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7e4101d2-9262-4163-842a-b19058a46c5f | Shuttlesworth v. City of Birmingham | 149 So. 2d 923 | N/A | Alabama | Alabama Supreme Court | 149 So. 2d 923 (1962)
Fred L. SHUTTLESWORTH
v.
CITY OF BIRMINGHAM.
6 Div. 940.
Supreme Court of Alabama.
December 20, 1962.
Rehearing Denied February 28, 1963.
Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for petitioner.
Wm. C. Walker, Birmingham, opposed.
MERRILL, Justice.
The petition for certiorari to the Court of Appeals must be stricken because it is not on transcript paper. Supreme Court Rule 32; Ex parte Cranmore, Ala., 129 So. 2d 688; Ex parte Davis, 269 Ala. 58, 110 So. 2d 306; Accardo v. State, 268 Ala. 293, 105 So. 2d 865; McDonald v. Amason, 267 Ala. 654, 104 So. 2d 719; Ladd v. State, 266 Ala. 586, 98 So. 2d 59.
Petition for writ of certiorari stricken.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | December 20, 1962 |
a185a531-c11b-4eb9-97bf-ff09dcc30112 | Wesson Oil & Snowdrift Co. v. Orr | 149 So. 2d 462 | N/A | Alabama | Alabama Supreme Court | 149 So. 2d 462 (1962)
WESSON OIL & SNOWDRIFT CO., Inc.
v.
R. B. ORR.
8 Div. 42.
Supreme Court of Alabama.
December 20, 1962.
Rehearing Denied February 7, 1963.
*463 Peach, Caddell & Shanks, Decatur, for appellant.
Miles T. Powell, Decatur, for appellee.
PER CURIAM.
A circuit court jury, impaneled in Morgan County, rendered a verdict in favor of the plaintiff (appellee) and against the defendant (appellant) on amended Count 5 of a complaint which alleges the making of an implied agreement or contract between the parties hereto that culminated in the sale and delivery by defendant to the plaintiff of several bushels of soy bean seed for planting purposes.
Patterned after and substantially following one reported in the case of Abercrombie v. Virginia-Carolina Chemical Company, 206 Ala. 615, 91 So. 311, approved as against several grounds of demurrer interposed, the complaint avers that the defendant breached the contract in that it failed to deliver soy bean seed of a quality suitable for planting purposes, but on the contrary delivered seed that were not of such quality; that by reason of and as a proximate consequence of the breach of said contract, plaintiff was damaged by a short crop of beans.
The Reporter will set out the amended Count 5 of the complaint.
Appellant seeks a review here of the proceedings had at the trial of this cause and assigns twenty grounds of error.
It is our opinion that the complaint as submitted to the jury is an action ex contractu and not ex delicto. The former is based on a breach of the contract while the latter is for a breach of duty arising out of the contract. For basic cases making the distinction, see Vines v. Crescent Transit Co., 264 Ala. 114, 85 So. 2d 436; Mobile Life Insurance Company v. Randall, 74 Ala. 170; and Wilkinson v. Moseley, 18 Ala. 288.
Appellant assigns error in the refusal of the trial court to give its written charge with conditional affirmative direction to the jury to return a verdict for the defendant. The charge with the note attached thereto reads as follows:
"RefusedNewton B. Powell, Judge."
Section 55, Title 57, Code of Alabama 1940, to which the note or addendum makes reference, reads as follows:
Appellant's contention is that the notice required in the afore-quoted section is a prerequisite and a condition precedent to recovery in this case.
With that contention we agree. This court, in the case of Smith v. Pizitz of Bessemer, Inc., 271 Ala. 101, 122 So. 2d 591, held that this requirement of notice is not in the nature of a statute of limitations, but is a condition precedent to recovery by the buyer, with application both to commercial situations and personal injury cases. Consequently, we held that defendant's demurrer to the complaint, because there was no averment of notice, was correctly sustained.
The complaint in the case now before us for review did not contain an allegation of notice in compliance with this statute, but its absence was not challenged by demurrer.
The parties filed a plea in short by consent with leave, etc., which automatically included a special plea that this notice was not given.
The defendant had the burden of proving its plea. This was not done so far as we have been able to find in the record. Appellant, in its brief, has not cited us any evidence offered in support of the plea.
Assignment of Error 5 presents the correctness vel non of the court's judgment in overruling defendant's demurrer to Count 5 as amended. The argument in appellant's brief is directed to Ground P of the demurrer reading as follows:
Our attention is directed to Section 21 (1), Title 57, Code of Alabama 1940, reading as follows:
Count 5 as amended, the only count submitted to the jury, meets the demands of subsection (1) above that the buyer, expressly or by implication, make known to the seller the particular purpose for which the goods are required.
But the complaint fails to allege that the plaintiff relied on defendant's skill or judgment as to the quality of the seed, the subject matter of the alleged contract. Such an allegation is necessary.
"Where the buyer seeks to recover for breach of implied warranty of fitness for a particular purpose, the complaint should state the seller's knowledge of the purpose when the contract was made, and show that the seller, pursuant to such knowledge, selected the particular merchandise for the particular purpose and that the buyer relied on the skill and judgment of the seller in such selection." (Emphasis supplied.) 77 C.J.S. Sales § 361b, page 1271. Also, see Kurriss v. Conrad & Co., 312 Mass. 670, 46 N.E.2d 12, 13, 15; Payne v. R. H. White Co., 314 Mass. 63, 49 N.E.2d 425, 426, 427.
Without allegation and proof of such reliance plaintiff fails to establish the existence of an implied contract for the breach of which he seeks recovery of damages. We said in Kirkland v. Great Atlantic & *465 Pacific Tea Company, 233 Ala. 404, 171 So. 735[7] as follows:
Although this court in the case of Abercrombie v. Virginia-Carolina Chemical Company, supra, approved a similar complaint as the one in this suit, no ground of demurrer as here interposed was addressed to the complaint for consideration by the court.
Appellant has furnished this court with a very elaborate and comprehensive brief that evidences exceptional diligence in research and preparation.
Because of the error of the trial court as presented by Assignment of Error 5, this cause is due to be reversed and remanded, and it is so ordered.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, MERRILL and HARWOOD, JJ., concur. | December 20, 1962 |
73a152eb-c4e8-4b42-8991-6631dd105145 | Ex parte Alabama High School Athletic Association and Steven P. Savarese, its executive director. | N/A | 1160125 | Alabama | Alabama Supreme Court | Rel: 02/24/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1160121
____________________
Ex parte Alabama High School Athletic Association and Steven
P. Savarese, its executive director
PETITION FOR WRIT OF MANDAMUS
(In re: Geneva County Board of Education and Elba City Board
of Education
v.
Alabama High School Athletic Association)
(Geneva Circuit Court, CV-16-900087)
____________________
1160125
____________________
Ex parte Alabama High School Athletic Association and Steven
P. Savarese, its executive director
PETITION FOR WRIT OF MANDAMUS
(In re: Erica L. Pogue, individually and as mother and next
friend of A.J.K., et al.
v.
Alabama High School Athletic Association and Steven P.
Savarese)
(Washington Circuit Court, CV-16-900064)
PER CURIAM.
On November 10, 2016, the Alabama High School Athletic
Association ("the Association") and its executive director,
Steven P. Savarese, filed petitions for a writ of mandamus
challenging certain conflicting orders issued by the Geneva
Circuit Court and the Washington Circuit Court. On November
14, 2016, this Court issued an order granting the petitions
and issuing the writs. In that order, this Court upheld a
decision of the Association and declared the orders of the two
circuit courts to be void. That order also stated that an
opinion of this Court would follow at a later date.
A.J.K. is a student at Washington County High School,
located in Washington County, and he played high-school
2
1160121, 1160125
football for the school during the 2016-2017 school year.
During the high-school football playoffs, the Association
determined that A.J.K. was ineligible to participate on the
football team, and, because A.J.K. had participated for the
school as an ineligible player, the Association removed the
school from the playoffs. At the request of interested
persons and entities, the Association's decision was reviewed
in both the Geneva Circuit Court and the Washington Circuit
Court.1 The Geneva Circuit Court issued an order directing
that the Association's decision be enforced, but the
Washington Circuit Court issued an order reversing the
Association's decision and prohibiting the Association from
removing Washington County High School from the playoffs. The
Association and Savarese then filed petitions for writs of
mandamus in this Court, arguing that both the Geneva Circuit
Court and the Washington Circuit Court had
improperly asserted
jurisdiction and asking this Court to declare void the orders
of those courts.
1The Geneva County Board of Education and the Elba City
Board of Education sought a temporary restraining order
requiring
the
Association
to
enforce
its
rules
and
regulations. Erica L. Pogue and the Washington County Board
of Education sought to overturn the Association's decision.
3
1160121, 1160125
In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So. 2d
652, 655 (1970), this Court stated:
"If officials of a school desire to associate
with other schools and prescribe conditions of
eligibility for students who are to become members
of the school's athletic teams, and the member
schools vest final enforcement of the association's
rules in boards of control, then a court should not
interfere in such internal operation of the affairs
of the association. ...
"Of course, if the acts of an association are
the
result
of
fraud,
lack
of
jurisdiction,
collusion,
or
arbitrariness,
the
courts
will
intervene to protect an injured part[y's] rights."
In Alabama High School Athletic Ass'n v. Rose, 446 So. 2d
1, 5 (Ala. 1984), this Court further stated:
"[A]s Kilpatrick and Kubiszyn [v. Alabama High
School Athletic Ass'n, 374 So. 2d 256 (Ala. 1979),]
indicate, the burden on the challenger to overcome
the presumption favoring the Association's absolute
authority in the conduct of its own affairs is a
heavy one. We reaffirm the Kilpatrick test to the
effect that the Court's jurisdiction in such matters
is invoked when, and only when, the averments of
fraud, collusion, or arbitrariness are supported by
clear and convincing evidence; and the trial court's
acceptance of jurisdiction will be affirmed only
where its order makes an unequivocal factual finding
of one or more of those narrow, restrictive grounds,
founded upon clear and convincing evidence."
In this case, the requirements needed for the Geneva
Circuit Court and the Washington Circuit Court to properly
exercise jurisdiction simply were not present. Because of the
4
1160121, 1160125
nature of the relief sought and the impending high-school
football playoffs, this Court on November 14, 2016, issued an
order declaring the orders of both circuit courts void and
upholding the Association's decision removing Washington
County High School from the playoffs, and the playoffs
proceeded accordingly.
1160121 –– PETITION GRANTED AND WRIT ISSUED BY ORDER
DATED NOVEMBER 14, 2016.
1160125 –– PETITION GRANTED AND WRIT ISSUED BY ORDER
DATED NOVEMBER 14, 2016.
Stuart and Wise, JJ., concur.
Parker, J., concurs in part and concurs in the result in
part.
Shaw, Main, and Bryan, JJ., concur in the result.
Bolin and Murdock, JJ., dissent.
5
1160121, 1160125
SHAW, Justice (concurring in the result).
I voted to concur in the result of this Court's November
14, 2016, order declaring the circuit courts' decisions to be
"null and void." I believe that, under substantive law
discussed in Alabama High School Athletic Ass'n v. Rose, 446
So. 2d 1 (Ala. 1984), and Scott v. Kilpatrick, 286 Ala. 129,
237 So. 2d 652 (1970), the circuit courts' decisions were due
to be set aside. I have some concerns with the concept that,
when a trial court rules contrary to that substantive law, it
lacked jurisdiction instead of simply committed reversible
error. However, that issue is not briefed in the materials
before us; therefore, I see no need to resolve it at this
time.
6
1160121, 1160125
BRYAN, Justice (concurring in the result).
I agree that the decision of the Alabama High School
Athletic Association ("the Association") should stand, given
the prevailing law and the facts presented here. I write
specially to argue that this Court gives too much deference to
the decisions of the Association.
In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So. 2d
652, 655 (1970), this Court first articulated its general rule
of judicial noninterference with the Association's decisions:
"If officials of a school desire to associate
with other schools and prescribe conditions of
eligibility for students who are to become members
of the school's athletic teams, and the member
schools vest final enforcement of the association's
rules in boards of control, then a court should not
interfere in such internal operation of the affairs
of the association. ...
"Of course, if the acts of an association are
the
result
of
fraud,
lack
of
jurisdiction,
collusion,
or
arbitrariness,
the
courts
will
intervene to protect an injured part[y's] rights."
Fourteen years after Kilpatrick, in Alabama High School
Athletic Ass'n v. Rose, 446 So. 2d 1 (Ala. 1984), this Court
added a requirement that one or more of the narrow
jurisdictional grounds be supported by clear and convincing
evidence. Further, this Court required that the trial court
7
1160121, 1160125
make an unequivocal finding of a jurisdictional ground
supported by clear and convincing evidence:
"We reaffirm the Kilpatrick test to the effect that
the Court's jurisdiction in such matters is invoked
when, and only when, the averments of fraud,
collusion, or arbitrariness are supported by clear
and convincing evidence; and the trial court's
acceptance of jurisdiction will be affirmed only
where its order makes an unequivocal factual finding
of one or more of those narrow, restrictive grounds,
founded upon clear and convincing evidence."
446 So. 2d at 5.
This creates a high jurisdictional bar for a party to
clear to get a dispute with the Association decided by a
court. There is a presumption favoring the Association's
"absolute authority in the conduct of its own affairs," and
the burden to overcome this presumption is a "heavy one."
Rose, 446 So. 2d at 5. Quite simply, "normally a court in
this state has no jurisdiction to resolve disputes regarding
eligibility under the rules of the [Association]." Alabama
High School Athletic Ass'n v. Medders, 456 So. 2d 284, 286
(Ala. 1984) (emphasis added). This Court gives tremendous
deference to the Association, seemingly more so than the
deference given to some other voluntary associations. Some
other cases involving voluntary associations do not contain
8
1160121, 1160125
the
clear-and-convincing-evidence
requirements
first
announced
in Rose. See, e.g., Dixon v. The Club, Inc., 408 So. 2d 76
(Ala. 1981); and Wells v. Mobile Cty. Bd. of Realtors, 387 So.
2d 140 (Ala. 1980); but see Talladega Little League, Inc. v.
Anderson, 577 So. 2d 1293 (Ala. 1991) (quoting Rose and
concluding that that case, which involved a decision by a
little-league-baseball association, was no different from
cases involving the Association). Although we have not been
asked to review our rule of judicial noninterference, I would,
if asked, argue that the deference afforded the Association be
scaled back. I would remove the general rule of judicial
noninterference and replace it with the familiar standard of
review for the decisions of administrative agencies.
I find instructive an opinion issued by the Supreme Court
of Oklahoma in 2013, Scott v. Oklahoma Secondary School
Activities Ass'n, 313 P.3d 891 (Okla. 2013). Before Scott,
Oklahoma, like Alabama, had a general standard of judicial
noninterference regarding decisions of its interscholastic
association,
the
Oklahoma
Secondary
School
Activities
Association ("OSSAA"). Similar to the caselaw in Alabama,
pre-Scott caselaw in Oklahoma provided that "courts should not
9
1160121, 1160125
intervene except to ascertain whether association proceedings
are conducted pursuant to the rules and laws of the
organization, in good faith and lawfully. Absent fraudulent,
collusive, unreasonable, arbitrary or capricious behavior,
[the Supreme Court of Oklahoma] may not overturn a voluntary
association's enforcement of its rules." Brown v. Oklahoma
Secondary Sch. Activities Ass'n, 125 P.3d 1219, 1224 (Okla.
2005). When this Court adopted its rule of judicial
noninterference in Kilpatrick, it cited, among other cases, an
Oklahoma case, Morrison v. Roberts, 183 Okla. 359, 82 P.2d
1023 (1938), in support of the rule. Although Oklahoma had a
long history of judicial nonintervention in high-school
athletics, the Oklahoma Supreme Court moved away from that
position in Scott.
The court in Scott determined that, because the OSSAA
plays a role that "goes above and beyond that of a traditional
voluntary association, closer scrutiny when reviewing its
actions is a necessity." 82 P.3d at 902. Although there are
some differences between the OSSAA and the Association, there
are some key similarities that make Scott informative. The
court in Scott observed that its doctrine of judicial non-
10
1160121, 1160125
intervention was based on the notion that the OSSAA is a truly
voluntary association. However, the court then determined
that the OSSAA is not a truly voluntary association. The
court stated that, for a decision to join an association to be
a voluntary one, "it must be done unconstrained by outside
interference and done without valuable consideration or legal
obligation." 313 P.3d at 897. The court then noted that a
school must join the OSSAA to compete with other OSSAA schools
and that most public and private schools in the state are
members of the OSSAA. Thus, "[s]hould the school desire the
value and enrichment its families and students receive from
interscholastic competition, it effectively has no choice but
to join the OSSAA." 313 P.3d at 898. The court in Scott also
noted that a school that joins the OSSAA receives the valuable
consideration of the ability of its students to compete in
interscholastic athletics with other students in the state.
In sum, the court concluded that, "[f]unctionally, membership
in the OSSAA is not a choice but a requirement." Id.
Similarly, I do not view the Association as a traditional
voluntary association. Under the Association's bylaws, a
school must join the Association to compete with other member
11
1160121, 1160125
schools in the Association. The Association has over 400
public and private schools as members. Private schools in
Alabama may have the option of joining other athletic
associations, like the Alabama Independent School Association
or the Alabama Christian Athletic Association. However, it
appears that public schools that desire to participate in
interscholastic athletics must, as a practical matter, join
the Association. Like the OSSAA's member schools, the schools
that choose to join the Association receive the valuable
consideration of being able to compete athletically with other
schools in the Association. As is true of the OSSAA in
Oklahoma, the Association is in almost complete control of the
high-school athletic competition among public-school students
in Alabama.
The court in Scott also concluded that the idea that the
OSSAA might not fit within the definition of a voluntary
association was reinforced in a different context by the Court
of Appeals for the Tenth Circuit in Christian Heritage Academy
v. Oklahoma Secondary School Activities Ass'n, 483 F.3d 1025
(10th Cir. 2007). In that case, the court determined that the
OSSAA was a state actor for purposes of the Fourteenth
12
1160121, 1160125
Amendment. The court based that conclusion on the
"'persuasive entwinement of public institutions and public
officials in its composition and workings.'" 483 F.3d at 1030
(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 298 (2001)). Similarly, in 1968, a
federal district court concluded that the Association was a
state actor under the Fourteenth Amendment in Lee v. Macon
County Board of Education, 283 F. Supp. 194 (M.D. Ala. 1968).
I do not address whether this Court should consider the
current version of the Association a state actor for purposes
of the Fourteenth Amendment. I merely note that Lee offers
some support for the idea that the Association is something
other than a traditional voluntary association.
The court in Scott also observed that, "[i]n many
respects, the OSSAA already behaves like a state agency and
adheres to requirements provided by statute." 313 P.3d at
900. In this area, admittedly, there are some distinctions
between the OSSAA and the Association. For example, Oklahoma
statutes give the OSSAA specific authority over eligibility in
certain circumstances and subject the OSSAA's meetings to
open-meeting requirements; there
appear
to
be
no
corresponding
13
1160121, 1160125
statutes in Alabama. However, it is still true that the
Association, like the OSSAA, is a pervasive and dominant force
in interscholastic athletics –– especially among public
schools –– in Alabama. As the court in Scott noted: "'The
necessity of court action is apparent where the position of a
voluntary association is so dominant in its field that
membership in a practical sense is not voluntary but
economically necessary.'" 313 P.3d at 901 (quoting Board of
Regents of Univ. of Oklahoma v. National Collegiate Athletic
Ass'n, 561 P.2d 499, 504 (Okla. 1977) (finding judicial
scrutiny of the NCAA appropriate)).
The court in Scott also noted that member schools pay
fees to be members of the OSSAA. The same is true of the
Association's member schools. With respect to the use of
public-school funds by the Association, I find the court's
observation about the OSSAA to be apt:
"Because the source of funding of public schools is
from Oklahoma taxpayers, the State of Oklahoma has
an interest in ensuring that tax dollars are used by
the OSSAA in a manner that is not arbitrary and
capricious, but one that is fair and impartial.
Meaningful review of the OSSAA's actions is
necessary to ensure this."
14
1160121, 1160125
313 P.3d at 902. Further, the Association controls a field in
which the people of this State have a substantial interest.
The court in Scott concluded that the OSSAA should be
treated more like an administrative agency than a traditional
voluntary association. The court concluded:
"The standard of review from Morgan[ v. Secondary
Sch. Activities Ass'n, 207 P.3d 362 (Okla. 2009)],
relied upon by the district court in making its
ruling cannot properly be applied to a nominally
voluntary association that is not truly voluntary.
While the OSSAA is not a state agency subject to the
provisions of [Oklahoma's Administrative Procedures
Act], it is similar enough in character and in reach
that courts should apply the standard of review
provided by the [Administrative Procedures Act] in
75 O.S. 2011 § 322 for agency decisions."
313 P.3d at 902. Similarly, although the Association is not
a State agency, "it is similar enough in character and in
reach" that a court should apply the same standard of review
applicable to agency decisions found in the Alabama
Administrative Procedure Act, § 41-22-1 et seq., Ala. Code
1975 ("the AAPA"). See § 41-22-20(k), Ala. Code 1975.
Because the Association plays a role that "goes above and
beyond that of a traditional voluntary association," greater
scrutiny is required. 313 P.3d at 902.
15
1160121, 1160125
Under the current standard, a court may exercise
jurisdiction over a decision of the Association if the
decision is the result of fraud, lack of jurisdiction,
collusion, or arbitrariness. Thus, a court must essentially
evaluate, to some degree, the merits of the case to determine
whether the court should even exercise jurisdiction over the
Association's decision. It would be more straightforward ––
and, as argued above, more appropriate –– for a court simply
to exercise jurisdiction over a dispute and apply a familiar
and well settled standard of review. To be sure, the AAPA
creates a deferential standard of review, but it is not as
deferential as the current standard applicable to the
Association. In relevant part, the AAPA provides:
"[T]he agency order shall be taken as prima facie
just and reasonable and the court shall not
substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact,
except where otherwise authorized by statute. ...
The court may reverse or modify the decision or
grant other appropriate relief from the agency
action ... if the court finds that the agency action
is due to be set aside or modified under standards
set forth in appeal or review statutes applicable to
that agency or if substantial rights of the
petitioner have been prejudiced because the agency
action is any one or more of the following:
"(1) In violation of constitutional or
statutory provisions;
16
1160121, 1160125
"(2) In excess of the statutory authority
of the agency;
"(3) In violation of any pertinent agency
rule;
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the
reliable, probative, and substantial evidence
of the whole record; or
"(7)
Unreasonable,
arbitrary,
or
capricious, or characterized by an abuse of
discretion or a clearly unwarranted exercise of
discretion."
§ 41-22-20(k). This familiar standard would be easy for
courts to apply and would provide sufficient judicial
supervision of the Association, which plays a pervasive and
dominant role in high-school athletics in Alabama.
17
1160121, 1160125
BOLIN, Justice (dissenting).
This Court, by order dated November 14, 2016, upheld a
decision of the Alabama High School Athletic Association ("the
Association") and declared void the conflicting orders of the
Washington Circuit Court and the Geneva Circuit Court. The
order indicated that "[a] formal opinion of this Court will
follow at a later date." The Court is today issuing that
opinion, and the judgment lines read: "Petition Granted and
Writ Issued by Order Dated November 14, 2016." I dissented
from the issuance of the order; therefore, I must dissent from
the opinion issued today, although if I were voting on a blank
slate, I would concur.
As noted in Alabama High School Athletic Ass'n v. Rose,
446 So. 2d 1, 5 (1984), "[a]thletics and athletes belong in
their own arena. A courtroom is not the proper field of
competition. ... In other words, it's their show; let them run
it." Recently, this Court has had several matters involving
the Association come before it. Many, if not most of these
matters, including the present one, have dealt with the
eligibility of a student athlete to participate during a state
playoff game--specifically, the subsequent disqualification
18
1160121, 1160125
through litigation of that student athlete's team from
advancing in the playoffs. Each time, the litigation occurs
despite this Court's precedent in Scott v. Kilpatrick, 286
Ala. 129, 237 So. 2d 652 (1970)--that a court has no
jurisdiction to interfere in the affairs of the Association
unless there exists clear and convincing evidence of fraud,
collusion, or arbitrariness on the part of the Association.
In this case, after two circuit courts issued conflicting
orders concerning the Association's removal of Washington
County High School from the initial playoff game, the
Association postponed a scheduled playoff game pending
emergency relief from this Court. This Court, in turn, was
forced to issue an important decision in an abbreviated time
frame, with little or no time for adequate briefing and
argument by the parties. Moreover, any delay by this Court in
issuing a decision could have caused a domino-effect
postponement of many subsequent playoff games. This scenario
is terribly unfair to all involved–-the student athletes, the
coaches, the student bodies, the schools, and the affected
citizenry who love their local high-school sports. Although
the judicial system will always be open to aggrieved parties
19
1160121, 1160125
and the business of the court system is the resolution of
disputes, resort to the court system may not always be the
best option. For this reason, I write specially to point
that surely the adults involved here, i.e., members of the
Association, acting in concert with school administrators,
coaches, teachers, as well as the parents of the players
affected, should be able to devise an agreed-upon set of rules
for a quicker, and arguably fairer, adjudication of such time-
sensitive disputes, without the schools having to resort to
injunctive relief in one or more circuit courts, from which an
appeal to this Court will surely follow. The Association,
being in charge of the process--and not the courts--should
commit, out of fairness, to doing no less for this State's
student athletes who have spent months of out-of-class time
practicing and sacrificing to make themselves the
best players
they can be in order to make their team successful.
20
1160121, 1160125
MURDOCK, Justice (dissenting).
I respectfully dissent for at least two reasons. First,
I believe that a circuit court, as the court of general
jurisdiction in this state, has jurisdiction to consider
challenges to actions of the Alabama High School Athletic
Association ("the Association"). Indeed, as noted in the
excerpts from Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237
So. 2d 652, 655 (1970), and Alabama High School Athletic Ass'n
v. Rose, 446 So. 2d 1, 5 (Ala. 1984), quoted in the main
opinion, the circuit court properly may overturn decisions of
the Association in cases where there is a showing by clear and
convincing evidence of fraud, collusion, lack of jurisdiction
by the Association, or arbitrariness.2
Second, at the time this Court issued its November 14,
2016, order, I concluded that the trial courts erred as a
matter of law under the unique facts of this case in not
2I believe that the Court in Alabama High School Athletic
Ass'n v. Medders, 456 So. 2d 284, 286 (Ala. 1984), necessarily
spoke too "loosely" in referring to a court's lack of
"jurisdiction to resolve disputes regarding eligibility under
the rules of the [Association]."
21
1160121, 1160125
finding the decision of the Alabama High School Athletic
Association to be arbitrary. I remain of that view.
Finally, with the exception of any implied acceptance of
the notion that the "jurisdiction" terminology in Alabama High
School Athletic Ass'n v. Medders, 456 So. 2d 284 (Ala. 1984),
accurately reflects current law, I am sympathetic to the views
expressed by Justice Bryan in his special writing.
22 | February 24, 2017 |
c32dfcfd-dcac-4b1c-bb54-f0d4879d041c | Doby v. Carroll | 147 So. 2d 803 | N/A | Alabama | Alabama Supreme Court | 147 So. 2d 803 (1962)
Kenneth C. DOBY
v.
