham and Harris clearly met that burden.
Cunningham filed his personal affidavit along with his motion for summary judgment, stating in pertinent part:
Plaintiff filed a brief in opposition to Cunningham's motion for summary judgment and attached his own deposition and a copy of the minutes from a safety committee meeting on July 22, 1980, four years before the accident, that may have been sent to Cunningham. Plaintiff's deposition speaks in general terms and does not even mention the defendants' names. It does not create a genuine issue of material fact. The minutes of the July 1980 meeting contain a one-sentence statement that an employee's glasses had been shattered while firing the kiln gun, and that the incident would be investigated by a Mr. E.G. Simms. We simply cannot find that this statement creates an issue as to whether there was a delegated or assumed duty on Cunningham to personally and directly care for the safety of an employee who performed that job four years later.
Along with Harris's motion for summary judgment, his affidavit of Harris was filed. It provides in pertinent part:
The plaintiff filed an affidavit in opposition to Harris's motion for summary judgment. The affidavit was of Eugene Louis Moncreaf, the head furnaceman at the plant where the plaintiff was injured. Moncreaf's affidavit is based largely on hearsay, namely that he had been informed by another party that Harris had said that he did not see anything wrong with firing the kiln gun while on the kiln gun deck, and that it had been represented to Moncreaf that Harris was in charge of safety procedure for Ohio Ferro-Alloys Corporation. Hearsay cannot create an issue of fact. Rule 56, A.R.Civ.P. Thus, that part of Moncreaf's affidavit cannot be considered.
In addition, Moncreaf states that he believes, but does not know, that Harris had observed a head tapper firing a kiln gun in the same manner as the plaintiff. Speculation and subjective beliefs are not the equivalent of personal knowledge and do not satisfy the requirements of Rule 56(e). Thus, since Moncreaf's affidavit fails in these two respects, it does not serve to create a genuine issue of material fact.
We agree with the trial court's order of May 30, 1986, granting Harris's motion for summary judgment. In pertinent part, the order states as follows:
We hold that the orders of the trial court granting summary judgment in favor of Cunningham and Harris are correct because the evidence shows without contradiction that their respective duties were strictly administrative in nature, and the evidence offered by the plaintiff does not create a genuine issue to the contrary.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | February 27, 1987 |
e2b46233-7900-47a8-a4af-a0ff7b8f42e9 | Womack v. Hyche | 503 So. 2d 832 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 832 (1987)
Billye WOMACK
v.
Lillian HYCHE.
85-1217.
Supreme Court of Alabama.
February 13, 1987.
*833 Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellant.
Tom R. Roper of Richard W. Bell & Associates, Pelham, for appellee.
JONES, Justice.
This is an appeal from a judgment for the defendant in a dispute between lessor (the plaintiff) and lessee (the defendant). We reverse and remand.
The plaintiff, Billye Womack, is the owner of real property in Shelby County fronting on Waxahatchee Creek. On that property are a store/cafe, five piers, a gas pumping facility, a concrete boat launch, and a parking lot. This property, its improvements, and 11 aluminum fishing boats (all the property of Womack) are used as a commercial fishing camp known as Camp Waxahatchee.
In January of 1979, Womack and the defendant, Lillian Hyche, executed a written lease memorandum as follows:
This written agreement, "with further oral understandings," allowed Hyche to lease Camp Waxahatchee from Womack in return for the $300.00 per year rental fee plus one-half of the funds received from boat rentals and launch fees and for the further concession of free use of the boat launch and piers for Womack and her "tenants."[1]
By 1984 friction between Womack and Hyche had become a serious dispute as to the essentials of the lease and as to each party's performance under the lease. Womack instituted a declaratory judgment action in the Shelby County Circuit Court.
In her complaint, Womack alleged that the written lease agreement was void (1) for vagueness and uncertainty; (2) for unfairness to Womack because Hyche had violated the terms of the parties' oral *834 "understandings" and the camp was no longer run as a business for profit; (3) for lack of mutuality; (4) for violation of the rule against perpetuities; (5) for improper execution; and (6) for uncertainty of the lease term. Womack further alleged that Hyche contended that the lease was neither void nor subject to modification and that Hyche had not violated the terms of the lease; therefore, Womack alleged, Hyche maintained that Womack could not cancel the lease.
Womack requested that the trial court hold either that the lease had been breached by Hyche or that the lease was void and that Hyche was occupying the camp as a tenant at will and "subject to immediate removal ... by process of law."
Hyche filed an "Offer of Judgment" for payment of $600 per year plus one-half of all boat rental and boat launching fees. In her answer to the complaint, Hyche asserted that because Womack paid "monies certain in the past to allow [Womack's] tenants to use said boat launching facilities and piers," and because Womack accepted late rental payments from Hyche in the past, thereby inducing Hyche to rely on such acceptance, Womack is now estopped from making her allegations of Hyche's breach of the "oral understandings" as to the free use of the launch and piers and of Hyche's late payments of monies due Womack.
After a non-jury trial, the court entered judgment in favor of the defendant, Mrs. Hyche. The trial court's order read, in part:
The trial court denied Womack's motion for amendment or alteration of judgment, or for a new trial, and Womack filed this appeal.
Womack's argument on appeal centers on the terms of the lease itself. The language, "with the option to renew the lease as long as the camp is run as a business for profit," created a lease with an uncertain ending; therefore, the lease is void under the holding of Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So. 2d 743 (Ala.1977):
Womack also cites the case of National Bellas Hess, Inc. v. Kalis, 191 F.2d 739 (8th Cir.1951), cert. denied, 342 U.S. 933, 72 S. Ct. 377, 96 L. Ed. 695 (1952), wherein a lease containing the provision, "for a term commencing October 1, 1943, and ending sixty (60) days after the signing of the treaty of peace upon the close of the war with Germany and/or with Japan, whichever treaty of peace is the latest," was found to be of uncertain duration. The Eighth Circuit Court of Appeals held that "it is not the certainty of the happening of the event (which is to end the term) but the certainty of the date on which the termination of the lease will take place that is the determinative factor"; therefore, the lease had no fixed ending and was held to be void.
*835 Hyche argues that her lease with Womack has a definite ending because the lease is effective for only one year at a time. After each year the lessee is given the option to renew the lease, as long as the camp has been "run as a business for a profit." Hyche cites, as authority for her contentions, the holding in Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369 (1920). There, the Mississippi Supreme Court considered a one-year lease which contained the following covenant:
The lease had been once renewed, and the lessee had claimed the right to continue such renewals as long as it desired. The lessor argued that a lease renewal covenant granted no more than one renewal unless the terms of the covenant expressly provided otherwise. The court agreed with the lessor, but held:
Hyche also finds support for her argument in the National Bellas Hess holding cited by Womack:
The lease now in dispute has a definite beginning and a definite ending period, claims Hyche; and, she claims, the right to renew the lease, provided the lessee runs the camp as a business for profit, does not affect the certainty of the one-year term of the lease.
The authorities relied on by Womack and Hyche support their basic contentions. We find, however, that these cases are distinguishable on their individual facts; and, therefore, they lead us to but one conclusion when applied to the facts of the instant case. Further, all of the cases cited are clearly in harmony with the prevailing rule of law in this area:
"...
In Industrial Machinery, supra, the questioned provision, that the lease was for a term of "indefinite years" and that it was to begin on January 1, 1973, and end "year to year thereafter," was no more than a general covenant to renew, there being no clear or express provision for the terms of any multiple renewals. So, too, was the renewal provision in the National Bellas Hess lease. That lease's renewal provision, which was to be determined by the duration of World War II, was clearly too uncertain and indefinite to be enforceable. The statement from that case upon which Hyche places great reliance, while setting out a valid legal concept, did not change the holding in that casenor does it here. Just as the date of the signing of a peace treaty was uncertain to the contracting parties in 1943, so was the time at which the books of Camp Waxahatchee could begin to show a loss uncertain to the instant parties.
The Mississippi Supreme Court did enforce the renewal clause in the Copiah Hardware lease, but expressly held that the provision in question had been drafted in "clear and unambiguous language" which could not be "disregarded" in ascertaining the intention of the parties. "[A]s long as the camp is run as a business for a profit" does not reach the level of the "clear and unambiguous language" required to save the renewal clause at issue in the instant case and make it enforceable.
The lease for Camp Waxahatchee contains a renewal clause which provides no clear expression of the terms of further renewals; rather, it is so indefinite and uncertain in its terms as to be unenforceable. Further, perpetual leases and the covenants which create such leases are not favored, and courts will not enforce such covenants unless the parties have, by plain and unambiguous terms, expressed their intention to create such a lease. Waldrop v. Siebert, 286 Ala. 106, 237 So. 2d 493 (1970); 51C C.J.S., Landlord and Tenant, supra.
The terms of the renewal provision at issue here, because they are ambiguous, tend to create a perpetuity without that requisite plain expression of the parties that a perpetuity was intended. Therefore, the lease is to be construed as having given to Womack and Hyche the right of one renewal; and, under Alabama law, the provision for renewal was completely performed upon the parties' first renewal of the lease at the end of Hyche's first year of operating the camp (January 1980).[2]Alabama Butane Gas Co. v. Tarrant Land Co., 244 Ala. 638, 15 So. 2d 105 (1943); Indian Head Mills v. Hamilton, 212 Ala. 97, 101 So. 747 (1924); Copiah Hardware Co. v. Johnson, supra; 51C C.J.S., Landlord and Tenant, supra.
Because the Womack/Hyche lease had no certain ending, thus rendering the lease void as a tenancy for years, a tenancy at will was created. "Where the end of the term is indefinite and uncertain there is no valid lease for a term of years, but an estate at will is thereby created. 3 Thompson on Real Property § 1088 (1959); National Bellas Hess, Inc., [supra]. The question, therefore, is for what period of time was the tenancy at will in existence." Industrial Machinery, Inc., 344 So. 2d at 745. The tenancy at will resulting from the void lease between Womack and Hyche began at the close of the first renewal term of the lease, that is, in January 1981.
Womack, in her complaint, seeks to terminate the tenancy and asks for immediate removal of Hyche. Ala.Code 1975, § 35-9-3, requires either party to a tenancy at will, in order to terminate the tenancy, to give 10 days' notice in writing to the other party. This, however, applies only to tenancies which are expressly tenancies at will, which is not the case here. Industrial *837 Machinery, supra; § 35-9-3. Hyche was a tenant at will by implication only and the termination of her tenancy is governed by the common law. She is, therefore, entitled to reasonable notice to quit the premises leased from Womack. Rutledge v. White, 206 Ala. 329, 89 So. 599 (1921); 51C C.J.S., Landlord and Tenant, § 173.
We find that the lease agreement between Womack and Hyche, by its terms, ended at the close of the year following the parties' first yearly renewal of the lease. After January, 1981, the parties continued under a tenancy at will, and Womack is now entitled to an order requiring Hyche's immediate vacation of the premises known as Camp Waxahatchee. The judgment is reversed, and this cause is remanded for entry of an order requiring Hyche to vacate the leased premises within such time as the trial court shall determine to be reasonable.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and SHORES and STEAGALL, JJ., concur.
ADAMS, J., concurs specially.
ADAMS, Justice (concurring specially).
I concur specially to point out that I would find that the lease of the parties had sufficient certainty if the finding of the trial judge, namely, that the lease agreement dated January 10, 1979, for a term of one year for the sum of $300.00 per year, with an option to renew each year as long as the camp was run as a business for profit, but not to be valid for a term in excess of 20 years, in accordance with the provisions of § 35-4-6, Code of Alabama 1975, had in fact been incorporated into the lease signed by the parties. The lease not having been so drafted, the trial judge is not permitted through the use of extrinsic evidence to rewrite the original agreement to give it certainty. Therefore, written leases which have provisions for renewal at the end of a certain time provided the business is being operated for profit, would certainly be viable.
[1] Womack also owns the property adjoining Camp Waxahatchee. Womack lives on the adjoining property and rents lots thereon to approximately 11 tenants.
[2] For an excellent discussion of waiver of a lease provision and its results, see Lott v. Douglas Oil Purchasing Co., 501 So. 2d 1195 (Ala. 1986). | February 13, 1987 |
27edf8c5-bd73-45ee-b642-f0ca99bbb44c | Ex Parte Dothan Progress | 507 So. 2d 515 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 515 (1987)
Ex parte The DOTHAN PROGRESS.
(Re The DOTHAN PROGRESS, et al. v. STATE of Alabama DEPARTMENT OF REVENUE).
85-790.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied March 27, 1987.
Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, for petitioners.
Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Charles E. Crumbley, Asst. Counsel, Revenue Dept., and Asst. Attys. Gen., for respondent.
Prior report: Ala.Civ.App. 507 So. 2d 511.
PER CURIAM.
Reversed on the authority of Ex parte: Morrison Food Service of Alabama, Inc., 497 So. 2d 136 (Ala.1986), and Ex parte: Disco Aluminum Products Co., 455 So. 2d 849 (Ala.1984).
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
BEATTY, J., dissents with opinion in which JONES, J., concurs.
STEAGALL, J., dissents with opinion.
BEATTY, Justice (dissenting).
The majority relies on Ex parte Morrison Food Service, 497 So. 2d 136 (Ala.1986), and Ex parte Disco Aluminum Products Co., 455 So. 2d 849 (Ala.1984), in summarily reversing the decision of the Court of Civil Appeals in this case. However, I not only find the facts of the present case to be distinguishable from those which existed in both Ex parte Morrison Food Service and Ex parte Disco Aluminum Products Co., but also find the holding in each of those cases to be inapposite to the present case.
In Ex parte Disco Aluminum Products Co., it was held by a majority of this Court that the use of aluminum, glass, and other materials purchased at wholesale and used in the fabrication of custom-designed windows and doors to fulfill contractual obligations to install or supervise the installation of these products was not taxable under the withdrawal provision of the sales tax statutes. Code of 1975, § 40-23-1(a)(10). The majority in Ex parte Disco Aluminum Products Co. reasoned that "property on which a sales tax has already been paid or which becomes part of property manufactured or compounded for sale rather than being used for the personal and private use or consumption of the person purchasing the property [at wholesale]" is excepted from the withdrawal provisions of the sales tax statutes. (Emphasis added.) 455 So. 2d at 854.
In Ex parte Morrison Food Service, a majority of this Court held that food purchased at wholesale and used to fulfill obligations under contracts to operate food service programs for several hospitals, nursing homes, and fraternities was also not taxable under the withdrawal provision. 497 So. 2d at 141-42. In so holding, however, the Court took care to point out that it was not overruling the decision in State v. Morrison Cafeterias Consolidated, 487 So. 2d 898 (Ala.1985).
In Morrison Cafeterias Consolidated, this Court had held that the withdrawal from inventory of food that had been purchased at wholesale for use in providing meals to employees as part of a compensation plan was taxable under the withdrawal provision. As the Court explained in Ex parte Morrison Food Service:
(Emphasis added.) 497 So. 2d at 141.
In this case, The Dothan Progress withdrew from its inventory ink and newsprint that had been purchased at wholesale to use in printing newspapers which it distributed for free. Nothing was paid for these newspapers.
Clearly, the rule in Ex parte Disco Aluminum Products Co. does not apply, as these newspapers are not "manufactured or compounded for sale" as were the materials sold under contract in that case. The newspapers are simply never sold. The problem arises in attempting to apply the principles in Ex parte Morrison Food Service and Morrison Cafeterias Consolidated to the case at bar.
At first blush, the key to applying these cases appears to be in determining "whether title to the goods withdrawn has been transferred to another." However, a closer examination reveals that the mere "transferral of title" is not determinative. Although this Court seems to imply in the passage from Ex parte Morrison Food Service, quoted above, that title to the food in Morrison Cafeterias Consolidated was never transferred, this is clearly not the case. The food in Morrison Cafeterias Consolidated was, at some point, transferred to the taxpayer's employees. The employees ate the food. Logically, then, there must be some other factor that was actually determinative of the different results in Ex parte Morrison Food Service and Morrison Cafeterias Consolidated. The actual difference is that in Ex parte Morrison Food Service the persons to whom the food was transferred "paid" for the food, whereas in Morrison Cafeterias Consolidated the persons to whom the food was transferred "paid nothing for the food." This difference is made clear by both the emphasized language in the passage from Ex parte Morrison Food Service quoted above and the following passage set out in that same case:
(Emphasis added.) 497 So. 2d at 141.
In the present case, title to the newspapers is transferred, at some point, when the newspapers are distributed. However, no payment is ever made for them. Therefore, it is clear that no payment is ever made for the ink and newsprint that are used to manufacture these newspapers. Neither is there in existence some contractual obligation to a third party for which payment is made in return for the transfer of the ink and newsprint here in question. That being the case, it is clear that this case, rather than being controlled by the decision in Ex parte Morrison Food Service, should be controlled by our decision in Morrison Cafeterias Consolidated.
I would affirm the judgment of the Court of Civil Appeals.
STEAGALL, Justice (dissenting).
I respectfully dissent, based upon the reasoning set forth in my dissent in Ex parte Morrison Food Service of Alabama, Inc., 497 So. 2d 136, 142 (Ala.1986). In Ex parte Morrison Food Service, I said Morrison's withdrawal of food from inventory was not a transfer of title, but was instead incidental to providing a service to its customers and, therefore, was taxable. In the present case, I feel that the withdrawal of *517 ink and newsprint from inventory is not a transfer of title either, but is incidental to the printing of newspapers, which are distributed free of charge. Accordingly, the withdrawal of ink and newsprint from inventory constitutes a taxable withdrawal.
I would affirm the judgment of the Court of Civil Appeals. | February 20, 1987 |
93f25a98-6e8f-4b62-89c1-bbe3ce5bd9cf | Curry Motor Co., Inc. v. Hasty | 505 So. 2d 347 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 347 (1987)
CURRY MOTOR COMPANY, INC. and C.E. Curry
v.
James R. HASTY.
85-891.
Supreme Court of Alabama.
March 27, 1987.
*348 J. Robert Miller, Huntsville, for appellants.
Allen T. Jolly, Albertville, for appellee.
SHORES, Justice.
The defendants, Curry Motor Company, Inc., and C.E. Curry, appeal from a judgment entered pursuant to a jury verdict in favor of the plaintiff, James R. Hasty, in a case alleging breach of warranty and fraudulent misrepresentation in the sale of a used truck. We affirm.
The issues presented are (1) whether the disclaimer of warranties provision and the words "sold as is" in the bill of sale preclude a recovery under the breach of warranty count, and (2) whether there was evidence to support an award of punitive damages for fraud.
The evidence presented at trial revealed the following. In late November 1983, James R. Hasty went to Curry Motor Company (hereinafter "Curry Motor") and talked to Curry Motor's salesman, C.E. Sanders, about a green Ford pickup truck on Curry Motor's lot. The truck had been purchased nine months earlier by Mr. Curry, the owner of Curry Motor, at an automobile auction in Boaz, Alabama.
Hasty inquired about the accuracy of the odometer reading, the stereo system, and the mechanical and body condition of the truck. Sanders told Hasty that the truck was a 1979 model, and that he (Sanders) had driven the truck, that it was in good shape, and that it had had $500 worth of work done on the engine. Mr. Curry testified that the truck's engine had been overhauled in the fall of 1983 because the truck "was using some oil." Although he did not have a receipt or cancelled check, he testified that he paid for the repair work some time in the spring of 1984, after Hasty had purchased the truck. Hasty also asked about the size of the engine. He was shown a decal on the underside of the truck's hood which read, "460 cubic inch." Hasty then took the truck for a seven-mile test drive. He noticed no problems with the truck at that time.
One week later, Hasty returned to Curry Motor. After some negotiation, Hasty was told that the price of the truck would be $4,000, less a $2,000 trade-in allowance for Hasty's 1978 Dodge automobile. Hasty returned on December 10, 1983, and purchased the truck.
A bill of sale was prepared by Curry Motor's bookkeeper at Mr. Curry's direction. The bill of sale contained a disclaimer that provided, in part, as follows:
The bill of sale also stated on its face, in handwriting, that the truck sold was a "1979 Ford F150 P.U." (pickup) with an odometer reading at the time of delivery of 88,419 miles.
Two days after purchasing the truck, Hasty drove it to Arab, Alabama. On the way back from Arab, the engine began to make unusual noises and the oil pressure gauge indicated below-normal oil pressure. The oil was two quarts low. Hasty changed the oil and refilled the crankcase. On a return trip from Huntsville a few days later, the engine began making the same unusual noises as before. The oil pressure gauge dropped again. Upon checking the oil level, Hasty found that the oil was again two quarts low. The truck poured smoke from the exhaust, leaving black spots on the pavement underneath. The truck consumed approximately one quart of oil for every 50 or 60 miles it was driven.
Hasty took the truck to Larry Richards at the Amoco Service Center in Albertville. Richards, an auto mechanic with 20 years' experience, disassembled the truck's engine and found that all the moving parts in the engine were worn out. Richards testified that the wear on the engine parts was consistent with at least 100,000 miles of travel rather than the 88,419 miles indicated on the bill of sale. He said that normally engines run for more than 100,000 miles before the engine needs to be rebuilt. Furthermore, he discovered that a cutting torch had been used to cut a hole in the flywheel, indicating that the engine had been replaced.
Richards ordered replacement parts for a 460-cubic-inch engine in accordance with the tag found under the truck's hood. When the replacement parts arrived, some of the parts would not fit the engine. The replacement pistons were too big and the replacement spark plugs were too small. Richards determined that the engine in the truck was actually a 429-cubic-inch engine rather than a 460-cubic-inch engine. In addition, Richards determined that the engine in the truck was a 1970 to 1973 model engine last manufactured in 1973, at least six years earlier than the year the truck was manufactured.
Hasty wrote Mr. Curry and told him of the problems he was having with the truck and asked Mr. Curry to contact him upon receipt of the letter; Mr. Curry did not respond.
The repair bill from the automobile service center was $1,187.94, which Hasty paid. Hasty testified that the 1979 Ford truck that he received was worth approximately $1,000 less than the same truck would have been worth if it had had a 1979 model 460-cubic-inch engine in it.
Mr. Curry testified that neither he nor anyone else at Curry Motor had any knowledge that the 1979 truck he sold to Hasty had a 1970 to 1973 engine in it. "We bought it through the Boaz auction sale and we sold it just like we got it," he said. He also stated that very often different engines are put in used cars and trucks, and that it is possible for a dealer to ascertain the model year of an engine by looking it up in a reference book such as that which Curry Motor maintained in its machine shop. The policy at Curry Motor, however, was to designate the model year of cars and trucks by the year of the body alone. Curry Motor's bookkeeper testified that Curry Motor does not want to know if a different model engine is put in a later model vehicle.
Hasty contends that the defendants are liable for breach of warranty and for fraud because they falsely asserted that the *350 truck was in good condition, that the engine of the truck had been overhauled at a cost of $500, that the engine was a 460-cubic-inch engine and had 88,419 miles on it, and that the pickup was a 1979 model. The trial judge charged the jury on both breach of warranty and fraud. The jury returned a verdict in favor of the plaintiff on both counts, $1,187.94 for breach of warranty, $10,000 for fraud. This appeal followed.
Defendants contend that the parties fully intended to exclude any warranty on the Ford pickup, as evidenced by the words "sold as is." They stress that the contract or bill of sale explicitly stated that there "[was] no warranty, either as to mechanical condition, equipment, previous use, year and model, or mileage." Therefore, defendants argue, the trial court erred in allowing the jury to consider the count alleging breach of warranty.
The defendants, however, fail to mention the clause following the portion of the disclaimer that they now rely on. It provides:
Hasty points out that the bill of sale, in a handwritten provision, stated that the truck was a 1979 Ford pickup with an odometer reading of 88,419 at the time of delivery. Thus there were express warranties made in writing by the seller to the effect that the truck was a 1979 model Ford with 88,419 miles.
In Kilborn v. Henderson, 37 Ala.App. 173, 65 So. 2d 533 (1953), the plaintiff bargained with defendants for a 1940 Mercury automobile. Shortly after plaintiff bought the car, he had occasion to make some repairs and found that certain Mercury auto parts would not fit the engine. Upon investigation, he discovered that the automobile had a Ford engine of a 1932 to 1936 model. The plaintiff sued for breach of warranty, offering the sale contract executed by the parties, which described the car as a "Mercury 2 dr. Motor No. 99 A 177044, 8 Cylinder 1940 Model, license 5 C 3863." The plaintiff in Kilborn testified that the car was less valuable with the Ford engine than it would have been with a Mercury engine.
In Kilborn, the Alabama Court of Appeals, citing 77 C.J.S. Sales § 330, p. 1199, noted the general rule that there is no implied warranty of the quality or condition of a used automobile and noted that the rule of caveat emptor applies; however, express warranties may be given in the sale of a used motor vehicle. Furthermore, the representation that a vehicle is of a certain year of manufacture is a material representation. See generally, annot., Liability for Representations and Express Warranties in Connection with Sale of Used Motor Vehicle, 36 A.L.R.3d 125 (1971).
"A contract of sale of a motor vehicle designating it as a model of a particular year constitutes a warranty that it is of that model, and the warranty is broken by delivering to the buyer a model of a different year." Kilborn v. Henderson, 37 Ala. App. at 177, 65 So. 2d at 536, and Tuscaloosa Truck & Tractor Co. v. Stewart, 37 Ala.App. 279, 67 So. 2d 844, cert. den., 259 Ala. 528, 67 So. 2d 846 (1953) quoting 77 C.J.S. Sales § 330(a), p. 1201.
The Court of Appeals in Kilborn opined that it is "a matter of common knowledge that the engine is an essential part of an automobile" and a "purchaser would have the right to expect an automobile described in the contract of sale as a 1940 Mercury to contain an engine of that make and model." Kilborn, 37 Ala.App. at 177, 65 So. 2d at 536. The court held that the evidence presented a question for the determination of the jury.
Likewise, we hold in the present case that the trial court did not err in submitting to the jury the issue of whether the defendants committed a breach of warranty by selling Hasty a pickup truck with a 1970-1973 engine where the bill of sale described the vehicle as a 1979 Ford pickup. Furthermore, as previously mentioned, the defendants stated in writing, on the bill *351 of sale, that the truck's mileage was 88,419 miles. Hasty presented evidence that the truck, or at least its engine, had actually been driven for more than 100,000 miles. It was proper to submit this count to the jury, and the jury's award of $1,187.94 to Hasty under the breach of warranty count was reasonable and supported by the evidence.
Defendants also argue that there is no evidence to support an award of punitive damages for fraud in this case. Specifically, they contend that there was no proof that the defendants had any knowledge of the falsity of the alleged misrepresentations.
The trial judge denied defendants' motion for a new trial. That ruling strengthens the presumption of correctness which accompanies a jury verdict. A reviewing court will not reverse such a ruling unless the evidence is so preponderant against the verdict as to indicate clearly that it is wrong and unjust. Walker v. Cardwell, 348 So. 2d 1049 (Ala.1977); 2A Ala. Digest, Appeal & Error, Key 1005(4). This Court finds that the evidence in the present case is sufficient to support the jury's award of punitive damages.
The alleged misrepresentations were that the pickup truck was a 1979 Ford in good condition, that it had 88,419 miles on it, that the engine had been overhauled at a cost of approximately $500, and that the engine was a 460-cubic-inch engine. Contrary to defendants' arguments, parol evidence of these representations was admissible at trial. Fraud is an exception to the parol evidence rule. Hinds v. Plantation Pipe Line Co., 455 F.2d 902 (5th Cir. 1972). Parol evidence of fraud is always admissible, even though there is a completely integrated writing. Parker v. McGaha, 294 Ala. 702, 321 So. 2d 182 (1975).