Harry L. CARROLL, as Guardian.
1 Div. 92.
Supreme Court of Alabama.
December 20, 1962.
Austill, Austill & Austill, Mobile, for appellant.
Holberg, Tully & Hodnette, Mobile, for appellee.
MERRILL, Justice.
The question presented in this case is whether the adoption statutes of Alabama, in effect in 1961, permitted the adoption of an adult. The Probate Court of Mobile County held that they did not and we concur.
On October 21, 1961, Clara McCallister, an adult, filed a sworn petition for the adoption by her of Kenneth C. Doby, an adult 23 years of age. Doby filed his written consent to the adoption. After a hearing on November 30, 1961, the probate court entered a final order of adoption.
On June 1, 1962, the appellee, Harry L. Carroll, as guardian of the estate of Clara *804 McCallister, a person of unsound mind, filed a petition to vacate, annul and set aside the order of adoption on the ground of fraud, and later, on an amended ground that the decree of the probate court was void on the face of the record because the record showed that the appellant was an adult and the laws of this state do not authorize the adoption of one adult by another.
After a hearing, the probate court entered a decree setting aside its decree of November 30, 1961, on the ground that the court was without jurisdiction to order the adoption because our statutes do not permit the adoption of adults.
In Alabama, the right of adoption is purely statutory and in derogation of the common law, and the probate court acts as a court of limited jurisdiction in adoption proceedings, and unless the statute by express provision or necessary implication confers the right to adoption, such right does not exist. Franklin v. White, 263 Ala. 223, 82 So. 2d 247; Claunch v. Entrekin, 272 Ala. 35, 128 So. 2d 100.
In Abney v. De Loach, 84 Ala. 393, 4 So. 757, there is dicta that under the adoption statute of the Code of 1886, no adult could be adopted and that it applied exclusively to minors. The pertinent statute, Sec. 2367, provided:
However, in Sheffield v. Franklin, 151 Ala. 492, 44 So. 373, 12 L.R.A., N.S., 884, the question was squarely presented to this court and four Justices disagreed with the dicta in Abney and held that an adult could be adopted under that section because the word "child" in the statute referred to the relation or status and not to minority; while three Justices said they thought the dicta in Abney was correct.
It will be noted that adoption under the 1886 Code was by declaration. In 1931, our adoption statutes were radically changed, and the 1931 Act appears in the 1940 Code as Tit. 27, §§ 1-9.
There has been no judicial decision by this court on the question since 1931, but in 1951, the Attorney General ruled that adult children may be adopted, in an opinion to the Probate Judge of Calhoun County, Quarterly Report of the Attorney General of Alabama, April 1-June 30, 1951, Vol. 63, p. 82, citing Sheffield v. Franklin, supra.
The adoption statute in the 1923 Code, Sec. 9302, still provided for adoption by declaration and was placed in the Code under the Chapter headed "Parent and Child," and in each of the Codes of 1923, 1907, 1896 and 1886, the Code section is titled, "Mode of adopting child; effect of."
In 1931, our present system of adoption, requiring investigation by the then State Welfare Department and providing for interlocutory decrees before final orders were made, and many other changes, became effective upon the approval of Act No. 405, General Acts of Alabama 1931, p. 504.
The title of this Act was "An Act to amend Section 9302 of the Code of Alabama, 1923." The title line of section 1 reads:
"`Section 9302.' A. WHO MAY PETITION FOR ADOPTION OF MINOR CHILD. (Emphasis supplied)."
*805 When the 1931 Act was codified and became § 1 of Tit. 27, Code 1940, the title line of § 1 was titled"Petition for adoption of minor child," and the chapter on "Adoption of Children" is the first chapter in Tit. 27, which is headed "Infants."
This is a strong indication that the legislative intent was to provide for the adoption of minors only when the 1931 Act was adopted. Not only the entitlement and placement in the Code, but a reading of Tit. 27, §§ 1-9, Code 1940, adds weight to the apparent legislative intention to restrict adoption to minor children. Moreover, there is no procedure of any kind provided in our statutes for the adoption of an adult.
We, therefore, hold that the adoption statutes, Tit. 27, §§ 1-9, of this state, in effect in 1961, did not and do not authorize the adoption of an adult.
Appellant states in brief that it is not his contention that the probate court is without jurisdiction to set aside on motion, a decree void on its face, but does contend that the motion filed in the instant case is a collateral attack upon the original decree of adoption and that decree is not subject to collateral attack. We do not reach the point where it is necessary to discuss this contention of appellant.
It is settled that where it appears on the face of the record that the judgment or decree is void, the court rendering it has inherent power to vacate it at any time, subsequent to its rendition, and such power is not dependent on statute. Hartigan v. Hartigan, 272 Ala. 67, 128 So. 2d 725; Cleveland v. Cleveland, 263 Ala. 530, 83 So. 2d 281; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184.
An appeal lies from the ruling of the court, whether the motion to set aside be granted or refused, provided that the granting does not reinstate the original cause for further proceedings. Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Ford v. Ford, 218 Ala. 15, 117 So. 462; Robinson Co. v. Beck, 261 Ala. 531, 74 So. 2d 915.
We note that the motion to set aside or vacate is proper when the decree or judgment is void from all matters which appear on the face of the record, and the invalidity is not limited to what may appear only in the judgment or decree. Claunch v. Entrekin, 272 Ala. 35, 128 So. 2d 100.
Here, the proceedings for the adoption of appellant in the Probate Court of Mobile County show on the face of the record that appellant was an adult when his adoption was attempted. Since our statutes do not authorize that court, acting as a court of limited jurisdiction, to approve the adoption of an adult, the decree was void and the court properly set it aside.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | December 20, 1962 |
62cc9696-9dca-455e-9ee9-ad6214366751 | Koplon v. Koplon | 148 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 148 So. 2d 245 (1962)
Norman KOPLON et al., Pro ami, etc.
v.
Manuel KOPLON et al.
5 Div. 727.
Supreme Court of Alabama.
November 29, 1962.
*246 Brown & McMillan, Opelika, for appellants.
L. J. Tyner, Opelika, for appellees.
PER CURIAM.
B. Koplon died on November 8, 1947, leaving a last will and testament, three pertinent provisions of which are as follows:
Surviving the decedent were his wife and the six children whose names appear in Item 4 of the will. The son, Louis Koplon, died intestate in January, 1952, leaving his wife, Sadie Koplon, remarried and now Mrs. Sadie Simon, and two minor children, Norman and Elaine.
Mrs. Sadie Koplon, widow of decedent, having qualified as executrix of her husband's estate, proceeded individually and in her fiduciary capacity on October 1, 1952, to convey by deed to Manuel and Aby Koplon a brick store and lot in the City of Opelika, Alabama, the property being a part of her deceased husband's estate. The deed recited a consideration of $10,000, to her in hand paid, and love and affection for the grantees. The deed referred to Item 4 of the will as her authority to convey in her fiduciary capacity.
The minors, Norman and Elaine Koplon, suing by their mother and next friend, Mrs. Sadie Simon, filed their complaint in the Circuit Court of Lee County, in equity seeking relief against respondents Manuel Koplon, Aby Koplon, and Mrs. Sadie Koplon, individually and in her capacity as executrix of her deceased husband's last will and testament.
The relief prayed for in the bill, as last amended, is as follows: (1) That the deed from Mrs. Sadie Koplon to her two sons be declared null and void and of no effect as to the fee simple title therein attempted to have been conveyed, except the life estate of the grantor; (2) to perpetually enjoin the executrix from making any deed seeking to convey fee simple title in any real estate owned by said B. Koplon at the time of his death and to which Mrs. Sadie Koplon, the executrix, was devised a life estate only; (3) that the court determine and set a reasonable attorneys' fee for services rendered complainants' attorneys in this matter; and (4) that if complainants are mistaken as to the authority of respondent executrix to sell the real estate that she be required to hold the proceeds of the sale only as life tenant, and upon her demise such proceeds "shall have" vested in the remaindermen of the real estate under the will of said B. Koplon, deceased.
Supportive of these objectives for relief, complainants, in their complaint, as amended, aver that the deed referred to above was an attempt on the part of the grantor to convey a greater interest than her life estate; that the deed was without valuable consideration; that it was not to the best interests of the estate of B. Koplon; was an attempt to deprive complainants of their remainder interests in said property according to the will of their grandfather; that the execution and delivery of said deed was a gross abuse of her discretion vested in her as executrix; and that the consideration of the deed was far less than the fair market value of their remainder interest; and that in making said deed, the respondent, Mrs. Sadie Koplon, as executrix, was guilty of gross abuse of discretion in carrying out the provisions of the will.
Further the complainants aver that the executory power granted in the will to dispose of the real estate did not confer on her the power to dispose of said real estate without valuable consideration, so as to defeat testator's devise of a remainder interest to testator's children.
The complaint also alleges complainants and their attorneys have made no agreement as to fees for services rendered and to be rendered in this cause.
*248 It is to be noted that there was no charge in the complaint, as amended, that Mrs. Koplon, the respondent, in making the deed, was guilty of any fraud or a victim of undue influence on the part of the grantees in the deed or anyone else.
The answer of respondents, after admitting certain formal parts of the complaint, challenged the allegations of the complaint either by direct denial or by affirmative allegations that were essentially contradictory, and they denied complainants' right to relief prayed.
As we view the pleadings, the assignments of error and the arguments submitted in briefs filed with this court, there are three questions presented for determination in this appeal: (a) The validity of the deed from Mrs. Koplon, acting in her capacity as executrix, to her sons, Manuel and Aby Koplon; (b) the failure of the court permanently to enjoin the executrix, Mrs. Sadie Koplon, from making additional conveyances under the power of sale in the will; and (c) the failure of the trial court to allow a reasonable fee to the solicitors for complainants out of the estate of the deceased, B. Koplon. We will address these issues seratim:
A reasonable breakdown of the provisions and powers of Item 4 of the will may be stated as follows:
(1) Exempted the executrix from bond and making reports or settlements in any court.
(2) Gave the executrix, his wife, an unlimited power of sale to sell or dispose or exchange any of his property, including his real estate.
(3) Empowered the executrix to sell on such terms as she may agree to.
(4) Empowered the executrix to sell at either private or public sale.
(5) Authorized the executrix to sell with or without notice as she may determine and without the order of any court.
Counsel for appellants argue that in construing the will of testator, Mr. B. Koplon, "it is necessary to determine whether or not the power granted to the executrix is personal or an incident of the executorial office." Also, the brief states that "the trial court evidently found that the power was personal." Further, they contend the cases which they found are to the effect that there is a distinction between a personal power and one attaching to and granted in connection with the executorial office. Citing Dryer v. Crawford, 90 Ala. 131, 7 So. 445; Jemison v. Brasher, 202 Ala. 578, 81 So. 80.
As we interpret Dryer v. Crawford, supra, the power of sale given the wife in her executorial capacity did not enlarge her interest in the real property to the extent of embracing the interests of the children, thereby subjecting the whole to an execution issued to collect a judgment against the wife. Only the interest of the wife, it was held, was subject to the execution. We do not note any holding that the right of the executor to exercise the power of sale would be any different from the same rights granted an individual.
The distinction drawn in the Dryer case avoided the effect of Section 1325, Code of 1852, now Section 76, Title 47, Code of Alabama, 1940, reading as follows:
Justice Stone, in the case of Alford's Adm'r v. Alford's Adm'r., 56 Ala. 350, in construing the above statute, observed:
Likewise, as in the case of Dryer v. Crawford, supra, testator B. Koplon, in giving his wife in her fiduciary capacity, unlimited power to sell the real property, avoided the effect of Section 76, Title 47, supra, as interpreted in Alford's Adm'r v. Alford's Adm'r, supra. By so doing, he defeated any subjection of the remaindermen's interest to the payment of his wife's debts in the operation of the mercantile business mentioned in the will. These remainder interests were thereby preserved.
We do not think that the distinction alluded to by appellants operates to impair or dilute the unlimited authority granted in the will empowering the executrix to sell the property. There are no limitations expressed to when and for what purposes the power may be exercised. What motivated the testator in giving this naked and unlimited power is conjectural and speculative. It is sufficient so far as this court is concerned that he granted the power, and in the absence of facts connected with the same which adversely and unlawfully affect the rights of the remaindermen under the will, we are not disposed to disturb the exercise of the power.
The evidence of respondents tended to show that prior to the sale the executrix, on advice of her attorney, had the property appraised; that the appraised value, determined by bankers and other witnesses familiar with the property and with a knowledge of real estate values in the local area, was on or about October 1, 1952, the date of the sale, approximately the sum of $15,500.00.
Acting after the appraisal, according to the tendency of the evidence, the executrix, in the exercise of the power of sale, sold the property with the appraised value used as a basis. The purchasers, her two sons, according to the evidence adduced, gave the executrix their promissory notes in the sum of $7,500.00, bearing interest, maturing over a period of several years. These notes were subsequently paid.
The notes, according to witnesses, represented one-third of the appraised value plus an agreed sum for the widow's life estate. Two of the remaindermen subsequently deeded their interests in the store and lot to the grantees in the fiduciary conveyance. The notes embraced, but not exclusively, the pro rata share of complainants and one other remainderman.
While the consideration expressed in the deed was nominal and for love and affection for the grantees, the true consideration was properly allowed to be explained or shown by parol evidence. Burroughs v. Pate, 166 Ala. 223, 51 So. 978(3).
The will provides that the executrix may sell the property on such terms as she may agree. This provision would authorize the executrix to sell on time. Woodhouse v. Harrison, 168 Va. 574, 191 S.E. 776, 779; Federal Land Bank of New Orleans v. Miller, 199 Miss. 615, 25 So.2d 11(6).
Where the power of sale is exercised in good faith, without fraud or manifest abuse of discretion, the court will not interfere. Burton v. Jones, 212 Ala. 353, 102 So. 807(6).
No question is raised on this appeal about the disposition of the corpus of the purchase price belonging to the complainants in remainder. The trial court ordered it turned over to a designated trustee with directions for investment and payment of the income therefrom to the life-tenant, Mrs. Koplon.
Where witnesses testify orally before lower court in equity suit, as in this case, the decree of the lower court will not be disturbed unless palpably wrong. Cook v. Benton, 250 Ala. 259, 33 So.2d 877(3); Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251(10).
*250 We cannot say that the findings of the trial court in this case were palpably wrong; and under such circumstances, the decree of the lower court on its appraisal of the evidence will not be disturbed. Puckett v. Puckett, 240 Ala. 607, 200 So. 420(6).
The trial court determined that the litigation instituted by the complainants here was "antagonistic"; so he denied an attorneys' fee to complainants. An allowance of such a fee is within the sound discretion of the trial court and will not be disturbed except for an improper exercise of discretion. An "improper" exercise of discretion appears when the record, after indulging all fair intendments in favor of the ruling, discloses that the ruling was unjust and unfair. Otherwise, the action of the trial court, as here, will not be disturbed. Troy Bank & Trust Company v. Brantley, 263 Ala. 428, 82 So. 2d 618.
Appellants state in their brief that if the conveyance from the executrix to the grantees is going to stand, then, of course, the injunction should not issue; that it was, and is, sought as relief ancillary to the principal relief sought. We pretermit any discussion of this phase of the relief, since affirmance of this case sustains the finding of the trial court that the deed was valid.
Complainants' assignments of error are without merit, this case is due to be affirmed, and it is so ordered.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by this court as its opinion.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL and COLEMAN, JJ., concur. | November 29, 1962 |
0ae27ac4-b501-426b-8e3f-2b0edaa23c16 | FMR Corp. n/k/a FMR LLC, et al. v. Howard n/k/a Hart | N/A | 1151149 | Alabama | Alabama Supreme Court | rel: 01/13/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151149
____________________
FMR Corp. n/k/a FMR LLC, et al.
v.
Elizabeth Ann Howard n/k/a Elizabeth Ann Hart
Appeal from Pike Circuit Court
(CV-14-000014)
STUART, Justice.
FMR Corp. n/k/a FMR LLC, Fidelity Management Trust
Company, and Fidelity Brokerage Services LLC (hereinafter
referred to collectively as "Fidelity") appeal the order of
the Pike Circuit Court denying their motion asking the court
1151149
to compel Elizabeth Ann Howard n/k/a Elizabeth Ann Hart
("Hart") to arbitrate Fidelity's dispute with her regarding
her responsibility to indemnify Fidelity for losses it might
suffer if Hart's stepchildren prevail on claims they have
asserted against Fidelity that are the subject of a separate
pending arbitration proceeding. We reverse and remand.
I.
On July 31, 2006, Hart's husband, Frederick Howard,
opened an online individual retirement account with Fidelity
("the Fidelity IRA"), funding it with approximately $1.2
million that had previously been held in a retirement account
administered
by
Howard's
former
employer,
BellSouth
Corporation. Although Howard had previously designated his
three children from a prior marriage –– John Troy Howard,
Jennifer Howard Brown, and Reed Howard (hereinafter referred
to collectively as "the Howard children") –– as the
beneficiaries of the BellSouth retirement account, he did not
designate any beneficiary for the Fidelity IRA at the time it
was opened or at anytime thereafter.
On January 31, 2011, Howard died; his death certificate
listed the cause of his death as Parkinson's disease, which he
2
1151149
had suffered from since at least 2003. Howard's will left all
his personal property to the Howard children, explaining
therein that no provision was being made in the will for Hart
because "she has a sizeable separate estate of her own" and
because upon his death she would take ownership of the marital
residence and certain other monetary accounts that she and
Howard had held as joint tenants with the right of
survivorship. However, because Howard never designated a
beneficiary for the Fidelity IRA, Fidelity distributed the
approximately $1.4 million held in that account to Hart in
accordance with the terms of the Fidelity IRA, which provided
that any assets in the account would become the property of a
surviving spouse when the account holder died if no
beneficiary
had
been
named.
The
Howard
children
unsuccessfully
challenged
that
distribution
in
the
Pike
County
Probate Court.
On October 10, 2012, the Howard children sued Fidelity
and Hart in the Shelby Circuit Court, asserting claims of
undue influence, fraud, and conversion against Hart and a
claim of negligence against Fidelity. The gravamen of their
claims was that Howard was incompetent at the time the
3
1151149
Fidelity IRA was opened and that Hart was the impetus behind
the online opening of the Fidelity IRA, while Fidelity was
alleged to be negligent for failing to implement adequate
procedures governing its online-account-opening process that
would prevent either fraudulent activity or invalid
actions
by
incompetent individuals. Upon being served, Fidelity
requested an extension of time within which to file an answer,
which the circuit court granted, noting in its order doing so
that "[t]his extension of time does not waive, and
specifically reserves [Fidelity's] right to arbitrate any
claims in this matter." Meanwhile, Hart's first action was to
file a motion asserting that the proper venue for the Howard
children's claims was the Pike Circuit Court and requesting a
transfer of the case to that forum.
On February 7, 2013, Fidelity, rather than file an answer
to the Howard children's complaint, moved the Shelby Circuit
Court to compel arbitration, noting in its motion that Howard,
Hart, and the Howard children had all executed documents
related to accounts with Fidelity that contained arbitration
provisions. Specifically, Fidelity noted that at the time of
his death Howard owned multiple investment accounts with
4
1151149
Fidelity besides the Fidelity IRA and that those accounts
listed Hart and the Howard children as co-beneficiaries. Upon
Howard's death, Hart and the Howard children opened their own
accounts with Fidelity to receive their respective shares of
the funds held in those other accounts, and, in the process of
doing so, Hart and the Howard children agreed to an
arbitration provision providing, in relevant part:
"All controversies that may arise between you
and us concerning any subject matter, issue, or
circumstance whatsoever (including, but not limited
to, controversies concerning any account, order, or
transaction, or the continuation, performance,
interpretation, or breach of this or any other
agreement between you and us, whether entered into
or arising before, on, or after the date this
account
is
opened)
shall
be
determined
by
arbitration
through
the
Financial
Industry
Regulatory Authority (FINRA) ...."
The Shelby Circuit Court did not immediately rule on
Fidelity's
motion
to
compel
arbitration,
instead
allowing
Hart
and the Howard children to litigate the venue issue, upon
which Fidelity took no position. See generally Unum Life Ins.
Co. of America v. Wright, 897 So. 2d 1059, 1076 (Ala. 2004)
(indicating that parties have the right to establish the
proper venue before the issue of arbitration is considered).
5
1151149
On February 25, 2014, the Shelby Circuit Court entered
orders ruling on the two motions pending before it. In the
first order, the court granted Fidelity's motion to compel
arbitration and ordered the Howard children to submit their
claim against Fidelity to the Financial Industry Regulatory
Authority ("FINRA") for arbitration. In the second order, the
court granted Hart's motion for a change of venue, agreeing
that the Pike Circuit Court was the proper forum to hear the
claims asserted against Hart by the Howard children. The Pike
Circuit Court thereafter conducted the necessary proceedings
and, on December 19, 2014, entered a final judgment resolving
all claims asserted by the Howard children against Hart.
Neither the Howard children nor Hart appealed that judgment,
and that judgment is not the subject of this appeal.
In May 2015, the Howard children initiated arbitration
proceedings against Fidelity by filing a statement of claim
with FINRA. In August 2015, Fidelity filed with FINRA its
response to the Howard children's statement of claim, in which
it also asserted a third-party claim against Hart for
indemnification, noting that the customer agreement she had
agreed to abide by when opening her Fidelity accounts
6
1151149
contained both an indemnification clause and the previously
quoted arbitration provision. Hart responded by filing a
motion in the Pike Circuit Court seeking a judgment declaring,
essentially, that Fidelity could not compel her
to
participate
in the arbitration proceedings involving Fidelity and the
Howard children.
On April 13, 2016, Fidelity moved the Pike Circuit Court
("the trial court") to compel Hart to arbitrate the issue
whether she was obligated to indemnify Fidelity for any
damages, costs, and expenses it might be ordered to pay the
Howard children in arbitration as a result of Fidelity's
distribution of the proceeds of the Fidelity IRA to Hart
following Howard's death. Fidelity based its motion on the
arbitration provision Hart had agreed to when she opened her
own Fidelity accounts after Howard's death; as noted, that
provision stated, in relevant part, that "[a]ll controversies
that may arise between you and us concerning any subject
matter, issue, or circumstance whatsoever ... shall be
determined by arbitration." The trial court thereafter heard
oral arguments on the issue and on June 22, 2016, entered an
7
1151149
order holding that Hart could not be compelled to participate
in arbitration at the current time, stating:
"Compelling
[Hart]
to
now
participate
as
a
party
in the arbitration of the claims asserted by [the
Howard
children]
against
[Fidelity]
would
be
prejudicial to [Hart] as any claim [Fidelity] may
have against [Hart] has not ripened at this time.
Accordingly, the matters presently before the court
are hereby stayed pending further order and [Hart]
shall not, at this time, participate as a party in
the arbitration of the claims asserted by [the
Howard children] against [Fidelity].
"Within ten (10) days of the conclusion of the
arbitration of the claims asserted by [the Howard
children] against [Fidelity], [Fidelity]
shall cause
to be filed with this court a report of the final
order of the arbiter. If, at that time, the
arbitration ruling was adverse to [Fidelity], the
amended motion for declaratory judgment made by
[Hart] and the motion to compel arbitration filed by
[Fidelity] shall be deemed as submitted for ruling.
However, if the arbitration ruling was favorable to
[Fidelity], the amended motion for declaratory
judgment made by [Hart] and the motion to compel
arbitration filed by [Fidelity] shall be dismissed
as moot."
Fidelity now appeals the trial court's denial of its motion to
compel arbitration pursuant to Rule 4(d), Ala. R. App. P.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
8
1151149
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In conjunction with its motion to compel arbitration,
Fidelity submitted documents establishing (1) that Hart
entered into contracts calling for arbitration when she
opened
various Fidelity-branded accounts after Howard's death, and
(2) that the transactions underlying those contracts affected
interstate commerce. The burden thus shifted to Hart to
establish either that the arbitration provision in those
contracts was not valid or that it did not apply to the
dispute in question. Gantt, 882 So. 2d at 315. On appeal,
9
1151149
Hart does not challenge the validity of the identified
arbitration provision; instead, she argues (1) that there is
in actuality no current dispute between her and Fidelity ––
only the possibility of a future dispute in the event the
Howard children prevail on their claim against Fidelity
currently in arbitration –- and (2) that, even if there were
a dispute between her and Fidelity, Fidelity has waived its
right to compel arbitration of that dispute. Before
considering these arguments addressing the merits of
the
trial
court's decision, however, we must first consider Hart's
preliminary argument that Fidelity's appeal should be
dismissed because, she argues, there has been no final
judgment.
In its June 22, 2016, order, the trial court stated that
it would not compel arbitration "at this time" but indicated
that it might do so at some point in the future. Hart
accordingly argues that there has been no final judgment that
can support an appeal because, she says, the arbitration issue
has not been conclusively determined. See, e.g., Palughi v.
Dow, 659 So. 2d 112, 113 (Ala. 1995) ("An appeal will
ordinarily lie only from a final judgment; that is, a judgment
10
1151149
that conclusively determines the issues before the court and
ascertains and declares the rights of the parties."). We
disagree. Once Fidelity established both the existence of a
contract calling for arbitration and that that contract
evidenced a transaction affecting interstate commerce, it was
entitled to have its motion to compel arbitration granted
unless Hart thereafter submitted evidence establishing either
that the arbitration provision was not valid or that it did
not apply to the dispute in question. Gantt, 882 So. 2d at
315. By not granting Fidelity's motion to compel arbitration,
the trial court "effectively and substantively" denied the
motion, and Fidelity is entitled to pursue appellate review of
that decision. Southland Quality Homes, Inc. v. Williams, 781
So. 2d 949, 952 (Ala. 2000). A key purpose of the Federal
Arbitration Act, 9 U.S.C. § 1 et seq., is to permit the speedy
resolution of disputes, Ocwen Loan Servicing, LLC v.
Washington, 939 So. 2d 6, 13 (Ala. 2006), and allowing an
order effectively denying a motion to compel arbitration to
avoid appellate review because the trial court indicated it
might yet compel arbitration at a later date would frustrate
11
1151149
that intent to a large degree. Fidelity's appeal is
accordingly properly before this Court.
We thus turn to Hart's argument that there is no
cognizable dispute between her and Fidelity that can be sent
to arbitration. Essentially, Hart argues that,
while
Fidelity
is engaged in an active dispute with the Howard children, it
can have no dispute with her regarding her ultimate
responsibility to indemnify Fidelity for losses related to
that dispute until and unless an award or judgment is entered
against Fidelity. Hart appears to concede that, if such an
award or judgment is entered, Fidelity might then have an
arbitrable dispute with her; however, Hart argues, until that
happens, Fidelity's third-party-indemnification claim is
simply not ripe because, she argues, only the possibility of
a future dispute exists.