Punitive damages may be recovered in a fraud action if the fraudulent misrepresentation was malicious, oppressive, or gross, or made with knowledge of its falseness, or so recklessly made as to amount to the same thing or was made with the purpose of injuring the plaintiff. Ala.Code 1975 § 6-5-101; American Honda Motor Co., Inc. v. Boyd, 475 So. 2d 835 (1985).
In upholding a punitive damages award in International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977), where the claim of deceit was defended on the ground of lack of knowledge of the falsehood, this Court said at 395:
In Ex parte Lewis, 416 So. 2d 410 (Ala. 1982), this Court held that evidence of a dealer's reckless disregard of the consequences in failing to ascertain the correct model year of a van before selling it to the buyer supported a finding of the dealer's intent to injure and thus warranted an award of punitive damages for reckless misrepresentation in the sale of the van. The facts in Lewis were that the defendant received, as a trade-in, a 1969 model Ford van. Defendant was told by the prior owner that the van was a 1972 model. The defendant then told the plaintiff that it was a 1972 model. The plaintiff purchased the van relying on defendant's representation. The evidence in Lewis was that the 1969 and 1972 models of Ford vans were identical in appearance. They were distinguishable, however, when their serial numbers were compared in a book maintained in the parts departments of automobile dealers. The defendant did not compare the serial number of the van with the book in its parts department, but relied only on the representation of the prior owner. This Court held that the jury was warranted in awarding punitive damages based on reckless misrepresentation.
In the present case, Curry Motor had ready access to the reference materials necessary to determine the model year of a vehicle's engine. It is no defense for Curry Motor that it relied on the former owner's *352 representation of the model year of the truck and its engine. Ex parte Lewis. Mr. Curry testified that he knew that used cars and trucks often have non-original motors. A Curry Motor employee testified that the company does not want to know if the model year of the engine is different. Furthermore, if the jury believed that Curry Motor did, in fact, have the pickup truck's engine overhauled (though it is certainly questionable that the jury did, in light of the testimony of the automobile mechanic used by Hasty), then the jury could have reasonably assumed that Curry Motor would have been told that the engine was not a 1979 model. There was testimony at trial that in order to overhaul an engine, the mechanic has to know what year the engine is in order to obtain parts that fit.
In Cooper Chevrolet, Inc. v. Taliaferro, 439 So. 2d 158 (Ala.Civ.App.1983), the plaintiff sued the defendant car dealer for fraud. Allegedly, the defendant represented to the plaintiff that a 1978 Ford Pinto, which plaintiff subsequently purchased, had had only one prior owner. The plaintiff later discovered that the prior owner had been a business concern that used the vehicle for deliveries. Furthermore, the original engine had been replaced with a 1975 Mercury Bobcat engine. The Court of Civil Appeals held that the evidence was sufficient to support the jury's award of punitive damages for fraud:
The same applies to the present case. Based on the discussion above, the evidence of the representation that the vehicle was a 1979 Ford pickup is sufficient by itself to support an award for punitive damages. Having found no error, we affirm the judgment.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | March 27, 1987 |
67c30ac8-dcf0-4743-8609-943d2ba8d05b | Jetton v. Jetton | 502 So. 2d 756 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 756 (1987)
Joseph P. JETTON, Jr., and June C. Jetton
v.
Nancy Ray JETTON and Dianne J. Howard.
85-876.
Supreme Court of Alabama.
February 6, 1987.
*757 Willis E. Isaac, Montgomery, for appellants.
William H. Mills of Redden, Mills & Clark, Birmingham, for appellees.
SHORES, Justice.
This is an appeal by the intervenors, Joseph P. and June C. Jetton, from a judgment of March 24, 1986, confirming the sale of certain property located in Marshall County, Alabama.
The pertinent facts are as follows. This action began on June 3, 1976, when plaintiff Nancy Ray Jetton filed a complaint against defendants Diane Jetton Howard and her husband Joe Howard. Plaintiff alleged that on March 1, 1969, she and her sister, defendant Dianne Jetton Howard, each owned an undivided one-half remainder interest in fee in approximately 253 acres of farmland located in Marshall County. Appellant Joseph P. Jetton had a life estate in the property. Plaintiff contended that, based on a series of misrepresentations made by defendant Diane J. Howard to plaintiff, plaintiff was fraudulently induced to sell her interest in the Marshall County property to that defendant. Plaintiff sought voidance of the deed and prayed for $200,000 plus costs.
On June 21, 1976, Joseph P. Jetton and June C. Jetton (intervenors) moved to intervene in the present cause.
On June 12, 1978, the parties entered into an agreement and a consent judgment was entered that date settling all issues and controversies between them relating to the real property in issue. The consent judgment ordered a judicial sale of the real property in which all of the parties agreed to an interest and a division of the proceeds according to a formula set out in the judgment.
On August 8, 1978, the intervenors filed a motion to set aside the consent judgment of June 12, 1978. This motion was denied on December 19, 1978. On October 4, 1979, the trial court entered an order stating that all judgments previously entered were final and appealable. On October 31, 1979, the intervenors filed a "motion for rehearing" asking the trial court to set aside its order entered on October 4, 1979. *758 This motion was denied on December 21, 1979.
On May 15, 1984, the trial court entered an order, on motion of the parties, staying the scheduled sale and authorizing the parties to secure an auctioneer or auction company to assist in the sale of the property.
On April 12, 1985, the trial court entered an order dissolving all previous stays and directing a sale of the subject property in accordance with the previous consent judgment. The sale was advertised and was conducted on February 27, 1986. On February 28, 1986, the clerk filed a report of sale.
On March 3, 1986, the trial court entered an order setting the report of sale for hearing and consideration on March 14, 1986, and directing that any exceptions to the report be filed forthwith. A hearing was held by the trial court on the clerk's report on March 14, 1986. On the day of the hearing, intervenors filed an "Objection to Sale." Following the hearing the trial court took the matter under advisement and on March 24, 1986, entered a judgment confirming the sale. The intervenors filed this appeal on April 23, 1986, contending that the trial court erred when it confirmed the sale because: (1) Joseph P. Jetton did not receive adequate compensation for his life estate in the disputed property; (2) the trial court did not instruct the intervenors to obtain legal counsel before approving the consent judgment; (3) the sale and distribution of proceeds were improper; and (4) it was not shown that the price of the property was adequate.
The appellees, Nancy Ray Jetton and Diane Jetton Howard, state that most of the contentions raised by intervenors in this appeal are attacking the June 12, 1978, consent judgment. An attack on that judgment in this proceeding, appellees contend, cannot be considered because, they say, an appeal of that judgment is now untimely. Appellees state that the June 12, 1978, consent judgment was in all respects a final judgment because it ascertained and settled equities between the parties. Furthermore, they point out that, to remove any uncertainties about the finality of that judgment, the trial court, on October 4, 1979, entered an order explicitly stating that all judgments previously entered were final judgments and appealable. The appellees note that the intervenors then filed a timely motion for rehearing, which was denied on December 21, 1979. Consequently, appellees argue that a review of the June 12, 1978, judgment is not available in an appeal from the March 24, 1986, judgment, because the notice of appeal in this case was not filed within 42 days from June 12, 1978, or from December 21, 1979, when the intervenors' motion for rehearing was denied.[1]
It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved. Kelley v. U.S.A. Oil Corp., 363 So. 2d 758 (Ala.1978); Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So. 2d 653 (1967). However, as this Court has previously noted, decrees and orders entered in equity proceedings involving the sale of real property for division of the proceeds present an unusual situation:
Taylor v. Taylor, 398 So. 2d 267, 269 (Ala. 1981), quoting Sexton v. Sexton, 280 Ala. 479, 195 So. 2d 531 (1967).
Thus, the intervenors could have appealed either from the judgment on June 12, 1978, ordering the sale of the land, or from the judgment on March 24, 1986, confirming the sale. The intervenors appealed from the confirmation judgment. They were entitled to raise objections arising from both the initial judgment ordering the land sold, and from the judgment confirming the sale, so long as the trial judge was given an opportunity to rule on such objections, and, in this case, he was.
Appellees next contend that the judgment of June 12, 1978, ordering the sale of land is not reviewable because it was a consent judgment. We agree.
This Court has held that generally consent judgments are not reviewable on appeal because the consent of the parties waives prior irregularities and constitutes a release of errors. Echols v. Star Loan Co., 290 Ala. 76, 274 So. 2d 51 (1973); City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160 (1953); Gossett v. Pratt, 250 Ala. 300, 34 So. 2d 145 (1947). 4 C.J.S. Appeal & Error § 213 P. 629-30 (1957) provides:
We find no reason in the present case to depart from the general rule that consent judgments are not reviewable. Therefore, we do not address the intervenors' contention that Joseph P. Jetton did not receive adequate compensation for his life estate in the property, since the consent judgment determined the intervenors' share of the proceeds. For the same reasons, we do not consider the similar contention that the sale of the land and the distribution of the proceeds therefrom were improper because intervenors "lost not only their property interest, but also Joseph P. Jetton's life estate, without adequate compensation." Again, we note that the sale and the distribution were in accordance with the consent judgment.
The intervenors also argue that it was error for the court not to instruct them to obtain legal counsel before approving their agreement. We know of no case or rule, nor has one been cited to us, mandating that a party have legal counsel in order to settle civil litigation of this sort. To the contrary, pursuant to Ala.Code (1975), § 34-3-19, this State recognizes that any person may manage his or her own case. We find no merit in this contention.
Finally, the intervenors contend that "the price at which the said property was sold was not shown to be its good faith market value."
This Court has held that the matter of confirmation of judicial sales rests "peculiarly" upon the wise discretion of trial courts and that a trial court's decision "is *760 of weighty consideration on review" and will not be disturbed unless the conclusion is palpably erroneous and manifestly unjust. Martin v. Jones, 268 Ala. 286, 105 So. 2d 860 (1958); Sieben v. Torrey, 252 Ala. 675, 42 So. 2d 621 (1949); Campbell v. Carter, 248 Ala. 294, 27 So. 2d 490 (1946).
When property is purchased at a judicial sale by a stranger to a proceeding, the sale will not be set aside for mere inadequacy of price, no matter how gross, in the absence of a showing of fraud; the burden for showing fraud is on the party attacking the sale. Martin v. Jones. Even where the purchaser at a judicial sale is not a stranger, the sale will be confirmed if the price is measurably adequate and not greatly less than market value, even if someone else would have bid a larger sum. Sanford v. Sanford, 355 So. 2d 365 (Ala. 1978). In every such case all presumptions are indulged to sustain the trial court's conclusion. Sanford v. Sanford; Martin v. Jones, supra. Furthermore, the burden of proof is upon one who attacks a judicial sale to show its invalidity. See Martin v. Jones, supra; Sexton v. Harper, 210 Ala. 691, 99 So. 89 (1924).
The intervenors' "Objection to Sale" filed on the day of the hearing of the clerk's report of the sale points out no defect in the sale and does not challenge the adequacy of the sale price. The record reveals that at the hearing the trial judge specifically asked the intervenors' counsel if he had any evidence to present about the sale. Counsel responded that he had no evidence to offer on the subject of the sale, or on the value of the property, or on the fairness of the sale. Since the intervenors offered no evidence, they have not discharged the burden of proving some irregularity in the sale or inadequacy of the sale price.
The only evidence offered at this hearing was the testimony of appellees' witness that the sale price was reasonable. It is argued by the intervenors that this witness was not shown to be an expert. It is not necessary that a person be an expert in order to testify to the value of his own land. Sanford v. Sanford, supra; Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315 (1910).
Having found no error, we affirm the trial court's order confirming the sale.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] It would appear that if the June 12, 1978, judgment was "final and appealable" as of that date, then the trial court could not make it more so by its order of October 4, 1979; and, if the time for appeal from the June 12, 1978, judgment had expired, there would be a serious question whether the right to appeal could be revived by the order of October 4, 1979. However, we need not consider those problems, because the appeal in this case was not taken from either that 1978 judgment ordering the sale or from the 1979 clarifying order, but from the 1986 order confirming the sale. | February 6, 1987 |
7a915a7e-4438-4c0e-85bf-f06bc412be32 | Sims v. Vandiver | 504 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 250 (1987)
Vada SIMS, Joy Brown, and Danny Stevens
v.
Clarence VANDIVER.
85-351.
Supreme Court of Alabama.
February 27, 1987.
*251 R. Stephen Bolling, Muscle Shoals, for appellants.
Robert J. Harris of Munsey & Ford, Tuscumbia, for appellee.
PER CURIAM.
This appeal involves a boundary line dispute between coterminous owners of real property. The trial court determined the boundary line in accordance with Clarence Vandiver's claim of adverse possession. We affirm.
The common boundary line described in each party's respective deed is the East line of the Northwest ¼ of the Northeast ¼ of Section 27, Township 5 South, Range 10 West. This line runs in a north-south direction, with Vandiver's property lying east of that quarter-section line and the appellants' property lying west of that quarter-section line.
The appellants are the heirs of James W. Stevens, who died intestate on March 5, 1984. Stevens acquired his title by conveyance from Charles Timbers on October 2, 1975. Timbers acquired his title by conveyance from Manuel Chaney in 1973. Chaney and his family acquired title to the property sometime in the 1920's.
Vandiver acquired title to his property in 1934 by conveyance. At the time Vandiver acquired his title, there were two fences running in a north-south direction, parallel to each other and to the government quarter-section boundary line dividing the Vandiver and Chaney properties. There was a lane between the two fences. Manuel Chaney's father erected the west fence believing that the quarter-section boundary line dividing his and Vandiver's property ran between the two fences.
When Vandiver took title to his property in 1934, he began to use the lane between the fences to run livestock, to cut timber from it, and to locate a dog pen on it.
Over the years the fences became old and in need of repair or replacement. *252 Sometime around June 1984, after the death of James Stevens, Vandiver began replacing the west fence. The Stevens heirs protested the location of the fence and attempted to stop Vandiver from rebuilding it. Unsuccessful in their attempt to keep the fence from being replaced, the heirs had a survey conducted according to the property description in their deed. The survey revealed that the two fences and the lane running between them were located on their property. The Stevens heirs then filed a petition with the Circuit Court of Colbert County asking the court to establish the true boundary line between the parties. Vandiver answered, claiming the property up to the West fence by adverse possession.
In order for a coterminous landowner to establish title to land by adverse possession, he must prove open, notorious, hostile, continuous, and exclusive possession of the disputed property for a period of ten years. Tidwell v. Strickler, 457 So. 2d 365 (Ala.1984).
The Stevens heirs present two arguments on appeal. They first contend that Vandiver lacked the requisite intent to obtain the property by adverse possession and cite Smith v. Brown, 282 Ala. 528, 213 So. 2d 374 (1968), as controlling. This Court interpreted Smith v. Brown in Reynolds v. Rutland, 365 So. 2d 656, 657-58 (Ala.1978):
Vandiver stated on cross-examination that he never intended to claim property that was not his; however, he said he believed the property in dispute was his. It is not necessary that a coterminous landowner be correct in his belief as to the true boundary line in order to possess the requisite intent to adversely obtain title to real property. Robertson v. Fincher, 348 So. 2d 466 (Ala.1977). Thus, the fact that Vandiver testified he did not intend to take property that was not his is not fatal to a showing of the intent necessary for acquisition of property by adverse possession.
The second argument made by the Stevens heirs is that the boundary line is located on a government survey line which is permanently fixed and cannot be relocated by acts of adverse possession.
The case law in Alabama is clear that no agreement or act of adjacent landowners can relocate a government survey line. Guyse v. Chappell, 367 So. 2d 944 (Ala. 1979). However, this Court has held that if a party claims property by adverse possession beyond a government survey line, the government survey line does not change, but the boundary line between the landowners may be changed or relocated so that the government survey line is no longer the boundary line. Nelson v. Garrard, 403 So. 2d 230 (Ala.1981); Guyse v. Chappell, supra. In the instant case, the trial court relocated the boundary line according to the evidence presented at trial, but did not relocate the government survey line.
A judgment establishing a boundary line between coterminous landowners on evidence presented ore tenus is presumed to be correct, and will not be disturbed on appeal unless plainly erroneous, manifestly unjust, or without supporting evidence. Drennen Land & Timber Co. v. Angell, 475 So. 2d 1166 (Ala.1985); Morrison v. Boyd, 475 So. 2d 509 (Ala.1985). The presumption *253 of correctness of the trial court's findings is especially strong in adverse possession cases. Drennen Land & Timber Co. v. Angell, supra.
Applying the ore tenus rule of review, we find that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
STEAGALL, J., concurs specially.
STEAGALL, Justice (concurring specially).
I recognize that the holding in Reynolds v. Rutland, 365 So. 2d 656, 657-58 (Ala. 1978), interpreting Smith v. Brown, 282 Ala. 528, 213 So. 2d 374 (1968), is the present state of the law on this subject. I also recognize the significance of the ore tenus rule. I think it would be well to pause, however, and reflect on the practical result of the holding in Reynolds, supra, and the holding in this case.
In my opinion, it is no longer necessary to prove "adverse" or "hostile" possession in order to move boundary lines. The proof of any act of actual possession seems to be sufficient. We no longer look to the true location of government survey lines as called for in deeds, the intention of the parties, or the original reason for erecting fences as having any significant probative value to establish land lines. We merely look to see if we can find a rusty wire fence running in the general direction of a government survey line, coupled with some act of possession, and therefrom establish a new boundary line. In my opinion, we should now speak of acquiring title by possession (or really unintentional possession) rather than of acquiring title by adverse possession.
Common practice establishes that many times fences are erected for convenience and not to indicate a boundary line. In some instances, a landowner knows that his boundary line lies further in a certain direction but he places the fence in such a manner that a small portion of his land lies beyond the fence, with no intention of establishing the fence as a boundary line. In other instances, fences are built by agreement of the parties for the sake of convenience and with no intent to establish a new boundary line. A few short years pass, the wire gets rusty, ownership changes, and under our present case law, the fence becomes a boundary line.
In this case, the appellee testified on cross-examination as follows:
It seems rather harsh to me that we now divest title to land described by government survey lines without showing clearly that the possession divesting such title is adverse and hostile. I think this entire subject should be re-examined. | February 27, 1987 |
144cc6f8-515a-4096-a6f7-2d854d19b1c8 | Ex Parte Williams | 505 So. 2d 1254 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1254 (1987)
Ex parte Hilbert WILLIAMS.
(Re Hilbert WILLIAMS v. State of Alabama).
85-1102.
Supreme Court of Alabama.
April 3, 1987.
Mickey Womble and Paul M. Harden, Monroeville, for petitioner.
Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
We granted certiorari to consider petitioner's claim that the Court of Criminal Appeals, 505 So. 2d 1252 (Ala.Cr.App.1986), should have reversed his conviction of possession of marijuana because certain items were received into evidence without a proper chain of custody having been shown by the State. We affirm.
The opinion of the Court of Criminal Appeals sets out the facts as follows:
505 So. 2d at 1253.
Petitioner contends that the State failed to establish sufficient identification and continuity of possession of the packages of marijuana discovered by the officers during the search of his house. He argues that the officers who took the packages of marijuana from his house were unable to positively identify the packages at trial, but could state only that the exhibits "appeared" to be, or were "similar" to, the items found during the search. Thus, petitioner claims there is a break in the chain of custody, which would render the evidence inadmissible. We do not agree with petitioner's claim.
The opinion of the Court of Criminal Appeals correctly states the law regarding the establishment of a chain of custody:
505 So. 2d at 1253.
Based upon our careful review of the record, we agree that the evidence was properly admitted. The record reveals that the officers did not place identifying marks on the individual containers of plant material that they found during the search of petitioner's house and the search of his person. Although the failure of the officers to mark the evidence may not have constituted the best procedure, it does not prohibit the admission of the evidence in this case. The record supports the finding of a reasonable probability that the evidence seized by the officers was kept intact and was not tampered with from the time it was found until it was produced at trial.
Sergeant Taylor, the officer who conducted the actual search, testified that he gave the bags of plant material that he found to Officer Stuckey. Officer Stuckey testified that he placed the items that were given to him by Sergeant Taylor in a plastic evidence bag. Stuckey described in detail the items that he placed into the evidence bag. Also, he positively identified the plastic bag into which he placed the evidence obtained as a result of the search. Stuckey further testified that he kept the plastic bag containing the evidence either in his possession or in a locked cedar chest, to which he had the only key, at his residence. Stuckey stated that he kept the evidence in this manner until he delivered it to Deborah Sennett at the State Department of Forensic Sciences in Mobile. Petitioner does not contest that the chain of custody was unbroken from the time the evidence was delivered to Ms. Sennett until it was produced in court.
The testimony of the officers supports the admission of the evidence in this case. There is no break in the chain of custody, because the testimony contained in the record accounts for each successive step in the handling of the evidence from the time it was seized until the time of trial. Mauldin v. State, 402 So. 2d 1106 (Ala.Crim.App. 1981). The inability of the officers to identify the evidence with more certainty in this case is, at worst, a weak link in the chain of custody. As such, it "presents a question of the credit and weight to be accorded rather than of the admissibility of the item." Williams v. State, 375 So. 2d 1257, 1267 (Ala.Crim.App.), cert. denied, Ex parte Williams, 375 So. 2d 1271 (Ala. 1979).
The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | April 3, 1987 |
62fa4b05-e971-488a-9a1a-b558448c3c60 | Bogle v. Galanos | 503 So. 2d 1217 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 1217 (1987)
John William BOGLE, Jr.
v.
Chris GALANOS, individually and in his capacity as District Attorney of Mobile County, Alabama.
84-1233.
Supreme Court of Alabama.
February 20, 1987.
*1218 Christopher Knight, Mobile, for appellant.
W. Lloyd Copeland, Deputy Chief Asst. Dist. Atty., for appellee.
ALMON, Justice.
John William Bogle, Jr., filed a complaint against Chris Galanos, individually and as district attorney for Mobile County, and against other defendants who are not parties to this appeal. Several of the other defendants were investigators for the State of Alabama.
The complaint contained five counts which purported to allege causes of action for false arrest, malicious prosecution, false imprisonment, deprivation of rights in violation of 42 U.S.C. § 1983, and conspiracy to commit the alleged acts. The complaint further alleged that Bogle was indicted and arrested on charges of illegal possession of phenobarbitol, codeine, and diazepam. These charges were later dismissed.
Galanos's motion to dismiss was granted on the ground of prosecutorial immunity. A final judgment was entered pursuant to Rule 54(b), A.R.Civ.A.
The case can be better understood by quoting from the charging parts of the complaint:
1. First cause of action: "Defendants maliciously, and without probable cause therefor, caused the Plaintiff to be arrested under a warrant issued by the warrant magistrate of Mobile County, Alabama."
2. Second cause of action: "Defendants caused the Plaintiff to be arrested and imprisoned on charges of possession of phenobarbitol, possession of codeine, and possession of diazepam. Said arrest and imprisonment were unlawful."
3. Third cause of action: "Defendants did intentionally place the Defendant [sic] in a false light in the public eye by procuring indictments against the Plaintiff on charges of possession of phenobarbitol, possession of codeine, and possession of diazepam, by securing the arrest of the Plaintiff as a result of said indictments, and by continuing the prosecution of said charges maliciously and without probable cause therefor."
4. Fourth cause of action: "[T]he Defendant did intentionally conspire to deprive the Plaintiff of his liberty by procuring indictments against him on charges of possession of phenobarbitol, possession of codeine, and possession of diazepam, which said indictments had no basis in law or in fact, by procuring the arrest of the Plaintiff subsequent to the aforesaid indictments, and by continuing the prosecution of said indictments maliciously and without probable cause therefor."
We first address Bogle's federal claim under § 1983. We have reviewed a considerable number of federal cases which have grappled with the difficult questions of prosecutorial immunity. With few exceptions, the prosecutor is shielded with either an absolute or a qualified immunity. The federal circuit courts are not always uniform in deciding whether absolute or qualified immunity applies. If absolute immunity applies, then obviously dismissal is proper without further consideration. For reasons that follow, we hold that absolute immunity applies in this case and affirm the judgment of dismissal.
Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984).
The conclusory allegations of the complaint fall within the absolute immunity described in Fullman. Ordinarily these allegations might satisfy the rules of notice pleading and survive a motion to dismiss, but they are insufficient here. Where immunity is involved, the complaining party must specifically allege facts to show how the acts of the defendant are beyond the scope of the immunity. Absolute immunity would not be absolute if it did not support a motion to dismiss. To hold otherwise would subject the prosecutor to numerous vexatious summary judgment proceedings and would undercut the very foundation of the rule.
In the words of Judge Learned Hand, who wrote of the prosecutor's immunity from actions for malicious prosecution:
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950).
To resolve the issues raised in regard to Bogle's claims alleging causes of action under state law, we need not address common law immunity, because it is sufficient to say that the immunity under state law in this case is at least as broad as immunity under a § 1983 action.
The judgment of dismissal is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY and STEAGALL, JJ., concur. | February 20, 1987 |
b1225526-93a1-4040-9693-d17640b8fd26 | Hughes v. Cloud | 504 So. 2d 734 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 734 (1987)
Randall Y. HUGHES and Beverly A. Hughes
v.
Retha M. CLOUD, et al.
85-943.
Supreme Court of Alabama.
March 6, 1987.
James H. Sweet, Daphne, for appellants.
Norborne C. Stone, Jr., of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees.
SHORES, Justice.
This is an appeal from a judgment of the Baldwin County Circuit Court based on a directed verdict for the defendants granted at the close of the plaintiffs' case.
In the fall of 1980, Randall and Beverly Hughes purchased a house from the defendants, William and Retha Cloud. The Hugheses first became interested in the house after reading about it in a multi-listing book of homes for sale in the Mobile-Baldwin County area. They contacted a sales agent with defendant real estate agency Cloud, Hall & McConnell, who agreed to show them the house.
Retha Cloud was the listing agent for the house as well as an owner of the defendant real estate agency. The plaintiffs talked with Mrs. Cloud on a number of occasions after viewing the house. They contend that during at least one such conversation before purchasing the house, reference was made to information contained in the multi-listing advertisement, namely the home's square footage. The listing described the house as containing 1632 square feet of living area.
After living in the house for some three years, the plaintiffs decided to sell the house. In preparation, they engaged a listing agent. The listing agent, Julie McCarthy, measured the living area and determined that the house actually contained 1440 square feet. An appraiser's measurement fixed the total at 1184 square feet.
The Hugheses filed this suit for compensatory and punitive damages, alleging fraud in the misrepresentation of the actual square footage of the house. On January 13, 1986, at the conclusion of the evidence presented on behalf of the plaintiffs, the defendants moved for a directed verdict, and the trial court granted the motion.
*735 After the trial court entered a judgment in accordance with its directed verdict, pursuant to Rule 50(b), A.R.Civ.P., and denied the plaintiffs' motion for new trial, the plaintiffs appealed.
In Dickinson v. Moore, 468 So. 2d 136 (Ala.1985), the Court summarized the elements that must be proved to support a judgment for fraudulent misrepresentation:
468 So. 2d at 137-38.
In Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983), we recognized that as a matter of policy, it is as important for courts to discourage fraud as it is for them to discourage "negligence and inattention to one's own interests":
438 So. 2d at 759.
In the case at bar, Mr. Hughes testified that he relied on the square footage represented in the listing booklet when he negotiated a purchase price for the house. He stated further that he would not have purchased the house had he been aware of its actual size.