Fidelity argues that there is presently a dispute between
it and Hart that falls within the broad scope of the
arbitration provision –– specifically, whether Hart is liable
to Fidelity for damages it might owe the Howard children if it
is determined that funds were wrongfully distributed from the
Fidelity IRA opened by Howard to a separate Fidelity account
12
1151149
opened by Hart following Howard's death. We agree that this
dispute, or "controversy" as it would be called using the
terminology of the arbitration provision, falls within the
scope of that arbitration provision. In their briefs to this
Court, Hart and Fidelity make extensive arguments regarding
the ripeness of this dispute; however, inasmuch as we have
held that the subject matter of the dispute is clearly within
the arbitration provision, any ripeness issue must be
resolved
by the arbitrator, not by this Court. See, e.g.,
Transportation Workers Union of America v. Veolia Transp.
Servs., Inc., 24 F. Supp. 3d 223, 230 (E.D.N.Y. 2014) (holding
that argument that "the dispute is allegedly not ripe" is "for
the arbitrator to decide, not the court"); Milliman, Inc. v.
Health Medicare Ultra, Inc., 641 F. Supp. 2d 113, 119 (D.P.R.
2009) ("Whether the alleged dispute that led Petitioners to
commence arbitration proceedings ... is ripe must ultimately
be determined by the arbitrator."); Ace American Ins. Co. v.
Huntsman Corp., 255 F.R.D. 179, 210 (S.D. Tex. 2008) ("[I]f it
is determined that arbitration is warranted, questions of the
ripeness of the underlying disputes ... may be determined by
the arbitrators.").
13
1151149
Hart next argues that, even if Fidelity's dispute with
her is subject to the arbitration provision, Fidelity has
nevertheless waived its right to enforce that provision
against her because, she alleges, Fidelity failed to invoke
the arbitration provision in a timely manner. In support of
this argument, Hart emphasizes the lengthy history of this
case and the fact that the Howard children initiated
litigation against her and Fidelity in October 2012 but that
Fidelity did not seek to enforce the arbitration provision
against her until August 2015, approximately eight months
after she had resolved her dispute with the Howard children.
However, as was the case with Hart's previous argument, this
issue must be decided by the arbitrator, not this Court.
In Dudley, Hopton-Jones, Sims & Freeman, PLLP v. Knight,
57 So. 3d 68, 71 (Ala. 2010), this Court similarly considered
an argument that a party had waived its right to compel
arbitration by failing to request it in a timely fashion and
held that that issue should be decided by the arbitrator, not
the Court, explaining:
"In
Ocwen
Loan
Servicing,
LLC
v.
Washington,
939
So. 2d 6, 14 (Ala. 2006), this Court stated that
'whether a party has waived the right to arbitration
by its conduct during litigation is a question for
14
1151149
the court and not the arbitrator.' We further
explained that '[i]n order to show waiver by
litigation-related conduct, the party opposing
arbitration must demonstrate that the movant has
substantially invoked the litigation process ....'
939 So. 2d at 14. Washington therefore represents
an
exception
to
the
general
presumption
in
arbitration law that arbitrators should decide
allegations of waiver. See, e.g., Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)
(quoting Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983)) ('[T]he
presumption is that the arbitrator should decide
"allegation[s] of waiver, delay, or a like defense
to arbitrability."').
"That exception does not apply in this case,
however, because [the appellee] is not arguing that
[the appellant] waived its right to arbitrate its
claims by substantially invoking the litigation
process. Rather, [the appellee] is arguing that
[the appellant] waived its arbitration rights based
on its failure to pursue its claims in a timely
fashion. See [the appellee's] brief, p. 15 ('[The
appellant's] conduct in sitting on its hands for
almost a decade before seeking arbitration of its
claims constitutes a waiver of its right to
arbitration. Just as parties can waive their
contractual right to arbitration by substantially
invoking the litigation process, they can also waive
such rights through dilatory conduct.'). An
allegation of waiver such as this falls outside the
exception articulated in Washington and is subject
to the general rule that arbitrators should decide
issues of waiver or delay; accordingly, we cannot
affirm the judgment of the circuit court on this
basis. See also Brasfield & Gorrie, 35 So. 3d at
606-07 n.1 (explaining that whether a party has
waived its right to arbitration by substantially
invoking the litigation process is a matter for the
trial court because invoking the litigation process
involves matters that occurred under the trial
15
1151149
court's
watch;
such
a
waiver
is
therefore
distinguishable from a waiver based on other factors
not involving litigation conduct)."
In this case, although Hart has cited Georgia Power Co. v.
Partin, 727 So. 2d 2, 7 (Ala. 1998), for the general principle
that "[a] court will not find a waiver of the right to
arbitration unless the party seeking arbitration has so
substantially invoked the litigation process that to compel
arbitration will substantially prejudice the party opposing
it," she makes no argument that Fidelity has waived its right
to compel arbitration because of its litigation conduct; she
instead relies exclusively on her general allegation of delay
and the facts that the event underlying this dispute occurred
in July 2006 when the Fidelity IRA was opened and that
litigation based on that event began in October 2012, and yet
Fidelity did not act to compel arbitration of its claim
against her until August 2015. Hart has made no real
1
argument that Fidelity substantially invoked the litigation
process, and her argument that Fidelity waived its right to
Fidelity states that it was essentially a passive
1
observer in the litigation initiated by the Howard children
after it moved for arbitration –– which it did before even
filing an answer –- and that Hart accordingly cannot identify
any litigation activity on its part that would merit a finding
that it had substantially invoked the litigation process.
16
1151149
compel arbitration by failing to make that request in a timely
manner is the type of waiver argument that is left to the
arbitrator, not a court of law, to decide. See Knight, 57 So.
3d at 71 (explaining that allegations of waiver such as this
are "subject to the general rule that arbitrators should
decide issues of waiver or delay").
IV.
The trial court denied Fidelity's motion to compel
arbitration in this case, notwithstanding the fact that
Fidelity submitted competent evidence establishing that a
contract calling for arbitration existed between it and Hart
and that the underlying transaction affected interstate
commerce. Hart's argument that the arbitration provision she
agreed to does not apply to the dispute with Fidelity is
without merit, and the arguments she has raised regarding
ripeness and waiver concern issues that are for the
arbitrator, not a court of law, to decide. Accordingly, the
judgment entered by the trial court denying Fidelity's motion
to compel arbitration is reversed and the cause remanded for
the trial court to enter an order granting the motion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Bolin, Parker, and Wise, JJ., concur.
Shaw, J., concurs specially.
17
1151149
SHAW, Justice (concurring specially).
I concur. The caselaw cited in the main opinion
indicates that any issue of "ripeness" regarding the
indemnification claim asserted by FMR Corp. n/k/a FMR LLC,
Fidelity Management Trust Company, and Fidelity Brokerage
Services LLC (hereinafter referred to collectively as
"Fidelity") against Elizabeth Ann Howard n/k/a Elizabeth Ann
Hart is to be determined by the arbitrator. A determination
of ripeness is part of the legal dispute between the parties.
Normally, the trial court must determine whether a case is
ripe; here, the parties have agreed that that matter--as part
of "[a]ll controversies" between the parties--must instead be
determined by arbitration.
Further, I note that, generally, an indemnification claim
is ripe for consideration even if the indemnitee has not yet
been held liable for a claim that the indemnitor might be
required to pay. In Ex parte Athens-Limestone Hospital, 858
So. 2d 960 (Ala. 2003), the defendant, a hospital, sought to
assert an indemnity claim against its employee, Dr. Teng, who
had allegedly injured the plaintiff, Wilson. Wilson objected
to the assertion of the indemnity claim, arguing that the
18
1151149
claim was not ripe because the hospital had not yet been
found liable to Wilson. This Court stated:
"Wilson
also
argues
that
the
Hospital's
indemnity claim is not ripe and that there is no
justiciable controversy for the trial court to
decide regarding the Hospital's [indemnity] claim
against Dr. Teng. Those arguments are without merit.
The plain language of Rule 14[, Ala. R. Civ. P.,]
discounts Wilson's argument that the Hospital's
indemnity claim is not ripe for consideration. Rule
14 was designed for third-party claims like the
Hospital's, because it provides for impleader of 'a
person not a party to the action who is or may be
liable to the third-party plaintiff for all or part
of the plaintiff's claim against the third-party
plaintiff.' Rule 14, Ala. R. Civ. P. See also
Committee Comments on 1973 Adoption to Rule 14 ('But
where there is a substantive right over, Rule 14
does permit acceleration of liability by allowing
the original defendant to implead a third-party
claimed to be liable over to him, although there may
be no liability to the original defendant unless and
until the original defendant is held liable to the
original plaintiff.') (emphasis added)."
858 So. 2d at 965. Thus, although Fidelity has not been held
liable to Hart's stepchildren for damages, Fidelity's claim
alleging that Hart would be required to indemnify Fidelity for
any such damages cannot be said to be unripe.
19 | January 13, 2017 |
927e89f6-45d7-4bb7-ab39-9dba774ef325 | Grimes v. Alfa Mutual Ins. Co. | N/A | 1150041 | Alabama | Alabama Supreme Court | Rel:01/27/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150041
____________________
Warren Grimes and Johanna Grimes
v.
Alfa Mutual Insurance Company
Appeal from Coffee Circuit Court
(CV-12-900141)
BOLIN, Justice.
Warren
Grimes
and
Johanna
Grimes
appeal
from
a
declaratory judgment holding that a
liability policy issued by
Alfa Mutual Insurance Company ("Alfa") did not provide
coverage for a user of an automobile who did not have the
1150041
express permission of the owner or drivers covered by the
policy.
Facts and Procedural History
On May 7, 2010, Teresa Boop added liability coverage and
uninsured/underinsured-motorist
coverage
for
a
pickup
truck
to
her automobile insurance with Alfa. Boop also added her minor
son as a driver under the policy. Boop's son was listed as
the rated driver for the pickup truck and his addition was
reflected in the rates charged by Alfa for the additional
coverage. The liability provision of the policy provided:
"If this coverage is shown on your declaration,
we will pay damages for bodily injury or property
damage for which any covered person becomes legally
responsible because of a car accident arising out of
the ownership, use or maintenance of a covered car
or non-owned car. We will settle or defend lawsuits
asking for these damages until your coverage for
such damage has been exhausted with attorneys hired
and paid by us as we consider appropriate. In
addition to our limit of liability, we will pay all
defense costs we incur. We have the right to
investigate, negotiate and settle any claim or suit.
We have no duty to defend any suit or settle any
claim for bodily injury or property damage not
covered under this policy."
The policy defined "covered person" as:
"1. You and your:
2
1150041
"2. Family members.
"3. Any other person while using the covered
car with the express permission of you or a family
member.
"4. Under Part A [liability coverage], any
person or organization legally responsible for the
use of the covered car by covered persons as defined
under the three subsections above.
"5. Under Part D [uninsured/underinsured-
motorist coverage], any person while occupying your
covered car."
On May 23, 2010, Amy Arrington was operating the pickup
truck when it collided with a vehicle owned and occupied by
the Grimeses. Both of the Grimeses suffered personal injuries
as a result of the collision. The Grimeses' vehicle was
insured by Liberty Mutual Group, Inc.
On April 16, 2012, Liberty Mutual sued Arrington,
alleging negligence and wantonness and seeking recovery of
damages for the Grimeses' vehicle. On May 23, 2012, the
Grimeses sued Arrington and Boop, alleging negligence,
wantonness,
and
negligent
entrustment,
and
seeking
damages
for
their personal injuries. Arrington filed answers, arguing
that she was a covered person under the terms of Boop's policy
with Alfa and that Alfa, therefore, should provide her with a
3
1150041
defense in the Grimeses' action and in Liberty Mutual's
action.
On October 15, 2012, Alfa filed a complaint, seeking a
judgment declaring that the Alfa policy did not require it to
defend either lawsuit or to pay damages caused by the
collision. Liberty Mutual and the Grimeses filed a joint
motion to dismiss Alfa's declaratory-judgment action, which
the trial court denied. On February 14, 2014, Liberty Mutual
filed a motion for a partial summary judgment, arguing that,
under the Alabama Motor Vehicle Safety Responsibility Act, §
32-7-1 et seq., Ala. Code 1975 ("the MVSRA"), and the
Mandatory Liability Insurance Act, § 32-7A-1 et seq., Ala.
Code 1975 ("the MLIA"), Alfa was required to extend coverage
to drivers of covered vehicles who have the implied permission
of the insured to operate the vehicle. The trial court denied
the motion.
On August 19, 2015, Alfa's declaratory-judgment action
went to trial with all the parties present. The trial court
entered the following order:
"This matter comes before the Court upon the
complaint of Alfa Mutual Insurance Company ('Alfa')
seeking a declaratory judgment to determine coverage
arising from an automobile accident which occurred
4
1150041
on May 23, 2010. The court called the case for
hearing at its scheduled time on August 19, 2015,
and all parties were present with their respective
attorneys of record. The court heard testimony,
accepted exhibits, and considered various motions
and arguments of counsel. Defendant Liberty Mutual
Group was granted leave to submit a post-trial
amendment to its motion for judgment as a matter of
law filed in open court at the close of all the
evidence. Based upon the relevant and competent
evidence presented, the court finds and adjudges as
follows:
"1. On the aforementioned date of May 23, 2010,
Teresa Boop was the owner of a 1990 Chevrolet K1500
pickup truck covered by a policy of liability
insurance issued by Alfa, namely, Policy number
A2234762. Ms. Boop and her minor son, Ryan, were
the primary drivers of the referenced vehicle.
"2. At the time of the May 23, 2010, accident,
Amy Arrington was operating the Boop pickup when it
collided on Highway 84 with a vehicle occupied by
Warren
and
Johanna
Grimes.
Lawsuits
were
subsequently filed by Liberty Mutual Group against
Amy Arrington and by the Grimeses against Teresa
Boop and Amy Arrington to recover damages. After the
suits were instituted, Amy Arrington called upon
Alfa to extend bodily injury and property damage
coverage to provide for her legal defense and
satisfy any judgment returned against her.
"3. Part A of the subject Alfa policy in fact
provides liability coverage 'for bodily injury or
property damage for which any covered person becomes
legally responsible because of a car accident
arising out of the ownership, use or maintenance of
a covered car.' A 'covered person' is elsewhere
defined in the policy to include the insured,
insured's family members, and any other person while
using the covered car with the express permission of
the insured or a family member. The policy contains
5
1150041
no provision for liability coverage to users of the
vehicle with implied permission.
"4. Alfa subsequently filed this action
requesting a declaratory judgment be entered finding
that it 'is without obligation to provide ...
insurance protection or [indemnity] benefits' for
the May 23, 2010, car accident because Amy Arrington
did not have the requisite express permission to use
the vehicle. Defendants not only contend that Ms.
Arrington did have express permission from Ms. Boop
and/or Ryan to use the vehicle, but further assert
she had implied permission under all the attendant
facts and circumstances and, therefore, Alfa is
statutorily bound to extend liability coverage for
the accident pursuant to Alabama Code § 32-7-22
(1975). Thus, a justiciable controversy exists
between the parties as to the policy's liability
coverage.
"5. In reiteration, the Alfa policy in question
limits liability coverage to users of covered
vehicles having express permission. Alabama Code §
32-7-22 (1975) is inapplicable in this instance. On
the occasion of the May 23, 2010, vehicular
collision involving the Grimeses and Amy Arrington,
the latter was a non-insured operator of the Boop
pickup truck as she did not have the express
permission of the insured (or her son) to use same.
Accordingly, there is no coverage under the subject
policy and Alfa has no contractual or other legal
obligation to defend the respective actions brought
by the Grimeses and Liberty Mutual Group or to pay
any damages they may recover."
The Grimeses appealed.
1
Standard of Review
Liberty Mutual also appealed, but later moved to dismiss
1
its appeal; this Court granted its motion.
6
1150041
When the trial court hears ore tenus evidence during a
bench trial, this Court's review of a declaratory judgment is
ordinarily governed by the ore tenus standard. Fort Morgan
Civic Ass'n, Inc. v. City of Gulf Shores, 100 So. 3d 1042
(Ala. 2012). "'However, the ore tenus rule does not extend to
cloak a trial judge's conclusions of law, or incorrect
application of law to the facts, with a presumption of
correctness.'" Aetna Cas. & Sur. Co. v. Mitchell Bros., Inc.,
814 So. 2d 191, 195 (Ala. 2001)(quoting Eubanks v. Hale, 752
So. 2d 1113, 1144-45 (Ala. 1999)).
Discussion
The Grimeses argue that the trial court erred when it
failed to apply the MVSRA to its analysis of the underlying
policy, which was issued pursuant to the MLIA. The Grimeses
argue that the MVSRA and the MLIA should be read in pari
materia. Specifically, the Grimeses argue that § 32-7-22,
Ala. Code 1975, of the MVSRA requires the liability policy
issued by Alfa to provide coverage for individuals operating
the vehicle with either the express or implied permission of
the insured. They argue that in Billups v. Alabama Farm
Bureau Mutual Casualty Insurance Co., 352 So. 2d 1097 (Ala.
7
1150041
1977), this Court held that an owner's liability insurance
policy must insure the named insured and any other person who
is using the insured vehicle with the express or implied
permission of the named insured. The Grimeses also argue that
the MLIA requires Alfa to provide liability coverage for
individuals driving the insured's vehicle with the insured's
implied permission.
Alfa argues that the MVSRA does not require that a
liability
policy
provide
coverage
for
drivers
whose
permission
to use the covered vehicle is implied unless the policy is a
"motor vehicle liability policy" required as "proof of
financial responsibility" under § 32-7-22, Ala. Code 1975.
Alfa argues that this Court has recognized a distinction in
the MVSRA between an "automobile liability policy" and a
"motor vehicle liability policy." Alfa asserts that this
Court has consistently refused to require all liability
policies to provide coverage for users with implied
permission. Lastly, Alfa argues that the language of the MLIA
precludes any requirement that a liability policy provide
coverage for a driver using a vehicle with implied permission.
I.
8
1150041
A brief history of the MVSRA and the MLIA is necessary
for our discussion. The MVSRA was enacted in 1951 with the
purpose of protecting the public. American Southern Ins. Co.
v. Dime Taxi Servs., Inc., 275 Ala. 51, 151 So. 2d 783 (1963).
Those who are answerable for damages resulting from their
fault in the use and maintenance of an automobile who do not
have automobile liability insurance or who are otherwise
unable to financially respond to the resulting damages are
subject to the loss of their driving privileges. State Farm
Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So. 2d 917
(1973). It is a privilege, not a right, to operate a motor
vehicle on public roadways, and licensing and
registration
are
an exercise of state police powers to ensure safety on the
public highways. Snavely v. City of Huntsville, 785 So. 2d
1162 (Ala. Crim. App. 2000).
The first part of the MVSRA is retrospective in nature –-
it suspends the license and registration of a driver who has
caused an accident and failed to establish financial
responsibility under the MVSRA. In short, it requires the
furnishing of collateral or proof of insurance or an ability
to pay, after a motor-vehicle accident, so that victims of
9
1150041
that accident may be assured of compensation. Section 32-7-5,
Ala. Code 1975, of the MVSRA requires that any driver involved
in an accident in Alabama where a person is injured or killed
or that results in more than $250 in property damage must file
an accident report with the Department of Public Safety
("DPS") within 10 days of the date of the accident. That
report form was amended in 2011 following the adoption of the
online insurance-verification system, discussed infra, a part
of the MLIA.
Under § 32-7-6, Ala. Code 1975, if, after receiving the
report, DPS does not have evidence that the driver has been
released from liability, has been adjudicated as not liable,
or has agreed to pay installments for any injuries or damage
for which the driver is liable, the director of DPS shall
determine the amount of security needed to satisfy the
damages. DPS then suspends both the license and the vehicle
registration of the driver. The determination of the amount
of security does not predetermine liability, which can be
answered only in a judicial proceeding. Instead, the security
protects the public from an "empty" judgment in the event
fault is later established.
10
1150041
Under § 32-7-6, if a driver involved in an accident was
reported as being uninsured and had his or her driving
privileges suspended but actually had in place an "automobile
liability policy," the driver is to submit a "Proof of
Liability Insurance" form to the DPS. The driving privileges
will then be reinstated, and no reinstatement fees shall be
assessed if the proper documentation has been provided to the
DPS.
Section 32-7-7, Ala. Code 1975, sets out exceptions to
providing security for an accident and suspending the
driver's
privileges in § 32-7-6. One of those exceptions is if, at the
time of the accident, the owner's motor vehicle was being
operated without the "permission, express or implied," of the
owner. § 32-7-7(3), Ala. Code 1975.
A driver who has caused an accident and failed to
establish financial responsibility in compliance with the
MVSRA will have his or her license and registration suspended
for three years. § 32-7-8, Ala. Code 1975. The three-year
suspension will apply until (1) the driver has deposited the
security required; or (2) two years have elapsed and the
driver shows that the injured person has not pursued the
11
1150041
recovery of damages; or (3) the driver has been released from
liability, has been found not to be liable, or has entered
into an installment agreement to pay the damages. § 32-7-8,
Ala. Code 1975.
The second part of the MVSRA is prospective. It requires
"proof
of
financial
responsibility"
under
certain
circumstances, i.e., evidence of an ability to meet possible
judgments arising from the future ownership, maintenance, or
operation of a motor vehicle. Those circumstances include
certain driving convictions. § 32-7-18, Ala. Code 1975. Also,
a driver who has had his or her license and registration
suspended because he or she caused an accident and failed to
pay the minimum damages shall not have his or her license and
registration renewed unless the judgment is satisfied under
the MVSRA and the driver provides proof of financial
responsibility. Section 32-7-22 sets out the requirements of
a liability policy that suffices as "proof of financial
responsibility."
In 1965, the legislature amended the MVSRA to require
policies
to
offer
uninsured-motorist
coverage.
§
32-7-23,
Ala.
Code 1975. Section 32-7-23 allows a person purchasing
12
1150041
automobile insurance to obtain, for an additional premium,
protection against injury or death at the hands of an
uninsured motorist as he or she would have had if the motorist
had obtained for himself or herself a minimum liability
insurance policy.
In 1999, the legislature amended the MVSRA to provide
that a person must provide proof of motor-vehicle liability
coverage before he or she could register a vehicle for
operation on Alabama highways. § 32-7-6.1, Ala. Code 1975.
See Act No. 1999-430, Ala. Acts 1999. In 2000, the
legislature repealed § 32-7-6.1 and enacted the MLIA. Act No.
2000-554, Ala. Acts 2000.
The MLIA provides that no person can operate, register,
or maintain registration of a vehicle (or allow another person
to do so) for use on the public highways of Alabama unless the
motor vehicle is covered by a liability insurance policy (§
32-7A-4(b)(1), Ala. Code 1975); a liability bond (§ 32-7A-
4(b)(2), Ala. Code 1975); or a cash deposit (§ 32-7A-4(b)(3),
Ala. Code 1975). Section 32-7A-5, Ala. Code 1975, lists those
vehicles and operators exempt from the provisions of the MLIA.
13
1150041
Every operator of a covered motor vehicle, other than
those exempted in § 32-7A-5, must carry evidence of insurance
within the vehicle and demonstrate that the vehicle is covered
by the requisite liability insurance policy. § 32-7A-6(a),
Ala. Code 1975. Section 32-7A-6(a)(1) through (5) sets out
what constitutes adequate proof of coverage. The Department
of Revenue is responsible for administering the MLIA. § 32-
7A-3, Ala. Code 1975. The MLIA provides that the Department
of Revenue may select random samples of registrations subject
to the MLIA and send the owners questionnaires designed to
determine whether the vehicle is properly insured. § 32-7A-7,
Ala. Code 1975. Owners who receive such questionnaires must
respond in 30 days, § 32-7A-7(d), and owners who fail to
respond are deemed to be in violation of the MLIA. § 32-7A-
7(f).
In 2011, the legislature amended the MLIA by adopting an
act establishing the Online Insurance Verification System
("OIVS"). Act No. 2011-688, Ala. Acts 2011. The goal of the
OIVS is to create an effective method for implementing the
MLIA. Act No. 2011-688 amended parts of both the MVSRA and
the MLIA. Act No. 2011-688 also added Chapter 7B to Title 32,
14
1150041
Motor Vehicles and Traffic, regarding the duties of the
Department of Revenue and insurance companies in complying
with the OIVS. The OIVS allows a real-time response to an
insurance inquiry. The Department of Insurance can fine an
insurance company if it determines that the insurer violates
one of the provisions of the OIVS.
Section 32-7A-17, Ala. Code 1975, provides that no
vehicle registration or renewal shall be issued unless the
licensing
official
receives
satisfactory
evidence
of
insurance
or verification of liability insurance through the OIVS. The
vehicle owner is responsible for insuring the vehicle. The
OIVS is accessible by the Department of Revenue, licensing
officials, and law enforcement. In 2016, the legislature
adopted Act No. 2016-361, Ala. Acts 2016, which provides for
the civil enforcement of the MLIA by the Alabama Law
Enforcement Agency.
II.
It is also necessary to review the rationale and analyses
underlying this Court's decisions involving the MVSRA before
the adoption of the MLIA.
15
1150041
In State Farm Mutual Automobile Insurance Co. v.
Sharpton, 259 Ala. 386, 66 So. 2d 915 (1953), this Court
affirmed a judgment denying the insurer's application for a
temporary
injunction
regarding
personal-injury
actions
against
its
insured
pending
the
resolution
of
its
declaratory-judgment
action. The insurer sought a judgment declaring that the
insurer had been discharged from liability to defend and
indemnify its insured because of the insured's alleged
noncooperation in the defense of the personal-injury actions.
The insured contended that liability under the policy was
controlled by the MVSRA and that what is now § 32-7-22
virtually eliminated the cooperation clause of the policy
insisted on by the insurer. This Court held that the terms
required by § 32-7-22 of the MVSRA apply only to those
policies required to be certified as "proof of financial
responsibility" to permit the vehicle to continue to be
registered. There was no showing made in Sharpton that the
policy involved was issued in response to the mandatory
requirements of the MVSRA set out in what is now § 32-7-22.
The Sharpton Court acknowledged that the MVSRA did not require
all drivers or owners to carry liability insurance.
16
1150041
The MVSRA references "automobile liability policy" in the
first part of the act establishing it, which, as noted
earlier, is retrospective in nature, and "motor vehicle
liability policy" in the second part, which, as noted, is
prospective. This Court discussed the distinctions between
those terms in State Farm Mutual Automobile Insurance Co. v.
Hubbard, 272 Ala. 181, 129 So. 2d 669 (1961), which involved
a "household-exclusion" provision in an insurance policy.
The
husband's car was insured by State Farm, and the policy
excluded coverage for any member in the same household as the
insured. The husband and wife were involved in an accident,
and the wife was injured. She sought damages for her medical
expenses. The wife refused a settlement offer. The wife
filed the required report informing the director of DPS that
she had been in an accident. The director notified the
husband that he had to show the he had security to pay for
damages arising out of the accident or his license and
registration would be suspended. The husband completed the
report, notifying the director that he was insured. The
director sent a report to State Farm for it to verify that the
17
1150041
husband was insured, which it did. The husband's license and
registration were not suspended.
The wife then sued her husband, seeking damages under the
policy. State Farm sent a letter to the husband notifying him
that the wife's damages were excluded by the "household"
exclusion in the policy. The household exclusion eliminated
coverage for damages sought by the insured's resident
relatives when one family member's negligence results in
liability to another family member in the same household. The
wife obtained a default judgment against the husband. The
wife then sued State Farm and her husband to collect on the
judgment. The trial court entered an order holding that State
Farm had waived its right to assert the household-exclusion
provision of its policy when it voluntarily filed the
requested report with DPS and that it had acted in bad faith
in refusing to defend the lawsuit brought by the wife, and,
thus, the court awarded damages under the policy.
On appeal, this Court in Hubbard noted that the MVSRA has
two parts, one providing for security for injuries and damage
resulting from accidents that have already occurred, and the
other providing for proof of an ability to respond in damages
18
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(that is, "proof of financial responsibility") "for liability
on account of accidents occurring subsequent to the effective
date of said proof." 272 Ala. at 187, 129 So. 2d at 675. The
issue before the Hubbard Court concerned the first part of the
MVSRA. The Court noted that Act No. 704, Ala. Acts 1951, now
codified as § 32-7-6(c)(1), Ala. Code 1975, does not require
a deposit of security when there has been an accident if there
is in effect at the time of the accident an "automobile
liability policy" with respect to the involved car. The Court
stated:
"We here observe that the 'automobile liability
policy' referred to in § 5(c) [now § 32-7-6(c)(1)]
is not the same as a 'motor vehicle liability
policy' provided for in connection with the second
part of the Act, that is, 'Proof of Financial
Responsibility' with respect to future accidents
(see §§ 19 through 21)[now §§ 32-7-15 through -22].
The Act contains no definition of an 'automobile
liability policy,' as used in § 5(c) [now § 32-7-
6(c)(1)], as it does of a 'motor vehicle liability
policy' (see § 21(a) [now § 32-7-22]). Nor does the
Act provide that an 'automobile liability policy'
contain certain provisions, nor that such policy
shall be subject to certain provisions, although not
contained therein, as it does with respect to a
'motor vehicle liability policy' (see § 21(b)
through (k) [now §§ 32-7-20 through -22])."
Hubbard, 272 Ala. at 187, 129 So. 2d at 675.
19
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The Court went on to conclude that the filing of the
report by State Farm, the very terms of which admit that the
policy conforms with the MVSRA, did not waive the household
exclusion:
"[T]here is nothing in the Act providing for or
requiring a policy in connection with the security
provisions other than 'an automobile liability
policy with respect to the motor vehicle involved in
such accident.' And what is such a policy? It seems
to us that it means simply an automobile liability
policy valid under the laws of Alabama and
containing
the
minimum
prescribed
limits
of
liability. There appears to be no disagreement that
the policy issued by State Farm (containing the
household exclusion provision) is valid in this
state. So, when State Farm filed the SR-21, can it
be said it intended to certify or admit that the
policy did not contain such lawful exclusion
provision? We do not think so. There can be no
waiver without the intentional relinquishment of a
known right. Bell v. Birmingham Broadcasting Co.,
263 Ala. 355, 357, 82 So. 2d 345 [(1955)]; Isom v.
Johnson, 205 Ala. 157, 159, 87 So. 543 [(1920]); 56
Am.Jur., Waiver, § 2, p. 102, § 15, p. 115; 45
C.J.S. Insurance § 673, pp. 612-613. Clearly, it
seems to us, there is no showing of an intentional
relinquishment by State Farm of its right to rely on
the household exclusion provision of its policy. The
policy being a valid 'automobile liability policy,'
and the Act providing for such policy, we are clear
to the conclusion that, under the circumstances of
this case, there was no waiver of the household
exclusion provision.
"It might well be that the provisions of Act No.
704 making the security provisions of the Act
inapplicable if the owner had in effect at the time
20
1150041
of an accident 'an automobile liability policy with
respect to the motor vehicle involved in such
accident,' should be changed to provide more
protection under such a policy than is presently the
case.
That,
however,
is
a
matter
which
is
addressable to the legislature. For us to hold it
was intended by the present Act to afford such
additional protection would be to legislate by
judicial decree."
Hubbard, 272 Ala. at 187, 129 So. 2d at 675 (emphasis added).
The underlying premise in Hubbard is that liability insurance
is not mandatory unless it is required for proof of financial
responsibility for future accidents. Otherwise, a voluntary
liability insurance policy is not restricted by the MVSRA and
it is for the legislature to determine whether to require more
protection under such a policy.
Mooradian v. Canal Insurance Co., 272 Ala. 373, 377, 130
So. 2d 915, 917 (1961), involved a "passenger-hazard"
exclusion in a policy. The Court held that the liability
policy had not been issued for the purpose of complying with
the MVSRA as proof of financial responsibility.
"Proof
of
financial
responsibility
as
defined
in
§ 1(j) of the Act is 'proof of ability to respond in
damages for liability, on account of accident
occurring subsequent to the effective date of said
proof.'
Accordingly
proof
of
financial
responsibility is not required until a motor vehicle
is involved in an accident. Quoting from Sullivan v.
21
1150041
Cheatham, 264 Ala. 71, 84 So. 2d 374, 379 [(1955)]:
'Our statute has oft been criticized as 'allowing
one free accident.' The terms of the Motor Vehicle
Safety-Responsibility Act, supra, then are not
effective or do not apply to automobile liability
insurance
policies
until
proof
of
financial
responsibility to respond in damages as a result of
an accident is required by the director of public
safety of the State of Alabama to be filed in his
office so that the operator of the motor vehicle
will not have his driver's license and certificate
of registration suspended."
Mooradian, 272 Ala. at 377, 130 So. 2d at 917. The Mooradian
Court noted in its reasoning that automobile insurance was not
compulsory.
In Billups, supra, a policy provided liability coverage
for the named insured and anyone using the covered vehicle
"with the express or implied permission of the named insured,"
as required by statute. 352 So. 2d at 1101. The policy
provided for uninsured-motorist ("UM") coverage; however, the
policy limited the scope of UM coverage to those using the
vehicle with the express permission of the named insured.
Billups was a passenger in the covered vehicle when it
collided with a vehicle driven by an uninsured motorist. The
driver of the covered vehicle did not have the express
permission of the named insured to use the vehicle. The trial
court entered a judgment as a matter of law in favor of the
22
1150041
insurer, enforcing the UM provision that required express
permission. On appeal from that judgment, this Court held that
the insurer could not unilaterally restrict UM coverage to
those who used the covered vehicle with express permission.
The Billups Court first recognized that what is now § 32-7-22
of the MVSRA provides that mandatory liability coverage must
include coverage for both express and implied
permissive
users
of the covered vehicle. The Court went on to discuss the
provisions in what is now § 32-7-23, Ala. Code 1975, of the
MVSRA regarding UM coverage. The Court stated:
"The question is the effect the statutory
provisions have upon the scope of uninsured motorist
coverage under the policy. This court has held that
the scope of uninsured motorist coverage must be
coextensive with liability coverage. State Farm
Automobile Insurance Co. v. Reaves, 292 Ala. 218,
292 So. 2d 95 (1974). In Reaves, supra, we stated
that, 'once an automobile liability policy is issued
extending coverage to a certain class of insureds
under such a clause, uninsured motorist coverage
must be offered to cover the same class of
insureds.' 292 Ala. at 223, 292 So. 2d at 99.
"[Section 32-7-22] is unambiguous in mandating
the extension of liability insurance coverage to
persons using an insured vehicle with the express or
implied
permission
of
the
named
insured.
Accordingly, the uninsured motorist coverage must be
as broad. Reaves, supra.
23
1150041
"The insurance policies in question extend
uninsured motorist coverage to 'any other person
while
occupying
an
insured
automobile.'
See,
Definitions –- Insuring Agreement III, supra. Under
the policy terms, an insured automobile is one used
with the express permission of the named insured or
his spouse. See, Definitions -- Insuring Agreement
III, supra.
"Restricting uninsured motorist coverage to
occupants of an automobile only if the automobile is
used with the express permission of the named
insured is repugnant to the statutory requirements
and the decisions of this court. Reading the
statutory requirement into the policy, American
Southern Insurance Co. v. Dime Taxi Service, Inc.,
275 Ala. 51, 151 So. 2d 783 (1963), the policy must
afford uninsured motorist coverage to the occupants
of the automobile if it was used with the express or
implied permission of the named insured. Tit. 36, §
74(62)[now § 32-7-23]; State Farm Automobile Ins.
Co. v. Reaves, supra.
"The trial court did not make a factual finding
as to whether Jessie Silver, Jr., used the
automobile with Lucille Conner's or her husband's
implied permission. Therefore, we remand to the
trial court for such a determination."
Billups, 352 So. 2d at 1100-01.
We recognize that subsequent to Billups the Court decided
Hutcheson v. Farm Bureau Mutual Casualty Insurance Co., 435
So. 2d 734 (Ala. 1983). The Court in Hutcheson adopted the
circuit court's order as its opinion. In the order, the
circuit court refused to apply § 32-7-22 to invalidate a
24
1150041
"household exclusion" contained in an automobile liability
policy. The circuit court's order discussed the history of §
32-7-22, and based on a line of decisions, most of which were
released prior to Billups, the circuit court decided that §
32-7-22 did not apply. Of the two cases the circuit court
relied on that were post-Billups, one involved a defamation
claim and the other involved the definition of who was insured
under the policy. See Butler v. Michigan Mut. Ins. Co., 402
So. 2d 949 (Ala. 1981)(involving a defamation claim filed
under an employer's policy); and Mathis v. Auto-Owners Ins.
Co., 387 So. 2d 166 (Ala. 1980)(addressing whether the
stepdaughter was covered under the UM coverage in the
stepfather's policy). The circuit court's order adopted in
Hutcheson did not cite or discuss Billups.
This Court has upheld liability policies that extended
coverage only to drivers who have the named insured's express
permission to use the covered vehicle. See, e.g., Alfa Mut.
Ins. Co, v. Small, 829 So. 2d 743 (Ala. 2002); Pharr v.
Beverly, 530 So. 2d 808 (Ala. 1998); Alabama Farm Bureau Mut.
Cas. Ins. Co. v. Hudson, 432 So. 2d 1208 (Ala. 1983); Crawley
v. Alabama Farm Bureau Mut. Cas. Ins. Co., 295 Ala. 226, 326
25
1150041
So. 2d 718 (1976); Alabama Farm Bureau Mut. Cas. Ins. Co. v.
Mattison, 286 Ala. 541, 243 So. 2d 490 (1971); and Alabama
Farm Bureau Mut. Cas. Ins. Co. v. Government Emps. Ins. Co.,
286 Ala. 414, 240 So. 2d 664 (1970). However, all the above-
listed cases concerned a matter of contract interpretation as
to whether the policies involved (all of which provided
coverage only for express permission) met the burden of
proving whether express permission had been given. In none of
those cases was the issue whether Alabama law required a
liability insurance policy to provide coverage for users with
either express or implied permission.
It should be noted that this Court has never addressed
whether an "automobile liability policy" under § 32-7-6 of the
MVSRA had to provide coverage for both express and implied
permissive users outside UM coverage. It does not appear that
a court ever considered the exclusions set out in § 32-7-7 as
an indication of legislative intent that such coverage be
included in an "automobile liability policy" as that term is
used in § 32-7-6 of the MVSRA. Section 32-7-7 sets out
exclusions to having DPS determine the security needed for an
accident and suspension under § 32-7-6. Section 32-7-7
26
1150041
provides that accidents where the car was operated without the
express or implied permission of the owner are exceptions to
requiring security and suspending driving privileges under §
32-7-6. If the car was driven with the express or implied
permission of the owner, then § 32-7-7 does not apply, and the
driver will be subject to the provisions of § 32-7-6. Compare
Iszczukiewicz v. Universal Underwriters Ins. Co., 182
F.
Supp.
733 (N.D. Ohio 1960)(holding that, where the motor vehicle
involved in the accident was being operated with the express
permission of the owner, it was contrary to the purpose of the
Ohio Motor Vehicle Financial Responsibility Act for the
automobile liability policy that could be used in lieu of
providing security for damages arising out of the accident to
not provide coverage for permissive users).
III.
Having reviewed the MVSRA, the caselaw construing the
MVSRA, and the legislature's subsequent adoption of the MLIA,
we turn to the present case. Here, the liability policy was
issued under the MLIA. Section 32-7A-4, Ala. Code 1975,
provides, in pertinent part:
27
1150041
"(a) No person shall operate, register, or
maintain registration of, and no owner shall permit
another person to operate, register, or maintain
registration of, a motor vehicle designed to be used
on a public highway unless the motor vehicle is
covered
by
a
liability
insurance
policy,
a
commercial automobile liability insurance policy,
motor vehicle liability bond, or deposit of cash.
"(b)(1) The liability insurance policy or
commercial automobile liability insurance
policy shall be issued in amounts no less
than the minimum amounts set for bodily
injury or death and for destruction of
property under Section 32-7-6(c).
"(2) The motor vehicle liability bond
shall be in the amount of not less than the
minimum amounts of liability coverage for
bodily injury or death and for destruction
of property under subsection (c) of Section
32-7-6. The bond shall be conditioned on
the payment of the amount of any judgment
rendered against the principal in the bond
or any person responsible for the operation
of the principal's motor vehicle with his
or her express or implied consent, arising
from injury, death, or damage sustained
through
the
use,
operation,
maintenance,
or
control of the motor vehicle within the
State of Alabama.
"(3) The deposit of cash with the
State Treasurer shall be in the amount of
not less than the minimum amounts set for
bodily injury or death and for destruction
of property under subsection (c) of Section
32-7-6."
28
1150041
(Emphasis added.)
Section 32-7A-2(7), Ala. Code 1975, of the MLIA defines
a deposit of cash as
"[f]unds deposited with and held by the State
Treasurer as security for payment by the depositor,
or by any person responsible for the depositor's
motor vehicle with his or her express or implied
consent, of all judgments rendered against the
depositor or other authorized operator of the
depositor's motor vehicle arising from injury,
death, or damage sustained through use, operation,
maintenance, or control of the motor vehicle within
the State of Alabama."
(Emphasis added.)
Although § 32-7A-4(b)(1) of the MLIA requires that motor
vehicles in Alabama be covered by liability insurance and that
that coverage not be an amount less than $25,000 for bodily
injury to one person in any one accident, the MLIA does not
expressly state that coverage under that policy must provide
coverage for drivers operating a vehicle with the express or
implied permission of the insured. The legislature provided
for such coverage when a liability bond or cash deposit is
chosen as liability coverage. § 32-7A-4(b)(2) and (3). The
legislature could have easily provided for such coverage in
liability insurance if that had been its intent.
29
1150041
"This Court has held that insurance companies
have the right to limit the coverage offered through
the use of exclusions in their policies, provided
that those exclusions do not violate a statute or
public policy. Ex parte O'Hare, 432 So. 2d 1300
(Ala. 1983); Bell v. Travelers Indem. Co. of
America, 355 So. 2d 335 (Ala. 1978); Aetna Ins. Co.
v. Pete Wilson Roofing & Heating Co., 289 Ala. 719,
272 So. 2d 232 (1972). If an individual purchases a
policy containing an unambiguous exclusion that does
not violate a statute or public policy, courts will
enforce the contract as written. Johnson v. Allstate
Ins. Co., 505 So. 2d 362, 365 (Ala. 1987)."
Hooper v. Allstate Ins. Co., 571 So. 2d 1001, 1002 (Ala.
1990). Because we highly value the freedom to contract, we
will not alter the expressed intentions of the parties to a
contract unless the contract offends some rule of law or
contravenes public policy. Vardaman v. Benefits Ass'n of Ry.
Emps., 263 Ala. 236, 82 So. 2d 272 (1955). When a contract
of insurance is in conflict with, or repugnant to, statutory
provisions that are applicable to, and consequently form a
part of, the contract, the contract must yield to the statute,
and is invalid, since contracts cannot change existing
statutory laws. Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949 (Ala. 2004).
In the present case, no statutory provisions of the MLIA
require an insurer to include an "omnibus clause" in its
30
1150041
policy. An omnibus clause generally includes coverage for the
named insured, members of the insured's household,
and
drivers
operating the insured's vehicle with the permission of the
insured. See Alabama Farm Bureau Mut. Cas. Ins. v. Government
Emps. Ins. Co., 286 Ala. 414, 240 So. 2d 664 (1970)(noting
that most omnibus clauses in insurance policies provide
coverage for drivers using the vehicle with the permission of
the insured and that courts have interpreted such permission
to include express or implied permission). Coverage under an
omnibus clause is generally based on the
driver's
relationship
with the named insured.
Nothing in the MLIA specifically mandates that an insurer
provide coverage for someone operating a vehicle with the
express or implied permission of the insured. In referencing
the MVSRA in the MLIA with regard to insurance coverage, the
legislature required that the mandatory liability insurance
policy have at least the minimum coverage set out in § 32-7-6
of the MVSRA. § 32-7A-4(b)(1). As to why the legislature
mandated that a liability bond and a cash deposit provide
coverage for express and implied permissive users, it may be
that the legislature did not want to interfere with the
31
1150041
freedom of contract between the insured and the insurer.
Nothing in the MLIA prevents the insured from purchasing
greater coverage than the statutory minimum limits.
The dissent contends that the legislature provided for
the coverage of those operating an automobile with the express
or implied permission of the insured by defining "who" must be
covered by mandatory liability insurance in § 32-7A-4(a). The
dissent asserts that the general prohibitory language and
"universal restriction" in § 32-7A-4(a) –- "no owner shall
permit another person" -– operates "to restrict against any
'permit[ted]' use." ___ So. 3d at ___. According to the
dissent, "any" includes both express and implied users of an
automobile.
The legislature did indeed express its intent as to "who"
was to have mandatory liability insurance coverage in § 32-7A-
4(a), and that is both owners and operators of automobiles.
Again, § 32-7A-4(a) provides:
"No person shall operate, register, or maintain
registration of, and no owner shall permit another
person
to
operate,
register,
or
maintain
registration of, a motor vehicle designed to be used
on a public highway unless the motor vehicle is
covered
by
a
liability
insurance
policy,
a
32
1150041
commercial automobile liability insurance policy,
motor vehicle liability bond, or deposit of cash."
An automobile owner usually owns the motor vehicle he or she
operates (i.e., drives), but this is not so with an operator.
A person who does not own the automobile that he or she
operates must purchase an operator's policy or a non-owner
policy in order to qualify for a driver's license. A non-owner
policy of liability insurance provides liability coverage to
the purchaser of the policy for any automobile he or she
drives. Therefore, a non-owner, who has purchased a non-owner
liability policy, driving an automobile could fall under two
coverages for the automobile -- the liability insurance
coverage of his own non-owner's policy and also the coverage
of the automobile owner's policy, depending on the terms of
the insurance policy, the bond, or deposit of cash. This
reflects legislative policy in the MLIA that recognized the
need for mandatory liability coverage for both owners and non-
owners who drive automobiles on Alabama highways. The
legislature obviously had in mind that every time a driver
gets behind the wheel of an automobile and takes on the
responsibility of driving it, there be in effect at least one
insurance policy providing liability coverage.
33
1150041
We disagree with the Grimeses that § 32-7-22 of the MVSRA
can be read in pari materia with § 32-7A-4(b)(1) of the MLIA.
Had it been the legislature's intent to so reconcile those
statutes,
it
could
have
expressly
incorporated
the
requirements of § 32-7-22 of the MVSRA into § 32-7A-4(b)(1) as
it did by expressly incorporating the minimum liability
amounts of § 32-7-6 into the MLIA. We recognize that the
MVSRA references the MLIA and that the MLIA references the
MVSRA. We also recognize that the MLIA provides that it
should be read in pari materia with other laws relative to
motor vehicles. § 32-7A-25, Ala. Code 1975. However, most of
the references to the MVSRA in the MLIA relate only to minimum
coverage amounts. The references to the MVSRA in the MLIA
relate only to online insurance verification under the OIVS.
Again, had the legislature wanted, it could have expressly
referred to § 32-7-22 or simply stated that all mandatory
liability policies provide coverage for express and implied
permissive users of insured vehicles.
"'"The fundamental rule of statutory construction is that
this Court is to ascertain and effectuate the legislative
intent as expressed in the statute. League of Women Voters v.
34
1150041
Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). In this
ascertainment, we must look to the entire Act instead of
isolated phrases or clauses; Opinion of the Justices [No.
153], 264 Ala. 176, 85 So. 2d 391 (1956)."'" Bright v.
Calhoun, 988 So. 2d 492, 497 (Ala. 2008) (quoting City of
Bessemer v. McClain, 957 So. 2d 1061, 1074–75 (Ala. 2006),
quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367
So. 2d 1378, 1380 (Ala. 1979)). As we stated in Siegelman v.
Chase Manhattan Bank (USA), National Ass'n, 575 So. 2d 1041,
1051 (Ala. 1991): "This Court's role is not to displace the
legislature by amending statutes to make them express what we
think the legislature should have done. Nor is it this Court's
role to assume the legislative prerogative to correct
defective legislation or amend statutes."
Furthermore, "[t]he Legislature is presumed to be aware
of existing law and judicial interpretation when it adopts a
statute," Carson v. City of Prichard, 709 So. 2d 1199, 1206
(Ala. 1998), and "we presume 'that the legislature does not
intend to make any alteration in the law beyond what it
explicitly declares.'" Ware v. Timmons, 954 So. 2d 545, 556
(Ala. 2006)(quoting Duncan v. Rudulph, 245 Ala. 175, 176, 16
35
1150041
So. 2d 313, 314 (1944)). Had the legislature intended to
abrogate our decision in Hubbard in which the Court recognized
the distinction between an "automobile liability policy" and
a "motor vehicle liability policy" under the MVSRA, it could
have plainly stated that mandatory liability policies include
an omnibus clause providing coverage for the named insured
and drivers operating the vehicle with the express or implied
permission of the named insured. The legislature did not
include such a requirement even though it did so in the case
of liability bonds and cash deposits. "It is not proper for
a court to read into the statute something which the
legislature did not include although it could have easily done
so." Noonan v. East–West Beltline, Inc., 487 So. 2d 237, 239
(Ala. 1986).
We note that the MVSRA still has a field of operation
even though Alabama requires that all owners or drivers obtain
liability coverage before obtaining a driver's license or
registering a motor vehicle. If a person does not comply with
the MLIA and obtain liability insurance and that person is
involved in an accident, the MVSRA applies. If that person
was required to provide "proof of liability coverage" under §
36
1150041
32-7-22, that policy would have to comply with the express
terms of § 32-7-22, including permissive drivers. If a person
involved in an accident was thought to be uninsured and that
person had insurance, then § 32-7-6 of the MVSRA would apply
and that person's "automobile liability insurance" policy
would be an exception to security and a suspended license.
Because the MVSRA still has a field of operation, our earlier
caselaw remains applicable.
We acknowledge that this Court's opinion in Billups,
supra, held that § 32-7-22 applied to the liability policy
such that the UM coverage under the policy also had to comply
with the "express or implied" permission requirement of § 32-
7-22. Nothing in the case indicated that the liability policy
was a "motor vehicle liability policy" as that phrase is used
in the MVSRA. However, six years later, the Court in
Hutcheson refused to apply § 32-7-22 to all liability policies
because the MVSRA applies only after the driver has been
involved in an accident, and the policy at issue in Hutcheson
was not issued to show proof of financial responsibility under
§ 32-7-22.
37
1150041
In short, the MLIA, which sets forth the general
requirements of liability polices, does not require omnibus
coverage. The part of the MVSRA that mandates specific
omnibus provisions in "motor vehicle liability" policies was
included in or referenced in the requirements for mandatory
liability insurance in the MLIA. An insurer has the right to
restrict liability unless that restriction conflicts with
statutory requirements or is contrary to public policy.
We now turn to whether the public policy of Alabama
requires coverage for those who are using vehicles with the
express or implied permission of the named insured. Alabama,
unlike the vast majority of states, does not have a statutory
provision in the MLIA requiring the inclusion in coverage of
express and implied permissive users. Therefore, if such
coverage is to be read into the liability policy at issue in
this case, it must be accomplished by determining whether
excluding permissive users from coverage violates public
policy.
We find instructive Alfa Specialty Insurance Co. v.
Jennings, 906 So. 2d 195 (Ala. Civ. App. 2005), in which the
Court of Civil Appeals addressed whether the MLIA and its
38
1150041
mandatory coverage provisions prohibited a "criminal acts"
exclusion in a liability insurance policy. The insurer argued
that the "criminal acts" exclusion did not violate the public
policy the legislature sought to address in the MLIA. The
Court of Civil Appeals stated that the intention of the
legislature in enacting the MLIA and the question of public
policy raised in that case were closely related, and the court
considered them together. The Court of Civil Appeals noted
that an appellate court's role in the area of statutory
construction is to ascertain and effectuate the intent of the
legislature, while ascertaining public policy of a
state
found
in its Constitution, statutes, and caselaw, looking primarily
to the legislative act. The court went on to state:
"Further, to the extent this or any case
requires us to look beyond the provisions of a
statute directly at issue in order to ascertain
whether a contractual provision is in violation of
public policy, our Supreme Court has repeatedly
declared that '[t]he principle that contracts in
contravention of public policy are not enforceable
should be applied with caution and only in cases
plainly within the reason on which the doctrine
rests.' Lowery v. Zorn, 243 Ala. 285, 288, 9 So. 2d
872, 874 (1942); see also, e.g., Livingston v.
Tapscott, 585 So. 2d 839 (Ala. 1991); Ex parte Rice,
258 Ala. 132, 61 So. 2d 7 (1952). As our Supreme
Court explained in Milton Construction Co. v. State
Highway Department, 568 So. 2d 784 (Ala. 1990),
39
1150041
"'"The courts are averse to holding
contracts unenforceable on the ground of
public policy unless their illegality is
clear and certain. Since the right of
private contract is no small part of the
liberty of the citizen, the usual and most
important function of courts of justice is
to maintain and enforce contracts rather
than to enable parties thereto to escape
from their obligations on the pretext of
public policy, unless it clearly appears
that they contravene public right or the
public welfare. ...
"'"Many courts have cautioned against
recklessness in condemning agreements as
being in violation of public policy. Public
policy, some courts have said, is a term of
vague and uncertain meaning which it is the
duty of the law-making power to define, and
courts are apt to encroach upon the domain
of that branch of the government if they
characterize a transaction as invalid
because it is contrary to public policy,
unless the transaction contravenes some
positive statute or some well-established
rule of law. Other courts have approved the
statement of an English judge that public
policy is an unruly horse astride of which
one may be carried into unknown paths.
Considerations such as these have led to
the statement that the power of the courts
to declare an agreement void for being in
contravention of sound public policy is a
very delicate and undefined power and, like
the
power
to
declare
a
statute
unconstitutional, should be exercised only
in cases free from doubt."'
40
1150041
"568 So. 2d at 788 (quoting 17 Am.Jur. 2d Contracts
§ 178 (1964))(last emphasis added; other emphasis
supplied by the Supreme Court in Milton).
"....
"For purposes of § 32–7A–4(b)(2), a 'motor
vehicle liability bond' is defined as '[a] bond of
a surety company duly authorized to transact
business in this state, which is conditioned for
payments in amounts and under the same circumstances
as would be required in a motor vehicle liability
insurance policy.' Ala. Code 1975, § 32–7A–2(11)
(emphasis added). In contrast, § 32–7A–2(5), Ala.