We note that Mr. and Mrs. Hughes had unlimited access to the house prior to purchase. With ordinary diligence, the Hugheses could have discovered the actual size of the house. They were given ample opportunity to measure the house; however, they did not do so until after they had lived there some three years.
The doctrine of caveat emptor still applies in this state in the sale of used residences. Ray v. Montgomery, 399 So. 2d 230 (Ala.1980). Accordingly, we hold that Mr. and Mrs. Hughes were not entitled to rely on defendants' representation as to the size of the house, because the actual size was readily discoverable by them. Ex parte Leo, 480 So. 2d 572 (Ala.1985). A purchaser simply cannot "[close] his eyes where ordinary diligence requires him to see," Torres, supra, 438 So. 2d at 759 (quoting Munroe v. Pritchett, 16 Ala. 785, 789 (1849)), and expect to recover in a fraudulent misrepresentation action.
Even if we were to hold that the plaintiffs could and did in fact rely on the defendants' representation as to size, the plaintiffs certainly should have discovered the alleged fraud more than one year prior to filing this suit. Alabama Code 1975, § 6-2-3.[1]
For all of the foregoing reasons, we find that the trial court was correct in directing a verdict in favor of the defendants. The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] This fraud claim is governed by the one-year statute of limitations of § 6-2-39, Code 1975. That section was repealed effective January 9, 1985, and the causes of action governed by it were transferred to the two-year statute, § 6-2-38. Section 6-2-3 provided that the one year began to run when the fraud was discovered or should have been discovered; the one-year provision of § 6-2-3 was changed to two years effective January 9, 1985. See Ala. Acts 1984-85, Act 85-39. | March 6, 1987 |
72548830-0c96-407c-ac43-bbba6fd45147 | Howton v. State Farm Mut. Ins. Co. | 507 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 448 (1987)
Charles HOWTON, et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
85-605.
Supreme Court of Alabama.
March 13, 1987.
Rehearing Denied May 8, 1987.
Bill Thomason, Bessemer, for appellants.
Thomas A. Woodall of Rives & Peterson, Birmingham, for appellee.
PER CURIAM.
Charles Howton, Marlin E. Jordan, and Janet Jordan appeal from a summary judgment granted in favor of State Farm Mutual Automobile Insurance Company, and made final pursuant to Rule 54(b), A.R. Civ.P. We reverse and remand.
Howton and the Jordans sought damages from Patricia Ann Romanski for property damage and personal injuries allegedly sustained in a motor vehicle accident on December 8, 1984. The complaint also contained a claim against State Farm, the liability carrier for Romanski, because of its refusal to pay for the repair of plaintiffs' automobile pursuant to an alleged settlement agreement.
Plaintiffs' claim against State Farm is set forth in counts 4 and 6 of the complaint, substantially as follows:
The trial court's order granting State Farm's motion for summary judgment on a stipulation of facts and citing in its order the case of Strother v. Alabama Farm Bureau Mutual Casualty Co., 474 So. 2d 85 (Ala.1985), reads, in part, as follows:
The trial court's order, finding from the stipulated facts all the elements of an actionable breach of contract, coupled with absence of a factual defense to the claim based on the tort of outrage, is an obvious expression of its frustration in denying plaintiffs' relief. Yet, it felt duty-bound to grant the insurer's motion for summary judgment because of Strother. The trial court analyzed Strother to hold "that there are no circumstances whereby the insurance carrier negotiating with a third party on behalf of its insured can become directly liable, because of acts committed during the course of the negotiations with the person making a claim against its insured, to the claimant." While this language may dramatize Strother`s holding in its worst light, we cannot disagree with this analysis. Further, we understand the trial court's utter frustration in being forced to *450 reject elementary principles of contract and tort law, and then to deny plaintiffs' relief. Accordingly, we hasten to overrule Strother and thereby vindicate the soundness of the trial court's reasoning.
As authority for its holding, Strother cites four cases: Stewart v. State Farm Ins. Co., 454 So. 2d 513 (Ala.1984); Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984); Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983); and Maness v. Alabama Farm Bureau, Inc., 416 So. 2d 979 (Ala.1982). That portion of the holding in each of these cases relied upon in Strother affirms the fundamental and well-established general principle that an accident victim (a third party to a liability insurance contract) cannot maintain a direct action against the insurer for the alleged liability of the insured where the legal liability of the insured has not been determined by judgment. None of these cases stands for the proposition that a direct action against the insurer is barred where the insurer, acting independently of its insured, enters into a contract with, or commits a tort against, a third-party claimant.
In none of the cases cited and relied upon in Strother was the insurer, independent of its insured and its obligation to pay its insured's liability, alleged to have contracted directly with the third party or to have committed a tort directly against the third party. In each of the circumstances there involved, the general rule prohibiting a direct action against the insurer for the insured's alleged liability was correctly applied.
In Strother, however, the rule was misapplied, for there the third-party claimant alleged that the insurer, acting independently of its insured and directly with the third party, committed actionable fraud and the tort of outrage. To apply the general prohibition against a direct action under these circumstances is to permit the insurer to commit otherwise actionable wrongs with impunity. To be sure, a logical extension of the Strother holding would also render unenforceable contracts of release legitimately obtained from the third party by the insurer. Surely, contracts entered into between a third party and an insurer are mutually enforceable without regard to which of the parties committed the breach.
Furthermore, in two recent cases, this Court has effectively overruled Strother already, although the language in each case speaks in terms of distinguishing Strother. Crick v. Allstate Insurance Co., 499 So. 2d 1388 (Ala.1986), and Clardy v. Royal Insurance Co. of America, 495 So. 2d 58 (Ala.1986). In each case, the trial court, relying on Strother, granted the insurer's motion for summary judgment in a fact situation strikingly similar in all material aspects to those in Strother and in the instant case. This Court reversed in both Crick and Clardy, stating in Clardy the applicable principle in the following language:
We acknowledge that Crick and Clardy contain language that appears to restrict the third-party's recovery of damages in a direct action against the insurer to those damages not otherwise recoverable against the insured tort feasor. This restrictive language is explained by the fact that the plaintiff in each of those cases felt restrained to so fashion his claim as to avoid the harsh application of Strother. But, the restrictive language of Crick and Clardy notwithstanding, the holdings of those two cases make abundantly clear the proposition that the rule prohibiting direct actions against the insurer has no application where the insurer undertakes a new and independent obligation directly with a nonparty to the insurance contract in its efforts to negotiate a settlement of the third *451 party's claim. Indeed, an insurance carrier is no less liable under the law for the breach of its own contract obligations or for its own tortious conduct than is any other party.
Therefore, the trial court's plea for rectification is vindicated; Strother is expressly overruled; the judgment is reversed; and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and HOUSTON and STEAGALL, JJ., dissent.
STEAGALL, Justice, (dissenting).
I respectfully dissent. This holding poses two novel questions: (1) Will the injured party be able to recover contract damages, presumably the cost of having the car repaired, from the insurer and tort damages, the diminution in value of the automobile, again presumably the cost of having the car repaired, from the insured tort-feasor? (2) Will the injured party be able to join his claims against the insured and the insurer, and, thereby, circumvent the direct action statute, Code 1975, § 27-23-2, and the general rule against injecting the issue of the existence of insurance into a tort action?
In my opinion, the Court may be turning a page that does not need to be turned. It seems to me that the aggrieved party who is without fault would have a greater opportunity to obtain speedy and inexpensive relief from the tort-feasor's insurer with Strother v. Alabama Farm Bureau Mutual Casualty Co., 474 So. 2d 85 (Ala.1985), as the law than if that case is overruled.
Crick v. Allstate Insurance Co., 499 So. 2d 1388 (Ala.1986), and Clardy v. Royal Insurance Co., 495 So. 2d 58 (Ala.1986), are easily distinguishable from Strother, supra. These cases merely hold that the tort-feasor's insurer may be held accountable for a wrong that has nothing to do with the insured and for which the insured is not liable.
I would affirm.
TORBERT, C.J., and HOUSTON, J., concur. | March 13, 1987 |
e7994733-81d9-4c18-a429-1b424467ad0f | Brown v. Commercial Dispatch Pub. Co. | 504 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 245 (1987)
Bryan BROWN, a minor, who sues By and Through his next friend and father, Curtis D. BROWN, et al.
v.
COMMERCIAL DISPATCH PUBLISHING COMPANY, INC.
85-1012.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied March 20, 1987.
Finis E. St. John IV, and Juliet G. St. John of St. John & St. John, Cullman, for appellants.
William J. Donald and William J. Donald III, Donald, Randall, Donald & Hamner, Tuscaloosa, for appellee.
HOUSTON, Justice.
This is an appeal from a summary judgment granted by the Circuit Court of Lamar County in favor of the defendant, Commercial Dispatch Publishing Co., Inc. ("Commercial Dispatch"), and against the plaintiffs, Bryan Brown, a minor, suing by and through his next friend and father, Curtis D. Brown, and Curtis D. and Betty Brown individually. We agree with the plaintiffs that the trial court erred in granting the summary judgment, and therefore reverse the judgment below.
The suit arose out of a one-vehicle accident which occurred at a bridge on Hell's Creek Road near Vernon, Alabama. Twelve-year-old Bryan Brown was riding in an automobile driven by 32-year-old Christian Ott when the automobile skidded out of control and overturned into the water below the bridge. At the time of the accident, Ott was delivering newspapers for Commercial Dispatch and Bryan was riding along as his assistant. Commercial Dispatch is the publisher of The Commercial Dispatch, a newspaper which is circulated in Columbus, Mississippi, and surrounding *246 areas, including parts of west Alabama. As a result of the accident, Bryan suffered brain damage and has remained in a semi-comatose state.
The plaintiffs filed suit against Ott, Commercial Dispatch, Lamar County, the Lamar County Commission, and the individual members of the county commission. Commercial Dispatch filed a motion for summary judgment on the ground that Ott was an independent contractor and not its agent at the time of the accident. The trial court found that there was no genuine issue as to any material fact with regard to Ott's status as an independent contractor and granted Commercial Dispatch's motion for summary judgment. That judgment was made final pursuant to Rule 54(b), Ala.R.Civ.P. Plaintiffs subsequently appealed.
The sole issue presented for our review is whether the trial court erred when it granted Commercial Dispatch's motion for summary judgment. If Ott was an independent contractor of Commercial Dispatch as a matter of law, it did not. If a question of fact exists as to whether Ott was an agent, servant, or employee of Commercial Dispatch, it did. 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. Rule 56(c), Ala.R.Civ.P. The burden is on the moving party, Commercial Dispatch, to clearly show that there is no genuine issue of material fact. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against Commercial Dispatch. The burden is further increased by the scintilla ("any evidence") rule, which requires that a summary judgment not be granted if there is any evidence supporting the position of the nonmovant. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So. 2d 112 (Ala.1983). Thus, Commercial Dispatch has the burden of proving that there is no evidence which supports the plaintiffs' claim.
Whether one is the agent of another is ordinarily a question of fact to be decided by the jury. Daugherty v. M-Earth of Alabama, Inc., 485 So. 2d 1145 (Ala.1986). As was stated in Cordes v. Wooten, 476 So. 2d 89 (Ala.1985): "It is elementary that the test of agency is the right of control, whether exercised or not, and that is a question for the trier of fact if the evidence is in dispute." For one to be an agent, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970). An agency relationship is not created when the employer merely retains the right to supervise or inspect the work of an independent contractor as it progresses for the purpose of determining whether it is completed according to plans and specifications and retains the right to stop work that is not properly done. Weeks v. Alabama Elec. Co-op, Inc., 419 So. 2d 1381 (Ala.1982).
The evidence shows the following:
Ott was a newspaper carrier for Commercial Dispatch at the time of the accident. His job was to deliver newspapers to all of the subscribers along his route who had requested home delivery service. While he was free to pursue other work or employment, Ott agreed not to distribute another publication or printed advertisement with The Commercial Dispatch without obtaining the written consent of Commercial Dispatch.
Ott's geographic delivery area was determined by Commercial Dispatch. New subscribers were added by start-orders from Commercial Dispatch and cancellations were made by stop-orders from Commercial Dispatch. Commercial Dispatch owned the subscriber list and retained the right of access to it. Although Ott was not required to solicit new subscribers, he was given a $5.00 commission for each new subscription which he secured, whether on his route or another. Ott was not allowed to deliver papers outside the geographic route assigned to him by Commercial Dispatch.
Commercial Dispatch offered some life and accident insurance to its carriers, including *247 Ott, on an optional basis at the carrier's expense.
When Ott was hired he was given a cassette tape prepared by his district manager, Patricia Shackleford, whose job was to supervise the distribution of the newspaper in her assigned district. Including Ott, there were 40 carriers operating within her district. The cassette tape given to Ott contained detailed instructions on placing newspapers either in "tubes," mailboxes, or driveways in accordance with the particular preference of certain customers. Ms. Shackleford testified by deposition that the tape was merely an introduction tape designed to familiarize Ott with his new route and that he was not required to follow the directions.
Commercial Dispatch utilized a system through its central office to relay messages to carriers on a daily basis. Start and stop orders were placed in a bundle of papers for the carrier. If complaints of missed papers were received through the central office, office personnel would attempt to contact the carrier by phone. If the carrier could not be reached, the district manager was available to make the delivery. Carriers were responsible for securing their own backups on days when they were unable to make deliveries. When the central office received complaints for reasons other than missed papers, a written message to the carrier was included in a bundle of papers the following day.
Ott was not furnished an automobile; however, Commercial Dispatch did help defray the automobile expenses which he incurred in delivering the papers. Ott was not instructed on the sequence in which deliveries were to be made along his route, nor was he told to hire an assistant. Bryan was hired and paid by Ott.
Ms. Shackleford checked daily to confirm that Ott had picked his newspapers up at the "drop point" designated by Commercial Dispatch. Ott was required to pick up papers on weekdays at 1:00 p.m. and on Sunday at 1:00 a.m. and to deliver them within a "reasonably short period of time." Ms. Shackleford testified by deposition that deliveries made after dark on weekdays would be considered unreasonable except during the winter months when daylight hours are limited. Ms. Shackleford also testified that any deliveries made after 7:00 p.m. would be considered unreasonable. Commercial Dispatch retained the right to terminate Ott's employment, without notice, upon his failure to deliver the papers within a "reasonably short period of time."
Commercial Dispatch did not maintain Ott on any payroll. No taxes were withheld and he was not provided insurance under the program established for the employees of Commercial Dispatch.
Commercial Dispatch sold its newspapers to Ott at a wholesale rate and also set the retail rate to be charged to subscribers. Ott was responsible for collecting from the subscribers along his route, although he was not told how to do that by Commercial Dispatch. Using his own personal stationery and envelopes, he billed subscribers on a monthly basis at the retail subscription rate set by Commercial Dispatch. Subscribers paid Ott directly (except those who had prepaid directly to Commercial Dispatch), and Ott deposited the money into his personal bank account. Ott had authority from Commercial Dispatch to endorse and deposit or cash any checks made out to Commercial Dispatch. Ott then paid Commercial Dispatch for the papers sold to him, at the wholesale rate set by Commercial Dispatch. The difference between the two rates determined Ott's profit. Ott was required to post a cash bond to secure the payment of any amount owed to Commercial Dispatch.
Finally, it was expressly agreed between Commercial Dispatch and Ott that Ott was not an employee of Commercial Dispatch, but, rather, an independent contractor or distributor who had the right to employ any means he chose in the distribution of the newspapers.
Initially we should note that agency is determined by the evidence as a whole, and not necessarily by how the parties characterize their relationship. National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983). Viewing the evidence *248 in this case in the light most favorable to the plaintiffs, as we are required to do when reviewing the action of a trial court in granting a summary judgment to a defendant, we are of the opinion that the plaintiffs did offer enough evidence concerning the question of agency to require that the issue be submitted to a jury. See Daugherty v. M-Earth of Alabama, Inc., supra. There is clear evidence that Commercial Dispatch retained the right to control Ott with regard to the results sought to be accomplished (i.e., delivery of newspapers within a reasonably short period of time to all subscribers along the route). However, our cases require more than that. Commercial Dispatch does not dispute the fact that it retained the right to supervise Ott and to terminate his employment for the purpose of controlling the result sought to be accomplished. However, it insists that, as a matter of law, it did not retain any right to control the manner in which the newspapers were to be delivered. We disagree.
This case is conceptually difficult because the result sought to be accomplished by Commercial Dispatch (i.e., prompt delivery of newspapers to all subscribers along the route) and the manner in which that result was sought to be accomplished (i.e., prompt delivery of newspapers to all subscribers along the route) are one and the same thing. In other words, if Ott delivered the newspapers to the subscribers along his route within a reasonably short period of time, then he accomplished the result sought by Commercial Dispatch. There is evidence which tends to show that Commercial Dispatch, through its central office and Ms. Shackleford, its district manager, supervised Ott not just for the purpose of insuring the delivery of newspapers, but the delivery of newspapers within a reasonably short period of time. Ott's employment was subject to termination upon his failure to deliver the papers in such a manner. Furthermore, the cassette tape given to Ott by Ms. Shackleford contained detailed instructions on "how" to deliver the newspapers along the route. While there is substantial evidence tending to show that Ott was acting independently of Commercial Dispatch, there is also evidence tending to show that the manner of Ott's performance was under the constant supervision and control of Commercial Dispatch. Therefore, under Alabama's sufficiency of the evidence rule, this was not a matter to be resolved by summary judgment.
Cases from other jurisdictions involving the carrier-newspaper relationship are divided as to when a jury question exists on the issue of agency; however, those cases are in accord that whether or not there is a jury issue depends on the facts of the particular case. See 55 Annot., A.L.R.3d 1216 (1974).
Commercial Dispatch relies heavily on Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933), which was a worker's compensation case. That case was not submitted to the trial court on motion for summary judgment or decided by a directed verdict. The court as the trier of fact found in favor of the Birmingham Post. The plaintiff in that case was a newsboy who sold individual papers randomly to people on the streets of Birmingham.
The trial court's judgment is reversed, and the cause remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
651d5f2a-d0e3-4cc0-845e-c20aaf231c5b | Ex Parte Hammond | 510 So. 2d 153 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 153 (1987)
Ex parte Carl Dennis HAMMOND.
(Re Carl Dennis Hammond v. State).
85-904.
Supreme Court of Alabama.
March 20, 1987.
Rehearing Denied June 19, 1987.
*154 Christopher Knight, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
Carl Dennis Hammond was convicted of possession of phenmetrazine hydrochloride, a controlled substance, in violation of Ala. Code 1975, § 20-2-70. The Court of Criminal Appeals, 486 So. 2d 522, affirmed his conviction, without opinion. We affirm.
Certiorari was granted in order to determine whether the absence of Hammond and his attorney from the courtroom during an inquiry concerning a confidential informant was in violation of his right to be present during every stage of his trial.
During the course of the trial, an inquiry was conducted by the trial judge outside the presence of the jury, Hammond, and his attorney to determine from the arresting officer what information he obtained from the informant and how that information was obtained. The purpose of this inquiry was to determine whether the identity of the informant would be divulged by the officer's testimony. Although the trial court never affirmatively ruled on this point, the record shows that the defense was allowed to question the officer about his conversation with the informant.
Hammond argues that he has a jurisdictional right to be present at all stages during his criminal trial, and that this right supersedes the right of the State to withhold the identity of a confidential informant.
Stanford v. State, 448 So. 2d 472, 473 (Ala. Cr.App.1984).
It is also well settled that a defendant has a right to be present during every stage of his trial; and without his presence at every stage, the court has no jurisdiction to pronounce judgment against him. Berness v. State, 263 Ala. 641, 83 So. 2d 613 (1955). However, a defendant in a noncapital felony case may waive his continuous presence at trial. Berness v. State, supra.
In Davis v. State, 416 So. 2d 444 (Ala.Cr. App.), cert. denied, Ex parte Davis, 416 So. 2d 449 (Ala.1982), cert. denied, Davis v. Alabama, 459 U.S. 1019, 103 S. Ct. 384, 74 L. Ed. 2d 515 (1982), the defendant waived a jury trial and was absent when the trial judge pronounced judgment. The Court of Criminal Appeals held that this was a technical *155 error that resulted in no prejudice to the defendant. In addition, the court found that the defendant never objected at trial. There was no motion to discharge, motion in arrest of judgment, or motion for new trial filed in the trial court.
In the instant case, Hammond never objected to his absence from the courtroom, and no motion to discharge, motion in arrest of judgment, or motion for new trial was filed. Furthermore, Hammond does not allege that he suffered any prejudice as a result of his absence. We find that disclosure of the informant's identity was not essential to Hammond's defense because the informant was not an active participant with Hammond in the possession of the controlled substance found on Hammond's person. See Murphy v. State, 367 So. 2d 584 (Ala.Cr.App.1978), cert. denied, Ex parte State Ex Rel. Attorney General, 367 So. 2d 587 (Ala.1979).
Based upon the foregoing, we find that no prejudice resulted from Hammond's absence during the court's inquiry concerning the identity of the informant; therefore, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
MADDOX, SHORES, BEATTY and HOUSTON, JJ., concur.
JONES, ALMON and ADAMS, JJ., dissent.
JONES, Justice (dissenting).
I respectfully dissent. Two critical facts are undisputed: 1) The trial court ordered the defendant out of the courtroom during a stage of his trial; and 2) the defendant did not consent to his absence.
The opinion cites dicta from Berness v. State, 263 Ala. 641, 83 So. 2d 613 (1955), for the proposition that "[A] defendant in a noncapital case may waive his continuous presence at trial." The holding of Berness, however, is accurately summarized in the editor's headnote 1, reaffirming the fundamental right here at stake: "The presence of a defendant, who is charged with a felony, at every stage of his trial is essential to validity of his trial and conviction, unless there has been a clear and unequivocal waiver of this right by defendant."
Today's ruling, rather than being supported by Berness, has overruled Berness in three major aspects: 1) By substituting defense counsel's passive acquiescence in his and his client's absence from the courtroom for the defendant's absolute personal right to decline any offer or suggestion that he absent himself from any stage of the trial; 2) by requiring the defendant or his counsel to register an objection to the trial court's ordering of the defendant from his own trial; and 3) by injecting the element of prejudice, and thus the concept of harmless error, as a relevant inquiry on review.
Likewise, along with Berness, the following is a partial list of Alabama cases overruled by today's decision: Young v. State, 455 So. 2d 208 (Ala.Crim.App.1984); Davis v. State, 416 So. 2d 444 (Ala.Crim.App.), cert. denied, 416 So. 2d 449 (Ala.1982), cert. denied, 459 U.S. 1019, 103 S. Ct. 384, 74 L. Ed. 2d 515 (1982); Ex parte Durden, 394 So. 2d 977 (Ala.1981); Behel v. State, 390 So. 2d 662 (Ala.Crim.App.1979), cert. denied, 390 So. 2d 671 (Ala.1980); Donahoo v. State, 371 So. 2d 75 (Ala.Crim.App.), cert. denied, 371 So. 2d 79 (Ala.1979).
To be sure, Alabama has even declared that the defendant's presence during every stage of his trial is jurisdictional, and that a violation of the right to be present results in a void conviction. Davis v. State, 416 So. 2d 444 (Ala.Crim.App.), writ denied, 416 So. 2d 449 (Ala.1982), cert. denied, 459 U.S. 1019, 103 S. Ct. 384, 74 L. Ed. 2d 515 (1982).
Moreover, today's holding is out of step with federal precedent, beginning with Lewis v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, 137, 36 L. Ed. 1011 (1892):
Subsequent federal cases, reaffirming this right, have recognized three exceptions: 1) Where the defendant waives the right by voluntary absence, Taylor v. United States, 414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973); Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912); 2) in the case of the disruptive defendant, Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); and 3) if the proceeding is a mere bench conference where only matters of law are discussed, United States v. Vasquez, 732 F.2d 846 (11th Cir.1984); see, also, State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984).
Here, none of these exceptions applies. Even if the doctrine of waiver is applicable, this defendant's conduct in failing to object, as was true of the defendant in Berness, does not constitute a waiver. By today's decision we have regressed all the way from the absolutism of Lewis, pronounced by the United States Supreme Court in 1892 (the essential tenets of which have been followed religiously by this Court for many years), to the point of allowing a waiver of that fundamental right by a mere failure to object.
ALMON and ADAMS, JJ., concur. | March 20, 1987 |
e28097bc-0507-4a26-96b2-f01e965787b9 | Ex Parte Glover | 508 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 218 (1987)
Ex parte Stanley GLOVER.
(Re: Stanley Glover v. State of Alabama).
85-1384.
Supreme Court of Alabama.
February 6, 1987.
*219 Linda S. Perry, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
PER CURIAM.
The Court of Criminal Appeals, 492 So. 2d 671, summarily (with no opinion) affirmed Petitioner's conviction of third degree burglary and his sentence of 20 years' imprisonment.[1] Pursuant to Rule 39(k), A.R. A.P., we granted certiorari to review two issues relating to the sentence: 1) Whether the trial court erred in not granting Petitioner's oral request for a pre-sentence investigation and report; and 2) whether the trial court erred in its application of the Habitual Offender Act. Although we find error as to the first issue, we do not find reversible error as to that issue. On the second issue, we reverse the sentence because it was improperly enhanced by the application of the Habitual Felony Offender Act.
Without any prior notice, the trial court proceeded immediately upon return of the jury verdict to pronounce sentence. Thereupon, defense counsel orally requested a pre-sentence investigation and report. This motion was summarily denied; the trial court again proceeded to inquire of the defendant whether he had anything to say as to why he should not be sentenced forthwith. Again, defense counsel moved the court for "one moment" to prepare a written motion for a pre-sentence investigation in compliance with Rule 6, Temporary Alabama Rules of Criminal Procedure.
We quote directly from the record:
That the trial court erred in proceeding with the sentencing phase of the trial immediately after the jury's verdict of conviction is so clear as to merit but little, if any, discussion. The trial court's denial of defense counsel's request for "a moment" to present a written request for a pre-sentence report can hardly be excused as a discretionary ruling. To hold such a ruling to be within the court's discretion would be tantamount to requiring defense counsel to have a written motion for a pre-sentence investigation and report ready for immediate presentation to the court in the event the jury returned a verdict of conviction. No citation of authority is required to support the proposition that the law imposes no duty upon trial counsel, under these circumstances, to anticipate an unsuccessful defense of his client. Our holding of error, therefore, is not based upon an abuse of discretion, but upon the *220 convicted defendant's right, as a matter of law, to be given a reasonable opportunity to present in writing his motion for a pre-sentence report.
Yet, despite our unequivocal holding that the trial court erred in its denial of that opportunity, we nonetheless decline to reverse on that ground. The trial court left open to the defendant the post-trial opportunity to request reconsideration in the event he wished to present matters in mitigation of the sentence.
Defendant contends that any further opportunity was restricted to his refuting the prior felony conviction offered by the State for impeachment during the guilt phase of the trial. We disagree. Defendant was free to make any showing he wished, bearing upon any material factors for the trial court's consideration in passing sentence. Without some showing of mitigating circumstances, we are unable to pass upon the materiality or practical worth of ordering a new sentencing hearing. Rule 45, A.R.A.P.
The harmless error rule finds its legitimate expression in the context of an absence of any showing that the aggrieved party is prepared to materially affect the outcome upon remand of the cause. For example, a litigant whose propounded question to a witness is precluded by an erroneous ruling is entitled to a reversal only upon an offer of proof of material evidence. It is not enough that the question calls for admissible evidence and thus that the ruling precluding an answer is error. The reviewing court will not reverse unless either the answer, containing material evidence, is apparent or the appealing party places upon the record an offer of proof of such evidence. Otherwise, the reviewing court will apply the harmless error rule, rather than speculate upon the materiality of the witness's answer. See Davis v. Davis, 474 So. 2d 654 (Ala.1985). In like manner, we apply the harmless error rule to the instant situation.
We are aware, of course, that, ordinarily, a post-trial motion is not a prerequisite to an appeal in a criminal case; but, under these circumstances, a motion to reconsider the judgment of sentence was a viable vehicle to foreclose the application of the harmless error rule by placing on the record for appellate review factors in mitigation of the sentence.
With respect to the application of the Habitual Felony Offender Act, however, we are of the opinion that the trial court committed reversible error. While the application of the Habitual Offender Act is statutorily stated in mandatory, and not discretionary, terms, it, along with implementing rules of court, also prescribes certain triggering requisites. Section 13A-5-10(a) (the subsection immediately following the recidivist provision) provides:
Rule 6(b)(3), Temp.A.R.Crim.P., provides, in part:
It is not an acceptable answer that the defendant was put on notice that the State was proceeding against him under the recidivist statute when the State, for impeachment purposes, introduced evidence of a prior felony allegedly committed by him. The purpose of the Rule's notice and hearing requirements, where, as here, the defendant does not admit the alleged prior convictions, is to test the propriety of the enhancement of the sentence pursuant to the Act. Questions of authenticity of the record of conviction; identity of the accused; and whether the accused was represented *221 by counsel upon his prior felony convictions, are all proper inquiries leading to the appropriate application of the Act. These prescribed deficiencies are compounded by the trial court's denial of a pre-sentence report.
While, as we have stated, the denial of a pre-sentence report, under these circumstances, is not reversible error (and thus the defendant would properly have been sentenced to at least 10 years for the instant offense of third-degree burglary), the absence of such a report is a contributing factor in our holding of reversible error in the trial court's application of the Habitual Felony Offender Act. Indeed, although it is not a direct basis for reversal, the error in failing to give the defendant reasonable notice of the application of the Habitual Felony Offender Act, or to continue the sentencing, is further compounded by the trial court's granting of the State's request for a recess, during the trial, to obtain material with which to impeach the defendant.
Because the trial court sentenced the defendant pursuant to the Habitual Felony Offender Act to 20 years' imprisonment (the maximum allowable for a Class B offense), without complying with the notice requirements, the judgment of sentence is reversed and the cause is remanded to the Court of Criminal Appeals for its remand to the circuit court for resentencing pursuant to § 13A-7-7(b), § 13A-5-6(a)(3), and Rule 6(a), (b)(1), (2), and (c), Temp.Ala.R. Crim.P. See Ex parte Williams, 510 So. 2d 135 (Ala.1987). Stated otherwise, under these circumstances, the Habitual Felony Offender Act cannot be applied.
JUDGMENT OF SENTENCE REVERSED AND CAUSE REMANDED.
All the Justices concur except TORBERT, C.J., not sitting.
[1] Code 1975, § 13A-7-7(b), designates third-degree burglary as a Class C felony and § 13A-5-6(a)(3) prescribes the authorized sentence as 1 year and 1 day to 10 years. Section 13A-5-9(a)(1) provides that one convicted of a Class C felony who "has been previously convicted of a felony" must be punished as for a Class B felony 2 to 20 years, § 13A-5-6(a)(2). | February 6, 1987 |
ee759ff8-79ee-4f4a-a791-0097597e5873 | Strickland v. Kafko Mfg., Inc. | 512 So. 2d 714 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 714 (1987)
Lloyd STRICKLAND and Linda Strickland
v.
KAFKO MANUFACTURING, INC.
84-968.
Supreme Court of Alabama.
May 22, 1987.
Rehearing Denied July 31, 1987.
Richard W. Whittaker and Joe S. Pittman of Pittman, Whittaker & Pittman, Enterprise, for appellants.
James D. Farmer of Farmer, Baxley, Ramsey, Farmer & McDougle, Dothan, for appellee.
ALMON, Justice.
This is an appeal from a judgment for defendant, Kafko Manufacturing Company, notwithstanding the verdict for plaintiffs, Lloyd and Linda Strickland, on their conversion claim, and from a directed verdict for Kafko on the Stricklands' claim for violation of the Deceptive Trade Practices Act, Code 1975, § 8-19-1, et seq.
Lloyd Strickland attempted to purchase a swimming pool kit from Morgan & Son Pool Company, which was allegedly a partnership between John R. Morgan, Sr., and John R. (Roger) Morgan, Jr. Strickland, a brick mason, was familiar with pool installations by Morgan & Son, having done masonry work for the partnership. On July 29, 1983, Strickland obtained a cashier's *715 check in the amount of $4,228.44, payable to Kafko, and including the words, "for Pool Kit to be delivered to Rt. 1, Box 225, Enterprise, Alabama." Strickland testified that several checks Morgan & Son had given him in payment for masonry work had not cleared Morgan & Son's account on first presentment. His testimony continued:
Strickland had not had any communication with Kafko, but had only been told by Roger Morgan that his pool would be purchased from Kafko. He gave the check to Roger Morgan, who said he would take it directly to Kafko's office near Atlanta, Georgia, so the pool could be delivered sooner. Although Strickland had discussed the pool with Roger Morgan and apparently had an oral agreement as to the type of pool he wanted, there was no written contract.
On or about August 7, 1983, Roger Morgan took the check to Kafko's office in Georgia and gave it to a secretary, who referred him to Jan DeRegt, the general manager. DeRegt testified that Morgan & Son had last purchased pool kits from Kafko in June 1982 but still owed $1007.60 on that purchase. He testified that he had been trying to collect this amount, but Roger Morgan had told him that Morgan & Son had not been paid for one of the pools and would not be able to pay Kafko until their customer paid them. DeRegt continued,
The Stricklands presented nothing to dispute this account of the delivery and negotiation of the check.
When Strickland asked Roger Morgan where his pool was, Morgan responded that it had been ordered and gave excuses for delays. In early September 1983 Strickland went to his bank and learned that the cashier's check had been cashed. From the endorsement he obtained Kafko's address and thereby its telephone number. He called and spoke to DeRegt, who initially professed not to know about a pool for the Stricklands. When Strickland mentioned that he had given the cashier's check to Morgan, DeRegt responded, according to Strickland's testimony, "that he had received a check from Roger on payment for some money that Roger had owed him." Strickland demanded delivery of the pool, but apparently did not ask for a return of the proceeds of the check.
Strickland testified that DeRegt said he would talk to Morgan and asked him (Strickland) not to communicate with Morgan. DeRegt said he asked Strickland to send him a current telephone number for Morgan. In any event, the two had no further communication, other than Strickland's sending a copy of the cancelled check. Strickland consulted an attorney and this suit was filed. The complaint also named Morgan & Son as a defendant, but Roger Morgan declared bankruptcy. The case proceeded to trial against John R. Morgan, Sr., but he denied being a partner *716 or principal in Morgan & Son Pool Company. The trial court directed a verdict in his favor and the Stricklands do not appeal from that portion of the judgment.
The complaint as amended contained a count for breach of contract, a count for conversion, and a count for violation of the Deceptive Trade Practices Act. Kafko filed a counterclaim for $25,000, alleging abuse of process, but dismissed the counterclaim before trial commenced. The trial court granted directed verdicts on the breach of contract and Deceptive Trade Practices counts and submitted the conversion count to the jury, which returned a verdict against Kafko for $25,000. Upon Kafko's motion, the trial court granted a judgment notwithstanding the verdict. The Stricklands do not argue that the directed verdict on the contract count was improper.
Because the alleged conversion was of a check, which is ordinarily a negotiable instrument, we look first to the Alabama enactment of the Uniform Commercial Code. Code 1975, § 7-3-419, states in pertinent part: "(1) An instrument is converted when: ... (b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it." Kafko did not convert the check within the meaning of this statute because, as the word is used in the U.C.C., "payment" is made only by a promisor on a note or a drawee on a draft. See generally Articles 3 and 4; 6 R. Anderson, Uniform Commercial Code, § 3-419:5 (3d ed. 1984); and R. Braucher and R. Riegert, Introduction to Commercial Transactions, ch. II-2 (1977). Kafko merely negotiated or cashed the check, see § 7-3-202, so its handling of the check does not come within the terms of § 7-3-419. Even if § 7-3-419 may apply in some circumstances to one to whom an instrument is transferred for negotiation, Kafko did not convert the check within the meaning of this statute because it gave full value for it.
A negotiable instrument may be subject to conversion outside the provisions of § 7-3-419. Cf. Citibanc of Alabama/Fultondale v. Tricor Energies, Inc., 493 So. 2d 1344 (Ala.1986); 1 R. Anderson, op. cit., § 1-103:25 (1981). A common law action for conversion will lie for (1) a wrongful taking, (2) an illegal assumption of ownership, (3) an illegal use or misuse, or (4) a wrongful detention. Raley v. Royal Ins. Co., 386 So. 2d 742 (Ala.1980); Ott v. Fox, 362 So. 2d 836 (Ala.1978).
The question of whether Kafko acted wrongfully or illegally in taking, assuming ownership of, or using the check will turn on the question of whether the check was a negotiable instrument. A check is a negotiable instrument if it is signed by the maker or drawer, contains "an unconditional promise or order to pay a sum certain," is payable on demand or at a definite time, and is payable to order or to bearer. Code 1975, § 7-3-104. This check was signed by the maker (the bank), and was payable to order of Kafko. It is not argued that the language "for pool to be delivered" prevents the check from being payable on demand; if that language has any effect on negotiability, it is to make the promise conditional upon those terms.
Code 1975, § 7-3-105, provides in pertinent part:
(Emphasis added.) This Code provision prevents the language printed on the cashier's check, "for pool to be delivered," from conditioning the promise to pay upon the delivery of a pool kit. Delivery of the pool was the consideration for the check, or the transaction which gave rise to it, and the statute explicitly provides that payment of the check is not conditioned upon performance of the stated consideration. Thus, Kafko was not bound to inquire of its dealer whether he had delivered the pool purchased with the money represented by the *717 check. See generally 5 R. Anderson, Uniform Commercial Code, § 3-105:4 et seq. (3d ed. 1984).
That such is the appropriate interpretation of the language is illustrated by the manner in which the check would be handled after it was cashed by Kafko. Kafko's bank would be fully justified in taking the check for deposit, and the Stricklands' bank would be fully justified in paying Kafko's bank, without any inquiry into whether the pool had been delivered.
The Court of Civil Appeals has decided two cases closely on point since the enactment of the Uniform Commercial Code. In Holsonback v. First State Bank of Albertville, 394 So. 2d 381 (Ala.Civ.App.1980), cert. denied, 394 So. 2d 384 (Ala.1981), the Court of Civil Appeals held that language on the face of a note or draft did not make the promise or order to pay a conditional one, citing § 7-3-105(1)(a), which regards implied or constructive conditions.
In contrast, the same court held in Participating Parts Associates, Inc. v. Pylant, 460 So. 2d 1299, 1301 (Ala.Civ.App. 1984), that the trial court was "authorized to consider evidence other than the check in determining whether the check was an unconditional [order] to pay a certain sum of money," because the payee plaintiff had not objected to the drawer defendant's testimony "concerning the circumstances under which the check was issued." Thus, that case is distinguishable as turning on a failure to object, which amounted to a waiver of a defense to the claim of conditionality. Furthermore, Participating Parts involved a dispute between the immediate parties to the check, and the Court of Civil Appeals considered the payee as a holder not having the rights of a holder in due course, citing § 7-3-306. That analysis fits the facts of that case because the payee took the check with notice of the drawer's claim and arguably attempted to cash it not in good faith; furthermore, the evidence indicated that the payee did not take the check for value. A parallel situation in the instant case would exist if Strickland had made the check out to Morgan & Son and Roger Morgan had attempted to cash it. Although Kafko was the payee, Morgan served as an intermediary and his misrepresentations prevent Kafko from having notice of Strickland's claim or defense.
A holder in due course takes a negotiable instrument free from all claims and defenses, with exceptions not pertinent here. Code 1975, § 7-3-305. Section 7-3-302 defines "holder in due course":
Because § 7-3-105 answers the question of notice of a claim to the check, and because Kafko gave full value for the check, the only question is whether Kafko took it in good faith. There was no evidence of any actual knowledge on Kafko's part that the Stricklands' pool had not been delivered. Neither is there any evidence of constructive knowledge that would justify a finding of lack of good faith. The invoices for the pools Kafko sold to Morgan & Son in June 1982 did not give the names of the customers to whom Morgan & Son was selling the pools, so there is no indication in the record that DeRegt had any way of verifying or disproving Roger Morgan's explanation of the check.
Therefore, Kafko did not wrongfully take the check, illegally assume ownership of it, or illegally use or misuse it. The Stricklands appear to argue that Kafko illegally retained the money which was the proceeds of the check but, aside from the facts that Kafko paid part of the proceeds to Roger Morgan and that an action in conversion will not lie for unidentified money, see Lewis v. Fowler, 479 So. 2d 725 (Ala.1985), Strickland never demanded return of the money.
For the foregoing reasons, the trial court did not err in holding that the Stricklands did not prove a conversion.
*718 Neither can the Stricklands prevail on their Deceptive Trade Practices count. Section 8-19-5 sets forth a list of activities that it declares to be unlawful. The Stricklands cite subsection (17), which makes it unlawful to fail to ship goods after receipt of payment for them, and subsection (22), which makes it unlawful to engage "in any other unconscionable, false, misleading or deceptive act or practice in the conduct of trade or commerce." Kafko cites § 8-19-13, however, which provides a defense to actions brought under the Deceptive Trade Practices Act:
Not only was there no evidence that Kafko knew it was failing to ship goods for which it had been paid, but the evidence does not even support a finding that Kafko was paid for a pool. Therefore, subsection (17) does not support a holding that the trial court erred in granting a directed verdict on this count. The Stricklands argue that DeRegt's failure to ship the pool after he was notified of the true situation constituted a knowing violation at least of subsection (22), but the evidence indicates at most that both Strickland and Kafko were defrauded by Roger Morgan. The trial court did not err in granting Kafko a directed verdict on the Deceptive Trade Practices count.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.
JONES, and BEATTY, JJ., dissent in part but concur in the result, with opinion by BEATTY, J.
BEATTY, Justice (dissenting in part but concurring in the result).
It appears to me that the majority has reached the right result in this case, but for the wrong reasons. The majority summarily concludes that "[b]ecause the alleged conversion was of a check, which is ordinarily a negotiable instrument," the provisions of Alabama's Commercial Code pertaining to negotiable instruments apply in this case. Applying those provisions pertinent to the conversion claim, the majority affirms the judgment notwithstanding the verdict ("JNOV") granted in favor of Kafko on that claim. I agree that the JNOV was proper in this case but not because plaintiffs failed to prove a scintilla of evidence on their claim for conversion. Rather, JNOV was proper because at issue in this case is the conversion of a cashier's check, and the overwhelming majority of courts have held that cashier's checks are substitutes for cash. See National Newark & Essex Bank v. Giordano, 111 N.J. Super. 347, 268 A.2d 327 (1970); Lawrence, Making Cashier's Checks and Other Bank Checks Cost-Effective: A Plea for Revision of Articles 3 and 4 of the Uniform Commercial Code, 64 Minn.L.Rev. 275, 285 (1980); 4 Hawkland, Alderman & Schneider, U.C.C. Series, § 3-104:16, "Cashier's Checks" (1984).
There is no explicit reference to cashier's checks in Article 3. In fact, the Code's only reference to cashier's checks is in § 4-211(1), which merely enumerates the types of payment that collecting banks may take in settlement of an instrument for the payment of money. This omission from Article 3, as well as the common belief that cashier's checks are cash equivalents, has led courts to conclude that, even when the instrument is held by one who is not a holder in due course, neither the purchaser of the cashier's check (the plaintiffs in this case) nor the issuing bank can assert an adverse claim to the instrument, such as the claim that the instrument's holder is in wrongful possession of the instrument or its proceeds. See Lawrence, supra, 64 Minn.L.Rev. 275 at 306-07. The commentators, *719 however, generally take the position that, in this situation, the provisions of the Code governing ordinary negotiable instruments should also govern the respective rights of the parties to a cashier's check. 64 Minn.L.Rev. at 305.
The majority, apparently without realizing it, has followed the view of the commentators, evaluating (albeit erroneously, see discussion infra) the parties' respective rights by reference to the pertinent provisions of Article 3. This approach, however, has not been followed by the various courts which have heretofore been called upon to decide the issue. Almost uniformly, the courts have ignored the Code and have subordinated the interests of the issuing bank and the check's purchaser to the holder's (including a holder not in due course) expectation that he has received a true cash equivalent, thereby preserving the societal interest in having cashier's checks serve as cash substitutes. 64 Minn.L.Rev. at 280, 305. Indeed, this Court has held that the purpose of a cashier's check is "to enable the holder to use the check as money." Walker v. Sellers, 201 Ala. 189, 77 So. 715 (1918). Moreover, "[a] cashier's check is accepted in advance by the act of its issuance and is not subject to a stop payment order." Wood v. Central Bank of the South, 435 So. 2d 1287, 1290 (Ala.Civ.App.1982). Such rules are necessary "to insure the public's confidence in and reliance upon our banking system." 435 So. 2d at 1290.
If this Court adopts the majority view, then the plaintiffs' claim for conversion must fail. Having chosen to use a cashier's check, a cash substitute, as the means of payment, plaintiff bears the burden of loss by conversion, for no action for conversion will lie as to unidentifiable funds or cash. See Lewis v. Fowler, 479 So. 2d 725 (Ala.1985), where this Court discussed at length the circumstances under which an action for conversion will lie to recover a sum of money. Specifically, we said:
Plaintiffs in this case cite Lewis v. Fowler, supra; however, they fail to point to any evidence of record establishing the identifiability of the sum represented by the cashier's check. They argue that the special account at the issuing bank, into *720 which their money was deposited at the time they purchased the cashier's check from the bank, would be a specific or special type of account into which the money had been deposited. This argument, however, overlooks the fact that the funds in this account are comingled; that is, the monies deposited as payment for a particular cashier's check are comingled with funds to cover other cashier's checks, and, according to the evidence, these funds are indistinguishable.
Plaintiffs also cite this Court to Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859 (11th Cir.1984), cited in this Court's opinion in Fowler, supra. In Limbaugh, the court, citing Alabama law, held that funds contained in a "Ready Assets Trust Account" belonging to the plaintiff were sufficiently identifiable to support plaintiff's conversion claim. In that case, the plaintiff, Charles Limbaugh, failed to deliver 182 shares of stock to cover a sale made for him by Merrill Lynch. So, Merrill Lynch liquidated a portion of his Ready Assets Trust Account to buy shares for delivery to the purchaser.
Limbaugh is distinguishable from the present case because, in Limbaugh, all of the funds in the account in question belonged to the plaintiff. Here, the funds paid by plaintiffs for the cashier's check were placed by the bank into a comingled account containing funds paid by other individuals for cashier's checks. Under these facts, plaintiffs have failed to prove "specific money capable of identification." Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469 (1903). For these reasons, I would affirm the JNOV for Kafko.
However, under the approach taken by the majority, I do not think the granting of a JNOV was proper under the evidence adduced in this case. The standard of review applicable in this case is not stated in the majority opinion, but because it is essential to a proper review to bear it in mind, that standard of review is set out here: When reviewing the propriety of a trial court's order granting a JNOV, the evidence must be viewed in the light most favorable to the party who secured the jury verdict; a JNOV carries no presumption of correctness. Warren v. Ousley, 440 So. 2d 1034 (Ala.1983). Rather, "a jury's verdict is presumed correct and will not be set aside unless it is so contrary to the evidence `as to convince this Court that it is wrong and unjust.' Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So. 2d 274 (1975)." Kent v. Singleton, 457 So. 2d 356, 359 (Ala.1984).
The majority evaluates plaintiff's conversion claim based on its conclusion that the alleged conversion was of a negotiable instrument. To defeat plaintiffs' claim, the majority, relying on Code of 1975, §§ 7-3-104, -105, -304, and -305, holds as a matter of law, that Kafko, the payee of the cashier's check, was a holder in due course, and that it, therefore, "did not wrongfully take the check, illegally assume ownership of it, or illegally use or misuse it." I would agree that if there was no evidence in this case from which a jury could conclude that Kafko was not a holder in due course, then plaintiffs could not recover in conversion. In other words, if the evidence was such that we could hold, as a matter of law, that Kafko was a holder in due course, it could not be liable for conversion. The majority's analysis, however, seems to overlook the principle that the question of holder-in-due-course status is one of fact, not law. Indeed, every element of holder-in-due-course status presents a question of fact, and there is at least a scintilla of evidence presented in this case from which the jury could have found that Kafko was not a holder in due course.
Relying on § 7-3-105(1)(b), the majority concludes that the language appearing on the check, "For pool kit to be delivered to Rt. 1, Box 22," does not prevent the check from being an unconditional promise to pay within the § 7-3-104 definition of a negotiable instrument. While this conclusion is probably correct (see Holsonback v. First State Bank of Albertville, 394 So. 2d 381 (Ala.Civ.App.1980), cert. denied, 394 So. 2d 384 (1981); Strand Amusement Co. v. Fox, 205 Ala. 183, 87 So. 332 (1921); Anderson v. Consolidated Auto Wholesalers, Inc., 4 U.C.C.Rep.Serv. 205 (N.Y.Sup. Ct.1967)), the majority's further conclusion, *721 that this notice could not, as a matter of law, serve as "notice" to Kafko of a claim by the plaintiffs (listed as remitters on the check), is erroneous.
Under the former Uniform Negotiable Instruments Law, most courts held that a payee, not having taken the instrument by negotiation, could not be a holder in due course. Now, under §§ 7-3-302 and 7-1-201(20), a payee who can meet the requirements of holder-in-due-course status may qualify as a holder in due course; that is, he must take for value, in good faith, and without notice of any defense against or claim to the instrument by any person. This is often difficult to prove, because, in most cases, the payee of an instrument is a party to the underlying transaction and is, therefore, charged with notice of any claims or defenses arising therefrom. See 4 Hawkland, supra, §§ 3-302:03 and :04. Nevertheless, a payee who has not dealt with the person asserting the claim must meet the requirements of holder-in-due-course status. See 4 Hawkland, § 3-302, Official Comment 2, Example (a).
In this case, Kafko was the payee named on the cashier's check, not Morgan, Kafko's dealer. Yet, notwithstanding the fact that Kafko was the named payee on a cashier's check remitted from a consumer, with whom it was its practice not to deal, and that the check was for an amount $3,200 in excess of the year-old overdue debt owed by Morgan, the majority holds, as a matter of law, that "Kafko was not bound to inquire of its dealer whether he [Morgan] had delivered the pool purchased with the money represented by the check." While this conclusion would be correct if Morgan, as payee, had negotiated the check to Kafko in payment of Morgan's debt, it is not a correct conclusion to draw on these facts. Morgan merely delivered the check to Kafko, the named payee. Morgan did not endorse the check to Kafko, and thus it was for the jury to decide whether Kafko, as payee under these circumstances, was justified in relying on Morgan's misrepresentations as to the purpose of the check, and wrongfully applying the proceeds. Yet, the majority purports to weigh these facts itself and concludes that "Morgan served as an intermediary and his misrepresentations prevent Kafko from having notice of Strickland's claim." The jury, however, obviously believed that, under these circumstances, Kafko should have made further inquiries, and that its failure to do so made its application of the check to Morgan's benefit "wrongful" and, therefore, a conversion.
Section 7-3-304 lists several situations in which notice of certain facts will be deemed to give a purchaser or payee of an instrument notice of a claim or defense. However, § 7-3-304 "does not contain an exhaustive list of when a holder has notice of a claim or defense. Whenever a particular situation is not specifically covered by § 3-304, the general admonition found in § 3-302(1)(c) that a holder must be without notice of any defense against or claim to the instrument on the part of any party controls." 4 Hawkland, supra, § 3-304:2 at 414. The standard applicable to § 7-3-302(1)(c) is found in the definition of "notice" contained in § 7-1-201(25). That section provides that a payee has "notice" of a claim when:
In the present case, however, resort need not be made to §§ 7-3-302(1)(c) or 7-1-201(25), because § 7-3-304(1)(a) is specifically applicable to these facts. Section 7-3-304(1)(a) provides in pertinent part that:
(Emphasis added.) Under this section, a payee does not have notice of a claim unless the irregularity "is such as to excite suspicion in the [payee] that ... [the instrument] is not owned by the party from *722 whom [it] was obtained, or ... it cannot be determined from the instrument who is entitled to payment." 4 Hawkland, supra, § 3-304:11, at 430. It appears from the unqualified use of the phrase "call into question," that the standard intended to apply to such situations is whether a reasonable person would question its validity, terms, or ownership. Id.
The jury in this case could have easily found that just based on what appeared on the face of the check, a reasonable person in Kafko's position would have realized that an ambiguity existed as to Morgan's ownership rights in the check and therefore as to the proper party to pay, and would have questioned its right to apply the check to satisfy Morgan's overdue debt and refund him the difference.
These same facts go to the good faith element of holder-in-due-course status. However, the test for good faith is a subjective one which required Kafko to prove to the satisfaction of the jury that it had a "white heart" or was honest in fact. Thus, even the failure to inquire into what may be viewed objectively as suspicious circumstances may not amount to a lack of good faith. However, the facts may be so suspicious that a jury may not believe the holder's assertions that he was honest in fact. 4 Hawkland, supra, § 3-302:02 at 268. For example, evidence that the holder was negligent in failing to investigate suspicious circumstances may lead to a jury to conclude that the holder wanted to evade the knowledge that an investigation would have disclosed. Id. Under such circumstances, a jury's finding of a lack of good faith could be upheld.
The majority holds that Kafko acted in good faith, blithely concluding that "there is no indication in the record that [Kafko] had any way of verifying or disproving Roger Morgan's explanation of the check." With all respect, I would point out that this is a conclusion of fact, and there is at least a scintilla of evidence to the contrary. Both of the plaintiffs' names appear as remitter on the check, "Lloyd Strickland and Linda I. Strickland," as well as their address, "Rt. 1, Box 22, Enterprise, Alabama." A simple telephone call to the plaintiffs would have certainly "verified" Morgan's explanation. Unquestionably, on these facts, a jury could have found Kafko's failure to investigate to be evidence of a lack of good faith. Based on the foregoing, I, therefore, cannot agree that we can hold, as a matter of law, that Kafko was a holder in due course, and thereby affirm the JNOV entered in favor of Kafko.