Code 1975, defines a 'deposit of cash' simply as
'[f]unds deposited with and held by the State
Treasurer as security for payment by the depositor
... of all judgments rendered against the depositor
... arising from injury, death, or damage sustained
through use, operation, maintenance, or control of
the motor vehicle within the State of Alabama.'
(Emphasis added.) It is thus apparent that the
legislature
contemplated
that
there
would
be
'circumstances' as to which neither the motor-
vehicle
liability
bond
contemplated
by
§
32–7A–4(b)(2)
nor
the
motor-vehicle
liability
insurance policy contemplated by § 32–7A–4(b)(1)
would provide coverage.
"The
fact
that
the
legislature
contemplated
that
there would be 'circumstances' to which motor-
vehicle liability insurance policies under the MLIA
would not provide coverage is not surprising. The
MLIA was enacted by the legislature against the
backdrop of a substantial body of existing law
governing automobile liability insurance policies
issued in this state, including caselaw, statutes,
and regulations. Further, § 32–7A–22 provides that
the MLIA is to be construed in pari materia with
other laws. Among the laws in place when the MLIA
41
1150041
was enacted was § 27–14–8, Ala. Code 1975, pursuant
to which provisions of insurance policies, including
policies of the nature at issue in the present case,
must be approved by the Commissioner of Insurance.
It is in this context that we recognize that the
MLIA was enacted so as to require otherwise
financially
irresponsible
drivers
to
maintain
automobile
liability
insurance
of
the
nature
theretofore normally and routinely maintained by
responsible drivers in this state. To conclude
otherwise would require us to construe the MLIA as
having been intended to abrogate exclusions, terms,
conditions, and other insurance-policy provisions
that theretofore had met with approval under Alabama
law, including approval by the Commissioner of
Insurance, and that were contained in liability
insurance policies in force throughout Alabama at
the time of the enactment of the MLIA.
"Further, we
note
that
the
obligation
imposed
by
the MLIA to maintain automobile liability insurance
is an obligation imposed on those persons who own,
operate, register, or maintain registration of motor
vehicles covered by the MLIA. The provisions of the
MLIA at issue here do not purport by their terms to
govern or impose any obligation upon insurers."
Jennings, 906 So. 2d at 199–201 (footnotes omitted).
The broad purpose of an omnibus clause is to protect the
public
against
damage
resulting
from
accidents
arising
because
of the negligent use of automobiles. An omnibus clause
accomplishes this by including persons operating the vehicle
with the express or implied permission of the named insured.
42
1150041
The inclusion of the permissive users protects accident
victims.
Nevertheless, exclusions in liability policies are
permitted and are not against public policy if those
exclusions do not conflict with statutory law. See, e.g.,
State Farm Mut. Auto. Ins. Co. v. Auto-Owners Ins. Co., 331
So. 2d 638 (Ala. 1976)(holding that garage owner's liability
policy, which excluded coverage when there was "other
insurance," did not violate public policy as set out in the
MVSRA when a garage customer was involved in a collision while
driving a loaned car from the garage); Hill v. Campbell, 804
So. 2d 1107 (Ala. Civ. App. 2001)(holding that it does not
violate the public policy of Alabama to exclude liability
coverage for punitive damages in a personal-injury case).
Also, had the legislature required an omnibus clause in
mandating liability insurance policies in the MLIA, then the
remedial purpose of such an omnibus clause would require this
Court to narrowly construe any exclusion to the coverage.
However, the legislature did not do so. As was discussed in
Jennings, the legislature contemplated that there would be
"circumstances" where a mandatory liability insurance policy
43
1150041
would not provide coverage for a victim. This Court has
upheld
a
household
exclusion
(excluding
liability
coverage
for
any member of the insured's family residing in the insured's
home who was injured by the insured's negligence) because such
an exclusion would prevent fraud and collusion among the
insured and the driver. It may be that the legislature did
not mandate coverage for permissive users in liability
policies based on the same reasoning. See O'Hare v. State
Farm Mut. Auto. Ins. Co., 432 So. 2d 1294 (Ala. Civ. App.
1982)(Holmes, J., dissenting)(opining that the purpose served
by a permissive-driver exclusion may be the avoidance of
friendly lawsuits and the possibility of collusion).
With this in mind, along with the principle that courts
are averse to holding a contract unenforceable on the ground
of public policy unless the illegality of the contract is
clear and certain, we cannot say that the trial court erred in
concluding that the liability policy issued by Alfa did not
provide coverage for a user of the motor vehicle who did not
44
1150041
have the express permission of the owner or drivers covered by
the policy.
AFFIRMED.
Stuart,* Parker, Main, Wise, and Bryan, JJ., concur.
Shaw, J., concurs in the result.
Murdock, J., dissents.
*Although Justice Stuart was not present at oral argument
in this case, she has listened to the audiotape of that oral
argument.
45
1150041
MURDOCK, Justice (dissenting).
Because I believe that our statutory scheme requires
automobile liability insurance policies to cover persons who
have the permission of the insured, whether express or
implied, to use the insured vehicle, I respectfully dissent.
The main opinion frames the issue as a pitting of the
principle of freedom of contract against a vague notion of
public policy and, given those choices, sides with the
principle of freedom of contract. But the freedom of contract
is not unlimited. "Statutorily required provisions of an
insurance contract are read into a contract even if the policy
itself does not contain the required provisions." Blue Cross
& Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 955
(Ala. 2004). Indeed, the main opinion acknowledges this
fundamental tenet, citing Hodurski and stating that "[w]hen a
contract of insurance is in conflict with, or repugnant to,
statutory provisions that ... form a part of[] the contract,
the contract must yield to the statute." ___ So. 3d at ___.
Here the applicable statutes present such a conflict;
therefore, a proper application of the principle of freedom of
46
1150041
contract
must
accommodate
the
legislatively
imposed
requirements.
The liability policy at issue in this case was issued
pursuant to the Mandatory Liability Insurance Act, § 32-7A-1
et seq., Ala. Code 1975 ("the MLIA"), which was enacted in
2000. Section 32-7A-4 of the MLIA states:
"(a) No person shall operate, register, or
maintain registration of, and no owner shall permit
another person to operate, register, or maintain
registration of, a motor vehicle designed to be used
on a public highway unless the motor vehicle is
covered
by
a
liability
insurance
policy,
a
commercial automobile liability insurance policy,
motor vehicle liability bond, or deposit of cash.
"(b)(1) The liability insurance policy or
commercial automobile liability insurance
policy shall be issued in amounts no less
than the minimum amounts set for bodily
injury or death and for destruction of
property under Section 32-7-6(c).
"(2) The motor vehicle liability bond
shall be in the amount of not less than the
minimum amounts of liability coverage for
bodily injury or death and for destruction
of property under subsection (c) of Section
32-7-6. The bond shall be conditioned on
the payment of the amount of any judgment
rendered against the principal in the bond
or any person responsible for the operation
of the principal's motor vehicle with his
or her express or implied consent, arising
from injury, death, or damage sustained
47
1150041
through
the
use,
operation,
maintenance,
or
control of the motor vehicle within the
State of Alabama.
"(3) The deposit of cash with the
State Treasurer shall be in the amount of
not less than the minimum amounts set for
bodily injury or death and for destruction
of property under subsection (c) of Section
32-7-6."
(Emphasis added.) The MLIA defines "deposit of cash" as
"[f]unds deposited with and held by the State
Treasurer as security for payment by the depositor,
or by any person responsible for the depositor's
motor vehicle with his or her express or implied
consent, of all judgments rendered against the
depositor or other authorized operator of the
depositor's motor vehicle arising from injury,
death, or damage sustained through use, operation,
maintenance, or control of the motor vehicle within
the State of Alabama."
§ 32-7A-2(7), Ala. Code 1975 (emphasis added).
The main opinion focuses on the descriptions of the three
forms of security permitted by the statute and, specifically,
a textual difference in the manner in which the legislature
describes each of them in subsection (b) of § 32-7A-4. I
think it important, however, that we begin with subsection (a)
of the statute. It is there that the legislature tells us
48
1150041
"who" must have one of these three types of security. And
that, after all, is the issue before us.
A. Section 32-7A-4(a) Describes "Who" Must Be Covered
Subsection (a) of § 32-7A-4 clearly states this universal
restriction: "[N]o owner shall permit another person." This
general prohibitory language plainly operates to restrict
against any "permit[ted]" use. "Any" includes both express
and implied. I know no other way to read this language.
This same sentence then proceeds to lift the restriction
against any permitted use of vehicles if any one of the three
types of security listed at the end of the subsection
(liability insurance, liability bonds, or a cash deposit) is
in place. Subsection (a) does not distinguish between these
types of security. It does not align some of them with those
who would operate the vehicle with express permission and some
with those who would operate the vehicle with implied
permission. Anyone the owner would permit to operate the
vehicle can do so with any of the three types of security.
Clearly therefore, the text of § 32-7A-4(a) reveals the
legislature's intent that the three types of security be
49
1150041
interchangeable and that the motoring public is equally
protected by any one of them.
Moreover, this plain reading of the text is further
buttressed by common sense and a consideration of the policy
basis for the MLIA. The purpose of the MLIA is to protect
members of the public injured on our highways as a result of
the operation of covered motor vehicles. Given that the
method chosen to fulfill that purpose is to require proof of
pre-accident financial responsibility for owners of motor
vehicles, and given that the vast majority of owners fulfill
this requirement through liability insurance policies, I see
no reason in logic or sound policy that the legislature would
require or contemplate that liability bonds and cash deposits
must provide protection for more people than would liability
insurance policies.
B. Section 32-7A-4(b) (and Pertinent Provisions
of the Alabama Motor Vehicle Safety Responsibility Act,
§ 32-7-1 et seq., Ala. Code 1975 ("the MVSRA"))
Prescribe "What" the Coverage Must Be
Having considered what § 32-7A-4(a) clearly states as to
"who" must be covered by one of the three forms of financial
security before a person may be permitted to use a vehicle, I
50
1150041
turn to the corollary matter of what § 32-7A-4(b) states as to
"what" must be included in that coverage. As noted, the main
opinion focuses on what it considers to be a critical
difference in the descriptions of the three forms of security
as set out in subsection (b). I submit that the distinction
seen by the main opinion inherently conflicts with, and cannot
logically be maintained in light of, the language of
subsection (a) as to "who" must be covered. Further still,
upon closer examination of all relevant statutory provisions,
I find the distinction drawn by the main opinion as to "what"
must be provided under each form of security to be
unpersuasive in its own right, i.e., without regard to the
plain text of § 32-7A-4(a) as to "who" must be covered.
Indeed, I find in the applicable statutory provisions an
additional textual basis that is more than sufficient to
support the interpretation that the legislature's intent was
that liability insurance must include coverage for both
express and implied users.
It is true that the language of § 32-7A-4(b)(2)
explicitly requires that liability bonds provide coverage for
users operating a vehicle both with express and implied
51
1150041
permission, whereas § 32-7A-4(b)(1) contains no similar
explicit
statement
regarding
liability
insurance.
But
neither
does subsection (b)(1) explicitly limit liability policies to
users with express permission. It simply contains no language
whatsoever referring to either express or implied users. And
we need not look far to see that such an omission from
§ 32-7A-4(b) is not dispositive, because the legislature also
saw no need to include any such explicit reference to both
express and implied users in § 32-7A-4(b) as to "deposits of
cash." Yet, despite this omission, we know from another
statutory provision that this is what the legislature
intended. See § 32-7A-2(7) (defining a "deposit of cash" as
a form of security for both express and implied users).
What § 32-7A-4(b)(1) does contain is a specific
requirement that an "automobile liability insurance policy be
issued in amounts no less than the minimum amounts set for
bodily injury or death and for destruction of property under
Section 32-7-6(c)[, Ala. Code 1975]." The "minimum amounts
... under Section 32-7-6(c)" cannot be understood without
reference to who is entitled to such limits. To apply the
limits of coverage "under § 32-7-6(c)" without applying them
52
1150041
to the same parties covered by that section is to not actually
apply the limits of coverage of that section. As explained in
Part "C," below, the limits of coverage set out in § 32-7-6(c)
are limits for users of the vehicle with both express and
implied permission.
C. Reading the MLIA and the MVSRA in Pari Materia
I submit that the textual analyses stated in Parts "A"
and "B," above, are by themselves sufficient bases for
concluding that the statutes at issue intend no liability
insurance distinction between express and implied users of
another's automobile on public roadways. And, I submit, this
conclusion is buttressed by the fact that the alternative
conclusion simply cannot be squared with logic and the sound
policy underlying the statutes. And, although this latter
point has already been made in the discussions above, a deeper
appreciation of it comes from a closer examination of the
interdependent relationship between the MLIA and the MVSRA.
The MVSRA, which was enacted in 1951, set up a system
whereby
drivers
had
certain
reporting
and
financial
responsibilities after
an
accident.
See Higgins v. Nationwide
Mut. Ins. Co., 50 Ala. App. 691, 696, 282 So. 2d 295, 300
53
1150041
(Civ. App.), aff'd, 291 Ala. 462, 282 So. 2d 301 (1973). Under
§ 32-7-6, drivers were required to post security to cover
losses or to pay for those losses within 20 days. If they
failed to live up to those financial responsibilities,
drivers
faced suspension of their driving privileges. One way a
driver could avoid the financial responsibilities and
suspensions provided in § 32-7-6(b) was "if the owner had in
effect at the time of the accident an automobile liability
policy with respect to the motor vehicle involved in the
accident." § 32-7-6(c)(1), Ala. Code 1975. Section 32-7-7,
Ala. Code 1975, lists other ways to avoid the requirements of
§ 32-7-6:
"The requirements as to security and suspension
in Section 32-7-6 shall not apply to any of the
following persons:
"....
"(3) The owner of a motor vehicle if at the time
of the accident the vehicle was being operated
without the permission of the owner, express or
implied, or was parked by a person who had been
operating the motor vehicle without the permission."
§ 32-7-7(3), Ala. Code 1975 (emphasis added). In other words,
under the scheme provided in the MVSRA, either having a
54
1150041
liability insurance policy in place before the accident or the
operation of the vehicle without the express or implied
permission of the owner exempted the owner from having to post
security after the accident or face suspension of driving
privileges.
The MVSRA's equation for exemption purposes of liability
insurance coverage and the absence of express or implied
permission to use a vehicle is important because the MLIA
incorporates provisions of the MVSRA in ways that directly
impact how the MLIA should be interpreted with regard to the
issue in this case. As already discussed, the MLIA
incorporates the minimum limits of liability coverage in the
MVSRA. In addition to that critical fact, the MVSRA defines
a "motor vehicle liability policy" in § 32-7-22(a) as "an
owner's or an operator's policy of liability insurance,
certified as provided in Section 32-7-20 or Section 32-7-21 as
proof of financial responsibility, and issued ... by an
insurance carrier duly authorized to transact business in
this
state." In what is surely not a coincidence, the MLIA almost
identically defines a "liability insurance policy" as "[a]n
owner's or an operator's personal automobile liability
55
1150041
insurance policy, issued by an insurance carrier duly
authorized to transact business in this state."
§
32-7A-2(11),
Ala. Code 1975. Section 32-7-22(b) then proceeds to provide
that an "owner's policy of liability insurance ... [s]hall
insure the person named in the policy and any other person, as
insured, using any motor vehicle or motor vehicles designated
in the policy with the express or implied permission of the
named insured." § 32-7-22(b)(2), Ala. Code 1975 (emphasis
added). When the MLIA was adopted in 2000, there was only one
type of insurance policy required to be issued under the
MVSRA, i.e., the policy issued pursuant to § 32-7-22.
Section 32-7A-25, Ala. Code 1975, expressly provides that
"[t]his chapter is supplemental to other laws relative to
motor vehicles and a liability insurance policy, commercial
automobile liability insurance policy, liability insurance
bond, or deposit of cash, and insofar as possible shall be
construed in pari materia with such laws." (Emphasis added.)
The legislature could not have been clearer. The MLIA "shall
be construed in pari materia" with the MVSRA. This directive,
combined with the nearly identical definitions of "motor
vehicle liability policy" in the MVSRA and "liability
56
1150041
insurance policy" in the MLIA -- not to mention the cross-
references between the two as to policy limits -- dictate that
the requirement in the MVSRA that a motor-vehicle liability
policy include coverage for persons who use a vehicle with the
owner's permission, express or implied, is applicable to the
MLIA.2
D. Precedent
Finally, and in addition to all of the foregoing, this
Court already has construed the MLIA in a manner that is
The MLIA directly refers to portions of the MVSRA in
2
numerous provisions beyond those mentioned above. See, e.g.,
§ 32-7A-2(1)(referring to the minimum limits of liability
coverage in § 32-7-6(c)); § § 32-7A-2(9)(referring to the
minimum limits of liability coverage in § 32-7-6(c)); § 32-7A-
5 (referring to self insurance under § 32-7-34)); § 32-7A-
6(a)(5) (referring to the minimum limits of
liability coverage
in § 32-7-6(c)); § 32-7A-7 (referring to the suspension
provisions in § 32-7-6); § 32-7A-12 (referring to reporting
the owner's name and information to the Department of Public
Safety for the purpose of requiring the owner to purchase and
maintain insurance under § 32-7-13 and § 32-7-31); and § 32-
7A-17 (referring to evidence of insurance or verification of
insurance through the Online Insurance Verification System
("OIVS"), liability-insurance bond, or cash deposit in
§
32-7-
6). Moreover, in 2011, when the legislature amended the MLIA,
it also amended parts of the MVSRA. Act No. 2011-688, Ala.
Acts 2011. Those amendments to the MVSRA refer to the MLIA.
See, e.g., § 32-7-19, § 32-7-20, § 32-7-22, and § 32-7-24
(referring to proof of financial responsibility relating to a
motor-vehicle liability policy through OIVS under Title 32,
chapters 7A and 7B)).
57
1150041
consistent with the construction explained above. In Billups
v. Alabama Farm Bureau Mutual Casualty Insurance Co., 352
So. 2d 1097 (Ala. 1977), several individuals sought
underinsured-motorist benefits and medical benefits from an
Alabama Farm Bureau Mutual Casualty Insurance Company ("AFB")
policy. The policy limited underinsured-motorist coverage to
"insured" individuals. 352 So. 2d at 1100. The policy
defined the term "insured automobile" as including an
automobile used by the "named insured" and his or her spouse
or those using the automobile with the named insured's
express, but not implied, permission. The question before the
Court
was
whether
the
MVSRA
required
the
underinsured-motorist
coverage in the AFB policy to extend to those who used the
named insured's automobile with the named insured's implied
permission.
The Billups Court began its analysis by observing that
"[t]his court has held that the scope of uninsured motorist
coverage must be coextensive with liability coverage." 352
So. 2d at 1100. The Court then quoted the mandatory
provisions of the MVSRA, then located at Title 36, § 74(62),
Alabama Code 1940 (Recomp. 1958), which stated that an
58
1150041
automobile insurance policy "shall insure the person named
therein and any other person, as insured, using any such motor
vehicle or motor vehicles with the express or implied
permission of such named insured." Id. (emphasis omitted;
emphasis added). As a result of this language, this Court
concluded that "§ 74(62) is unambiguous in mandating the
extension of liability insurance coverage to persons using an
insured vehicle with the express or implied permission of the
named insured." 352 So. 2d at 1100 (emphasis omitted;
emphasis added). The Court then held that because
underinsured-motorist coverage must be "coextensive" with
liability coverage, AFB could not legally limit coverage
(underinsured or liability coverage) to only those using the
automobile with express permission. Id.
In short, the Billups Court recognized that all mandatory
automobile liability insurance policies under the MVSRA are
required to provide coverage to those who use an insured
vehicle with the insured's implied permission. The
3
It is clear that the liability policy at issue in Billups
3
was a "'motor vehicle liability policy' as that phrase is used
in the MVSRA." ___ So. 3d at ___. The Billups Court
specifically
quoted
the
definition
of
"motor
vehicle
liability
policy" from what is now § 32-7-22(a) of the MVSRA and then
59
1150041
legislature's passage of the MLIA served only to expand the
requirement of mandatory automobile liability insurance in
this State from one of post-accident coverage only, to one of
either post- or pre-accident coverage; it did not curtail in
any way the type of coverage that must be provided in such
mandatory liability insurance policies. Therefore, the
holding in Billups is relevant precedent for our decision in
this case.
E. Conclusion
Section 32-7A-4(a) unambiguously provides that no one may
be permitted, either expressly or impliedly, to use a vehicle
on the public roadways except when there is in place one of
the three
types
of security prescribed
therein; no distinction
is drawn between those three types of security. The
legislature clearly intended that they be interchangeable as
to the protection they afford. And there is no reason in
logic or sound policy why the legislature would have intended
that a user whose permission is implied must be covered when
stated that "[t]he question [before us] is the effect the
statutory provisions [§ 32-7-22 and § 32-7-23 (addressing
uninsured motorist coverage)] have upon the scope of the
uninsured motorist coverage under the policy." 352 So. 2d at
1100.
60
1150041
the owner chooses a bond or cash deposit, but not when the
owner chooses (as do most owners) a liability insurance
policy.
Furthermore,
§
32-7A-4(b)(1)
specifically
defines
liability insurance by reference to the policy limits
prescribed
for liability policies in the MVSRA
and, therefore,
of necessity by reference to the persons covered by those
limits. The MVSRA is unambiguous in requiring coverage in
automobile liability insurance policies for persons using an
insured vehicle with the express or implied permission of the
named insured.
As if the foregoing is not plain enough, the MLIA itself
takes the somewhat unusual tact of explicitly dictating that
it must be read in pari materia with the MVSRA. Further, the
definitions of liability insurance in the two statutes
essentially mirror one another. The very purpose of the MLIA
was simply to expand the requirement of mandatory liability
insurance to more drivers than included in the MVSRA. Reading
the MLIA more narrowly than the MVSRA would not protect the
public from "the common purpose of providing victims of
automobile accidents with financially responsible persons to
61
1150041
look to for damages." Selected Risks Ins. Co. v. Zullo, 48
4
N.J. 362, 371, 225 A.2d 570, 575-76 (1966) (reading the New
Jersey Motor Vehicle Security Responsibility Law, the
Unsatisfied Claim and Judgment Fund Law, and the Motor Vehicle
Liability Security Law together).
I cannot agree with the main opinion's conclusion that
liability insurers are free to exclude from coverage users of
an insured's vehicle whose permission to use the vehicle is
implied rather than express. Both are permitted users. I
therefore am compelled to dissent.
At least 42 states and the District of Columbia have
4
compulsory automobile insurance statutes under which omnibus
coverage is required, and such omnibus provisions require
coverage for permissive drivers. See 1 William J. Schermer
and Irvin E. Schermer, Automobile Liability Insurance § 3.9
(4th ed. 2016).
62 | January 27, 2017 |
63d99f94-ac2f-4188-a83e-aef8f4414cca | Rodgers v. Meredith | 146 So. 2d 308 | N/A | Alabama | Alabama Supreme Court | 146 So. 2d 308 (1962)
Curtis H. RODGERS, Circuit Clerk,
v.
M. C. MEREDITH, Sheriff.
4 Div. 22.
Supreme Court of Alabama.
October 25, 1962.
*309 Ewell N. Clark, Florala, for appellant.
Abner R. Powell, Jr., Andalusia, for appellee.
COLEMAN, Justice.
This is an appeal by plaintiff from a judgment denying a petition for mandamus to require the sheriff to make the reports in writing provided for by § 138, Title 45, Code 1940, which recites as follows:
*310 Plaintiff is the circuit clerk; defendant is the sheriff. Defendant's demurrer to the petition was overruled, whereupon defendant answered and testimony was taken. Judgment was rendered denying mandamus and plaintiff assigns this action of the court as error.
As we understand the briefs, decision on this appeal depends on the answers to two questions, i. e., (1) Is § 138 mandatory; and (2) Is the petition properly brought in the name of the clerk as plaintiff?
The parties agree that if the statute is not mandatory, but is merely directory and permits the sheriff to make the reports or not at will, then mandamus was correctly denied and the second question is not reached. We understand further that it is not disputed that if the statute is mandatory and the petition is brought in the name of the proper party, then the court erred in denying mandamus; but, although the statute be mandatory, if the petition be not brought in the name of the proper party, then mandamus was correctly denied.
Plaintiff asserts that the statute is mandatory. Defendant takes the contrary view.
Defendant asserts that the words of the statute, i. e., "it is the duty," are directory merely citing, Dorchester County Com'rs v. Meekins, 50 Md. 28, where the court held that a constitutional provision providing that "it shall be the duty of the General Assembly" to enact laws into articles and sections is merely directory so that a law enacted without observing the constitutional directions was not, for that reason, invalid.
In at least one case this court has held that a statute which commences, "It is the duty," imposed a mandatory duty which could be enforced by the writ of mandamus when it was applied for by a party entitled thereto. § 198, Title 13, Code 1940; Jackson v. Mobley, 157 Ala. 408, 47 So. 590. The words, "it is the duty," in § 138, Title 45, are no obstacle to giving that statute mandatory effect, notwithstanding the holding in Dorchester County Com'rs v. Meekins, supra, to opposite result.
Defendant argues that because no penalty is imposed for noncompliance with § 138, Title 45, the statute is not mandatory, *311 citing 50 Am.Jur. 49, Statutes, § 27. Defendant argues in brief as follows:
This court has said:
Looking to the origin of § 138, Title 45, we are of opinion that it was mandatory when first enacted. It appears as Section 1 of Act No. 11, approved February 22, 1881; Acts 1880-81, page 9, which recites in pertinent part as follows:
It will be noted that the act provided that:
1. Report of entry and discharge of prisoners be reported to clerk;
2. Clerk shall lay reports before court of county commissioners;
3. Court of county commissioners shall compare account presented by sheriff with reports filed by clerk and shall endorse account as correct or incorrect;
4. Sheriff shall not be paid for feeding prisoners without presentation of endorsed account;
5. Sheriff failing to comply with act, as to any prisoner, shall receive no pay for feeding such prisoner;
6. Sheriff failing to keep the book of account is guilty of a misdemeanor;
7. Any sheriff knowingly receiving payment to which he is not entitled shall be punished as if he had stolen the money so received.
The Act of 1881 certainly provided a penalty for failure to file the reports with the clerk. We think that Section 1 of the 1881 Act was clearly mandatory.
Section 1 of the 1881 Act was codified as § 4555 of the Code of 1886. The remaining sections of the act appear to have been omitted from the Code. The original purpose of Section 1 of the 1881 Act is clear. What purpose it is now to serve may not be so clear. We are not prepared to say, however, that the legislature cannot continue a mandatory duty imposed on the sheriff merely because the present purpose is not so clearly apparent as it formerly was.
As stated above, the court "knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time." 222 Ala. at page 75, 131 So. at page 243.
When § 138, Title 45, was first enacted it was clearly mandatory because of the words employed and the facts existing at the time. It has been brought forward in five successive codes without material change. Our problem is to ascertain the intent of the lawmakers when they placed § 138, Title 45, in the presently effective Code of 1940.
It is within the power of the legislature, by reasonable regulation, to prescribe the duties of sheriff, provided no constitutional limitation is broken. No such limitation appears here. This power of the legislature is not questioned.