The only question remaining is whether plaintiffs adduced a scintilla of evidence of a conversion of the instrument. "To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse." Ott v. Fox, 362 So. 2d 836, 839 (Ala.1978). Plaintiffs apparently concede that, having failed to prove a demand for a return of the converted property from Kafko, they cannot prevail on a wrongful detention theory of conversion. Raley v. Royal Ins. Co., Ltd., 386 So. 2d 742 (Ala.1980). Nevertheless, without the necessity of repeating the evidence in this case, it is quite clear that the evidence adduced presented a jury question as to whether Kafko illegally used or misused the cashier's check if it is viewed as an ordinary bank check. See Ott v. Fox, supra. Compare Barrett v. Farmers & Merchants Bank of Piedmont, 451 So. 2d 257 (Ala.1984). The alleged conversion in this case took place before the check was "paid" by the payor bank (see Lowremore v. Berry, 19 Ala. 130 (1857)), and, therefore, whether the plaintiffs were wronged by Kafko's use or misuse of the check presented a fact question for the jury. Herron Motor Co. v. Maynor, 232 Ala. 319, 167 So. 793 (1936). For these reason, I would reverse the JNOV entered in favor of Kafko if the cashier's check is regarded as an ordinary bank check rather than as a cash substitute.
To summarize, I concur in the result reached by the majority upholding the JNOV on plaintiff's conversion claim because I would hold that a cashier's check should be treated as a cash equivalent rather than as an ordinary bank check. The majority, however, adopts the latter view;
*723 I dissent not only as to the adoption of that view, but also as to the majority's analysis thereunder in holding that, as a matter of law, Kafko was a holder in due course. Because there was evidence to the contrary, the issue of holder-in-due-course status was one of fact for the jury, and, on that basis, the JNOV on the conversion count was improper.
JONES, J., concurs. | May 22, 1987 |
25edbee1-fd02-4627-8169-50dba5abbbbc | Parker v. Reaves | 505 So. 2d 323 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 323 (1987)
Samuel L. PARKER and Annie Parker
v.
James REAVES, et al.
85-1060.
Supreme Court of Alabama.
March 20, 1987.
Margaret L. Fleming and Barry N. McCrary, Talladega, for appellants.
Ralph Gaines, Robert B. Barnett, Jr. and Ralph D. Gaines III of Gaines, Gaines & Barnett, Talladega, for appellees.
HOUSTON, Justice.
This is a nuisance case. The plaintiffs, James Reaves, Sharon Reaves, Pearce Curtis, Vernette Curtis, John Durham, and Annie Durham, are homeowners in Talladega County. The defendants, Samuel Parker and Anna Parker, are their neighbors. The plaintiffs brought this action in the Circuit Court of Talladega County, seeking to enjoin the defendants from keeping a number of German shepherd dogs. The trial court, after hearing ore tenus evidence, found in favor of the plaintiffs and granted the injunction. We affirm.
The trial court's judgment, in pertinent part, reads as follows:
The defendants primarily contend that the trial court erred in finding that their property was subject to subdivision restrictions which prohibited them from keeping the dogs. (See paragraph "1." of the trial *325 court's judgment.) They argue that the trial court based its judgment upon that erroneous finding and, therefore, that the judgment must be reversed. We disagree.
In the complaint the plaintiffs alleged that the noises and odors emanating from the defendants' dogs were depriving them of the use and enjoyment of their property. They sought an injunction to abate that nuisance. The plaintiffs did not allege that the defendants were in violation of any subdivision restrictions. The trial court makes it very clear in the judgment that the plaintiffs were entitled to an injunction because they had proven the allegations contained in the complaint. It is clear to us that the trial court based its judgment upon its finding that the defendants' dogs were a nuisance; therefore, even assuming that the trial court erred in finding that the defendants' property was subject to subdivision restrictions, that error would not require a reversal of the judgment.
The trial court's findings in this case are favored with the usual presumption of correctness and we will not disturb them unless they are plainly erroneous or manifestly unjust. This presumption of correctness is strengthened by the fact that the trial court made a personal inspection of the premises. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So. 2d 665 (1973).
Based upon our review of the record, the trial court's findings with respect to the noises and odors emanating from the defendants' dogs, as well as those with respect to the potential threat to the children of the neighborhood, are supported by the evidence. A nuisance was established under Baldwin v. McClendon, 292 Ala. 43, 288 So. 2d 761 (1974).
The defendants also contend that the plaintiffs' action was barred under the doctrine of laches; however, after reviewing the record, it appears to us that this affirmative defense was never raised in the trial court. The general rule is that a defense not raised in the trial court cannot be raised for the first time on appeal. Seier v. Peek, 456 So. 2d 1079 (Ala.1984). Therefore, we decline to consider whether the plaintiffs' action was barred under the doctrine of laches.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | March 20, 1987 |
6c6f9598-0c4d-4b8b-a3f7-a8b98479e134 | Sanders v. Kirkland & Co. | 510 So. 2d 138 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 138 (1987)
Bertram L. SANDERS II
v.
KIRKLAND & COMPANY, et al.
85-467.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied June 30, 1987.
Jack E. Held and Charles R. Driggars, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant.
James S. Hubbard, and Henry Agee, Annison and Kirby Sevier and David M. Smith, of Maynard, Cooper, Frierson & Gale, Birmingham, for appellees.
HOUSTON, Justice.
This action arises out of a former business relationship between Bertram L. Sanders II and the accounting firm of Kirkland & Company ("Kirkland"), which was an Alabama general partnership. Sanders filed this action against Kirkland and the equity partners of Kirkland ("defendants"). *139 Sanders contends that he was an equity partner in Kirkland, and the issues before the trial court were breach of the partnership agreement by the defendants, wrongful termination of Sanders as a partner, and fraud by defendants in representing to Sanders that he would have a vested interest in the partnership assets.
The trial court dismissed Sanders's jury demand and set the case down for a non-jury hearing in order to
The trial court thereafter proceeded for six days to hear "all the evidence ... relative to an accounting," and entered a 16-page judgment disposing of all of Sander's claims, except his fraud claim. (Emphasis added.) The "wrongful exclusion" claim was specifically considered as part of the "evidence ... in relation to the accounting" and was found to have "no merit," as the court's judgment of August 2, 1985, explicitly states:
The trial court's judgment concluded by acknowledging that the court had "heard and considered `all issues triable in the accounting,'" and judgment was entered against Sanders on all claims except the fraud count.
The trial court found that Sanders had been "overpaid" by the sum of $246.13 on his voluntary resignation. Accordingly, the trial court held that Sanders owed Kirkland this amount.
Sanders first contends that the court erred to reversal in dismissing his jury demand for the claim based on his allegedly wrongful termination/exclusion from Kirkland.
Rule 38(a), Ala.R.Civ.P., provides:
As the Committee Comments to Rule 38 make clear, "Subdivision (a) is identical with Constitution 1901, § 11, and thus preserves the right to jury trial precisely as it has been known heretofore in Alabama." (Emphasis added.) In Ex parte Collins, 394 So. 2d 952 (Ala.1981), this Court made the following statement:
Richey v. Creel, 437 So. 2d 554, 555 (Ala. Civ.App.1983).
Accordingly, it is well settled in Alabama that "Rule 38(a), ARCP, simply preserves the historic right to a jury trial where that right existed at the time of the adoption of the Alabama 1901 Constitution." Shelton v. Shelton, 376 So. 2d 740, 741 (Ala.Civ.App. 1979); see also Ex parte Jones, 447 So. 2d 709, 711 (Ala.1984). The constitutional guaranty of trial by jury does not extend to causes of action "unknown to the common law" or "equitable in nature." Shelton v. Shelton, supra, at 741; Ex parte Jones, supra, at 711; Pugh v. Calloway, 295 Ala. 139, 325 So. 2d 135 (1976); City of Mobile v. Gulf Dev. Co., 277 Ala. 431, 171 So. 2d 247 (1965).
The law of Alabama has historically and consistently treated any claim of *140 "wrongful exclusion" from a partnership as being a purely equitable claim, for which the exclusive remedy is a non-jury accounting. See Hunter v. Parkman, 254 Ala. 494, 48 So. 2d 878 (1950); McDonough v. Saunders, 201 Ala. 321, 78 So. 160 (1917); Reilly v. Woolbert, 196 Ala. 191, 72 So. 10 (1916).
Thus, in Hunter v. Parkman, 254 Ala. at 498, 48 So. 2d at 881, this Court expressly noted that "[t]he law is well settled that one partner may not recover in an action against his copartner on account of matters growing out of the firm business, until there has been a settlement and a balance found due him." (Emphasis added.) The Court explained the remedy available to the complaining partner as follows:
254 Ala. at 498, 48 So. 2d at 882.
Likewise, in McDonough v. Saunders, 201 Ala. 321, 78 So. 160 (1917), which involved an appeal from an equity court concerning the alleged "wrongful exclusion" of a partner in a joint venture, this Court deemed that the equity court was the proper forum for resolving the partnership dispute, including the wrongful exclusion claim. 201 Ala. at 325, 78 So. at 164. Upon review of the record in the equity proceeding, this Court affirmed the chancellor's holding that "the evidence in this case fails to show such grave fault on the part of [complainant] which would authorize a dissolution of the partnership or the expulsion of the [complainant] from further membership or participation in the joint adventure as was attempted by appellants in this case." Id., 201 Ala. at 328, 78 So. at 167. Thus, the case acknowledges that claims for "wrongful exclusion" from a partnership are equitable in nature under Alabama law.
Further, in Reilly v. Woolbert, 196 Ala. 191, 72 So. 10 (1916), which involved a claim that the complainant's partner had "excluded him from participation in the business, and thereafter ... refused to make any settlement with complainant," this Court determined that such a claim was properly to be resolved in equity. Specifically, the Court's opinion states: "This [partnership] relation, under the allegations of the bill, would entitle complainant to an accounting and settlement of the partnership business, as an independent equity, regardless of the nature of the account, whether complicated or simple." 192 Ala. at 193, 72 So. at 11.
Significantly, the settled principle that claims for "wrongful exclusion" from partnership affairs are to be included in an equitable accounting is now expressly codified at § 10-8-47 of the Alabama Code 1975, as follows:
Pre-1901 Alabama decisions uniformly confirm that Sanders had no standing to demand a jury on any issue arising from the partnership affairs or on any claim for legal damages until an amount had been found due him from his former partners. E.g., Broda v. Greenwald, 66 Ala. 538 (1880); Pope v. Randolph, 13 Ala. 214 (1848). In Broda, this Court said:
66 Ala. at 542.
In its even earlier Pope decision, after reciting the foregoing principle, this Court *141 stated: "This is too well established to need a reference to authorities." 13 Ala. at 220.
Sander's claim for "wrongful exclusion" from Kirkland is one that is historically of a purely equitable nature, for which the exclusive remedy is a non-jury accounting. Adding a claim for damages for mental anguish, emotional distress, humiliation, and mental anxiety to such an equitable claim, unknown at common law, does not create a right to jury trial where none has ever existed. As one court aptly stated in a somewhat analogous context:
Bonnell v. Commonwealth Realty Trust, 363 F. Supp. 1392, at 1393 (E.D.Pa.1973).
The trial court found that Sanders was an income partner and not an equity partner, and had no interest in the assets of the partnership. There was credible evidence to support the trial court's findings that there were two types of partners in the partnership (equity and income) and that Sanders was an income partner. Under our standard of review, we assume that the findings of fact by the trial court which heard evidence presented ore tenus are correct and we will not make our own findings of fact unless the appellant can convince us that the trial court's findings of fact are palpably wrong, not supported by any credible evidence, or manifestly unjust. Clardy v. Capital City Asphalt, 477 So. 2d 350 (Ala.1985). In this case, the trial court's findings of fact are supported by the evidence, and we are not persuaded that such findings are palpably wrong or manifestly unjust.
Sanders contends that the trial court erred in granting defendants' motion for summary judgment on the fraud count. Count III of Sander's complaint is as follows:
The trial court found that the alleged misrepresentations made by the defendants to Sanders were made after he became a partner in Kirkland on September 26, 1980, and therefore, could not have been relied upon by Sanders when he "joined with KIRKLAND & COMPANY as a partner," as alleged in his complaint.
The standard of review applicable to an order granting summary judgment for a defendant is well established. See Rule 56(c), Ala.R.Civ.P. In this case, summary judgment would be proper if it clearly appears that there is no evidence of reliance, which is an essential element in a cause of action for fraud. If there is any evidence tending to establish justifiable reliance, *142 then summary judgment would be inappropriate, since there was some evidence of each of the other elements of fraud. In determining whether there is evidence to support each elementto raise a genuine question of material fact as to whether that element exists, Rule 56(c)this Court must review the record in a light most favorable to the plaintiff and resolve all reasonable doubts against the defendants. Harbison v. Albertville National Bank, 495 So. 2d 1084 (Ala.1986).
Sanders's claim is simply that he relied upon the representations by "join[ing] with Kirkland & Company as a partner." As the trial court explained, it is undisputed that the alleged misrepresentations took place after Sanders was made a partner; thus, he could not possibly have relied upon the misrepresentations in making his decision to join "with Kirkland & Company as a partner." In support of that finding, the Court accepted plaintiff's own deposition testimony:
It is fundamental to an action for fraud that the plaintiff must have relied to his detriment on the alleged misrepresentation. In the absence of proof of reliance, a plaintiff's fraud claim must fail as a matter of law. E.g., Taylor v. Moorman Mfg. Co., 475 So. 2d 1187 (Ala.1985); Webb v. Renfrow, 453 So. 2d 724 (Ala.1984); Davis Bluff Land & Timber Co. v. Cooper, 223 Ala. 137, 134 So. 639 (1931).
In the instant case, the undisputed facts establish that the action allegedly taken by Sanders in reliance upon the representationsbecoming a partner in Kirklandtook place before the representations ever occurred. Based upon these facts, the trial court properly concluded that the fraud claim must fail as a matter of law, and summary judgment was properly granted. We need not discuss whether the fraud action was time barred.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
73f7c6d4-b347-4a0f-8e9e-10406e3a7cd9 | Ex Parte Kimberly-Clark Corp. | 503 So. 2d 304 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 304 (1987)
Ex parte KIMBERLY-CLARK CORPORATION.
(Re James C. White, as Commissioner of Revenue of the State of Alabama
v.
Kimberly-Clark Corporation).
85-870.
Supreme Court of Alabama.
February 6, 1987.
*305 Warren H. Goodwyn and William E. Shanks, Jr., of Balch & Bingham, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Mark D. Griffin, Asst. Counsel, Dept. of Revenue, and Asst. Attys. Gen., for respondent.
MADDOX, Justice.
This appeal involves the Alabama corporate income tax. We granted certiorari in order to determine whether the Court of Civil Appeals, 503 So. 2d 296, correctly decided three issues of first impression.
Kimberly-Clark is a foreign corporation registered to do business in Alabama; it conducts business in Alabama and many other of the United States, as well as in the international marketplace. Alabama income tax on corporations doing business both within and without Alabama is calculated by means of an apportionment formula that compares the corporation's net income (derived from property, payroll, and sales) from business done within Alabama to that from business both within and without Alabama. That formula may be expressed as:
Petitioner originally filed suit in circuit court seeking refund of a portion of its 1977-1981 income taxes. The trial court ruled in Kimberly-Clark's favor on all three issues raised; it held: (1) that, under Code 1975, § 40-18-35(13), Kimberly-Clark could deduct noncapital maintenance and operating expenses related to pollution control equipment from its apportioned (Alabama) income; (2) that, pursuant to Alabama Department of Revenue Regulation 810-3-31-.02(16)(b), sales to foreign countries from Alabama shipping points should not have been included as Alabama sales in determining the numerator value of the apportionment formula; and (3) that I.R.C. § 78 and § 951 Subpart F income should have been excluded from the denominator of the apportionment formula. The Court *306 of Civil Appeals reversed the trial court's rulings on all issues; we affirm that decision.
As we find that the Court of Civil Appeals correctly decided the first issue, we quote and adopt the following from Judge Wright's opinion:
The petitioner contends that this Court's holding in Eagerton v. Courtaulds North America, Inc., 421 So. 2d 104 (Ala.1982), supports its position. In Courtaulds, this Court construed the sales and use tax exemptions, Code 1975, §§ 40-23-4(16) and -62(18), to allow exemption, as "material," of fuel oil used to fire pollution control boilers. Kimberly-Clark asserts that the expenses here in question should be treated similarly. However, the sales and use tax statutes in Courtaulds are materially different from the income tax statutes at issue here. The sales and use tax provisions contemplate current sale or use; the income tax provisions, as discussed above, contemplate investment in durable goods and fixtures, not the expenses of materials for current consumption.
Petitioner's second issue, that sales to customers in foreign countries from Alabama shipping points should not be included in the numerator of the apportionment formula, must also fail. While Dept. of Rev.Reg. 810-3-31-.02(16) provides that sales made to foreign customers may be excluded when the taxpayer is subject to taxation in the state of the purchaser, petitioner failed to produce any evidence to show that it was subject to foreign taxation. The parties stipulated to certain facts relevant to this issue:
In this regard, we again adopt the language of the Court of Civil Appeals:
Petitioner complains that, in so ruling, the Court of Civil Appeals articulated a new standard for determining whether a business is subject to taxation by a foreign jurisdiction. However, that standard is clearly expressed in Dept. of Rev.Reg. 810-3-31-.02(3)(c): the taxing power of a foreign state is measured by the same due process standards applicable to another of the United States. We agree that it is not unjust to hold Kimberly-Clark to a knowledge of this standard, and we uphold the Court of Civil Appeals' refusal to remand for more evidence on this issue.
Finally, we must also affirm as to petitioner's third issue. Kimberly-Clark correctly states our holding in State v. Chesebrough-Ponds, Inc., 441 So. 2d 598 (Ala.1983), wherein we held that net income computation for purposes of the Alabama income tax is not dependent on federal income tax definitions. However, we also find the Court of Civil Appeals to be correct in ruling that I.R.C. § 78 and § 951 Subpart F income should be included in the denominator of Kimberly-Clark's apportionment formula, as a benefit has inured to Kimberly-Clark by virtue of the federal income tax credit. As before, we adopt the language of the Court of Civil Appeals as our own:
In light of the foregoing, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | February 6, 1987 |
9a06d28e-602a-4e0b-8406-afd6e544bb98 | Ex Parte Lee | 506 So. 2d 301 | N/A | Alabama | Alabama Supreme Court | 506 So. 2d 301 (1987)
Ex parte John Michael LEE.
(Re: John Michael Lee v. State).
85-543.
Supreme Court of Alabama.
January 30, 1987.
M. Ashley McKathan of Powell, Powell & McKathan, Andalusia, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
BEATTY, Justice.
The petitioner, John Michael Lee, was indicted in October 1984 by the Grand Jury of Covington County on the charge of robbery in the first degree. See § 13A-8-41, Code of 1975. After a jury trial, Lee was found not guilty by reason of insanity. Subsequently, a hearing was held to determine whether Lee should be involuntarily committed to the Alabama Department of Mental Health. After this hearing, the trial court issued an order which, in pertinent part, read as follows:
After his post-trial motions were denied, Lee appealed from that judgment to the Alabama Court of Criminal Appeals. That court affirmed the trial court's judgment without issuing an opinion, 486 So. 2d 523 (Ala.Cr.App.1986). Counsel for Lee applied for rehearing and duly included as part of the application a request for a statement of additional facts pursuant to Rule 39(k), A.R.A.P. Rehearing and the Rule 39(k) request were denied. We granted certiorari to review the correctness of the decision of the Court of Criminal Appeals. We reverse and remand.
The underlying facts of this case are rather curious. The victim, Boggie Pickron, testified as follows: Lee and two other individuals, Jimmy Drinkwater (Lee's half-brother) and Fred Suttles, drove up to Pickron's trailer home in Florala, Alabama, on the night of March 10, 1984. Pickron, who had been drinking wine, invited the three into his home even though he did not know them. Once inside, the three began to smoke marijuana while Pickron continued to drink wine. Then, one of the trio, a "tall red-headed boy" (Suttles), asked Pickron if he wanted to gamble. After first refusing, Pickron decided to "cut high card" with Suttles for two dollars. Having decided to gamble, Pickron took a sum of money out of his pocket. Before they could cut the cards, however, Suttles pulled out a pistol and pointed it at Pickron. Suttles then took the money and, along with Lee and Drinkwater, left the trailer and drove away. The amount of money taken totaled $160.
Jimmy Drinkwater testified similarly. He admitted that he, Lee, and Suttles had been to Pickron's trailer on March 10, 1984. He also admitted that he had participated in the robbery of Pickron. However, he stated his belief that Lee had not participated in the crime. He said that he did not remember seeing Lee take any money from Pickron, and that although he did not see who it was that actually took the money, and even though the pistol Suttles used belonged to Lee, he believed that only he and Suttles had actually participated in the robbery.
Curiously, Lee's recollection of the extent to which he participated in the robbery differed from the account set out above. In a statement which was read into evidence, and which had been written by Lee's own hand, Lee related the following:
During cross-examination of the police officer who had read Lee's statement into evidence, Lee's counsel attempted to elicit the officer's opinion as to Lee's mental state at the time he gave the statement. The trial court sustained an objection by the State and refused to allow the testimony. Lee's counsel argues that this ruling unnecessarily limited his right to cross-examination and constitutes reversible error. We agree.
In Alabama, a lay witness may give his opinion on the question of a defendant's sanity or insanity as long as the proper predicate has been laid. Williams v. State, 291 Ala. 213, 279 So. 2d 478 (1973); Lokos v. State, 434 So. 2d 818 (Ala.Crim.App.1982), affirmed, 434 So. 2d 831 (Ala.1983); Carroll v. State, 370 So. 2d 749 (Ala.Crim. App.), cert. denied, 370 So. 2d 761 (Ala. 1979). To lay a proper predicate for the admission of such an opinion, a witness must first have testified: (1) to facts showing that he had an adequate opportunity to observe such defendant's conduct in general, and (2) to his personal observation of specific irrational conduct of the defendant. See Williams v. State, supra; Lokos v. State, supra; Carroll v. State, supra. See also C. Gamble, McElroy's Alabama Evidence, § 128.02 (3d ed. 1977). Of course, in making the determination as to whether the witness has had an adequate opportunity to observe such defendant's conduct so as to render his opinion admissible, much is left to the sound legal discretion of the trial court. Williams v. State, supra.
In the present case, the following transpired during the cross-examination in issue:
Later, during redirect examination of this witness, the trial judge explained:
The testimony set out above clearly shows that Lee's counsel had laid a proper predicate for the admission of the officer's opinion as to whether Lee was insane. Failure to allow this opinion to be given constituted an abuse of discretion and reversible error. Hunter v. State, 335 So. 2d 194 (Ala.Crim.App.), cert. denied, 335 So. 2d 203 (Ala.1976). See Williams, supra; Lokos, supra; Carroll, supra. The prejudice to the defendant in this case is obvious even though the jury returned a verdict of not guilty by reason of insanity. Lee's state of mind at the time he gave the confession would have a direct bearing upon the jury's consideration of the trustworthiness of the statement. If the jury had believed that Lee was insane at the time he gave the statement, it could have rejected his statement as untrustworthy and accepted that version of the facts regarding Lee's participation in the crime which was offered by everyone except Lee, i.e., that he did not participate in the crime. Once the jury had found that Lee had not participated in the crime, it could not have returned a verdict of not guilty by reason of insanity. A person must necessarily have committed a criminal act in order to be found not guilty by reason of insanity. Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983).
The failure of the trial court to allow the officer to give his opinion as to Lee's insanity at the time Lee made his statement constitutes reversible error. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court with directions to order a new trial.
REVERSED AND REMANDED.
All the Justices concur. | January 30, 1987 |
38aeb05f-fc9b-48c8-9215-af1fccc055bf | Ex Parte Love | 507 So. 2d 979 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 979 (1987)
Ex parte Jimmy Louis LOVE.
(Re Jimmy Louis Love v. State of Alabama).
85-909.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied May 8, 1987.
Thomas M. Goggans of Goggans, McInnish, Bright & Chambless, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.
PER CURIAM.
We granted certiorari in this case to determine whether the rule of Batson v. Kentucky, ___ U.S. ___, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), should be given retroactive application to collateral review of convictions *980 that became final prior to the release of the Batson decision.
Petitioner, Jimmy Louis Love, was convicted of robbery in the first degree and was sentenced to life imprisonment without parole. The Court of Criminal Appeals affirmed the conviction, and this Court denied Love's petition for a writ of certiorari.
Thereafter, Love filed a petition for a writ of error coram nobis in the circuit court. The court denied the petition, and the Court of Criminal Appeals affirmed. Petitioner then filed his pro se petition for a writ of certiorari in this Court, which we granted in order to decide the Batson issue.
Subsequent to our granting of the petition, the United States Supreme Court addressed this issue in Allen v. Hardy, ___; U.S. ___, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986). In Allen, the Court held that its decision in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced.
We have not been presented with any compelling reasons why we should not hold likewise with respect to the Alabama Constitution. Therefore, we hold that the Batson decision should not be applied retroactively on collateral review of convictions that became final prior to its announcement. The judgment of the Court of Criminal Appeals, 507 So. 2d 976, is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | February 20, 1987 |
90d1a687-d915-4feb-b507-5968b0f81202 | Lee v. Shrader | 502 So. 2d 741 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 741 (1987)
Mary Elizabeth LEE
v.
Otho SHRADER.
85-1143.
Supreme Court of Alabama.
January 30, 1987.
Gary W. Lackey, Scottsboro, for appellant.
John F. Porter III of Livingston, Porter & Paulk, Scottsboro, for appellee.
BEATTY, Justice.
This is an appeal by plaintiff, Mary Elizabeth Lee, from a judgment for the defendant, Otho Shrader, in plaintiff's action for damages based upon premises liability. We affirm.
Plaintiff's complaint named as defendants Shrader, and certain fictitiously named persons,[1] and alleged the following:
Allegations of proximately caused injuries followed. To these allegations, defendant Shrader pleaded the general issue and contributory negligence. After discovery, the cause was tried ore tenus to the trial court. The evidence disclosed that plaintiff sustained her fall when she slipped in water on the floor of defendant's greenhouse located on the porch of his home. It also showed that, as defendant's domestic employee, she knew it was common for water to be on the floor where plants were watered regularly. She had watered the plants there many times before and had herself spilled *742 water on the floor. The area was not dark and there was nothing to prevent plaintiff from seeing the water spot in question.
Following plaintiff's filing of post-trial motions, including a motion for a new trial, a hearing was held, after which the trial court made additional findings which were incorporated in a subsequent order:
On this appeal, plaintiff maintains that the trial court erred in the above-quoted finding. Plaintiff's argument is this: Plaintiff was defendant's employee, and thus her cause of action was based upon Code of 1975, § 25-6-1, the Employer's Liability Act, whose pertinent provisions are these:
Plaintiff contends that it was error for the trial court to find that plaintiff was contributorily negligent because of her knowledge of the dangerous condition.
Defendant, on the other hand, contends that plaintiff's claim under the Employer's Liability Act was not pleaded and, therefore, raised an issue here not raised at trial. Defendant also argues, alternatively, that the finding of contributory negligence was supported by the ore tenus evidence and is a complete defense under either common law premises liability or the Employer's Liability Act. We agree with that position.
Contributory negligence is a defense under § 25-6-1; Parham v. Taylor, 402 So. 2d 884 (Ala.1981); Johnson v. Johns Service Funeral Parlor, Inc., 240 Ala. 231, 198 So. 357 (1940), and questions of contributory negligence may rest upon facts or inferences from facts within the province of the factfinder to draw. Johnson, supra.
From an examination of the facts, this Court concludes that the trial court was correct. Although plaintiff did not remember watering the plants that day, and did not know whether she or defendant caused the water to be on the floor, it was inferable from the facts that she either caused the condition, knew of its presence, or could have apprised herself of it.