We think the intent of the legislature with reference to the mandatory or directory character of § 138, Title 45, can best be ascertained by applying the rules of construction which have been stated as follows:
See also: Gunter v. State, 83 Ala. 96, 3 So. 600; Zaner v. State, 90 Ala. 651, 8 So. 698; Miller v. State ex rel. Peck, 249 Ala. 14, 21, 29 So. 2d 411, 172 A.L.R. 1356.
In the instant case there is but slight change in Section 1 of the 1881 Act as it has been carried forward into the successive codes. We have undertaken to show that the provision of the 1881 Act, which made it the duty of the sheriff to file with the clerk the reports as to jail prisoners, was mandatory in the original statute, and not directory. The language of the Code utterly fails to express the legislative intent *314 to change the original operation and construction of what is now § 138, Title 45.
To hold otherwise, we would be forced to say that language which meant one thing in 1881 had an opposite meaning in 1886 and thereafter. We would be forced to say that the same statutory provision, which did not permit the sheriff, at his discretion to fail to report in 1881, did permit him to fail so to report in 1886, and now. We will not ascribe to the legislature the expression of one intent at one time and an opposite intent at another time by using the same language at both times. To so hold would be unreasonable and destroy the stability of the law. Because the original statute of 1881 was mandatory and has been codified without showing an intent to change its mandatory character, the codified statute, § 138, Title 45, Code 1940, is also mandatory.
We come to the second question, i. e., Is the petition properly brought in the name of the clerk, either individually, as appears to be the case, or in his capacity as clerk of the circuit court? The parties seem to treat the petition as being brought by him in his capacity as clerk, and we will so treat it.
Plaintiff argues that the statute is for the benefit of the clerk because § 201, Title 13, requires him, upon request, to furnish the chief justice "with all information as to * * * the number of prisoners in jail," and the reports made by the sheriff in compliance with § 138, Title 45, would assist the clerk in furnishing such information to the chief justice. For two reasons, we do not think that § 138 was enacted to help the clerk comply with § 201, Title 13. The first reason is that § 138, Title 45, appeared in the code many years before the forerunner of § 201, Title 13, was enacted in 1915; and the second reason is that the reports required by § 201, Title 13, are as to "the number of prisoners in jail" and not as to the number of prisoners reported by the sheriff to be in jail.
Plaintiff says also that § 138, Title 45, is to assist him in setting cases for trial as required by § 316, Title 15. We do not agree. The progenitor of § 316, Title 15, appears to be an act approved in 1877, some years before the enactment of Section 1 of the Act of 1881, supra. The second reason stated above as to § 201, Title 13, applies here also.
We are of opinion that § 138, Title 45, confers no private right on plaintiff, either individually or as clerk.
Appellee states in brief:
We hold that the duty here placed on the sheriff by § 138, Title 45, is a legal duty in which the public has an interest, as *315 distinguished from an official duty affecting a private interest merely. Under the settled rule, petition for mandamus to compel a public officer to perform such duty is properly brought in the name of the state on the relation of one or more persons interested in the performance of that duty. The instant petition was not so brought.
By demurrer, the defendant raised the objection that the petition shows that plaintiff is not entitled to maintain this action as clerk of the circuit court. The court overruled the demurrer. Defendant has cross-assigned this ruling as error.
The court erred in overruling this ground of demurrer. Kendrick v. State, supra. Defendant recognizes, of course, that, as to him, the error is without injury, because he prevailed in the final judgment.
We cannot, however, merely hold that mandamus was correctly denied because the petition was not properly brought, and so dismiss this point without further consideration. Orderly procedure and fair play forbid that a court be permitted to overrule a demurrer, and yet have its final judgment upheld because the demurrer ought to have been sustained, all without giving the party whose pleading is bad an opportunity to amend. Especially is this true in the light of §§ 238, 239, 1072, Title 7, Code 1940.
The right of amendment is to be liberally indulged; City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160; but there must not be an entire change of parties; Spurling v. Fillingim, 244 Ala. 172, 12 So. 2d 740. The statute does not permit striking the sole party plaintiff and substituting another in his place. Leaird v. Moore, 27 Ala. 326; Pickens v. Oliver, 32 Ala. 626. In a case where mandamus was awarded, this court said:
The implication is that the amendment would not be allowed if it did work an entire change of parties.
In the case at bar, then, if plaintiff be afforded an opportunity to amend as to the party plaintiff, he cannot properly substitute the state on his relation for himself without offending the rule. Accordingly, the judgment denying the writ is due to be affirmed because the plaintiff is not entitled to maintain the action and cannot amend the complaint so as to entitle him to do so.
It necessarily follows, however, that the judgment here is not res judicata so as to bar another action properly brought in the name of the state on the relation of a person having a proper interest, because the state on such relation is not a party to the instant action.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 25, 1962 |
d9d71c4c-9361-4345-b34f-2be271d740eb | Ex parte State of Alabama. | N/A | 1151287 | Alabama | Alabama Supreme Court | Rel:02/17/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151287
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Brandon Yates
v.
State of Alabama)
(Choctaw Circuit Court, CC-12-114; CC-12-115; CC-12-116; and
CC-12-117;
Court of Criminal Appeals, CR-14-1151)
BOLIN, Justice.
The writ of certiorari is quashed.
1151287
In quashing the writ of certiorari, this Court does not
wish to be understood as approving all the language, reasons,
or statements of law in the Court of Criminal Appeals'
opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155
(1973).
WRIT QUASHED.
Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan,
JJ., concur.
2 | February 17, 2017 |
61343a87-d953-49a1-873c-db8e65ba521e | Ex parte Ronnie Lynn Kirksey. | N/A | 1160522 | Alabama | Alabama Supreme Court | Rel: 06/23/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1160522
____________________
Ex parte Ronnie Lynn Kirksey
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Ronnie Lynn Kirksey
v.
State of Alabama)
(Etowah Circuit Court, CC-07-1130;
Court of Criminal Appeals, CR-09-1091)
MAIN, Justice.
WRIT DENIED. NO OPINION.
Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan, and
Sellers, JJ., concur.
Murdock, J., dissents.
1160522
MURDOCK, Justice (dissenting).
I would grant certiorari review in this capital case.
Ronnie Lynn Kirksey, the petitioner, seeks review by this
Court of a decision by the Court of Criminal Appeals upholding
his sentence of death. The decision by the Court of Criminal
Appeals follows certiorari review by the United States Supreme
Court of the Court of Criminal Appeals' earlier decision
upholding the petitioner's capital conviction and sentence of
death and a remand by that Court to the Court of Criminal
Appeals for further consideration of the sentence in light of
the Supreme Court's holding in Hurst v. Florida, 577 U.S.
___, 136 S. Ct. 616 (2016). See Kirksey v. State, 191 So. 3d
810 (Ala. Crim. App. 2015), vacated, 578 U.S. ___, 136 S. Ct.
2409 (2016).
I am concerned that the issue whether the aggravating
circumstances outweigh the mitigating circumstances in a
capital case, as required for the imposition of the death
penalty under Alabama law, sufficiently partakes of
the
nature
of a factual inquiry so as to trigger the principles
articulated in Hurst. I also believe this Court should
further consider the petitioner's argument that the jury's
2
1160522
verdict was constitutionally insufficient to support a death
sentence because the jury was instructed that its verdict
would merely be a recommendation.
3 | June 23, 2017 |
da42ec8e-6499-4faf-b6c6-e07c96b584e6 | Yarbrough v. Eversole | N/A | 1150400 | Alabama | Alabama Supreme Court | REL: 01/27/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150400
____________________
Myron Timothy Yarbrough
v.
Steven D. Eversole et al.
Appeal from Shelby Circuit Court
(CV-15-157)
MURDOCK, Justice.
Myron Timothy Yarbrough appeals from a judgment entered
against him by the Shelby Circuit Court in his action alleging
legal malpractice against Steven D. Eversole, Richard C.
1150400
Perry, Jr., and Eversole Law, LLC ("the firm"). We affirm in
part, reverse in part, and remand.
I. Facts
In 2006, Yarbrough was convicted of one count of rape in
the first degree and two counts of sodomy in the first degree.
The trial court sentenced him to life imprisonment for each
conviction and ordered that the sentences were to run
concurrently. Yarbrough appealed to the Court of Criminal
Appeals, which affirmed his convictions and sentences in an
unpublished memorandum on February 16, 2007.
At the time of the events giving rise to Yarbrough's
cause of action, the firm employed both Eversole and Perry.
In March 2012, Yarbrough retained the firm to explore the
possibility of filing a Rule 32, Ala. R. Crim. P., petition on
Yarbrough's behalf. In his complaint, Yarbrough alleges that
Eversole and Perry represented to Yarbrough that "there was a
basis in fact and law to file a Rule 32 petition." Yarbrough
asserts, however, that the two attorneys "knew that there was
no 'newly discovered' evidence as defined by Alabama case law
and that the statute of limitations would be a complete bar to
all claims of newly discovered evidence and for the claim of
2
1150400
ineffective assistance of trial counsel and appellate
counsel." Yarbrough alleges that he believed the attorneys'
representations and that, on that basis, he paid the firm
$10,000 to file a Rule 32 petition on his behalf.
On December 12, 2012, Eversole and Perry filed a Rule 32
petition on Yarbrough's behalf in the St. Clair Circuit Court
in which they alleged the existence of newly discovered
evidence and ineffective assistance of trial and appellate
counsel. On January 16, 2013, the State filed an answer to
the petition in which it asserted that Yarbrough's claims were
time-barred under Alabama law. According to Yarbrough, on
March 6, 2013, the St. Clair Circuit Court denied the Rule 32
petition, concluding that the claims were time-barred.
Yarbrough states that on July 2, 2013, more than 42 days
after his petition had been denied, the firm filed a notice of
appeal from the denial of his Rule 32 petition. The Court of
Criminal Appeals sent notices to Eversole and Perry informing
them that the appeal was untimely and requesting an
explanation, but, according to Yarbrough, Eversole and Perry
failed to provide one, and the appeal was dismissed on
August 5, 2013.
3
1150400
Yarbrough alleges that Eversole and Perry never informed
him that the reason his appeal had been dismissed was that it
was not timely filed. He states in his complaint that they
represented to him that "for an additional $15,000.00 they
could file other legal proceedings in order to have
[Yarbrough's] appeal reinstated." Yarbrough alleges that
Eversole and Perry knew those representations were false and
knew that, in fact, another appellate filing at that point
would be fruitless. Yarbrough asserts that he believed the
attorneys' representations and that he paid the firm $15,000
for additional appellate work related to his Rule 32 petition.
Yarbrough states that the firm then filed a petition for a
writ of mandamus with the Court of Criminal Appeals on his
behalf. The Court of Criminal Appeals summarily denied the
petition without an opinion on November 1, 2013. Finally, in
November 2013, the firm also filed a motion for an out-of-time
appeal in the St. Clair Circuit Court, which, Yarbrough
asserts, "had no basis in law or fact" because, he said, the
circuit court "had no jurisdiction to grant said motion."
For their part, the two attorneys assert that they told
Yarbrough at the outset that any postjudgment relief from his
4
1150400
conviction would be "a long shot" but that he told them to
submit filings anyway.
On January 14, 2015, Yarbrough filed a complaint against
the firm, Eversole, and Perry in the Jefferson Circuit Court,
alleging legal
malpractice and seeking recovery of
the
$25,000
in legal fees he paid "a result of the Defendants' negligent
and/or wanton legal malpractice" and punitive damages for the
alleged fraud perpetrated by Eversole and Perry. On May 22,
2015, Eversole and the firm filed a motion to transfer the
case to the Shelby Circuit Court and a motion to dismiss the
case, asserting that Yarbrough had failed to state a claim
upon which relief could be granted. The motion to transfer
was unopposed. On May 26, 2015, the case was transferred to
the Shelby Circuit Court. On June 1, 2015, Perry filed an
answer to the complaint in which he denied Yarbrough's
substantive allegations. On June 5, 2015, the circuit court
denied the motion to dismiss filed by the firm and Eversole.
On June 6, 2015, the firm and Eversole filed an answer to the
complaint
in
which
they
likewise
denied
Yarbrough's
substantive allegations.
5
1150400
On October 8, 2015, the firm and Eversole filed a motion
for a judgment on the pleadings. In that motion, they
asserted that Yarbrough's "burden of pleadings and proof in
this civil case for legal malpractice is insurmountable as a
matter of law" because, they said, Yarbrough could not
demonstrate that "the results would have been different or
that he was guaranteed a reversal of his conviction" but for
the alleged legal malpractice.
On October 12, 2015, Perry filed a motion for a summary
judgment. In that motion, Perry asserted:
"[Yarbrough] was convicted of a felony in part
based upon [Yarbrough's] confession. [Yarbrough]
has a life sentence. [Yarbrough] wanted to try
anything to obtain relief. Perry knew that a Rule
32 Petition and out of time appeals were filed on
[Yarbrough's] behalf. Mr. Perry worked on some of
them. Everything that [Yarbrough] wanted or told
was to be filed based upon what Mr. Perry knows, it
was filed."
The summary-judgment motion also stated: "Rule 32 Petitions
and out of time appeals are standard requests in such a
situation. They are always long shots." In support of the
motion, Perry filed an affidavit in which he denied being
personally paid $25,000 by Yarbrough for legal work. He
stated that the money was paid to the firm. Perry also
6
1150400
expressly denied that he lied to Yarbrough or that he made any
false representations to Yarbrough. Yarbrough filed no
response to Perry's summary-judgment motion.
On October 13, 2015, Yarbrough filed a response to the
firm and to Eversole's motion for a judgment on the pleadings.
In the response, Yarbrough argued, among other things, that
"[w]hat [the firm and Eversole] simply refuse to
acknowledge and are trying to hide is that their
negligence and fraud has damaged [Yarbrough] in the
amount of payment of legal fees for work that from
the moment [the firm and Eversole] took on their
representation had no basis in fact or law and could
never [have] succeeded."
On December 10, 2015, the circuit court entered an order
granting the firm and Eversole's motion for a judgment on the
pleadings and Perry's motion for a summary judgment. The
circuit court's reasoning is well summarized in the following
paragraph from its order:
"Two
underlying
legal
premises
belie
[Yarbrough's] insurmountable burden. In the first
instance, an attorney does not guarantee the success
of his representations, nor is a lawyer 'expected to
achieve impossible results for a client.' Pickard
v. Turner, 592 So. 2d 1016, 1029 (Ala. 1992).
Secondarily and even more fundamentally, the Legal
Services Liability Act[, § 6-5-570 et seq., Ala.
Code 1975,] mandates allegations and proof that,
'but for' the negligence of the legal service
provider, the underlying case would have been
different. Hall v. Thomas, 564 So. 2d 936 (Ala.
7
1150400
1990). In his Complaint, [Yarbrough] pled no[] 'but
for' allegations and in his pleadings filed in
opposition to both dispositive motions, [Yarbrough]
does not dispute the holding of either case.
Instead, he argues that a Rule 32 petition should
never have been filed in the first instance. This
argument, however, overlooks the underlying premise
for which Defendants were hired by [Yarbrough] in
the first place; namely, to develop some legal basis
to overcome the daunting task of reversing the
jury's guilty verdict. In the judgment of the
Court, even [Yarbrough's] well pled complaint, which
contains no 'but for' causation allegations, cannot
overcome his burden of proof, regardless of the
evidence that he may develop in discovery."
Yarbrough filed a timely notice of appeal.
II. Standard of Review
Our standard of review in this case is de novo, even
though the circuit court dismissed Yarbrough's claims against
the defendants in response to two different motions, i.e., a
motion for a judgment on the pleadings and a motion for a
summary judgment.
"'When a motion for judgment on the
pleadings is made by a party, "the trial
court reviews the pleadings filed in the
case and, if the pleadings show that no
genuine
issue
of
material
fact
is
presented, the trial court will enter a
judgment for the party entitled to a
judgment according to the law." B.K.W.
Enters., Inc. v. Tractor & Equip. Co., 603
So. 2d 989, 991 (Ala. 1992). See also
Deaton, Inc. v. Monroe, 762 So. 2d 840
(Ala. 2000). A judgment on the pleadings is
8
1150400
subject to a de novo review. Harden v.
Ritter, 710 So. 2d 1254, 1255 (Ala. Civ.
App. 1997). A court reviewing a judgment on
the pleadings accepts the facts stated in
the complaint as true and views them in the
light most favorable to the nonmoving
party. Id. at 1255–56. If matters outside
the
pleadings
are
presented
to
and
considered by the trial court, then the
motion for a judgment on the pleadings must
be treated as a motion for a summary
judgment. See Rule 12(c), Ala. R. Civ. P.
Otherwise, in deciding a motion for a
judgment on the pleadings, the trial court
is bound by the pleadings. See Stockman v.
Echlin, Inc., 604 So. 2d 393, 394 (Ala.
1992).'"
Medlock v. Safeway Ins. Co. of Alabama, 15 So. 3d 501, 507
(Ala. 2009) (quoting Universal Underwriters Ins. Co. v.
Thompson, 776 So. 2d 81, 82–83 (Ala. 2000)).
"We review the trial court's grant or denial of
a summary-judgment motion de novo, and we use the
same standard used by the trial court to determine
whether the evidence presented to the trial court
presents a genuine issue of material fact. Bockman
v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006). Once
the summary-judgment movant shows there is no
genuine issue of material fact, the nonmovant must
then present substantial evidence creating a genuine
issue of material fact. Id. 'We review the
evidence
in
a
light
most
favorable
to
the
nonmovant.' 943 So. 2d at 795. We review questions
of law de novo. Davis v. Hanson Aggregates
Southeast, Inc., 952 So. 2d 330 (Ala. 2006)."
Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346
(Ala. 2006).
9
1150400
III. Analysis
Yarbrough's legal-malpractice claims are subsumed under
the Alabama Legal Services Liability Act, § 6-5-570 et seq.,
Ala. Code 1975 ("the ALSLA"). "There shall be only one form
and cause of action against legal service providers in courts
in the State of Alabama and it shall be known as the legal
service liability action ...." § 6-5-573, Ala. Code 1975.
"A legal services liability action embraces any form
of action in which a litigant may seek legal redress
for a wrong or an injury and every legal theory of
recovery, whether common law or statutory, available
to a litigant in a court in the State of Alabama now
or in the future."
§ 6-5-572(1), Ala. Code 1975. This includes Yarbrough's
claims alleging fraud. See, e.g., Cockrell v. Pruitt, [Ms.
1140849, June 30, 2016] ___ So. 3d ___, ___ (Ala. 2016)
(stating that "[t]his Court has held that the ALSLA 'applies
to a legal malpractice action based upon fraud").
Despite the fact that we apply the same de novo standard
of review to the circuit court's rulings on both motions, our
disposition of Yarbrough's claims against the firm and
Eversole, on the one hand, and Perry, on the other, diverges
because of the different procedural posture of their
respective motions.
10
1150400
Perry filed a motion for a summary judgment that he
supported with an affidavit in which he testified that he did
not make any misrepresentations to Yarbrough.
Yarbrough filed
nothing in response to Perry's submission. Because Perry
submitted evidence in support of his motion, Yarbrough could
not simply rely on the averments in his complaint. See, e.g.,
Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala.
1999). Accordingly, we affirm the summary judgment in favor
1
of Perry.
The same analysis, however, does not apply to Yarbrough's
claims against the firm and Eversole because the firm and
Eversole filed a motion for a judgment on the pleadings and
they did not submit any other documents for the circuit court
to consider. According to the complaint submitted by
Yarbrough, Eversole and/or the firm misled Yarbrough into
believing that a Rule 32 petition asserting newly discovered
evidence and alleging ineffective assistance of counsel would
not be precluded by the applicable statute of limitations.
The firm and Eversole contend, however, that, even if this
We note that Yarbrough at no point sought an extension
1
of time pursuant to Rule 56(f), Ala. R. Civ. P., in which to
seek evidence in opposition to Perry's summary-judgment
motion.
11
1150400
allegation is accepted as true, Yarbrough cannot meet his
burden of proving that, but for the alleged tortious actions
of the defendants, Yarbrough's Rule 32 petition would have
succeeded.
The firm and Eversole note that this Court has stated:
"To prevail in a legal-malpractice action, the
plaintiff must prove that, but for the attorney's
negligence, the legal matter concerning which the
attorney is alleged to have been negligent would
have been resolved more favorably to the plaintiff.
Pickard v. Turner, 592 So. 2d 1016, 1019 (Ala.
1992). To meet this burden, the plaintiff must
prove (1) that, in the absence of the alleged
malpractice, the plaintiff would have been entitled
to a more favorable result in the legal matter
concerning which the attorney is alleged to have
been negligent, and (2) that the attorney's
negligence in fact caused the outcome of the legal
matter to be less favorable to the plaintiff than
the outcome would have been in the absence of the
alleged malpractice. Pickard, 592 So. 2d at 1020
('"Generally, actionable [legal] malpractice cannot
be established in the absence of a showing that the
attorney's wrongful conduct has deprived the client
of something to which he would otherwise have been
entitled." [7A C.J.S. Attorney and Client § 255 at
462 (1980).] A lawyer cannot be expected to achieve
impossible results for a client.'); Hall v. Thomas,
456 So. 2d 67, 68 (Ala. 1984) ('A claim for
malpractice requires a showing that in the absence
of the alleged negligence the outcome of the case
would have been different.' (citing Mylar v.
Wilkinson, 435 So. 2d 1237 (Ala. 1983)))."
Bonner v. Lyons, Pipes & Cook, P.C., 26 So. 3d 1115, 1120
(Ala. 2009) (emphasis added). They argue that Yarbrough
12
1150400
clearly cannot meet his burden because, if they had not done
what Yarbrough faults them for -- filing a Rule 32 petition on
his behalf and filing an appeal and a petition for a writ of
mandamus in the Court of Criminal Appeals following the denial
of the Rule 32 petition -- the result for Yarbrough would have
been no different than the circuit court's denial of his
Rule 32 petition that actually occurred.
As Yarbrough observes, however, this case is different
than the usual legal-malpractice action alleging a failure of
counsel to exercise due care in the handling of an underlying
action. As he states:
"It is true that [Yarbrough] cannot prove that
the underlying Rule 32 petition and the subsequent
pleadings would have been different. They would not
have been different because they should never have
been filed in the first instance because there was
no basis in law or fact to file them let alone
charge legal fees to do so. [Yarbrough] in great
detail in his complaint described the merits of the
motion filed by the [defendants]. They had no merit
and the [defendants] knew or should have known
such."
In other words, the alleged wrongdoing has nothing to do
with the negligent or omissive provision of legal services;
the alleged wrongdoing is that the firm and Eversole convinced
Yarbrough that something could be done in the first place
13
1150400
when, in fact, it could not, and they accepted his payments
for what they knew would be futile legal services. Yarbrough
argues that the Rule 32 petition and the subsequent appellate
filings never should have been filed because, he says, they
lacked any basis in fact or law. He does not claim that, if
the defendants had presented a different argument in the Rule
32 petition or if they had filed a timely appeal the outcome
would have been different. Under such circumstances, it makes
no sense to require the plaintiff to demonstrate that, but for
counsel's improper conduct, the outcome of the Rule 32
proceeding would have been different.
Yarbrough's claim is analogous to a claim presented in
Bryant v. Robledo, 938 So. 2d 413 (Ala. Civ. App. 2005). In
Bryant, an attorney allegedly fraudulently induced the
daughter and son-in-law of the attorney's client to pay for
legal services for the client that could never be performed,
because, at the time the attorney accepted money from the
daughter and son-in-law, the attorney knew that the client was
incompetent and could not contract for legal services; thus,
the attorney knew or should have known that he would be unable
to perform any legal services for the client. The Court of
14
1150400
Civil Appeals concluded that the daughter and son-in-law had
a viable claim against the attorney:
"Even if no direct contract between James Bryant
[the attorney] and the Robledos [the daughter and
son-in-law] existed, the Robledos also argued that
James Bryant knew at the time that he requested
payment of the $15,000 by the Robledos that Nave
[the client] was incompetent and could not contract
for legal representation. If the Robledos could
produce evidence to support that contention, then a
claim of fraudulent inducement would be shown and
would preclude dismissal of the Robledos' claim of
fraud."
938 So. 2d at 419.
As in this case, the allegation against the attorney in
Bryant was not that he failed to meet the applicable standard
of care in the course of his representation but that he never
should have accepted payment for representation in the first
place because the client legally could not contract with the
attorney for legal services. No allegation that the outcome
of the client's case would have been different with better
legal representation was made because that was not the
gravamen of the legal-malpractice claim, and the Court of
Civil Appeals did not suggest that any such allegation or
evidence in that regard was required.
15
1150400
Moreover, although there appears to be a dearth of
similar
legal-malpractice
cases in
Alabama,
they
are
commonplace throughout the country, even though the "but for"
test applied by the circuit court in this case is also a
mainstay of legal-malpractice actions nationwide. See, e.g.,
Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573, 574
(Iowa Ct. App. 1987); Wahl v. Foreman, 398 F. Supp. 526 (S.D.
N.Y. 1975); Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61
Mass. App. Ct. 55, 807 N.E.2d 187 (2004); Polin v. Wisehart &
Koch, No. 00 CIV. 9624 (DLC), Sept. 2, 2004 (S.D. N.Y. 2004)
(not selected for publication in F. Supp. 2d).
Accordingly, the circuit court erred in concluding that
Yarbrough's legal-malpractice action against the firm and
Eversole failed as a matter of law. There exists a plain
dispute of fact as to what Eversole told Yarbrough about the
prospects of a Rule 32 petition and the subsequent appellate
filings. Therefore, a judgment on the pleadings in favor of
the firm and Eversole was not warranted.
IV. Conclusion
The summary judgment in favor of Perry is affirmed. The
judgment on the pleadings in favor of the firm and Eversole
16
1150400
is reversed, and the cause is remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Parker, Main, and Bryan, JJ., concur.
Bolin, J., concurs in the result.
17 | January 27, 2017 |
a40c1711-45ef-400a-9e47-255ce951dbbe | Mayben v. Travelers Indemnity Company | 144 So. 2d 52 | N/A | Alabama | Alabama Supreme Court | 144 So. 2d 52 (1962)
William E. MAYBEN, d/b/a Mayben & Son Company
v.
TRAVELERS INDEMNITY COMPANY et al.
7 Div. 572.
Supreme Court of Alabama.
August 30, 1962.
*53 Inzer, Martin, Suttle & Inzer, Gadsden, for appellant.
David J. Vann and White, Bradley, Arant, All & Rose, Birmingham, for appellees.
MERRILL, Justice.
Appellee Kelly was a general contractor who was building a dormitory at Tuskegee Institute. Appellee, The Travelers Indemnity Company, was the surety on his bond. It became necessary to replace one of the subcontractors on the job, and Kelly made an oral contract with appellant, whereby appellant was to complete the work originally started by the original subcontractor. When the work was completed, appellant sued for $2,154.25, which he alleged was due and unpaid under the oral contract.
Appellee Kelly denied that any amount was owing appellant, and also filed pleas of set off and recoupment for $5,911.72, which he claimed he had overpaid appellant. Demurrers to two of these pleas were overruled. The jury found the issues in favor of the defendants. A motion for a new trial was overruled and appellant appealed.
The main dispute in the case was whether the compensation agreed upon in the oral contract was to be based on the cost of the job plus ten percent of the costs for payment of the contractor's overhead plus ten percent profit, commonly known as a "cost plus ten and ten," as contended by appellant; or whether it was based on the cost of labor and material on the job plus ten percent commission as contended by appellee Kelly.
Assignments of error 1, 2, 3 and 4 charge error in the overruling of demurrers to appellee's two pleas of set off and recoupment. The argued grounds are that the pleas were not in proper form, were vague, uncertain and ambiguous.
An appellant has not only the burden of showing error but also of showing that he was probably prejudiced by the error. Supreme Court Rule 45; Shelby County v. Baker, 269 Ala. 111, 110 So. 2d 896; Sovereign Camp, W. O. W. v. Colvin, 218 Ala. 616, 119 So. 635. Appellant's objections to the pleas were not to their substance, but went to form and verbiage, matters which could be corrected by amendment, and the evidence of overpayment would have been admissible under the plea of the general issue. The overruling of demurrers to pleas 4 and 7, if error, which *54 we do not decide, was without injury, as, under the averments of the complaint, the matters of defense could have been introduced under the plea of the general issue. Southern Indemnity Ass'n v. Hoffman, 16 Ala.App. 274, 77 So. 424.
Moreover, appellant could not have been prejudiced by the overruling of the demurrers to the pleas of recoupment because the jury found against appellees on the pleas, and the judgment was favorable to appellant on those pleas.
Assignment of error 5 charges that the court erred in overruling appellant's motion for a new trial, and the argued grounds of the motion are that the verdict was contrary to the preponderance of the evidence, contrary to the legal evidence and contrary to the law and evidence.
On appeal, this court does not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considering it, we indulge all favorable presumptions to sustain the conclusion reached in the trial court and will not disturb it unless plainly erroneous or manifestly unjust. Maxwell v. City of Birmingham, 271 Ala. 570, 126 So. 2d 209.
Here, the evidence was in conflict as to the terms of the oral contract and the amount of compensation to be paid under it. The evidence would have supported the claim of appellant or the claim of the appellees. The credibility of the witnesses was a matter for the jury. Where there is ample evidence to support a verdict for either party, disputed questions of fact will not be reviewed or revised on appeal. Windham v. Hydrick, 197 Ala. 125, 72 So. 403.
The court charged the jury as to plaintiff's claim, as to defendant's claim of recoupment and then if the jury was not satisfied that either was entitled to recover, the verdict would be "We the jury find the issues in favor of the defendant.(s)." The latter verdict was returned. This was the proper verdict if the jury was not reasonably satisfied that either party was entitled to recover. There was no error in the refusal to grant the motion for a new trial.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | August 30, 1962 |
3c40fa59-6213-492c-b075-85447fbdd4cd | Campbell v. Barlow | 150 So. 2d 359 | N/A | Alabama | Alabama Supreme Court | 150 So. 2d 359 (1962)
H. L. CAMPBELL, Administrator, Estate of Charles Melvin Locke, Deceased,
v.
Bobby BARLOW, pro ami.
4 Div. 112.
Supreme Court of Alabama.
December 20, 1962.
Rehearing Denied February 28, 1963.
Lange, Simpson, Robinson & Somerville, Birmingham, and Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.
Tipler & Fuller, Andalusia, for appellee.
SIMPSON, Justice.
This appeal by the defendant below is from a jury's verdict and judgment thereon assessing damages against the defendant in an action for personal injuries.
Appellee's cause of action arose out of the same head-on automobile collision related in Campbell v. Davis, Ala., 150 So. 2d 187. The pertinent facts are set out in the report of that case. Appellee was riding in the rear seat of the car being driven by Charles M. Locke, appellant's interstate, and was seriously injured as a result of the collision.
Appellant contends that the trial court erred in allowing a highway patrolman, who had not observed the collision, and was not on the scene at the time of the accident, to estimate the speed of both vehicles before the impact. The following occurred on direct examination, by appellee's counsel, of the partolman:
"THE COURT: Overruled.
*360 "MR. ALBRITTON: We except.
"A I do have.
"A 75 to 80 miles an hour.
"A The same speed, 75 to 80.
Appellee's counsel then questioned the patrolman as to the basis for his estimation of speed and the following were factors considered: The distance of the vehicles from point of impact, damage to the vehicles, how the debris was scattered, the markings on the road after impact. Nowhere in the record of this direct examination do we find any reference to skid marks of the two vehicles before the impact of collision.
The rule on expert opinion evidence as to speed by one not an observer has been recently settled in our jurisdiction by the decision of Jowers v. Dauphin, 273 Ala. 567, 143 So. 2d 167; wherein it was held that the testimony of a patrolman, not an eyewitness to a collision, as to the speed of the vehicles before the collision, based on his investigation at the scene of the wrecked vehicles and skid marks on the highway after point of impact, was inadmissible evidence, and the receipt of such testimony was prejudicial error. That decision is determinative of the case at bar, necessitating a reversal. In Jowers was cited another recent ruling of our Court, Baggett v. Allen, 273 Ala. 164, 137 So. 2d 37, where the Court held that the trial court correctly granted a new trial because of the failure to sustain an objection to opinion testimony of a police officer, as to the speed of a vehicle based only on his observations at the scene of the wreck, where there were no skid marks leading up to the point of impact. We are led irresistably to the conclusion, from the absence of any skid marks or other evidence from which a reasonable opinion as to speed could be predicated, that the trial court committed prejudicial error in overruling appellant's well-grounded objection to the testimony. For other cases in accord with our holding see Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So. 2d 902; Huguley v. State, 39 Ala.App. 104, 96 So. 2d 315; McDonald v. Amason, 39 Ala.App. 492, 104 So. 2d 716.
We are fully cognizant of the cases upon which appellee relies, Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; but in both cases there were skid marks upon which a reasonable estimate of speed might be predicated; thus, those decisions would not here be applicable.
The rationale of the rule hereinbefore applied was also announced in the Jowers case, supra, which is here apposite:
Numerous other Assignments of Error were made but we see no good reason to treat them in that they deal with points not likely to arise on another trial.
For the error pointed out, it follows that the judgment of the lower court is reversed.
Reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | December 20, 1962 |
4d347ebb-a6d6-4fbc-a1cb-203a30421ff0 | Bain v. Colbert County Northwest Alabama Health Care Authority | N/A | 1150764 | Alabama | Alabama Supreme Court | Rel: 02/10/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150764
____________________
Melissa Bain, in her capacity as personal representative of
the Estate of Christopher Heath Bain
v.
Colbert County Northwest Alabama Health Care Authority d/b/a
Helen Keller Hospital
Appeal from Colbert Circuit Court
(CV-14-900077)
PER CURIAM.
Melissa Bain ("Bain"), in her capacity as the personal
representative of the estate of her deceased husband,
Christopher Heath Bain ("Heath"), appeals from a summary
1150764
judgment in favor of Colbert County Northwest Alabama Health
Care Authority d/b/a Helen Keller Hospital ("HKH") on the
claims asserted against HKH by Bain. For the reasons set
forth herein, we affirm.
I. Facts and Procedural History
Heath, who was 30 years old, began complaining of a
"lump" in his throat that would not go away. Heath went to
his general practitioner on May 23, 2012, and his doctor
recommended that he undergo an endoscopy. Between May 23 and
June 18, 2012, Heath saw several doctors in an attempt to find
out what was causing his symptoms, which included increasing
pressure near the base of his skull and fatigue. Shortly
after midnight on June 18, 2012, Bain took Heath to the
emergency room at Helen Keller Hospital ("the
hospital")
after
Heath's symptoms became more severe. Heath's father had died
of an aneurysm at the age of 47, and Heath was aware that he
might be at an increased risk of having an aneurysm. Heath
also had a history of hypertension –- high blood pressure –-
but he had been released by his primary-care physician from
taking medication for hypertension several months before his
visit to the emergency room.
2
1150764
Heath was first "triaged" by nurses at the hospital.
There is no indication in Heath's medical records that the
nurses who saw Heath at the emergency room took a
comprehensive history, including a family history, from Heath
at that time. Dr. Preston Wigfall was the emergency-room
physician working at the hospital on the night Heath was taken
to the emergency room. Dr. Wigfall evaluated Heath, and his
custom was to interview a patient and obtain a medical history
when he first saw the patient; Dr. Wigfall did not have a
specific recollection of what he asked Heath or what Heath
told him about his history, but he did remember taking a
history from Heath. Dr. Wigfall did not document any
information he learned from taking Heath's history.
According
to Bain, who was present in Heath's hospital room, Heath and
Dr. Wigfall discussed Heath's history of hypertension and the
fact that he had been released from taking his blood-pressure
medication. Heath also discussed other relevant parts of his
family and medical history with Dr. Wigfall, including that
his father had had an aneurysm.
Heath complained of pain and tightness in his chest, "a
very uncomfortable level" of pain related to the lump in his
3
1150764
throat, back pain, and pressure behind his ears and into his
head. Dr. Wigfall ordered certain tests to be run –- an X-ray
of Heath's chest and soft tissue of the neck, a CT scan of his
head and sinuses, an EKG, and blood tests -- but he was unable
to determine from the results of those tests the cause of
Heath's symptoms. Heath was discharged approximately six
hours after his arrival with an "unspecified" diagnosis with
instructions to follow up with his primary-care physician.
Heath followed up with his doctor as instructed and was
referred to another doctor to see if a problem with his
gallbladder could be causing his symptoms, and Heath
subsequently had his gallbladder removed. On July 8, 2012,
approximately 20 days after his visit to the emergency room at
the hospital, Heath
died when a 45-millimeter
ascending aortic
aneurysm dissected.
On April 7, 2014, Bain, in her capacity as the personal
representative of Heath's estate, filed a medical-malpractice
action in the Colbert Circuit Court against HKH and several
other defendants. Bain alleged, among other things not
1
Bain amended her complaint in October 2014, and the
1
amended complaint included claims against HKH; Coastal
Emergency Services, Inc.; Avalon Medical Center, P.C.;
Advanced Surgical Care, P.C.; Surgical Associates of the
4
1150764
pertinent
to
this
appeal,
that
the
emergency-department
nurses
at the hospital and the emergency-department physician, Dr.
Wigfall, breached the applicable standards of care when they
treated Heath on June 18, 2012, in the emergency department at
the hospital; that Dr. Wigfall, at all relevant times, was
acting within the line and scope of his duties and employment
as an actual or apparent agent or employee of HKH; and that
HKH was vicariously liable for the actions of its nurses and
Dr. Wigfall.
On February 16, 2015, HKH moved for a summary judgment on
all claims filed against it by Bain. HKH first argued that
Dr. Wigfall was an independent contractor, not an employee or
agent of HKH, and that there was no evidence to support a
contention that Dr. Wigfall was HKH's apparent agent.
Specifically, HKH argued that there was no
evidence
indicating
that it had done anything to hold Dr. Wigfall out as its
agent, that there was no evidence indicating that Heath was
misled into believing that Dr. Wigfall was HKH's agent, and
Shoals, P.C.; Shoals Surgical Group, LLC; Dr.
Preston
Wigfall;
CHG
Healthcare
Services,
Inc.,
d/b/a
Weatherby
Healthcare;
CHG
Administrative Management, Inc.; CHG Medical Staffing, Inc.;
and Weatherby Locums, Inc.
5
1150764
that there was no evidence indicating that Heath sought
treatment at the hospital based on that belief.
HKH presented evidence indicating that Dr. Wigfall worked
at the hospital as a contract employee for a total of eight
days in June 2012, including the night Heath was brought to
the emergency room. During the time that he worked at the
hospital, Dr. Wigfall was a member of its medical staff, and
HKH provided all the forms, supplies, equipment,
and
personnel
that he needed to do his job. Dr. Wigfall had a contract with
a staffing agency, Weatherby Locums, Inc. ("Weatherby"), that
specialized in providing temporary physicians to hospitals as
the hospitals had need, and Weatherby had a contract with HKH
to provide physicians to staff the hospital's emergency
department. Weatherby gave Dr. Wigfall the option to choose
what shifts he would like to cover at the different hospitals
to which Weatherby supplied physicians. HKH paid Weatherby
for Dr. Wigfall's services, and Weatherby, in turn, paid Dr.
Wigfall. Dr. Wigfall received a Form 1099 from Weatherby for
tax purposes. Dr. Wigfall had never been an employee of HKH
and had never been paid by HKH. Dr. Wigfall testified that
HKH did not control the medical decisions he made and that all
6
1150764
care and treatment he provided to Heath was based on his own
medical judgment.
HKH also argued that it was entitled to summary judgment
on Bain's claims against HKH regarding its nursing staff
because,
it
said,
Bain
could
not
produce
evidence
demonstrating that the nurses' breach of the standard of care
contributed to cause Heath's death. HKH acknowledged that
Bain's nursing expert, Penne Perry, testified that the HKH
nurses who cared for Heath when he arrived at the emergency
room breached the standard of care by failing to take a
comprehensive history from Heath. However, HKH argued that
there was no causal link between the alleged breach –- the
nurses' failure to take a comprehensive history from Heath
that would have included information about Heath's father
dying from an aneurysm –- and Heath's death. HKH relied on
Bain's testimony that she and Heath discussed with Dr. Wigfall
the fact that Heath's father had suffered an aortic aneurysm;
Dr. Wigfall's deposition testimony that knowledge of Heath's
father's aortic aneurysm would have made no difference in his
assessment and evaluation of Heath; and deposition testimony
from Dr. Michael Blavias, Bain's emergency-physician expert,
7
1150764
indicating that the standard of care required Dr. Wigfall to
order a chest CT scan to attempt to rule out an aortic
aneurysm or dissection, regardless of whether Dr. Wigfall was
aware of Heath's family history.
Bain filed a response and additional evidentiary
materials to support her contention that HKH was not entitled
to a summary judgment as to either the claim against the
emergency-room nurses or the claim that HKH is vicariously
liable for the negligence of Dr. Wigfall. Regarding the claim
against the emergency-room nurses, Bain argued that, if the
nurses had properly taken a detailed family history from
Heath, a reasonably prudent emergency-room physician would
have known that Heath's father had died of an aneurysm, that
this would have affected a differential diagnosis, that the
2
proper tests would have been ordered and conducted, that
Heath's condition would have been discovered, that surgery
would have been performed, and that Heath would have lived.
In support of her theory of causation, Bain presented evidence
indicating that Heath was suffering from an aneurysm and an
Dr. Wigfall described a "differential diagnosis" as "a
2
list of clinical entities that may or may not be responsible
for a patient's complaints."
8
1150764
aortic dissection when he went to the emergency room on June
18; that obtaining a family history would be important when
assessing a patient with Heath's symptoms; that, if an
emergency-room physician saw a patient with the
symptoms
Heath
had with knowledge of Heath's family history, the standard of
care required the emergency-room physician to order a chest CT
with contrast and angiogram; that a chest CT or a
transesophogeal echocardiogram, if ordered and completed at
any time after June 18, 2012, would have diagnosed a thoracic
aortic aneurysm and dissection; that surgery would have been
needed to treat the dissection; and that, if he had received
the proper surgery, Heath had a 90% chance of survival.
Bain also argued that HKH was vicariously liable for the
acts of Dr. Wigfall under a theory of agency by apparent
authority. To support her claim, Bain attached her affidavit
testimony as follows:
"Just after midnight on June 18, 2012, Heath and
I made a joint decision to go to the emergency room
due to the symptoms he started having while playing
a gig at Mooresville Bar & Grill earlier that night.
We knew that no doctor's offices were open, so we
were limited to hospital emergency rooms to get
Heath emergency care. Although it was across the
river from where we lived, Heath and I selected
Helen Keller Hospital because Helen Keller Hospital
had an emergency room available to the public 24/7,
9
1150764
and we believed it had the best reputation for
caring for patients in this area. Heath and I both
felt that Helen Keller would provide the best
emergency care and treatment. Heath and I had a
strong comfort level with Helen Keller Hospital
because we had friends who worked for Helen Keller
Hospital, which increased our trust in Helen Keller
Hospital and the emergency medical services it
provides. Our trust in Helen Keller Hospital was
also bolstered by acquaintances who served as
technicians or therapists at Keller, as well as by
a few doctors who serviced on-call there, as well as
by friends who had babies there.
"Heath and I did not go to Helen Keller on June
18, 2012, to see any particular doctor. After Heath
was admitted to the Emergency Department, Dr.
Wigfall came into the room and spoke to Heath and I.
Dr. ... Wigfall had never treated me or my husband
before our emergency room visit at Helen Keller
Hospital that morning. I did not even know Dr.
Wigfall existed prior to that date. Neither Heath
nor I knew that Dr. Wigfall emergency room doctors
[sic] working in Helen Keller Hospital's emergency
room were not employed by Helen Keller Hospital. Nor
did this issue cross our minds.
"Upon our arrival at Helen Keller Hospital and
throughout our time there, no one told us that Dr.
Wigfall was not employed by Helen Keller Hospital.
The admissions people did not tell us this. The
nurses or care givers did not tell us this. Dr.
Wigfall did not tell us this. Nor did they tell us
that Dr. Wigfall was an independent contractor. To
my knowledge, we were not provided with any document
stating that Dr. Wigfall and the other ER doctors
were not employees of Helen Keller Hospital. Dr.
Wigfall had a Helen Keller badge and the medical
records and forms had Helen Keller's name on them.
Because of these things and because he gave orders
that were followed by the staff, I assumed Dr.
Wigfall was employed by the Hospital. At all times,
10
1150764
I believed Dr. Wigfall was an emergency physician
employed by Helen Keller.
"Neither Heath nor I knew anything about the
individual characteristics and qualifications of the
ER doctors at Helen Keller Hospital before we
arrived. However, we assumed that Helen Keller
Hospital would only have qualified doctors in its
ER, and we trusted that Helen Keller Hospital would
make sure that Heath got good, thorough and
appropriate care. We wanted Heath to be treated at
Helen Keller Hospital because we thought Helen
Keller Hospital was a full service hospital, that it
had a full service emergency room, and that it would
be in complete control of Heath's care. We chose
Helen Keller because of its reputation and standing
in the community for providing good emergency
services. Heath and I went to the Emergency
Department at Helen Keller on June 18, 2012, only to
seek a diagnosis of and treatment for Heath’s
symptoms and complaints. I relied on Helen Keller to
provide good, thorough and proper emergency medical
care and treatment of Heath, and I trusted them to
do that."
Bain also presented evidence indicating that Dr. Wigfall
was the only emergency-room physician on duty when Heath was
taken to the emergency room at the hospital, that the
emergency room operated under HKH's name and that there was no
indication –- via signage in the hospital or badges worn by
emergency-room physicians -- that HKH's emergency-room
physicians were independent contractors. Bain also produced
Heath's medical records from HKH, including forms that Bain or
Heath signed when Heath was checking into and out of the
11
1150764
hospital, that had only HKH's name at the top and no
suggestion that Dr. Wigfall was not an HKH employee. For
example, one document, signed by Bain, states: "I consent to
the use and disclosure of protected health information about
me by [HKH] and subsidiaries, its employees and agents,
including its medical staff for purposes of treatment,
payment, [and] health care operations ...." As noted above,
Dr. Wigfall testified that while he was at the hospital he was
a member of its medical staff. Heath signed a form that
included his discharge instructions, which stated "Thank you
for choosing Helen Keller Hospital for your care today" and
listed Dr. Wigfall's name in the "care provided by" field.
Finally, Bain argued that HKH was vicariously liable for
Dr. Wigfall's actions because HKH had a nondelegable duty to
provide emergency medical care that fell within
the
applicable
standard of care. She argued that this duty arose from
administrative regulations issued by the Alabama State Board
of Health ("the Board") and through an express or implied
contract between HKH and Heath.
HKH filed a motion to strike parts of Bain's affidavit on
the ground that she purported to testify as to facts that were
12
1150764
not within her personal knowledge, such as statements
regarding what Heath purportedly knew or did not know and what
he purportedly thought or felt. Following a hearing on the
motion to strike and the motion for a summary judgment, the
trial court entered an order that stated: "[A]s to those
matters relating to Melissa Bain's belief regarding what her
husband, Heath Bain, knew or did not know, or what he thought
or felt, [HKH]'s motion to strike is granted." On March 23,
2016, the trial court granted HKH's motion for a summary
judgment on all claims pending against it and certified the
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.
Bain timely filed a notice of appeal.
II. Standard of Review
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952–53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
13
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produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797–98 (Ala. 1989); Ala. Code 1975, § 12–21–12.
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the exercise
of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038–39
(Ala. 2004).
III. Analysis
A. The Emergency-room Nurses
First, Bain argues that the trial court erred in granting
HKH's motion for a summary judgment as it pertained to the
nurses who treated Heath in the hospital's emergency room on
June 18.
"To prevail in a medical-malpractice action
under the Alabama Medical Liability Act ('AMLA'), §
6–5–480 et seq. and § 6–5–541 et seq., Ala. Code
1975, a plaintiff must establish 1) the appropriate
standard of care, 2) that the defendant health-care
provider breached that standard of care, and 3) a
proximate causal connection between the health-care
provider's alleged breach and the identified injury.
Morgan v. Publix Super Markets, Inc., 138 So. 3d
982, 986 (Ala. 2013). Thus, to survive a defendant
health-care
provider's
summary-judgment
motion
alleging the absence of substantial evidence that
would establish any one of these three items, the
plaintiff must submit –- or identify in the existing
14
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record –- substantial evidence that would in fact
establish the challenged item or items. ...
"With regard to proximate causation in an AMLA
case, this Court has stated that 'the plaintiff must
prove, through expert medical testimony, that the
alleged negligence probably caused, rather than only
possibly caused, the plaintiff's injury.' University
of Alabama Health Servs. Found. v. Bush, 638 So. 2d
794, 802 (Ala. 1994) (emphasis added). See also
Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988)
('[T]he plaintiff [in a medical-malpractice action]
must adduce some evidence indicating that the
alleged negligence (the breach of the appropriate
standard of care) probably caused the injury. A mere
possibility is insufficient.')."
Kraselsky v. Calderwood, 166 So. 3d 115, 118–19 (Ala. 2014).
Bain argues that the failure of the emergency-room nurses
to obtain Heath's family history was a breach of the standard
of care and that that breach probably caused or contributed to
Heath's death because, as a result of the nurses' failure to
obtain Heath's family history, Dr. Wigfall was unaware of
Heath's family history, which affected his differential
diagnosis, which affected the types of tests that he ordered,
which led to the failure to discover Heath's aneurysm, so that
Heath did not receive life-saving surgery and subsequently
died. In other words, if the nurses had obtained the family
history, Bain contends, Dr. Wigfall would have been aware that
Heath's father suffered from an aneurysm, which would have
15
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affected his differential diagnosis, which would had led a
reasonable emergency-room physician to order a CT scan of
Heath's chest, which would have revealed the aneurysm, which
would have led to surgery, and Heath would have lived. Given
that argument, Bain contends that a jury should determine
whether the nurses' failure to obtain a family history from
Heath was a proximate cause of Heath's death. In response,
HKH argues that there was undisputed evidence that, despite
the nurses' failure to obtain Heath's family history, Dr.
Wigfall was aware of Heath's family history, particularly the
fact that his father had had an aneurysm, and that this
undisputed evidence is a fatal defect in Bain's argument. We
agree.
On appeal, Bain does not argue that, even if Dr. Wigfall
did have actual knowledge of Heath's family history, such
knowledge would not affect her theory of causation. Instead,
she argues that whether Dr. Wigfall was actually told of
Heath's history was a question of fact for the jury. She
contends that her deposition testimony "was less than certain"
that she or Heath had told Dr. Wigfall about Heath's family
history and that, to the extent that she specifically
16
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testified that Dr. Wigfall was told about Heath's family
medical history, a "jury will likely believe that [she] was
mistaken" in light of the fact that Dr. Wigfall did not
document any family history in Heath's chart. Bain's brief, at
21. In her deposition, Bain testified as follows:
"Q. Okay. Tell me what you remember then about
seeing Dr. Wigfall that night.
"A. Okay. I remember he came in and he asked the
question, so what's going on tonight, why are you in
here. So [Heath] proceeded to tell him I'm hurting,
I have this lump in my throat, I have this pressure
behind my ears, it's kind of like up in my neck, my
chest is hurting, it's tight. I just –- I just hurt.
I really am hurting.
"....
"Q. Okay. And did –- did Dr. Wigfall say
anything in response at that point in time?
"A. I think they discussed –- I know at some
point they discussed history of hypertension and
Heath had said, you know, I've been on –- because I
don't know if his blood pressure was high that night
or if it was fine, but Heath had been on blood
pressure medicine for years. ... And Dr. McCoy
eventually took him off of blood pressure medicine
and cleared him and said looks good to me, what
you're doing is working, keep it up. So I know that
was discussed in the visit with Dr. Wigfall about,
you know, his history of hypertension, that he'd
been taken off his medicine recently –- or not
recently, but several months prior and his blood
pressure had been maintaining at a steady and
healthy level. ... And then I know that Dr. Wigfall
ordered a chest x-ray and a CT of Heath's sinuses to
17
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see if the pain in his –- I guess the lump in his
throat and if the pain in his ears could be sinus-
related. ...
"Q. Okay. All right. So he comes in, has that
discussion?
"A. Uh-huh.
"Q.
Anything
else you
remember
about
the
initial
discussion with Dr. Wigfall?
"A. I mean I –- I'm 99 percent sure –- 98
percent sure that we discussed history, too, because
that would have come up in the hypertension
discussion I know because that's part of Heath's
history. And at that point now we're all kind of
getting a little worried because this is not
something that's normal. So I know we discussed,
just in general history, you've been on medication,
my father has a history of aneurysm, or I forget if
it came up my father died of one, or if we –- I
don't remember exactly how it came up, but I know we
discussed family history and medical history. I know
that was part of this discussion.
"Q. Okay. With Dr. Wigfall?
"A. Yes.
"Q. Okay. So is it your testimony that y'all
would have discussed the family history that his
father had of having an aneurysm?
"A. Uh-huh.
"Q. Is that a 'yes?'
"A. I'm going to say 'yes.'
"Q. And all that would have taken place in the
first conversation?
18
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"A. I don't know if it was the first
conversation or not, but it was that night sometime.
"Q. Okay. I take it there were nurses that were
in and out of the room checking on him?
"A. Yes.
"Q. Did y'all ever provide a history to any of
the nurses that there had been a family history of
an aneurysm?
"A. I don't know. I know it came up. I know I
had that discussion that night. I don't remember
exactly who all I had it with. I know I had it."
Bain testified that she "knew" that Heath's family
history was discussed with Dr. Wigfall, although she was
unclear at what point that discussion occurred or with whom
else Heath might have discussed his family history.
Additionally, Dr. Wigfall testified that he remembered taking
a history from Heath, although he could not specifically
recall what he asked or what Heath told him. None of the
evidence produced by Bain in response to HKH's motion for a
summary judgment created a question of fact as to whether Dr.
Wigfall obtained a family medical history from Heath,
including that Heath's father had had an aneurysm.
In light of this undisputed testimony, Bain's theory of
causation fails. Under Bain's theory of causation, the
19
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emergency-room nurses' failure to obtain Heath's family
history matters only if Dr. Wigfall otherwise failed to
receive Heath's family history. Bain does not argue
otherwise. Given that there was undisputed evidence that Dr.