Under these circumstances, this Court cannot hold that the trial court erred in its finding of contributory negligence on the part of plaintiff. Clardy v. Capital City Asphalt Co., 477 So. 2d 350 (Ala.1985).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
[1] Plaintiff's complaint was never amended to substitute the true name for any defendant fictitiously named. See Rule 9(h), A.R.Civ.P. This opinion shall refer to Otho Shrader as "the defendant." | January 30, 1987 |
ca0013ed-4c20-499b-b1e5-7d6a75d05574 | Weil v. Lammon | 503 So. 2d 830 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 830 (1987)
Herbert A. WEIL
v.
Dorothy S. LAMMON.
85-788.
Supreme Court of Alabama.
February 13, 1987.
*831 John L. Capell III and J. Lister Hubbard of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
Maury D. Smith and William P. Cobb II of Balch & Bingham, Montgomery, for appellee.
SHORES, Justice.
Herbert A. Weil and Dorothy S. Lammon were married in the latter part of 1985. The marriage endured for little more than 30 days. The husband filed a petition for divorce in the Circuit Court of Montgomery County. The wife filed an answer and counterclaim to the divorce petition in which she said: "The Wife avers the Husband, through misrepresentation and deceit, encouraged her to terminate her prior marriage and stated he would take care of her financially for the remainder of her life. The Wife relied on the statements and representations made by the Husband."
The divorce action proceeded to trial and resulted, on December 26, 1985, in a decree of divorce and an award of $1,000 alimony in gross to the wife. Following the entry of this decree on January 15,1986, the wife filed a motion to alter, amend or vacate the judgment, alleging that the award to her of only $1,000 constituted a gross abuse of discretion. Specifically she argued:
Before the court ruled on the wife's motion to alter, amend or vacate the judgment (which occurred on March 3, 1986, when it denied the motion), on January 22, 1986, the wife filed a complaint against the husband, also in the Circuit Court of Montgomery County, claiming damages based upon the alleged fraud and deceit on the part of the husband in misrepresenting that he would take care of the wife financially for the rest of her life if she married him. The wife sought compensatory and punitive damages.
The husband filed a motion to dismiss the complaint on the grounds that res judicata or collateral estoppel barred the action. The trial court denied the motion. The husband then sought and this court granted permission to appeal the trial court's order denying his motion to dismiss.
We reverse the order of the trial court.
We hold that where a spouse's alleged fraud, misrepresentation, or deceit is made *832 an issue in the divorce action, as it was here, such conduct will not supply the basis for a subsequent action for damages.
In this case the wife asserted the alleged fraud and misrepresentation of her husband in support of her claim for alimony. This she had a right to do, as his conduct toward her was a matter for the Court's consideration on the issue of alimony. Steiner v. Steiner, 254 Ala. 260, 48 So. 2d 184 (1950). She may not thereafter bring an action for damages based upon the same allegations. In Jackson v. Hall, 460 So. 2d 1290 (Ala.1984), the Court held that a prior divorce judgment was an absolute bar to a subsequent tort action for damages based upon an alleged assault and battery which had been one of the grounds for the divorce. The court expressly held that under those circumstances res judicata barred the wife's action. The same result is compelled under the facts of this case.
With the merger of law and equity, and given the liberal joinder allowed by the Alabama Rules of Civil Procedure, there is no reason why all known claims between spouses in a divorce action should not be settled in that litigation.
The judgment of the trial court is reversed and the cause is remanded for entry of a judgment dismissing the wife's action.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES, ALMON, BEATTY and STEAGALL, JJ., concur.
ADAMS, J., concurs specially.
HOUSTON, J., recused.
ADAMS, Justice (concurring specially).
I am compelled to concur specially. Although I agree with the result reached given the peculiar facts in this case, I am not of the opinion that a final decree in a divorce case necessarily forecloses every cause of action that could exist between the former husband and wife. A strict interpretation of our modern Rules of Civil Procedure would, however, require such a result.
In Ex parte Harrington, 450 So. 2d 99 (Ala.1984), we allowed a wife to file suit for assault and battery in the Circuit Court of Montgomery County, although she had filed a divorce action in Elmore County in which she had claimed as grounds for divorce (a) incompatibility, (b) irretrievable breakdown of the marriage, (c) actual violence, and (d) habitual drunkenness. At the time the action was filed in Montgomery, the Elmore County case was still pending.
I am of the opinion that actions for divorce are sui generis. To rule that in every divorce case a party's cause of action must be litigated in that proceeding, of necessity, would deny the right to trial by jury. Trial by jury is not provided for in divorce actions in Alabama.
Where the sole ground for the divorce, as here, (fraudulent misrepresentation) is fully litigated in a divorce proceeding, I would hold that a party is foreclosed from relitigating that cause of action in another forum. Also, where the parties agree on a settlement of all claims arising out of the marital contract, I would hold the settlement would be a bar to any future litigation. Jackson v. Hall, 460 So. 2d 1290 (Ala. 1984). | February 13, 1987 |
8a3fb63c-0358-440b-9d18-88934116a14c | Dennis v. Pendley | 518 So. 2d 688 | N/A | Alabama | Alabama Supreme Court | 518 So. 2d 688 (1987)
Herbert DENNIS, et al.
v.
Glenn M. PENDLEY and J.B. Cunningham.
86-155.
Supreme Court of Alabama.
September 18, 1987.
*689 Sibley Reynolds and Bill Speaks, Clanton, for appellants.
Robert L. Bowers, Sr., of Bowers & Bowers, Clanton, for appellees.
PER CURIAM.
Appellants Herbert Dennis, et al. (hereinafter "Dennis"), appeal a mandatory injunction entered following a determination that the City of Clanton failed to meet the requirements set out in Ala.Code (1975), § 28-2A-1, in order to call and hold a municipal option election to change its classification from "wet" to "dry." We reverse.
On December 10, 1985, the City of Clanton held an election and thereby annexed certain territory. No notice of approval or ruling under the 1965 Voting Rights Act, 42 U.S.C.A. § 1973a, was obtained prior to the annexation, nor was it forthcoming before the petition for the municipal option election was filed. The United States Justice Department, however, approved the annexation prior to the actual election; in the election, voters of the City of Clanton, including the annexed portion of the City, indicated that they approved changing from a dry to a wet municipality.
In September 1986, the City contracted with the United States Department of Commerce, Bureau of the Census, to conduct a special census. The purpose of this census was to determine Clanton's population at that time, including the annexed portion. The special census showed a population of 7,403 people living within the City limits.
On October 2, 1986, a petition was filed with the clerk of the City of Clanton calling for a municipal option election to determine the sentiment of the people as to whether alcoholic beverages should be legally sold, consumed, and distributed within the municipality.
On October 16, 1986, appellees Pendley and Cunningham (hereinafter "Pendley") filed a complaint challenging the call for a municipal option election and asking for an injunction to prevent the election until the statutory requirements of § 28-2A-1, Alabama Code (1975), had been met.
Dennis filed a motion to intervene on behalf of the City of Clanton on October 24, 1986, and the motion was granted. Dennis and the City then filed motions to dismiss, which were denied after a hearing. Judge Macon, the trial judge, entered an order enjoining and restraining the City of Clanton from calling a municipal option election on November 4, 1986 (the date of the general election), or from calling a municipal option election until the requirements of § 28-2A-1 were met.
Dennis filed a timely notice of appeal and filed a motion to stay enforcement of the mandatory injunction pending appeal to this Court. We granted the motion, permitting the election with the understanding that Pendley could appeal, or defend an appeal, in the instant action after the election.
On November 4, 1986, a majority of the voters in the City of Clanton passed the municipal option. By so doing, they showed that their preference was that alcoholic beverages be permitted to be sold, distributed, or consumed within the Clanton city limits.
We opine that appellee Pendley's argumentthat because of failure to comply with the 1965 Voting Rights Act, the December 10, 1985, annexation should not be used in calculating Clanton's population as of the election of November 4, 1986,is without merit.
Section 5 of the Voting Rights Act of 1965 requires that states covered by the Act obtain prior clearance before proposed changes can be put into effect. Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, *690 36 L. Ed. 2d 472 (1973). The required approval was received prior to the municipal option election; therefore, the annexation was legal at the time of the election. NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 105 S. Ct. 1128, 84 L. Ed. 2d 124 (1985).
We further find that the City of Clanton has complied with the statutory requirements of § 28-2A-1. The City has satisfactorily shown a population of 7,000 or more, and a petition signed by 25 percent of the number of voters voting in the last general election was properly filed with the city clerk 30 days or more before the election.
Appellee Pendley argues that, based on the authority of Alabama Citizens Action Program v. Kennamer, 479 So. 2d 1237 (Ala.1985), only a preceding decennial census may be used to determine population for purposes of § 28-2A-1. We disagree. Kennamer's statement that "[i]n the absence of a designation to the contrary the population of cities for the purposes of Act No. 84-408 is determined by the last preceding federal decennial census," 497 So. 2d at 1242, must be read in the context of the facts of that particular case. There, the question was which of two decennial censuses to use, not whether, if available, something other than a decennial census could be reasonably utilized to obtain a valid population count. We find that the interim census conducted by the United States Department of Commerce, Bureau of the Census, which determined Clanton's population to be 7,403 as of September 27, 1986, does serve just such a function.
Section 28-2A-1 makes no provision for how population is to be determined. It is the court's function to make clear the intent of the legislature when some degree of ambiguity is found in a statute. Sutherland Stat. Const., § 45.02 (4th ed. 1984). The primary rule of statutory construction is to ascertain and effectuate legislative intent. Alabama v. Tennessee Valley Authority, 467 F. Supp. 791 (N.D.Ala.1979). See also State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So. 2d 509 (1963). In attempting to ascertain the legislative intent, we can turn to § 28-2A-3 part of the statute itself. There, it is stated that the purpose of requiring that a municipality have a population of at least 7,000 in order to have a municipal motion election pursuant to § 28-2A-1, is that it is "the judgment of the legislature that municipalities with a lesser population would be unable to support and maintain such [necessary] protection [for public welfare, health, peace, and morals of the people]." This shows no basis for requiring ten-year gaps between the times that the population may be determined.
In further construing this statute, we note that statutes are to be prospective only, unless clearly indicated by the legislature. Retrospective legislation is not favored by the courts, and statutes will not be construed as retrospective unless the language used in the enactment of the statute is so clear that there is no other possible construction. Sutherland Stat. Const., § 41.04 (4th ed 1984).
Section 28-2A-1 does not say that only a decennial census can be used to determine population. We decline to reach such a conclusion in the absence of a clear legislative intent. Clanton has complied with the requirements of § 28-2A-1, and had a population in excess of 7,000 when it held its municipal option election. For the above reasons, we find that Clanton's municipal option election on November 4, 1986, was valid. The judgment of the circuit court is hereby reversed and the cause remanded for entry of an order consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
TORBERT, C.J., dissents.
TORBERT, Chief Justice (dissenting).
My only problem with the majority opinion is that I believe that it is bad public policy to allow someone to crank up the mechanism for holding a wet/dry election *691 pursuant to Code 1975, § 28-2A-1, without knowing, at the time the petition calling for an election is filed, whether the population requirements of § 28-2A-1 are met.
Section 28-2A-1 can only be utilized by voters in municipalities having a population of 7,000 or more. Upon the filing of an appropriate petition by the requisite number of voters in such a municipality, the governing body must call an election. At the time this petiton was filed, there was no census, decennial or special, establishing that the City had at least 7,000 inhabitants. Subsequently, a special census did establish that the City had more than 7,000 inhabitants at a time prior to the filing of the petition. However, this was an entirely fortuitous situation and had the special census found otherwise, the time and taxpayer money expended in organizing the election would have been wasted. Therefore, I would require that the petitioners be able to show at the time the petition is filed that the municipality meets the population requirements. | September 18, 1987 |
39ddcfa9-7fd9-4924-8cd9-f8baaf0d5c27 | Ex Parte Williams | 510 So. 2d 135 | N/A | Alabama | Alabama Supreme Court | 510 So. 2d 135 (1987)
Ex parte David Lee WILLIAMS.
(Re: David Lee Williams v. State of Alabama).
85-1278.
Supreme Court of Alabama.
February 6, 1987.
Arthur J. Madden III, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.
SHORES, Justice.
We granted certiorari in this case to review the Court of Criminal Appeals' affirmance of the Mobile County Circuit Court's judgment, wherein that court set aside its original sentence, which the defendant had begun serving, and imposed a more severe sentence after discovering that the Habitual Felony Offender Act applied. The Court of Criminal Appeals affirmed the trial court's judgment, 492 So. 2d 677. We reverse.
On January 28, 1982, the defendant, David Lee Williams, pleaded guilty to the crime of attempting to obtain a controlled substance by fraud, Code of Alabama (1975), § 20-2-70. On that date, upon the recommendation of the district attorney, the court imposed a two-year sentence in the state penitentiary. Williams immediately commenced service of the sentence.
On February 24, 1982, the State filed a motion to reconsider sentence "upon discovering [that] Appellant had six (6) prior felony convictions." On April 16, 1982, the trial court set aside Williams's conviction and sentence of January 28, 1982. The State at that time gave defendant notice that the Habitual Felony Offender Act would apply. On May 24, 1983, over Williams's objection, the court imposed a 15-year sentence upon Williams, pursuant to the enhancement provision of the Habitual Felony Offender Act.
On appeal, the Court of Criminal Appeals affirmed the resentencing. After an application for rehearing was overruled, *136 Williams filed a petition for a writ of certiorari, which we granted.
The dispositive issue raised for our review is whether the Court of Criminal Appeals erred when it affirmed the trial court's second (enhanced) sentence of Williams, where the application of the Habitual Felony Offender Act was not called to the Court's attention prior to Williams's original sentencing proceeding.
Rule 6, Ala.Temp.R.Crim.P., provides in pertinent part as follows:
In the present case, Williams, after entering a guilty plea, was sentenced to two years in the penitentiary, as recommended by the district attorney. As contended by Williams, the Habitual Felony Offender Act is not "self-executing." Rule 6 of the Temporary Rules of Criminal Procedure, supra, contemplates that the applicability of the Habitual Felony Offender Act will be called to the attention of the trial court prior to sentencing. See Aplin v. State, 421 So. 2d 1299, at 1302 (Ala.Cr. App.1981), where the Court of Criminal Appeals stated that the prosecution should have informed the trial court of the applicability of the Habitual Felony Offender Act and given notice to the defendant of the State's intention to request sentencing under the Act before the defendant was sentenced. This was not done in the present case.
We hold that in order to sentence a criminal defendant under the Habitual Felony Offender Act, the Act must be invoked prior to the defendant's original sentencing, as mandated by Rule 6 of the Temporary Rules of Criminal Procedure. Furthermore, a sentence may not be subsequently set aside because of a failure to apply the Habitual Felony Offender Act.
It follows that Coleman v. State, 424 So. 2d 685 (Ala.Cr.App.1982), Peoples v. State, 415 So. 2d 1230 (Ala.Cr.App.1982), and Miliner v. State, 414 So. 2d 133 (Ala.Cr. App.1981), cert. denied, 431 So. 2d 582 (Ala. 1983), must be, and they are hereby, overruled insofar as they are inconsistent with the holding of the present case. In each of those cases, as in the present case, the Habitual Felony Offender Act was not called to the trial court's attention prior to the imposition of the first sentence. Nevertheless, the Court of Criminal Appeals in Coleman and Peoples remanded *137 with directions to the trial court to conduct another sentencing hearing applying the Act. And in Miliner, where the conviction had been based on a guilty plea, the Court of Criminal Appeals reversed and remanded the case for a trial so that the defendant could be apprised of the minimum and maximum sentences under the Habitual Felony Offender Act, under which he should have been initially sentenced.
We note that in Coleman and Peoples, a petition for writ of certiorari was not filed with this Court, thereby precluding review of the issue now presented. Furthermore, Miliner did not afford us an opportunity to review the issue of resentencing under the Habitual Felony Offender Act, because the petition for writ of certiorari failed to allege any of the grounds for issuance of a writ of certiorari listed in Rule 39(c), A.R. App.P.
The judgment of conviction in the present case is affirmed; but the case is remanded to the Court of Criminal Appeals with instructions to remand to the trial court for an order vacating the second sentence and reinstating the initial sentence.
AFFIRMED IN PART; REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES, ALMON, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur. | February 6, 1987 |
daf916e5-31c6-41c3-a6d9-5db1a2ebf1f1 | Alabama Power Co. v. Dunaway | 502 So. 2d 726 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 726 (1987)
ALABAMA POWER COMPANY
v.
Kathy DUNAWAY, etc.
85-556.
Supreme Court of Alabama.
January 30, 1987.
*727 Sterling G. Culpepper, Jr., and Charles M. Crook of Balch & Bingham, Montgomery, for appellant.
Frank M. Wilson and James W. Traeger of Beasley and Wilson, Montgomery, for appellee.
HOUSTON, Justice.
This is a mother's action for the death of her four-year-old son, Daniel Dunaway. Daniel was at Real Island Marina on Lake Martin with his father, who was divorced from plaintiff, when Daniel drowned. Suit was filed against Daniel's father; his father's employer (the alleged sponsor of a company picnic at the time Daniel drowned); David E. Garner d/b/a Real Island Marina (the lessee and operator of Real Island Marina); and Alabama Power Company (the lessor of Real Island Marina). Summary judgment was granted for Daniel's father and his employer. Plaintiff entered into a pro tanto settlement with Garner.[1] At trial Alabama Power Company ("APCO") was the only defendant. The two theories of negligence submitted to the jury were (1) a breach of a duty to maintain the premises at Real island Marina in a safe condition, by allowing Garner to locate a picnic pavilion near a seawall on which there were no guardrails to prevent persons from inadvertently falling into the water, and (2) a breach of a duty to require Garner to employ lifeguards. From a verdict for the plaintiff, APCO appeals.
Lake Martin was created by the construction of Martin Dam across the Tallapoosa River by APCO pursuant to a license which it acquired in 1923. APCO held a 50-year license to operate a hydroelectric facility at Lake Martin; that license expired in 1973 and was renewed in 1978 by the Federal Energy Regulatory Commission. There are 21 public recreation facilities on Lake Martin, 5 of which are on land owned by APCO. One of the commercial recreation facilities located on APCO land is Real Island Marina.
Real Island Marina was leased by APCO to Earl Crutchfield who, on October 15, 1976, assigned his lease to one of the defendants, David Garner. The premises were leased for use as a commercial campsite and for other recreational purposes. APCO had no obligation to repair under this lease. Garner's rent was based upon a flat rate calculated solely on the number of structures located on the premises. Dan Capps, supervisor of recreational development for APCO, was Garner's liaison with APCO. Capps made an annual rental inspection and was responsible for determining whether Garner was operating Real Island Marina as a "commercial campsite." The results of the inspection were required *728 to be reported to the Federal Energy Regulatory Commission ("FERC"). In November 1978, APCO approved the location and construction of a picnic pavilion located approximately 30 feet from the water. APCO also approved the building of several seawalls along the edge of the lake at Real Island Marina.
Prior to Daniel's death, there were no designated swimming areas at Real Island Marina. Adults and children usually swam anywhere that the water was shallow. Garner had no lifeguards at the Marina, and he had posted a sign reading "Danger, swim at your own risk." Prior to Daniel's death, no one had ever drowned at Real Island Marina.
David Dunaway, Daniel's father, took his two sons and his mother camping at Real Island Marina on May 22, 1982. They spent that night in a camper about 20 feet from the water's edge. The next morning, David took his two sons swimming. Daniel could not swim. Later in the day, Daniel, who had changed from his bathing suit to his regular clothing, was with his father under the picnic pavilion for a company picnic. There was a crowd of people in the pavilion, some between the pavilion and the water's edge, and approximately 75 people in the water. Daniel disappeared. A few minutes later David Dunaway began searching for his son, and Daniel's body was found floating in the lake. He had drowned. No one observed Daniel enter the lake, and there was no direct evidence as to how, when, where, or why Daniel had entered the lake.
APCO was a landlord who leased all of the area comprising Real Island Marina to Garner prior to this tragic accident. Daniel and his father were Garner's invitees at Real Island Marina at the time of the accident.
Alabama's longstanding rule on landlord liability is concisely stated in Sanders v. Vincent, 367 So. 2d 943 (Ala.1978), where an action was brought by a car wash employee for injuries sustained on premises which the landlord had rented to the plaintiff's employer. We wrote:
This Alabama law on landlord liability was reaffirmed by this Court in Collier v. Duprel, 480 So. 2d 1196 (Ala.1985), where the plaintiff broke his leg by tripping over an orange electrical cord supplying electricity to display signs at a lounge, operated by a lessee. We affirmed summary judgment in favor of the landlord, observing that the contention that the landlord knew of the existence of the electrical cord was irrelevant, because the alleged "defect" was not a "latent" one, which was defined as "a hidden or concealed defect, one which could not be discovered by reasonable and customary inspection."
Under these principles there is simply no factual basis for liability of APCO as landlord under either of the plaintiff's theories of negligence. The picnic pavilion and seawall were built by the lessee (Garner) and if there were a "defect" arising from the pavilion's proximity to the water, it was obvious to any observer. This was no "latent" defect. The testimony showed that the plaintiff, as well as Daniel's father, had been to Real Island Marina with Daniel and both knew of the location of the pavilion with respect to the water and of the absence of guardrails on the seawall. There were no lifeguards at the marina, and Garner had erected a sign reading "Danger, swim at your own risk." The lack of lifeguards is a condition which could have been discovered by Garner's invitees by their reasonable and customary inspection. Therefore, this was not a "latent defect." Collier v. Duprel, supra.
The mere fact that APCO as landlord knew of the location of the pavilion in *729 relation to the seawall and knew of the absence of guardrails on the seawall is irrelevant, because this "defect" was not a latent one. Collier v. Duprel, supra. The same rule would apply as to the absence of lifeguards.
Plaintiff contends that APCO's liability was more extensive than that of a normal landlord because of (1) its reservation of control in the lease to Crutchfield, which was assigned to Garner; and (2) its obligations under its Federal Energy Regulatory Commission license. We disagree.
Real Island Marina was leased to Garner. The term was ten years. APCO reserved the right to cut and remove timber from any part of the land, but not only disclaimed liability for any claim for damages to property or injury to persons resulting from the falling of any limb or tree but received a promise of indemnification from Garner for any such claim. APCO reserved the right to utilize any part for the leased premises for electric transmission lines and other facilities necessary or useful in its public utility business but not if they unreasonably interfered with Garner's use of the leased premises as a commercial campsite. APCO could prescribe additional rules and regulations for Garner to comply with if APCO deemed the "laws applicable to the use of the leased premises" inadequate.
There was no evidence that APCO had done so prior to Daniel's drowning, for the protection of the public peace, health, and safety. As a matter of law, none of these reservations imposed upon APCO as landlord any duty greater than the duty which the law of this state imposes upon landlords generally. Sanders v. Vincent, supra; Collier v. Duprel, supra.
In determining whether APCO's duty was more extensive than that of a normal landlord by virtue of certain regulations relating to APCO's FERC license, it is necessary to review the June 2, 1981, FERC "Order Approving Revised Exhibit R" and particularly Article 59 thereof. The relevant portions of that article provide as follows:
If this Article 58 applies to Real Island Marina facilities at all (which it is not necessary for us to decide in this case), there is no evidence that Daniel's death was the result of any violation by APCO of the terms of this Article. In order to impose upon a defendant in a tort case the requirements of a statute, we held in Fox v. Bartholf, 374 So. 2d 294 (Ala.1979), that the statute must meet the following four criteria. By analogy, the same should apply to an administrative regulation, Restatement (Second) of Torts, § 286 (1965), and we hereby hold that they do. The four criteria which the statute or regulation must meet in order for its violation to impose liability upon a defendant are:
(1) The trial judge must determine as a matter of law that the statute was enacted, or the regulation promulgated, to protect a class of persons which includes the litigant seeking to assert the statute. (The Court will not apply the statutory or regulatory standard in a tort case if its purpose was to secure to individuals the enjoyment of rights and privileges to which they are entitled only as members of the public. Restatement (Second) of Torts, § 288.)
(2) The trial judge must find the injury was of the type contemplated by the statute or regulation.
(3) The party charged with negligent conduct must have violated the statute or regulation.
(4) The jury must find that the statutory or regulatory violation proximately caused the injury.
With regard to factors one and two above, the language of Article 58 makes it clear that it was adopted for the purpose of promoting the interests of the public generally in scenic, recreational, and other environmental values. There is nothing to indicate an intent to require APCO to be responsible for eliminating inherent hazards to particular classes of individuals who might use the project lands for specialized purposes such as swimming, water skiing, bird watching, or boating. It is also clear that factors three and four are not present in this case. There are two operative portions of Article 58 upon which the plaintiff must rely to render Article 58 relevant. One such provison in subparagraph (b) provides as follows:
There is no evidence in the record that the accident was a result of any facility's not being "in good repair." Further, there is no evidence that the picnic pavilion, or any other facility at the Real Island Marina, did not meet with the full satisfaction of FERC or any of its representatives, or did not comply with all applicable state and local health and safety requirements. All evidence showed that there had never been any complaint, citation, or adverse matter of any kind concerning any condition prevailing at the Real Island Marina. There are no applicable state or local regulations or requirements with regard to the distance of the pavilion from the water, the lack of a guardrail on the seawall, or the lack of lifeguards. The plaintiff, it appears, introduced no evidence of any, and we have not been directed by the parties to any. The trial judge properly charged the jury that there are no such regulations in existence.
Since the plaintiff can show no violation of subparagraph (b), then to render Article 58 relevant, the plaintiff must rely upon the following sentences appearing in subparagraph (a):
The first-quoted sentence describes the types of uses which APCO may authorize without prior Commission approval, i.e., those consistent with scenic, recreational, and other environmental values. There is no evidence that Real Island Marina did not enhance scenery, recreation, and the environment. The Real Island Marina facilities were approved by FERC in its "Order Approving Revised Exhibit R" of June 2, 1981. The second-quoted sentence imposes upon APCO the responsibility to supervise the use of the premises to insure compliance with the covenants of its lease with Garner. A review of the terms of that lease, as previously discussed, discloses no covenant or other provision which was violated by Garner, either in regard to the picnic pavilion location, the seawall arrangement, or the lack of lifeguards or of a supervised, designated swimming area.
There is simply no basis for liability of APCO as landlord under either of plaintiff's two theories of negligence, and it was reversible error for the trial court to overrule APCO's motion for directed verdict and to deny APCO's motion for JNOV.
There is no need to discuss whether the trial court erred to reversal in its instructions to the jury, other than to reiterate that (1) the determination as to the existence vel non of a duty resting upon a defendant is always an issue of law for the trial court and never one for the jury. Sungas, Inc. v. Berry, 450 So. 2d 1085 (Ala. 1984); and (2) it is error for the trial court to leave the jury in a state of confusion as a result of conflicting or contradictory charges. Cunningham v. Lowery, 45 Ala. App. 700, 236 So. 2d 709, cert. denied, 286 Ala. 784, 236 So. 2d 718 (1970). Russell v. Thomas, 278 Ala. 400, 178 So. 2d 556 (1965).
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.
[1] David Garner died on January 28, 1985, and on April 12, 1985, Doris Garner, as executrix of his last will and testament, was substituted as a party defendant. | January 30, 1987 |
b0a09e40-b2de-4ff5-9da3-4585f9a9e5f3 | Chinevere v. Cullman County | 503 So. 2d 841 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 841 (1987)
Nancy CHINEVERE
v.
CULLMAN COUNTY, et al.
85-929.
Supreme Court of Alabama.
February 20, 1987.
John David Knight, Cullman, and William W. Smith of Hogan, Smith, Alspaugh, Samples, & Pratt, Birmingham, for appellant.
Don Hardeman of Hardeman & Copeland, and Juliet G. St. John of St. John & St. John, Cullman, for appellees.
HOUSTON, Justice.
Nancy Chinevere filed an action against Cullman County, the Cullman County Commission, and the individual commissioners in their capacity as county commissioners, to recover for injuries which she received when an automobile in which she was a passenger slid off a county highway and overturned. At the close of plaintiff's case the trial court, noting that "it is closereal close," directed a verdict for the defendants since there was not a "scintilla of evidence that the plaintiff's injuries were the proximate consequence of any negligence of these defendants." Ms. Chinevere appeals, and we reverse and remand.
*842 Our standard for reviewing the trial court's granting of a directed verdict is the same standard used by the trial court in ruling on a motion for a directed verdict. Great Southwest Fire Insurance Co. v. Stone, 402 So. 2d 899 (Ala.1981).
The standard by which the trial court must determine the propriety of granting a motion for a directed verdict is the "scintilla evidence rule." Rule 50(e), Ala.R.Civ.P. Admitting the truthfulness of all evidence favorable to Ms. Chinevere, are there facts from which the jury could reasonably infer that the defendants' negligence proximately contributed to Ms. Chinevere's injuries? The inferences do not have to be the most likely inferences which could be drawn from the facts; all inferences must be conceded which are not logically unreasonable. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985).
In Jefferson Co. v. Sulzby, 468 So. 2d 112, 114 (Ala.1985), Justice Faulkner, writing for a division of this Court, wrote:
A county has a duty to warn of the dangerous condition of a roadway. Hale v. City of Tuscaloosa, 449 So. 2d 1243, 1246 (Ala.1984).
Ms. Chinevere was injured in a one-car accident at approximately 8:00 P.M. on December 20,1983. She was a guest in the car. Her brother was the driver; he was killed in the accident. Her brother was an employee of Show Biz Pizza and was returning to Cullman from a private home, where he had catered a party. He had not been drinking. He was driving between 30 and 35 mph. He had complained of no mechanical problems with the car. It was raining or sleeting. As the car entered a 90-degree curve to the right, the car slid sideways to the left. Ms. Chinevere did not see any warning signs before the car entered the curve. There was an eight- to ten-foot drop in elevation from the roadway to the land adjacent to the roadway. The car slid sideways off the embankment, traveled approximately 80 feet, some of the time in the air, and landed on its top.
There had been many prior accidents at the curve in County Highway No. 22, at which this accident occurred. The county had been notified of the prior accidents. The county had taken no action in regard to the highway. There was evidence that there was one sign, 450 to 500 feet from the curve (facing traffic traveling in the direction that the Chineveres were traveling), which showed only an arrow drawn at a 90-degree angle. There was no other sign which posted a lower maximum speed or a warning. The sign used is the sign to be used to "mark curves where an engineering investigation of roadway geometrics and operating conditions show the recommended speed on a turn to be 30 mph or less," Alabama Manual of Uniform Traffic Control Devices, p. C-10, which was Ms. Chinevere's Exhibit 12A.
There was evidence that there had been 25 accidents in this curve in the two-year period preceding Ms. Chinevere's accident. Three accidents occurred in one night.
It would not be logically unreasonable for the jury to infer from the facts before the trial court at the time it directed a verdict for the defendants that the county's failure to keep County Highway No. 22 in a reasonably safe condition for travel or to adequately warn of the sharp curve and to post a maximum safe speed of less than 30 mph for that curve could have proximately contributed to the accident in which the car in which Ms. Chinevere was riding slid off the roadway and therefore proximately contributed to Ms. Chinevere's injuries, which were undisputably caused by the accident. Under our present sufficiency-of-the evidence standardthe "scintilla," or "any evidence," rulethat most favors a factual determination by a jury, this case should have been submitted to a jury for its resolution of the factual disputes. It was reversible error for the trial court to direct a verdict for the defendants.
*843 It is not necessary to address Ms. Chinevere's other issue of "Whether the Court properly refused the Plaintiff's accident reconstruction expert to be qualified and render expert opinion testimony at the trial of this matter."
However, we note that when a witness is duly qualified as an expert, and it appears from the transcript of the evidence that John E. Sims was, then he may base his opinion upon either facts of which he has firsthand knowledge or facts, in evidence, which are assumed in a hypothetical question asked of him. His opinion must be based upon facts and not upon opinions or conclusions of others. Armstead v. Smith, 434 So. 2d 740 (Ala.1983).
To keep from invading the province of the jury, an expert should not be permitted to give an opinion on something that is common knowledge or something that jurors can figure out for themselves. Wal-Mart Stores, Inc. v. White, 476 So. 2d 614 (Ala.1985). The subject matter must be beyond the range of recognition, comprehension, perception, understanding, or knowledge, i.e., beyond the ken, of the average jury. Thompson v. Jarrell, 460 So. 2d 148 (Ala.1984).
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
0a7587df-6bc2-4d7b-aec8-08c317429520 | Batchelor v. Batchelor | 502 So. 2d 751 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 751 (1987)
Patricia F. BATCHELOR
v.
Larry Bruce BATCHELOR.
85-672.
Supreme Court of Alabama.
February 6, 1987.
*752 John A. Courtney, Mobile, for appellant.
Victor T. Hudson and William W. Watts III of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
SHORES, Justice.
This is an appeal by the plaintiff, Patricia F. Batchelor, from an order of the Mobile County Circuit Court granting summary judgment in favor of the defendant, Larry Bruce Batchelor.
Patricia and Larry Batchelor were divorced in 1979. In their divorce decree, Patricia Batchelor was awarded the home of the parties, and Larry Batchelor was ordered to make all the payments on the mortgage thereon.
In 1980, Patricia told Larry that she desired a smaller house; the two thereupon exchanged homes. Patricia received a small house on Lot 55, Camellia Place, that had been purchased earlier that year by Larry, in exchange for the couple's original home.
The deed to the house on Lot 55 evidencing the above exchange provided on its face:
The deed further provided that Larry would remain responsible for payment of the Mobile Federal Savings and Loan mortgage and would hold Patricia harmless and indemnify her for any cost or expense incurred by virtue of any default on the mortgage or the note which it secured.
The deed and mortgage were executed on August 5, 1980, and recorded with the judge of probate on August 12, 1980.
*753 On April 5, 1985, Patricia Batchelor brought this action against her former husband, alleging that at the time of the exchange of houses, nearly five years before, the defendant fraudulently misrepresented the value of the Lot 55 house and fraudulently misrepresented that the Lot 55 house was free and clear of all encumbrances.
The trial court granted the defendant's motion for summary judgment, finding no genuine issue of material fact. This appeal followed.
It is well established that the buyer of real estate is charged with notice of what appears on the face of the conveyance. Pruitt v. Meadows, 393 So. 2d 986 (Ala.1981); Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330 (1929).
The plaintiff contends that she did not receive a copy of the deed because it was sent to the wrong address; therefore, she says, she was not aware of the misrepresentation at the time of the deed's execution and recordation.
In Stokes v. Bryan, 42 Ala.App. 120, 154 So. 2d 754 (1963), the plaintiffs purchased real estate from the defendant upon a representation by the defendant that he owned the property outright, when in fact he owned only an undivided interest. The court held that the plaintiffs were on constructive notice of the true nature of title to the property by virtue of the recordation of the deeds. Hence, the plaintiffs could not rely on the representations about ownership of the property to support their action for fraud.
In line with these decisions, 54 C.J.S. Limitation of Actions § 189, at 194 (1948), notes:
Assuming, without deciding, that the defendant fraudulently misrepresented that the Lot 55 house was free and clear of encumbrances, the plaintiff had constructive knowledge of facts constituting the alleged fraud when the mortgage and deed were recorded on August 12, 1980. Thus, her action for fraud, filed nearly five years later, is barred by the applicable one-year statute of limitations. Code 1975, § 6-2-3 and § 6-2-39 (repealed effective 1985).
The plaintiff also contends that the defendant fraudulently misrepresented the value of the Lot 55 house. We have held in a long line of decisions:
Tillis v. Smith Sons Lumber Co., 188 Ala. 122, 133-34, 65 So. 1015, 1018 (1914).
Accordingly, we find that the plaintiff has no cause of action in fraud for defendant's alleged misrepresentation as to the current market value of the Lot 55 home. Moreover, even if plaintiff had an action in fraud for market value misrepresentations, that action would be barred by the statute of limitations.
The one-year statute of limitations began to run from the date the fraud was discovered or the date it should have been discovered. Code 1975, § 6-2-3.
Taylor v. South & N.A.R.R., 13 F. 152 (M.D.Ala.1882).
The plaintiff, as owner of the property for nearly five years prior to commencing this action, most certainly should have been aware of the value of the property before July 1984, the date she contends she became aware.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | February 6, 1987 |
35313178-c171-443d-95f1-3e8e26e70feb | Stafford v. Nipp | 502 So. 2d 702 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 702 (1987)
Ellen J. STAFFORD and Hunter P. Stafford
v.
William E. NIPP and George Neville.
85-522.
Supreme Court of Alabama.
January 16, 1987.
*703 Hilliard R. Reddick, Jr., of Hardin and Hollis, Birmingham, for appellants.
William Anthony Davis III and J. Bentley Owens III of Starnes & Atchison, Birmingham, for appellees.
PER CURIAM.
This appeal involves a medical malpractice claim against Dr. George Neville, a physician in Butler, Alabama, and a breach of warranty claim against William E. Nipp, a pharmacist, d/b/a Prescription Center. Plaintiffs, Ellen J. Stafford and her husband Hunter P. Stafford, appeal from summary judgments favorable to defendants Neville and Nipp.
On December 30, 1980, Ellen Stafford suffered a cerebrovascular accident (a stroke). On December 28, 1982, plaintiffs sued William Nipp, Dr. George Neville, and other parties not involved in this appeal, contending that Mrs. Stafford's stroke was precipitated by the prolonged use of the drug Ovulen-21, which is birth control medication. Plaintiffs state that the drug was prescribed for her by Dr. Neville on October 23, 1971. The prescription was filled, and subsequently refilled on a monthly basis by William Nipp from October 23, 1971, until the day before Ellen Stafford's stroke on December 30, 1980, approximately nine years.
Dr. Neville testified that in 1971 he did prescribe the Ovulen-21 for Mrs. Stafford, but that the prescription would not have been for more than a six-month supply. The testimony elicited from both Dr. Neville and Mrs. Stafford shows that Mrs. *704 Stafford did not seek further consultation with regard to birth control measures from Dr. Neville, although she did consult him for other medical problems, such as colds and upper respiratory complications.
Mr. Nipp testified that he would not have refilled a prescription without authorization from a physician. He no longer has the original prescription on file, because he keeps records for no longer than two or three years. He claims that he does not remember Mrs. Stafford's coming to his pharmacy on a monthly basis from 1971 through 1980.
An interlocutory summary judgment was granted on behalf of Nipp as to claims based on negligence and the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The trial court held that the negligence and AEMLD claims were barred by a one-year statute of limitations.
In its final judgment, the trial court held, with regard to Dr. Neville:
With respect to Nipp, the trial court, relying on Stone v. Smith-Kline & French Laboratories, 447 So. 2d 1301 (Ala.1984), found that a prescribing physician is the "learned intermediary" between the manufacturer and consumer, and since the manufacturer gave adequate and sufficient warning of the potential dangers involving the prescription and use of Ovulen-21 under the company's established procedure, whereby warnings were given to doctors in written and oral presentations and through reference books such as the Physicians Desk Reference, the manufacturer could not be liable for breach of implied warranty. The trial court reasoned that Nipp is entitled to the same protection afforded the drug manufacturer, since adequate and sufficient warning of the potential dangers involved in the use of Ovulen-21 was given to the prescribing physician. We will deal with the judgments rendered in favor of Neville and Nipp separately.
The quoted portion of the trial court's order granting Neville summary judgment, on its face, contains a finding of fact. Whether the prescription written by Neville on October 23, 1971, was limited to six months, as contended by Dr. Neville, is a material fact and is made a genuine issue for the factfinder's resolution by the testimony of Mrs. Stafford and Nipp.
Mrs. Stafford testified that she continued to take the pill over a nine-year period in accordance with Neville's directions. Nipp testified that he would not have dispensed the pills without a physician's prescription. Thus, if the factfinder believed Mrs. Stafford's testimony, that she continued to have the 1971 prescription refilled by Nipp on a regular basis throughout the nine-year period and, further, if the jury believed Nipp's testimony that he would not have so refilled the prescription without being directed to by Neville, then it could resolve the fact issue of causation favorably to Mrs. Stafford.
We note that the central thrust of Dr. Neville's brief is to the effect that the trial court based its summary judgment order on the absence of the element of proximate cause. To the contrary, the trial court's conclusion that "the stroke ... was not proximately caused by the prescription limited to six months," in our opinion, does not constitute either a factual finding or a legal conclusion that Mrs. Stafford's stroke was not caused or precipitated by her long and regular use of Ovulen-21. Rather, the thrust of the trial court's summary judgment is that her stroke was not caused by Dr. Neville's prescription limited to six months. It is the language "caused by the prescription limited to six months," which contains a finding of fact that Dr. Neville did not prescribe the Ovulen-21 for longer than a period of six months, that we find offensive to the summary judgment standard. *705 Thus, the judgment as to Neville is reversed and the cause remanded.
Although Nipp denies that he would have dispensed the medication without a prescription, there is testimony of the doctor that he did not prescribe the Ovulen-21 for any longer than a period of six months. Thus, there is a fact question.
In addition, a fact issue was raised by the affidavit of the plaintiffs' expert witness as to whether the druggist failed to warn or instruct Mrs. Stafford concerning the taking of prescription drugs over a long period of time without prescriptive authority from the physician and without the safeguard of periodic physical examinations by a physician for determination of what medication would be appropriate for birth control purposes under the circumstances.
The manufacturer's warnings accompanying the drug at the time of its purchase and sale by the pharmacy do not, as a matter of law, shield the pharmacist from liability based on breach of warranty where the pharmacist continues to fill the prescription without authorization from a doctor.
We recognize that Nipp denies that he filled the prescription, but this is a fact question, in view of Dr. Neville's testimony that he did not continue to prescribe the pills beyond the initial six-month period, and in view of Mrs. Stafford's testimony that she continued to purchase pills from Nipp, based on the initial prescription by Dr. Neville, and to take the pills in accordance with Dr. Neville's directions over a period of nine years preceding the stroke.
With respect to Nipp, we note that in the "Issues Presented" portion of their brief plaintiffs do not include a challenge to that portion of the trial court's summary judgment dismissing their negligence and AEMLD claims on the statute of limitations ground. Therefore, only that portion of the trial court's judgment dismissing Plaintiffs' claim against Nipp for breach of warranty is reversed.
REVERSED AND REMANDED.
All the Justices concur. | January 16, 1987 |
72afec13-d66d-4732-878b-b1770a407bd4 | Hickman v. Winston County Hosp. Bd. | 508 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 508 So. 2d 237 (1987)
Linda HICKMAN
v.
WINSTON COUNTY HOSPITAL BOARD, a Corporation, et al.
85-893.
Supreme Court of Alabama.
May 22, 1987.
Jackie O. Isom, Hamilton, for appellant.
Walter Joe James, Jr., of James & Lowe, Haleyville, for appellees.
*238 TORBERT, Chief Justice.
This appeal involves the tort of intentional interference with business or contractual relations. Linda Hickman, the plaintiff below, appeals from the trial court's granting of a directed verdict in favor of the defendants at the close of the plaintiff's evidence. The only issue involved in this appeal is whether the plaintiff made out a prima facie case of intentional interference with business or contractual relations.
As this Court stated in Rose v. Miller & Co., 432 So. 2d 1237, 1239 (Ala.1983):
Our recent decision in Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986), outlined the tort of intentional interference with business or contractual relations. The elements required to make a prima facie case of this tort were clearly enumerated in Lowder Realty, Inc. v. Odom, 495 So. 2d 23, 25 (Ala.1986):
In Alcazar Amusement Co. v. Mudd & Colley Amusement Co., 204 Ala. 509, 513, 86 So. 209, 212 (1920), this Court said, "A third party who, with knowledge of the existence of a valid contract between others, interferes with its performance ... commits a tort...." (Emphasis added.) We have not addressed directly whether an employer can be liable for tortious interference with the contract he has with his employee. The Supreme Court of South Carolina, in Ross v. Life Ins. Co. of Virginia, 273 S.C. 764, 765, 259 S.E.2d 814, 815 (1979) (discussing an employer-employee relationship), clearly stated:
Other authorities agree that an employer cannot be liable for tortious interference with its own contract with its employee. Rao v. Rao, 718 F.2d 219 (7th Cir. 1983); Martin v. Platt, 179 Ind.App. 688, 386 N.E.2d 1026 (1979); Appley v. Locke, 396 Mass. 540, 487 N.E.2d 501 (1986); Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 429 N.E.2d 21 (1981); Hein v. Chrysler Corp., 45 Wash. 2d 586, 277 P.2d 708 (1954). "The defendant's breach of his own contract with the plaintiff is of course not a basis for the tort." Prosser and Keeton, The Law of Torts, § 129, at 990 (5th ed. 1984). Breach of contract does not give rise to an action for the tort of intentional interference with business or contractual relations. See Hudson v. Venture Industries, Inc., 147 Ga.App. 31, 33, 248 S.E.2d 9, 11 (1978), affirmed, 243 Ga. 116, 252 S.E.2d 606 (1979). Indeed, the very nature of this tort precludes its application to a party to the contract. Therefore, the trial court did not err when it directed a verdict in favor of Hickman's employer, defendant Winston County Hospital Board.
*239 Nonetheless, corporate officers or employees may individually commit the tort of intentional interference with business or contractual relations to which their corporation or employer is a party. See Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965) (corporate officers in their personal capacities held liable for procuring the termination of plaintiff's employment with their corporation). However, courts have held that this tort cannot be maintained against officers or employees of a corporation unless those persons were acting outside their scope of employment and were acting with actual malice. Swager v. Couri, 77 Ill. 2d 173, 32 Ill.Dec. 540, 395 N.E.2d 921 (1979); Martin v. Platt, supra; Gram v. Liberty Mut. Ins. Co., supra; Nola v. Merollis Chevrolet Kansas City, Inc., 537 S.W.2d 627 (Mo.Ct. App.1976). As the Supreme Court of Illinois put it, "[T]o be tortious, a corporate officer's inducement of his corporation's breach of contract must be done `without justification or maliciously.'" Swager, 77 Ill. 2d at 190, 32 Ill.Dec. at 546, 395 N.E.2d at 927.
The Supreme Judicial Court of Massachusetts has explained "malice" in the context of this tort:
The Supreme Court of Oregon in Wampler v. Palmerton, 250 Or. 65, 76-77, 439 P.2d 601, 607 (1968), stated:
Therefore, the trial court was correct when it held that defendants James Kenneth Reed, associate administrator of Burdick-West Hospital, and Truby Jack, Hickman's supervisor, were not liable as agents of the Hospital Board.
Defendants Reed and Jack could still be held individually liable for intentional interference with Hickman's business or contractual relations with the hospital if Hickman proved a prima facie case. There still remains the question of whether the burden is on the plaintiff in order to make out a prima facie case to show that the employee defendants were not operating within the scope of their authority or whether the defendants must assert as a defense that they were acting within the scope of their authority. The Supreme Court of Oregon has stated:
Wampler, 250 Or. at 77, 439 P.2d at 607. Although the Supreme Court of Oregon has never explicitly addressed the question of where this burden should lie, the above quotation indicates that the plaintiff's tort *240 action depends upon a showing by the plaintiff that the defendant officer or employee was acting outside the scope of his authority.
Other courts have placed the burden upon the plaintiff to show that the defendant was acting outside the scope of his authority.
George A. Fuller Co. v. Chicago Col. of Ost. Med., 719 F.2d 1326, 1333 (7th Cir. 1983) (emphasis in original).
In Worrick v. Flora, 133 Ill.App.2d 755, 272 N.E.2d 708 (1971), the Appellate Court of Illinois, Third District, put the burden on the plaintiff to show that the defendant officer was "acting other than in accord with his usual and customary duties in behalf of the corporation." 133 Ill.App.2d at 758, 272 N.E.2d at 711. "It is our conclusion that so long as a fellow employee is acting in accord with the interest of the employer no personal liability can devolve upon him." 133 Ill.App.2d at 759, 272 N.E.2d at 711.
We must look at the evidence in the light most favorable to the plaintiff in order to see if she produced at least a scintilla of evidence of each of the elements of this tort as to defendants Reed and Jack.
Plaintiff produced evidence that she was employed by the Winston County Hospital Board at Burdick-West Hospital as a supply clerk and floor supervisor. Testimony indicated that defendant Reed promoted defendant Jack, a trainee of Hickman's, to supervisor of the supply department despite Hickman's far greater seniority. Hickman testified that Reed said that Hickman did not get the job because she turned it down when it was offered to her; she denies having ever been offered the job and testified that Reed admitted to the hospital administrator that she had never been offered the job. There was evidence that Jack changed the inventory system and did not tell Hickman of the changes and that Jack told another employee not to tell Hickman about those changes.
There was testimony that Hickman's file contained unfavorable write-ups about certain incidents while another employee similarly involved in those incidents did not have unfavorable write-ups in her file. One witness said that when she was hired by the hospital, Reed and Jack told her not to listen to Hickman, even though Hickman was in charge of her training. This same witness stated that she received a raise due to the confusion between Jack and Hickman and that Reed told her not to say anything about the raise. Hickman stated that she told Jack that the only holidays she wanted not to work on were Christmas and New Year's Day and that Reed and Jack then drew up a three-year schedule requiring Hickman to work Christmas and New Year's Day one year and New Year's Day the next.
Hickman testified that the difficulties between her and Reed and Jack caused her to become nervous and gave her high blood pressure and a rapid heartbeat. She stated that she had to be hospitalized for her nervous condition, that she had to quit her job at the hospital, and that she has not been able to find another job since that time. She also stated that she had lost some insurance coverage.
A document from the State of Alabama Department of Industrial Relations Unemployment Compensation Agency shows that an appeals referee found that Hickman was entitled to unemployment benefits even though she voluntarily left her job because she had been subjected to "unequal treatment from her supervisors to the extent that it was causing the claimant health problems."
After examining all of the evidence that the plaintiff presented, we are of the opinion that there was no evidence that Reed and Jack were acting outside the scope of their authority. Therefore, we affirm the *241 trial court's granting of a directed verdict in favor of all the defendants.
AFFIRMED.
MADDOX, HOUSTON and STEAGALL, JJ., concur.
SHORES and ADAMS, JJ., concur specially.
JONES, ALMON and BEATTY, JJ., dissent.
ADAMS, Justice (concurring specially).
I agree with the result reached by the Court in acknowledging the existence of the tort of interference with contractual relations where a third person interferes with a contract between employer and employee. However, this opinion should not be interpreted as expanding or limiting our previous decisions in Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986), and Lowder Realty, Inc. v. Odum, 495 So. 2d 23 (Ala.1986), which enumerated the elements required to establish a prima facie case of interference with contractual or business relations. In interpreting the impact of the newly defined tort in the employee-employer context, we do require that the plaintiff show malice, whereas in the ordinary case only intentional conduct is required. Furthermore, in order to show malice the plaintiff must make a strong showing of a pattern of interference. This is more than an isolated incident of the officer or employee's acting outside his scope of employment. To establish a prima facie case of this kind, the plaintiff must meet the four requirements enumerated in the Lowder Realty, cases, supra, and must show that the defendants acted outside their scope of employment and did so maliciously.
Finally, if the plaintiff prevails, the judgment is against the officers and employees individually, inasmuch as they must have acted outside the scope of their employment. The facts herein simply do not establish the tort of interference with contractual relations. Therefore, the trial judge properly directed a verdict for the defendants.
SHORES, J., concurs.
BEATTY, Justice (dissenting).
I must dissent from the result reached by the majority in this case. While I agree with the statement of the law applicable in this case, I must, however, disagree with the majority's application of that law to these facts.
The plaintiff appeals from a verdict directed for the defendants granted at the close of plaintiff's evidence. Thus, on review, we must decide the elements of plaintiff's prima facie case for the intentional interference with contractual or business relations, and then, viewing the evidence, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff, we must determine whether she has adduced at least a scintilla of evidence as to each of those elements. Thomaston v. Thomaston, 468 So. 2d 116 (Ala.1985).
The majority concludes that the plaintiff failed to adduce any evidence whatsoever establishing that the defendants were acting outside the scope of their authority in treating the plaintiff in the manner in which she claims (and they apparently concede) they did. The majority apparently overlooks the fact that, in their brief on appeal to this Court, the defendants adopt the statement of the facts of this case as set out in the plaintiff's brief. Without question, those facts and all the reasonable inferences therefrom, to which defendants, in effect, stipulate, provide more than a scintilla of evidence that the defendants' actions in this case were outside the scope of their authority. To illustrate, I quote at length from the plaintiff's statement of facts:
Even the majority would have to agree that, based on these facts, it would be more than reasonable to infer that, in sabotaging the plaintiff's work, and then subsequently lying and harassing plaintiff about her work performance, the defendants were acting outside their respective scopes of authority as an administrator and a supervisor. Moreover, surely if a criminal defendant can be held on appeal to have stipulated to the propriety of a facially improper and irregular grand jury proceeding (see Ex parte Hayes, 507 So. 2d 995 (Ala.1987), then a civil defendant can also stipulate to facts which constitute plaintiff's prima facie case.
For these reasons, I would reverse the judgment below based on the verdict directed in favor of the defendants and remand the case for further proceedings.
JONES and ALMON, JJ., concur. | May 22, 1987 |
1617b9ab-5c68-4339-81ab-afec217ae9fc | Ex Parte Penn | 539 So. 2d 319 | N/A | Alabama | Alabama Supreme Court | 539 So. 2d 319 (1987)
Ex parte Edward Eugene PENN.
(Re Edward Eugene Penn v. State of Alabama).
85-1095.
Supreme Court of Alabama.
February 20, 1987.
James M. Kendrick, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and James F. Hampton of McLain & Hampton, Spec. Asst. Atty. Gen., for respondent.
ADAMS, Justice.
We granted certiorari in this case to determine if the trial court erred in putting the defendant, Edward Penn, to trial where *320 the district attorney used his peremptory strikes to remove only blacks from the petit jury venire. The Court of Criminal Appeals affirmed the conviction, 539 So. 2d 316, relying on the test enunciated in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Thereafter, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court announced a new test to be used in determining whether a prima facie case of racial discrimination was established. In Ex parte Jackson, 516 So. 2d 768 (Ala.1986), this Court held as a matter of Alabama constitutional law that this "Batson test" would be applied retroactively to cases pending on direct appeal, like the case sub judice. Therefore, on the authority of Ex parte Jackson, this case is remanded to the Court of Criminal Appeals with instructions to direct the trial court to determine whether Penn is entitled to a new trial.
REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
Because the petitioner raised the question of the prosecutor's exercise of his peremptory challenges in the trial court in this case, and because his case is still pending on direct review, I agree that the case must be remanded to the trial court under the principles of law set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). In other words, this case is within the "stream of similar cases" and defendant Penn is "similarly situated" to defendants Batson and Griffith.
In Griffith v. Kentucky, the Court pointed out:
"* * * *
479 U.S. at 322, 107 S. Ct. at 713-716.
This case does not present a situation in which the defendant did not preserve for review his constitutional claim. Cf. United States v. Wilson, 158 F. Supp. 442, 450 (M.D.Ala.1958), wherein Judge Johnson held that the failure of the defendant to raise any objections to the qualification of *321 jurors prior to going to trial constituted a waiver of the objections. | February 20, 1987 |
fffff8f3-9343-4251-9ba6-395f72584db2 | Glisson v. City of Mobile | 505 So. 2d 315 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 315 (1987)
William J. GLISSON and Joan M. Glisson
v.
CITY OF MOBILE.
85-174.
Supreme Court of Alabama.
February 6, 1987.
Rehearing Denied March 27, 1987.
*316 Vaughan Drinkard, Jr., of Drinkard & Sherling, Mobile, for appellants.
Horace Moon, Jr., and William G. Jones, III, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a judgment based on a jury verdict in favor of the defendant, the City of Mobile.
During the evening of May 5 and the early morning hours of May 6, 1981, the City of Mobile received unusually heavy rainfall. In terms of hourly intensity, the rainfall exceeded the previous record established in 1949 of 3.51 inches. The National Weather Service at Bates Field reported the City of Mobile as receiving 7.96 inches of rain during the 24-hour period ending in the early morning hours of May 6, 1981; however, other measuring stations in town reported rainfall in excess of 13 inches. One expert classified the rain as a 500-year floodone of such magnitude as not likely to recur for 500 years.
The City of Mobile was declared a federal disaster area after suffering some $35,000,000 worth of flood damage to approximately 1500 buildings, including 3 hospitals and 26 businesses.
The Glissons, plaintiffs in this case, own a house about 1500 feet from Eslava Creek in Mobile. On May 5 and 6, 1981, Eslava Creek overflowed its banks and inundated the Glissons' home with flood waters to a height of approximately 37 inches. The Glissons' home had never flooded before, although they had experienced some problems with water getting into the garage, in the yard, and one time into a sunken closet at the rear of the house.
Eslava Creek is a tributary of the Dog River and is in the Dog River drainage basin of the City of Mobile. The Dog River basin drains the southern part of the city, including major shopping, business, and residential districts. At trial, the Glissons sought to prove that the City of Mobile, once it assumed maintenance of Eslava Creek, failed to properly upgrade, expand, and design it so as to accommodate the expanding development of the surrounding areas. This failure, they allege, was the proximate cause of the water damage to their house and property.
After deliberation, the jury returned a verdict for the City. The trial judge denied the Glissons' motion for new trial. This appeal followed.
On appeal, the Glissons argue that error occurred in connection with defense counsel's alleged reference to insurance during his cross-examination of the plaintiff's expert witness, as prohibited by law and court order, and those jury charges given on the act-of-God affirmative defense and the City's duty to maintain Eslava Creek.
The trial court granted the Glissons' August 26, 1985, motion in limine, in which *317 they asked that the defendants be prohibited from discussing the Federal Flood Insurance Administration, flood plains, and/or the existence or availability of flood insurance.
The Glissons contend that the following colloquy between defense counsel and the plaintiff's expert was in contravention of the trial court's ruling:
We agree with the trial judge's ruling in this case. It is clear from the transcript that the flood plain to which defense counsel was referring is that part of the land topography bordering a river, creek, or any other body of water, where water will naturally flow over given an intense enough rainfall. Defense counsel was trying to *319 show that even if the plaintiffs could prove some negligent act by the City in maintaining or failing to maintain Eslava Creek, the Glissons' property would have flooded anyway, even in the absence of the City's negligence, as a result of the extraordinarily heavy rainfall and the location of the Glissons' property in the flood plain.
Insurance was first referred to in the case in an unsolicited answer from the plaintiffs' expert witness. In Barnes v. Tarver, 360 So. 2d 953, 956 (Ala.1978), this Court remarked:
In the case at bar, however, defense counsel also referred to the subject of insurance in his follow-up question to the plaintiff's expert.
We do not believe that the Glissons were prejudiced by defense counsel's remarks. The clear meaning of the statement made by plaintiff's expert and the defense counsel in his followup questions was that since the Federal Emergency Management Agency (FEMA) had not designated the Eslava Creek area as a flood zone, there was no insurance available. It does not appear that the jury could have been left with the impression that the Glissons had already been compensated by insurance for their losses.
As this court said in American Pamcor, Inc. v. Evans, 288 Ala. 416, 419-20, 261 So. 2d 739, 742 (1972):
Defense counsel simply did not cross that line in the case at bar.
We also find that the Glissons' objections to the jury charges are without merit.
The jury charges in issue can be put into two groups, those dealing with the act-of-God affirmative defense and those dealing with the City of Mobile's duty to maintain Eslava Creek.
As to the first group, the crux of the Glissons' argument is that these charges fail to specify that the City of Mobile could be liable for negligence in maintaining the creek even though the rainfall was the immediate cause of the damage, if the rainfall was foreseeable or precedented and not an intervening independent agency producing the injury. In reviewing the defendant's requested charges No. 42,[1] No. 43,[2] No. 45,[3] No. 47,[4]*320 and No. 48,[5] we find that each one is a correct statement of the law as applicable to this case. The charges are not confusing and do not leave one with the impression that because the rainfall was the immediate cause of damage, the City of Mobile could not be liable for its negligence.
Defendant's requested charges No. 26[6] and No. 28[7] deal with the City of Mobile's duty in this particular case. Charge No. 26 is a statement of law from Kennedy v. City of Montgomery, 423 So. 2d 187 (Ala.1982), a case in which this court addressed a city's duty to maintain a drainage system. It is a correct statement of law. We are not convinced that it served to confuse or mislead the jury.
The Glissons' objection to charge No. 28 is that it seemingly gives the City of Mobile absolute immunity whenever public improvements such as new streets and buildings cause an increased flow of surface water onto adjacent private property. We disagree. Under charge No. 28, the increased flow of surface water must arise wholly from surface improvements. If the City of Mobile was negligent in maintaining Eslava Creek, then the increased flow of water did not arise wholly from changes in surrounding property. Consequently, if the jury believed that the City of Mobile acted negligently, they could have found against the city on this charge.
There appearing no merit in the plaintiffs' arguments on appeal, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] "If you are reasonably satisfied from the evidence that the Plaintiffs' damage was a result of an overflow of Plaintiffs' land from waters of a creek caused, not by Defendant's negligence, but entirely by natural causes in the form of extraordinarily heavy rains, and that the rains were so extraordinary and unprecedented as to be Acts of God, then you cannot find for the Plaintiffs and your verdict should be in favor of the Defendant."
[2] "Even if you are reasonably satisfied from the evidence in this case that the City was negligent, if such negligence concurred with an extraordinary flood or rainfall, the City of Mobile is relieved from liability if the flow is so voluminous in character that it would of itself have produced the injury independently of such negligence. In other words, if the superior force would have produced the same damage whether or not the City had been negligent, its negligence is not deemed the cause of the injury."
[3] "If you are reasonably satisfied from the evidence that any prior negligent act by the Defendant merely created a condition or gave rise to an occasion and after creation of said condition an intervening independent agency produced the injury, the parties guilty of the first negligent act would not be liable because their negligence was but the remote cause of the injury and not the proximate cause of the injury."
[4] "However negligent a person may have been in some particular, that person is liable only to those who may have been injured by reason of such negligence as proximate causation. Where some independent agency intervened and was the immediate cause of the injury, the party negligent in the first instance is not liable."
[5] "If you are reasonably satisfied from the evidence that between the alleged negligent act of the Defendant and the injury, there occurred [an] independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken and you must find for the Defendant."
[6] "The city has a duty to maintain a drainage ditch in such a condition as to cause it not to overflow (1) if the city has undertaken control of the drainage system for the plaintiffs' properties and (2) if water from the city's drainage systemrather than natural drainage of surface watercaused the flooding problems."
[7] "A city is not liable to a property owner for the increased flow of surface water over or onto his property, arising wholly from the changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the city." | February 6, 1987 |
e9479a4a-af9f-4472-99d5-0c2bc4a3b4d8 | Hall v. Hall | 502 So. 2d 712 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 712 (1987)
Floyd Ray HALL, Jr.
v.
Theresa Kearney HALL.
85-358.
Supreme Court of Alabama.
January 30, 1987.
*713 Donald G. Beebe of Newton & Beebe, Mobile, for appellant.
W. Gregory Hughes, Mobile, for appellee.
STEAGALL, Justice.
The contestant in a will contest appeals from a summary judgment granted in favor of the proponent. We affirm.
The contestant, Floyd Ray Hall, Jr., is the oldest child of the deceased, Floyd Ray Hall, Sr. The deceased was married to his first wife from 1945 until her death in 1980. The deceased had three children from this marriage: Floyd Ray Hall, Jr., the contestant; Kenneth Randall Hall; and Kathy Hall Bedsole. All three children were over the age of nineteen at the time of Floyd Sr.'s death. The wife of the deceased at the time of his death, Theresa Kearney Hall, is the proponent of the will. Theresa has two children from a prior marriage, and she and Floyd Sr. had no children from their marriage.
The will provides that Theresa shall be executor of the estate and the sole beneficiary. No provisions are made for any of the deceased's children.
The proponent filed a motion for summary judgment supported by answers to interrogatories, her deposition, the deposition of the deceased's sister, and the affidavit of the attorney who prepared the will. The contestant filed several affidavits in opposition to the motion for summary judgment.
The contestant argues that the will was a result of a dominant and undue influence exerted by Theresa; and that a scintilla of evidence was present on this issue.
A detailed description of the testimony presented would be unduly lengthy; thus, a brief description of the more pertinent facts follows.
Theresa met Floyd Hall, Sr., in April 1980. They began dating around the end of August 1980. During this same time, Theresa's son, Greg, was dating Floyd Sr.'s daughter, Kathy. Theresa and Floyd were married on March 28, 1981, and Greg and Kathy were married on May 2, 1981.
At the time of their marriage, Theresa owned a house, which she later deeded to Greg and Kathy. She also held savings certificates and savings accounts, which were merged with Floyd Sr.'s assets after the marriage.
In February 1983 Floyd Sr. received notice that his life insurance had been cancelled. After learning this, he and Theresa discussed the disposition of their property. There is evidence that Floyd Sr. attempted to contact the attorney he had used for many years, in order to draw a new will. After being unable to reach this attorney, Floyd Sr. asked Theresa's brother, who is a judge, about another attorney whom Theresa and Floyd Sr. had met socially. Theresa's brother recommended this attorney and shortly thereafter, Floyd Sr. contacted him about preparing wills for Floyd Sr. and Theresa. The affidavit of the attorney who prepared the wills states that Floyd Sr. and Theresa directed the preparation of their wills and that at no time did Floyd Sr. appear to be doing anything contrary to his wishes. Theresa's will was a mirror image of Floyd Sr.'s.
Floyd Sr.'s sister testified in her deposition that Floyd Sr. was the happiest person she had ever seen after his marriage to Theresa. She also stated that Floyd Sr. had told her on two occasions that he was very happy with Theresa, that he had given his children what he wanted them to have, and that at his death he wanted everything he owned to go to Theresa.
There was also testimony from Floyd Sr.'s children that after Floyd Sr. began dating Theresa, he engaged in activities *714 that he had never done before and that were uncharacteristic of his personality, such as having an occasional drink.
Summary judgment is proper if there is no genuine issue of material fact, specifically, in a will contest, if the contestant fails to present a scintilla of evidence to support his position. Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979); Rule 56, Ala.R.Civ.P.
The elements necessary to raise a presumption of undue influence in a will contest are: (1) a confidential relationship between a favored beneficiary and the testator; (2) a dominant and controlling influence by the beneficiary over the testator; and (3) undue activity in procuring execution of the will. Pruitt v. Pruitt, 343 So. 2d 495 (Ala.1976).
This Court has consistently held that the fact that a person is a favored beneficiary and is in a confidential relationship with the testator does not alone raise a presumption that the will was executed by undue influence. Arrington v. Working Woman's Home, supra, Kahalley v. Kahalley, 248 Ala. 624, 28 So. 2d 792 (1947); Lockridge v. Brown, 184 Ala. 106, 63 So. 524 (1913). In addition to the confidential relationship, there must be active interference in procuring the execution of the will, and such interference must go beyond compliance with the voluntary directions of the testator. Arrington v. Working Woman's Home, supra.
In Arrington v. Working Woman's Home, supra, this Court stated:
The affidavits submitted by the contestant do not provide any facts which show undue activity on the part of Theresa in procuring the execution of Floyd Sr.'s will. The affidavits state in conclusory fashion that Theresa was the dominant person in the marriage. These statements appear to be based upon speculation or suspicions of the affiants. There is no evidence that the will was the result of anything other than the strong bond of love and affection between Theresa and Floyd. Because the contestant has failed to establish a scintilla of evidence of undue activity, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | January 30, 1987 |
b893e803-af66-401a-ae87-219fb0b2018a | Ex Parte Thompson | 503 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 887 (1987)
Ex parte Michael Eugene THOMPSON.
(Re Michael Eugene Thompson v. State).
85-1004.
Supreme Court of Alabama.
February 20, 1987.
B.J. McPherson and John J. Dobson, Oneonta, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little and Mary Ellen Forehand, Asst. Attys. Gen., for respondent.
Prior report: 503 So. 2d 871 (Ala.Cr.App. 1986).
BEATTY, Justice.
Having considered the record, briefs, and oral argument in this case, this Court holds that the judgment of the Court of Criminal Appeals must be, and it is hereby, affirmed.
AFFIRMED.
All the Justices concur. | February 20, 1987 |
4ef7f0a2-46f4-4298-898a-125154b766ca | Hood v. Neil | 502 So. 2d 749 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 749 (1987)
Martha HOOD, as Executrix of the Estate of Samuel Rand Hood, deceased
v.
William F. NEIL, Jr.
85-369.
Supreme Court of Alabama.
February 6, 1987.
W.B. Fernambucq of Huie, Fernambucq & Stewart, Birmingham, for appellant.
Sidney C. Summey, Birmingham, for appellee.
ADAMS, Justice.
Martha Hood, executrix of the estate of her late husband, Samuel Rand Hood, appeals to this Court from a judgment by the Circuit Court of Jefferson County. Although a jury awarded Mrs. Hood compensatory damages of $15,000.00, and the court entered judgment in that amount, she claims that that amount was inadequate and that the court erred by not granting injunctive relief as well. We affirm.
Mr. and Mrs. Hood had lived on approximately five acres of land bordering Green Springs Highway and South Lakeshore Drive in Homewood, Alabama, since 1948. During that time, until 1980, they had access to their property by way of a 25-foot easement across the southwest corner of defendant property. In October 1980, Mr. Neil found that in order to use a driveway on the west side of his new house, the grade of the easement would have to be lowered five feet. By lowering the easement without re-grading the Hoods' driveway to meet the new elevation, the Hoods' driveway would have been cut off, five feet above the level of the lowered easement. Mr. Neil proposed to the Hoods that he be permitted to enter their land in order to contour their driveway to meet the lowered *750 easement. The Hoods refused Neil's request and their attorney advised Neil that the paved area of Neil's property within the easement was a public right-of-way and was part of Murray Hill Road.
Mr. Neil testified that he proceeded to have the easement lowered after being advised by the Homewood city attorney and Homewood building inspector that he could use the easement as he wished provided he did not erect a permanent structure on it. The result of lowering the easement was to terminate the Hoods' driveway at an elevation five feet above the lowered grade. Mr. Hood filed suit against Neil and his wife and the contractor who lowered the easement, but Hood died before the case was tried. Mrs. Hood continued this suit as executrix of her husband's estate. At the conclusion of the plaintiff's case, the defense motion for a directed verdict on behalf of Mrs. Neil was granted, without objection from the plaintiff.
After all evidence had been heard, the jury returned a verdict awarding Mrs. Hood $15,000.00 in compensatory damages against Mr. Neil and found in favor of the contractor. The court entered judgment consistent with the jury's verdict and denied Mrs. Hood's request for an injunction. Mrs. Hood contends that since Neil's interference with the easement permanently cut off her right-of-way, she is entitled to injunctive relief in addition to the monetary damages awarded. We note that the defendant did not appeal the award of $15,000.00 to Mrs. Hood; therefore, we do not address the propriety of that award. We cannot agree with the appellant that the award was inadequate.
We are asked here to decide whether the trial court erred by denying the plaintiff's request for an injunction.
We have recognized that the issuance of injunctive relief is within the sound discretion of the trial court. Powell v. Phenix Federal Savings & Loan Ass'n, 434 So. 2d 247 (Ala.1983). Mrs. Hood's burden on appeal is to establish that the trial court abused its discretion in denying her request for injunctive relief, by showing that the court committed a clear or palpable error. Reed v. City of Montgomery, 341 So. 2d 926 (Ala.1976).
There is no dispute that Mr. Neil knowingly lowered the elevation of the easement across his property, and by so doing, cut off the Hoods' access to their driveway. Mrs. Hood argues that she and her husband had been granted the easement by deed and had used it for more than thirty years; that Neil knew of the easement at the time he purchased his property; and, that Neil's servient estate could not lawfully interfere with the Hoods' dominant estate to prevent the Hoods' ingress to and egress from their property. In fact, Mrs. Hood's reference to the grant of the easement in question by deed is incorrect. The exhibits she refers to as proof that the easement was deeded include a promise by the grantor, Southern Timber Land Company, Inc., to provide a road by which the Hoods could enter and leave the property they had just purchased. Neither of the exhibits cited, however, specifically refers to appellee Neil's land or to the easement across his property which the Hoods used from 1948 until Neil regraded it in 1980. Mrs. Hood seems to argue that the easement was private until made a public right-of-way by the Homewood City Council in 1977, and cites Defendant's Exhibit #1 as evidence of this contention. On the contrary, it is clear from the face of the document marked as Defendant's Exhibit #1, a copy of the original plat of Lake Drive Estates recorded August 13, 1947, that the Homewood City Council dedicated the "streets, alleys and easements shown on the map of the survey of Lake Drive Estates" on August 11, 1947, not 1977.
Mrs. Hood also seems to infer that by the Hoods' use of the 25-foot access drive for more than thirty years, they acquired an easement by prescription. We have previously held:
Hebert v. Trinity Presbyterian Church of Montgomery, 289 Ala. 455, at 458, 268 So. 2d 736, at 738 (1972). As the appellee has noted, the Hoods could not have acquired a prescriptive easement after the property in question had been platted. At that time, August 11, 1947, the disputed easement became dedicated to public use and subsequent acquisition of a prescriptive right was not possible.
Testimony at trial revealed that between $5,000.00 and $20,000.00 would be required to reestablish a paved driveway to the Hood home. Mrs. Hood argues that the jury verdict of $15,000.00 is inadequate relief, but we cannot agree. She contends that the $15,000.00 was awarded solely for the interference, inconvenience, etc., that she suffered from the date Neil lowered the easement, in 1980, until the present. As the appellee has persuasively argued, however, numerous inferences can be drawn as to what the jury intended the $15,000.00 verdict to cover. Contrary to Mrs. Hood's hypothesis, the jury might must as likely have intended that a portion of the award was meant to compensate Mrs. Hood for her inconvenience, and that a portion was to be used to reestablish the paved drive to her house. Further, since the jury was also instructed as to mitigation of damages, and, Neil argues, since Mrs. Hood took no action to mitigate, the award of $15,000.00 could have been considered sufficient, in itself, to enable Mrs. Hood to be "made whole" again.
The appellee has correctly argued that a court is not required to grant injunctive relief merely because the damage to a party is determined to be permanent. See Machen v. James, 266 Ala. 454, 97 So. 2d 542 (1957). Here, the jury awarded $15,000.00, which the court could justifiably have considered adequate compensation for her damages, without ordering injunctive relief. The appellant's argument relies heavily on the assumption that the easement in question was private until 1977; however, as we have noted above, the evidence refutes that assumption. Nevertheless, the jury returned a verdict in her favor in the amount of $15,000.00, which the court considered adequate to compensate Mrs. Hood for her damages. Even though the appellee's regrading of the easement created a permanent condition, the court could have easily concluded that the jury's award was sufficient to allow Mrs. Hood to reestablish a paved driveway and to compensate her for her inconvenience, without the need for injunctive relief.
The appellant has failed to show that the damages award was inadequate or that the trial court committed a clear or palpable error by denying her request for injunctive relief. Therefore, we must affirm.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | February 6, 1987 |
9231616d-a4fb-4b02-b6f9-7639246ea029 | Seafarer's Welfare Plan v. Dixon | 512 So. 2d 53 | N/A | Alabama | Alabama Supreme Court | 512 So. 2d 53 (1987)
SEAFARERS' WELFARE PLAN; Local Unit of Seafarers' International Union of North America; and Seafarers' International Union of North America
v.
Earline H. DIXON.
Earline H. DIXON
v.
SEAFARERS' WELFARE PLAN; Local Unit of Seafarers' International Union of North America; and Seafarers' International Union of North America.
85-63, 85-128.
Supreme Court of Alabama.
May 29, 1987.
Rehearing Denied July 24, 1987.
*54 John C. Falkenberry of Falkenberry, Whatley & Heidt, Birmingham, for appellants/cross-appellees.
Raymond A. Pierson, Mobile, for appellee/cross-appellant.
STEAGALL, Justice.
These consolidated appeals arose from separate orders of the Circuit Court of Mobile County granting cross-motions for summary judgment. The defendants appeal from plaintiff's summary judgment as to count one of the complaint (85-63). The plaintiff appeals from summary judgment in favor of the defendants as to count two of the complaint (85-128). We reverse as to count one and affirm as to count two.
The plaintiff, Earline H. Dixon, filed a complaint against Seafarers' Welfare Plan, Local Unit of Seafarers' International Union of North America, and Seafarers' International Union of North America after her claim for benefits and/or insurance proceeds had been denied. The complaint, alleging state common law contract and tort actions, contained two counts. Count one sought recovery for death benefits and/or life insurance proceeds due as a result of the death of James H. Dixon, plaintiff's son. Plaintiff was the designated beneficiary. Count two sought punitive damages for bad faith refusal to pay the claim.
The Seafarers' Welfare Plan ("Welfare Plan" or "Plan") is a multi-employer, labor-management trust fund which is funded solely through employer contributions. The contributions are made pursuant to agreements between various employers and the Seafarers' International Union of North America ("Union"). The Welfare Plan provides medical expense coverage and various benefits, including death benefits, to eligible employees and their dependents and beneficiaries. The Plan is regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.
The Union is an entity wholly separate from the Welfare Plan. It does not regulate or administer the Plan and does not pay any benefits of the kind paid by the Plan.
According to an affidavit in the record, the third named defendant, Local Unit of Seafarers' International Union of North America, is non-existent.
In her brief on appeal, Dixon concedes that there is no liability on the part of the Union and the Local Unit.
The issue on appeal is whether state common law contract and tort claims are preempted by ERISA. This question was recently addressed by the United States Supreme Court in Pilot Life Insurance Co. v. Dedeaux, ___ U.S. ___, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987). In that case, the plaintiff, through state common law contract and tort actions, sought damages for failure to provide benefits under an insurance policy governed by ERISA, damages for mental and emotional distress, and punitive damages for bad faith. The U.S. Supreme Court held that state common law causes of action claiming benefits under an employee benefit plan regulated by ERISA are preempted by ERISA, and that the *55 proper recourse is to utilize the civil enforcement provisions of ERISA, § 502(a). See 29 U.S.C. § 1132(a).
Based on the foregoing, we hold that Dixon's claims are preempted by ERISA. Accordingly, the summary judgment for defendants as to count two is affirmed, and the summary judgment for Dixon as to count one is reversed and judgment rendered for the defendants.
85-128, AFFIRMED.
85-63, REVERSED AND RENDERED.
JONES, SHORES, ADAMS and HOUSTON, JJ., concur. | May 29, 1987 |
af3bc14a-6ae8-420b-9c13-105d36e83bbc | Smith v. Wendy's of the South, Inc. | 503 So. 2d 843 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 843 (1987)
Milton Thomas SMITH
v.
WENDY'S OF THE SOUTH, INC., and Robert Harland Matthews.
85-990.
Supreme Court of Alabama.
February 20, 1987.
*844 Dennis J. Knizley of Alexander and Knizley, Mobile, for appellant.
Leon G. Duke and Frank G. Taylor of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.
HOUSTON, Justice.
At the close of plaintiff Smith's malicious prosecution case, the trial court granted a directed verdict for the defendants, Wendy's of the South, Inc., and Robert Harland Matthews. Smith appeals. We affirm.
Smith was indicted by the Grand Jury of Mobile County for a robbery in the first degree at a Wendy's restaurant. The criminal proceedings were nol-prossed by the district attorney.
A directed verdict in favor of a defendant is proper only when there is no evidence to support one or more elements of plaintiff's cause of action. Smith v. Norman, 495 So. 2d 536 (Ala.1986).
As this Court stated in Rose v. Miller & Co., 432 So. 2d 1237, 1239 (Ala.1983):
For the trial court to have erred in directing the verdict for the defendants in this case, there must be some direct evidence or circumstantial evidence from which the jury could reasonably infer each of the following elements, which comprise a cause of action for malicious prosecution: (1) that a judicial proceeding was initiated by the defendants against Smith; (2) that the judicial proceeding was instituted without probable cause; (3) that the proceedings were instituted by the defendants maliciously; (4) that the judicial proceeding has been terminated in favor of Smith; and (5) that Smith suffered damage as a proximate cause of the prosecution. Kitchens v. Winn-Dixie Montgomery, Inc., 456 So. 2d 45 (Ala.1984). In this case there was some evidence of elements (1), (4), and (5).
There was no evidence to support the second element (want of probable cause).
In Alabama Power Co. v. Neighbors, 402 So. 2d 958, 967 (Ala.1981), this Court held:
Quoting Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794 (1928) (emphasis added in Neighbors).
This prima facie showing of the existence of probable cause created by an indictment by a grand jury can be overcome by a showing that the indictment was "induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment." National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133, 140 (Ala.1983). There was absolutely *845 no evidence of this. Smith held the burden of rebutting the prima facie showing of probable cause created by the indictment. Johnson v. Haynie, 414 So. 2d 946, 949 (Ala.1982). Smith did not introduce any direct evidence to rebut this, nor did he introduce any circumstantial evidence from which the jury could reasonably infer that either Matthews or any other agent or employee of Wendy's obtained the indictment against Smith by fraud, subornation, suppression of testimony, or other like misconduct. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985). Therefore, there was no evidence that the judicial proceeding was initiated without probable cause.
In Young v. Andrews Hardwood Co., 200 N.C. 310, 156 S.E. 501 (1931), a non-suit was affirmed in a malicious prosecution action because the plaintiff introduced "no evidence overthrowing, or tending to overthrow, the legal effect of the finding by the grand jury."
It is not necessary to discuss whether there was any evidence that the defendants acted maliciously, since the trial court properly directed a verdict in favor of the defendants for Smith's failure to introduce any evidence that the judicial proceeding was initiated without probable cause. The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
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