Wigfall received from Heath the information the nurses
allegedly should have obtained from Heath, Bain failed to
present substantial evidence demonstrating that the nurses'
failure to obtain Heath's family history probably caused or
contributed to Heath's death. Accordingly, the summary
judgment in favor of HKH in regard to Bain's claims against
the emergency-room nurses is due to be affirmed.3
B. Apparent Authority
Next, Bain argues that the trial court erred in entering
a summary judgment in favor of HKH on her claim that HKH was
vicariously liable for the negligence of Dr. Wigfall.
Because the summary judgment is affirmed on the basis set
3
forth above, we pretermit discussion of HKH's two other bases
for a summary judgment regarding Bain's claims against its
nurses, which were addressed by Bain on appeal: that there was
no evidence of causation in light of Dr. Wigfall's testimony
that knowledge of Heath's family history would have made no
difference in his treatment of Heath and in light of Bain's
expert's testimony that Dr. Wigfall should have ordered a
chest CT, regardless of Heath's family history.
20
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"[U]nder the doctrine of respondeat superior a principal
is vicariously liable for the torts of its agent if the
tortious acts are committed within the line and scope of the
agent's employment." Martin v. Goodies Distribution, 695 So.
2d 1175, 1177 (Ala. 1997). On the other hand, "a party is
ordinarily not liable for the tortious act of his independent
contractor." Id. "The test for determining whether a person
is an agent or employee of another, rather than an independent
contractor with that other person, is whether that other
person has reserved the right of control over the means and
method by which the person's work will be performed ...." Id.
In the present case, HKH made a prima facie showing that Dr.
Wigfall was an independent contractor, not an agent or
employee of HKH, because HKH did not reserve a right to
control the means or the method of Dr. Wigfall's work in the
hospital. Accordingly, the burden shifted to Bain, the party
asserting the existence of an agency relationship, to present
substantial evidence of the existence of a genuine issue of
material fact regarding the alleged agency.
Bain conceded that there was no evidence indicating that
Dr. Wigfall was as an actual agent of HKH, but she argued that
21
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Dr. Wigfall could be found to be the agent of HKH on a theory
of apparent agency, which, in Alabama, is also known as agency
by estoppel. "The test for determining whether an agency
existed by 'estoppel' or by 'apparent authority' is based upon
the potential principal's holding the potential agent out to
third parties as having the authority to act." Malmberg v.
American Honda Motor Co., 644 So. 2d 888, 891 (Ala. 1994).
"Agency is generally a question of fact to be determined by
the trier of fact," and, "[w]hen a defendant's liability is to
be based on agency, agency may not be presumed ...." Id. at
890. Alabama law on the doctrine of agency by estoppel, or
apparent authority, was summarized in Malmberg as follows:
"'While some suggestion has been made
that a distinction exists between apparent
authority
and
authority
grounded
on
estoppel, ... our cases and authority
generally base the two upon the same
elements.
"'"'As between the principal
and third persons, mutual rights
and liabilities are governed by
the apparent scope of the agent's
authority which the principal has
held out the agent as possessing,
or which he has permitted the
agent
to
represent
that
he
possesses and which the principal
is estopped to deny.'
22
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"'"Such apparent authority
is the real authority so far as
affects the rights of a third
party without knowledge or notice
...." ...
"'"When one has reasonably
and in good faith been led to
believe, from the appearance of
authority
which
a
principal
permitted his agent to exercise,
that a certain agency exists, and
in good faith acts on such belief
to his prejudice, the principal
is estopped from denying such
agency ...." ...
"'"The apparent authority of
the agent is the same, and is
based upon the same elements as
the authority created by the
estoppel of the principal to deny
the agent's authority; that is to
say, the two are correlative,
inasmuch as the principal is
estopped to deny the authority of
the
agent
because
he
has
permitted
the
appearance
of
authority in the agent, thereby
justifying the third party in
relying upon the same as though
it were the authority actually
conferred upon the agent."'
"Pearson v. Agricultural Insurance Co., 247 Ala.
485, 488, 25 So. 2d 164, 167 (1946) (citations
omitted); see Wood v. Shell Oil Co., 495 So. 2d
[1034,] 1038 [(Ala. 1986)]. The doctrine of apparent
authority is based upon the actions of the
principal, not those of the agent; it is based upon
the principal's holding the agent out to a third
party as having the authority upon which he acts,
23
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not upon what one thinks an agent's authority might
be or what the agent holds out his authority to be.
See Automotive Acceptance Corp. v. Powell, 45 Ala.
App. 596, 234 So. 2d 593 (Ala. Civ. App. 1970),
quoted with approval in Massey–Ferguson, Inc. v.
Laird, 432 So. 2d 1259 (Ala. 1983)."
644 So. 2d at 891. The third party's belief that an
individual is an agent or employee of the principal must be
"objectively reasonable"; what the third party "subjectively
perceived" is immaterial to the analysis. Brown v. St.
Vincent's Hosp., 899 So. 2d 227, 239 (Ala. 2004).
As indicated above, this Court has held that "'there must
be a reliance on the part of the injured person before
liability can be engrafted through the doctrine of respondeat
superior, by estoppel, on the master.'" Brown, 899 So. 2d at
237 (quoting Union Oil Co. of California v. Crane, 288 Ala.
173, 179, 258 So. 2d 882, 887 (1972) (emphasis added)).
"'"'Estoppel,' by holding out another
as the agent of the asserted principal, 'is
always a matter personal to the individual
asserting it and he must therefore show
that he was misled by the appearances
relied upon. It is not enough that he might
have been, ... so misled. It must also
appear that he had reasonable cause to
believe that the authority existed; mere
belief without cause, or belief in the face
of facts that should have put him on his
guard is not enough.'"'
24
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"[Crane,] 288 Ala. at 180, 258 So.2d at 887.
"'[B]efore there can be apparent authority
that implies an agency relationship, the
"authority" must be "apparent" to the
complaining party and that party must have
relied on the appearance of authority; he
cannot rely on an appearance of authority
that he was ignorant of.'
"Watson v. Auto–Owners Ins. Co., 599 So. 2d 1133,
1136 (Ala. 1992) (emphasis supplied)."
Brown, 899 So. 2d at 237 (first emphasis added).
Accordingly, in order to prevail on her claim that HKH
was vicariously liable for the negligence of Dr. Wigfall on a
theory of agency by estoppel, Bain was required to prove: (1)
that HKH acted in such a manner as to hold Dr. Wigfall out as
its employee or agent or permitted Dr. Wigfall to hold himself
out as HKH's employee or agent; (2) that, because of those
acts, Heath had an objectively reasonable basis for believing
that Dr. Wigfall was HKH's employee or agent; and (3) that
Heath actually relied on the appearance that Dr. Wigfall was
an agent or employee of HKH.
In Brown, supra, this Court considered whether a hospital
was vicariously liable for malpractice allegedly committed by
an obstetrician who was not an employee of the hospital on a
theory of agency by estoppel. In that case, Wesley Brown, a
25
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minor proceeding by and through his mother and next friend,
Stephanie Brown, brought a medical-malpractice action against
Stephanie's obstetrician and St. Vincent's Hospital, among
others, based on injuries Wesley suffered during
his
delivery.
Wesley's action against the hospital was based on an
allegation that St. Vincent's "'held itself out as having a
labor and delivery unit for the birthing needs of mothers and
their babies and at all relevant times was a healthcare
provider that held itself out as providing competent
obstetrical care.'" Brown, 899 So. 2d at 230. Wesley
responded to St. Vincent's motion for a summary judgment by
filing an affidavit from his mother, Stephanie, who testified
that she saw an advertisement on television that led her to
believe that St. Vincent's had good obstetricians
who
provided
quality obstetrical services in luxurious birthing suites;
that she telephoned St. Vincent's and asked for a referral for
an obstetrician; and that she was directed to one obstetrician
"from" St. Vincent's who was taking new patients. Other
evidence in the record indicated that Stephanie signed
documents indicating that she was being treated by a specific
medical group of which her obstetrician was a member; that she
26
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had several appointments with her obstetrician during her
pregnancy at a facility outside St. Vincent's Hospital; and
that Stephanie signed a consent-to-treatment form on the day
she had scheduled an inducement that specifically stated that
the doctors providing her care were not the agents or
employees of St. Vincent's Hospital.
Regarding Stephanie's affidavit, this Court held that the
"statements concerning the import of [the] television
advertisement and its effect on her [were] merely conclusory
statements, made without the support of any factual
underpinning"; therefore, "[t]hey [did] not constitute
substantial evidence that St. Vincent's 'held itself out' as
an employer of obstetricians." 899 So. 2d at 241. Further,
the Court concluded that St. Vincent's was free to make
physician referrals without a referral being elevated to "a
representation by the hospital that it employed the physician
to whom she was referred." 899 So. 2d at 241. The Court
reiterated that Stephanie's subjective belief that her
obstetrician worked for St. Vincent's was not controlling;
instead, "the law is concerned with whether it would have been
27
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objectively reasonable for a person in her position to
entertain that belief." 899 So. 2d at 241.
Wesley also attempted "to avoid the effect of the release
by arguing that the nurse obtaining [Stephanie]'s signature
misrepresented its content and that 'the basic presumption is
that unless otherwise stated, the physicians and caretakers
are hospital employees and not independent contractors.'" 899
So. 2d at 242. However, the Court rejected the notion that
agency should be presumed "unless otherwise stated." Id.
(citing Parker v. Collins, 605 So. 2d 824, 827-28 (Ala. 1992)
(noting that a physician's use of hospital facilities in
conducting a mammogram and billing through the hospital did
not establish an agency relationship)). Thus, given the
"conclusory nature of much of [Stephanie]'s affidavit," "the
generic inquiries she made to unidentified representatives of
the hospital and their generic responses[,] and the
unambiguous disclosure in the consent form she signed
concerning [Stephanie's obstetrician's] status," the Court
concluded that "Wesley did not carry his burden of
establishing by substantial evidence a genuine issue of
material fact as to the applicability in this case of either
28
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the doctrine of apparent authority or the doctrine of agency
by estoppel." 899 So. 2d at 243.
Brown is distinguishable from the present case for
multiple reasons, one of which is that Bain did not attempt to
prove that HKH, through advertising, held itself out as
employing the doctors that worked in its emergency room. In
support of her contention that HKH acted in such a manner as
to hold Dr. Wigfall out as its agent or employee, Bain points
to evidence indicating (1) that HKH operates an emergency room
that is available to the public 24 hours a day, 7 days a week;
(2) that HKH provided the facility and all the forms,
supplies, tools, equipment, and personnel for Dr. Wigfall
during his evaluation and treatment of Heath; (3) that there
were no signs in the emergency department disclosing Dr.
Wigfall's status as an independent contractor; (4) that
nothing on Dr. Wigfall's badge indicated that he worked for
any entity other than HKH; (5) that none of the documents the
Bains signed disclosed that Dr. Wigfall was an independent
contractor but, instead, included statements that would "lead
29
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lay persons like the Bains to believe that Dr. Wigfall was a
HKH employee." Bain's brief, at 29.
4
To the extent that Bain argues that HKH held out to the
public that the emergency-room physicians working in the
hospital were HKH employees because it operated
a
full-service
hospital with an emergency room that was "open for business,"
we must conclude that this evidence is not sufficient, in
itself, to meet the requirement that HKH held out its
emergency-room physicians as its employees. Certainly, the
mere existence of an emergency department in a hospital cannot
be evidence of an affirmative act by HKH from which we could
conclude that HKH held itself out as employing the physicians
who worked in the emergency department. See Brown, 899 So. 2d
at 237 (quoting Birmingham News Co. v. Birmingham Printing
Co., 209 Ala. 403, 405, 96 So. 336, 339 (1923) (holding that
the injured party's mere belief that the authority existed,
without cause, is not enough)). Further, to the extent that
Bain contends that HKH held the emergency-room physicians
As HKH points out, Bain does not point to any evidence
4
in the record indicating that either she or Heath was led to
believe that Dr. Wigfall was an HKH employee based on any
specific statements found in the documents they signed while
at the hospital.
30
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working in the hospital out to the public as hospital
employees because HKH did not disclose Dr. Wigfall's status as
an independent contractor, Bain is reversing the burden of
proof in an agency-by-estoppel claim so that, instead of
requiring the principal to hold the agent out to a third party
as having the authority upon which he acts, she is asking this
Court to require the principal to give notice of the status of
independent contractors. However, Bain cites no authority to
support her implicit argument that a principal has such a
duty. Additionally, that argument is an indirect way of
asking this Court to hold that a patient may presume that a
doctor working in a hospital is an employee unless the patient
is told otherwise –- a presumption this Court has explicitly
rejected. See Brown, 899 So. 2d at 242 (rejecting, as
unsupported by Alabama law, the appellant's argument that
"'[t]he basic presumption is that unless otherwise stated,
the
physicians and caretakers are hospital employees and not
independent contractors'").
31
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According to Bain's affidavit, the reasons she "assumed
5
that Dr. Wigfall was employed by HKH" were because no one ever
disclosed to her or to Heath that Dr. Wigfall was not an
employee of HKH; "Dr. Wigfall had a Helen Keller badge";
"medical records and forms had Helen Keller's name on them";
and Dr. Wigfall "gave orders that were followed by the staff."
Although it is clear that Bain (not Heath) "assumed" that Dr.
Wigfall was an employee of HKH, her "mere subjective belief
... is not controlling." Brown, 899 So. 2d at 241. The only
conduct of HKH that purportedly led Bain to believe that Dr.
Wigfall was an employee was the fact that Dr. Wigfall wore a
name badge that had HKH's name on it and that Heath's medical
records and forms had HKH's name on them. Even if this
"conduct" by HKH could be considered an act of holding out to
the public that the emergency-room physicians working in the
hospital were HKH employees, and even if this extremely
limited conduct on HKH's part was sufficient to create a jury
question as to whether it was objectively reasonable for
On appeal, Bain argues that the trial court erred in
5
striking any part of the affidavit she filed in response to
HKH's motion for a summary judgment. For purposes of
discussing Bain's vicarious-liability argument, we have
assumed that she is correct in this regard and that no part of
her affidavit should have been stricken.
32
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someone to believe that the emergency-room physicians working
in the hospital's emergency room were HKH employees, there is
no evidence in the record indicating that Heath, the injured
party, was misled into believing that the physician working in
HKH's emergency room was a hospital employee based on this or
any other conduct by HKH.
Further, even considering the entirety of Bain's
affidavit, Bain failed to present substantial evidence of the
element of reliance in her claim of agency by estoppel; that
is, she did not present substantial evidence that she or
Heath, in seeking treatment at the hospital, relied on any
representation by HKH that the doctor who would treat Heath in
the emergency room was the agent or employee of HKH. Indeed,
Bain testified that the question whether the doctors working
in HKH's emergency room were hospital employees "never
crossed
our minds."
Bain argues that "she and Heath relied on HKH's
reputation and its pecuniary responsibility to answer
for
[the
negligence of] Dr. Wigfall," Bain's brief, at 25, and that,
pursuant to this Court's decision in Standard Oil Co. v.
Gentry, 241 Ala. 62, 1 So. 2d 29 (1941), that was all the
33
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evidence of reliance required to create a jury question on
that element of agency by estoppel. In Standard Oil, the
6
plaintiff slipped and fell at a "Standard Oil" gas station on
June 18, 1939. Before March 1, 1939, the Standard Oil Company
("Standard") operated the station, but, on that date,
Standard
entered into a lease agreement with Marvin Young and,
thereafter, Standard did not operate or control the station.
This Court concluded that there was no evidence indicating
that Standard was operating or maintaining the station at the
time the accident occurred but that "it was for the jury to
determine whether or not ... Standard ... was estopped, so far
as plaintiff was concerned, from claiming it was not operating
and maintaining this station when his injuries were
sustained." 241 Ala. at 64, 1 So. 2d at 31.
The evidence indicated that the plaintiff did business
with Standard before March 1, 1939, and that he had
specifically transferred his business to Standard after
an
"an
It is undisputed that Heath and Bain chose to go to the
6
hospital because of its reputation for providing good
emergency services, but Bain fails to point this Court to any
evidence in the record indicating that she and Heath chose to
go to the
hospital
because of HKH's
"pecuniary responsibility"
to answer for the negligence of any physician who might treat
Heath.
34
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unsatisfactory experience with an independent operator and a
desire to do business with a more responsible party." 241 Ala.
at 64, 1 So. 2d at 31. This Court also cited evidence
indicating that the "sign exhibited to the public, the license
exhibited in the office, both the telephone and the city
directory, and all other indications pointed to a continued
operation of this station by the company," and that "plaintiff
had no basis for any belief there had been any change in the
manner of operation." Id. The plaintiff's evidence, the Court
said, tended to show "that he relied upon the apparent
operation by the company in continuing to do business at the
station." Id. Standard argued that the principle of agency by
estoppel applied only to contracts and not to tort actions
that do not arise out of a contract and that, even in such a
case, the plaintiff must demonstrate reliance. In response,
this Court, citing Hannon v. Siegel-Cooper Co., 167 N.Y. 244,
60 N.E. 597, 598 (1901), held that the doctrine of agency by
estoppel applied equally "'in an action ex delicto as in one
ex contractu,'" and, regarding the element of reliance,
stated:
"So in the instant case plaintiff's evidence
tended to show he continued to rely upon the
35
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appearance of things, that is, that ... Standard ...
was still operating the station where he received
his injuries, and according this proof due weight
the jury might well infer that his reliance
throughout
was
upon
the
company's
pecuniary
responsibility to answer for any default arising out
of his business engagements with it."
241 Ala. at 65, 1 So. 2d at 31–32.
The present case in distinguishable from Standard Oil
because Standard Oil did not concern a tort committed against
the plaintiff by a purported agent of Standard; instead, it
concerned whether Standard operated and maintained the
premises on which the plaintiff was injured. Thus, the
plaintiff's reliance in Standard Oil was based solely on the
fact that he had moved his business to Standard in order to
deal with a more responsible party and, for all that appeared
to the plaintiff and any other objectively reasonable
observer, Standard continued to operate and maintain the
premises on which the plaintiff was injured, although in
actuality it was being operated by someone else. In the
present case, Bain is seeking to hold HKH liable for a tort
committed by an individual who was not an employee of HKH; she
is not seeking to hold HKH liable because she was injured on
the premises ostensibly operated and maintained by HKH but
36
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actually operated and maintained by another party. Bain has
cited no authority from this State to support her contention
that relying on HKH's reputation as a good provider of
emergency services is sufficient to show that she relied on
the
purported
representations
from
HKH
that
the
emergency-room
physicians working in the hospital were HKH employees in
seeking emergency medical care from HKH.
Bain cites authority from several foreign jurisdictions
and argues that "a survey of a handful of these decisions
shows that HKH should be held vicariously liable in this
case." Bain's brief, at 34. For example, she cites Gatlin v.
Methodist Medical Center, Inc., 772 So. 2d 1023 (Miss. 2000),
a decision from the Mississippi Supreme Court that held that
there was "sufficient evidence for a reasonable trier of fact
to conclude" that a hospital could be vicariously liable for
the alleged malpractice of an anaesthesiologist who had
assisted in an emergency surgery. That decision was based on
an earlier decision from that court, Hardy v. Brantley, 471
So. 2d 358 (Miss. 1985). In Gatlin, the Mississippi Supreme
Court described its decision in Hardy as "represent[ing] a
new, and greatly expanded, theory of liability in hospital
37
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negligence cases. The Hardy theory of vicarious liability is
based primarily upon the relationship between the patient and
the health care provider, rather than upon the relationship
between the hospital and its physicians." Gatlin, 772 So. 2d
at 1027. In Hardy, the court discussed cases from California,
Montana, Arizona, Washington, and Ohio that held hospitals
liable on a theory of vicarious liability and noted that
"[t]he basic rationale of these cases is that,
unless there is some reason for a patient to believe
that the treating physician in a hospital is an
independent contractor, it is natural for him to
assume that he can rely upon the reputation of the
hospital as opposed to any doctor, which is the
reason he goes there in the first place. These cases
recognize his prerogative to make that assumption."
471 So. 2d at 370.
The Mississippi Supreme Court stated its "new, and
greatly expanded, theory of liability" as follows:
"Where a hospital holds itself out to the public as
providing a given service, in this instance,
emergency services, and where the hospital enters
into a contractual arrangement with one or more
physicians to direct and provide the service, and
where the patient engages the services of the
hospital without regard to the identity of a
particular physician and where as a matter of fact
the patient is relying upon the hospital to deliver
the desired health care and treatment, the doctrine
of respondeat superior applies and the hospital is
vicariously liable for damages proximately resulting
from the neglect, if any, of such physicians."
38
1150764
471 So. 2d at 371. The Mississippi Supreme Court noted that
the rule was consistent with Restatement (Second) of Torts §
429 (1966), which was "consistent with the agency principle of
apparent authority long-recognized in [Mississippi]." 471 So.
2d at 370.
Bain argues that "because Alabama follows the general
rules of apparent authority, this Court should follow the
other states and hold that HKH is vicariously liable for the
malpractice committed by Dr. Wigfall." Bain's brief, at 41.
However, this Court has never adopted Restatement (Second) of
Torts § 429, and to "follow" states such as Mississippi and
others cited in Bain's brief and adopt the rule set forth
above would require a wholesale departure from the well
settled elements of apparent authority and agency by estoppel
set forth in the Alabama cases cited above. Instead of
requiring a plaintiff to demonstrate that a hospital acted in
such a manner as to hold itself out as employing the doctors
who worked in its emergency room, Bain is asking us to apply
a rule that requires only that the hospital hold itself out as
providing a given service. Instead of requiring a plaintiff
to demonstrate that, because of the hospital's conduct, the
39
1150764
plaintiff was misled into believing that the doctors were
hospital employees, Bain is asking us to require only that the
plaintiff prove that he or she sought the services of the
hospital without regard to the identity of a particular
physician. And instead of requiring that the plaintiff
demonstrate that he or she actually relied on the appearance
that the doctors working in the emergency room were hospital
employees, Bain seeks application of a rule that requires only
that the plaintiff show that he or she relied upon the
hospital to deliver the desired health care and treatment.
Applying the law from the foreign cases cited in Bain's
brief would, undoubtedly, require a modification of Alabama
law or, at the very least, the creation of a special rule for
apparent-authority/agency-by-estoppel
claims
in
hospital
cases. See Martin C. Williams, Jr., & Hamilton E. Russell III,
Hospital Liability for Torts of Independent Contractor
Physicians, 47 S.C.L. Rev. 431, 450-51 (1996) (noting the
"facial attractiveness" of the doctrine, but concluding that
"no court assigning hospital liability for independent
contractor malpractice on the nominal basis of
apparent
agency
has applied the doctrine with rigor"; that courts have
40
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"assume[d] away or ignore[d] great chunks of the required
analysis";
and
that
those
decisions
"advance
policy
justifications for outcomes favorable to the plaintiff, but
such justifications are result-oriented, hospital-specific,
and emanate from the changing public perception of hospitals
... [and] do not justify rejigging the established doctrine"
(footnotes omitted; emphasis added)).
Bain maintains that she
"does not want this Court to change Alabama law" and that she
"wants this Court to enforce Alabama law as it exists right
now." Bain's reply brief, at 18. Further, Bain does not ask
us to overrule any prior decisions from this Court despite the
fact that the rule she would like us to apply is based on the
rationale that allows a third party to assume, unless
otherwise stated, that a physician working in a hospital's
emergency department is an employee of the hospital. As
discussed above, that premise is contrary to Alabama law.
Accordingly, we decline to accept Bain's invitation to apply
a "new, and greatly expanded, theory of liability in hospital
negligence cases." Gatlin, 772 So. 2d at 1027.
Accordingly, we conclude that Bain has failed to
demonstrate that the trial court erred in entering a summary
41
1150764
judgment in favor of HKH on Bain's claim that HKH is
vicariously liable for Dr. Wigfall's alleged negligence
on
the
basis of apparent authority or agency by estoppel.
C. HKH Owed Heath a Nondelegable Duty
Finally, Bain argues that, even if we conclude that HKH
was not vicariously liable under a theory of agency by
estoppel, we should go even further and hold that HKH had a
"nondelegable duty to provide Heath with emergency medical
physician services within the standard of care."
Bain's
brief,
at 64. She contends that a nondelegable duty exists in
regulations issued by the Board or from an express or implied
contract between Heath and HKH. In Boroughs v. Joiner, 337
So. 2d 340 (Ala. 1976), this Court set forth the general rule
that "'one is not ordinarily responsible for the negligent
acts of his independent contractor. But this rule, as most
others, has important exceptions.'" 337 So. 2d at 342 (quoting
Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23,
24 (1931)).
"One [such exception] is that an employer is
responsible for the manner of the performance of
certain non-delegable duties, though done by an
independent contractor. An employer who by contract
or law owes a specific duty to another cannot escape
42
1150764
liability for a tortious performance by reason of
the employment of an independent contractor."
General Fin. Corp. v. Smith, 505 So. 2d 1045, 1047 (Ala. 1987)
(emphasis added). Regarding the existence of a duty, this
Court has stated:
"'A legal duty to exercise care,
therefore, arises where the parties are
bound by contract, Pugh v. Butler Telephone
Co., [512 So. 2d 1317 (Ala. 1987)], or
where the obligations are "expressly or
impliedly imposed by statute, municipal
ordinance, or by administrative rules or
regulations, or by judicial decisions." 57
Am. Jur. 2d, Negligence § 36 at 382
(1988).'
"King v. National Spa & Pool Inst., Inc., 570 So. 2d
612, 614 (Ala. 1990) (emphasis added). See also
Thompson v. Mindis Metals, Inc., 692 So. 2d 805, 807
(Ala. 1997) ('A legal duty arises either from the
common law or from a statute.'). '"The existence of
a duty is a question of law to be determined by the
... court."' Wal–Mart Stores, Inc. v. Smitherman,
872 So. 2d 833, 837 (Ala. 2003) (quoting Ex parte
Farmers Exch. Bank, 783 So. 2d 24, 27 (Ala. 2000))."
Gowens v. Tys. S., 948 So. 2d 513, 527–28 (Ala. 2006).
General Finance Corp. v. Smith, supra, sets forth a
classic example of a nondelegable duty. In that case, the
plaintiff purchased a truck from a dealership and financed a
portion of the purchase through the defendant,
General
Finance
Corporation. Several months later, after the plaintiff
43
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allegedly defaulted on the loan, General Finance repossessed
the truck by hiring H&B Recoveries to actually recover the
truck. In doing so, H&B breached the peace, which resulted in
damage to the plaintiff. At that time, then § 7-9-503, Ala.
Code 1975, provided that "'[u]nless otherwise agreed, a
7
secured party has on default the right to take possession of
the collateral. In taking possession a secured party may
proceed without judicial process if this can be done without
breach of the peace ....'" 505 So. 2d at 1047 (emphasis
omitted). After the jury returned a verdict in favor of the
plaintiff, General Finance argued on appeal that H&B was an
independent contractor and that, therefore, General Finance
could not be liable for H&B's breach of the peace during the
repossession. This Court disagreed and held that, because §
7-9-503 set forth a specific duty on General Finance, as the
secured party, to "take those precautions which are necessary
at the time to avoid a breach of the peace .... [General
Finance] could not delegate to H&B ... its liability for the
Section 7-9-503 was repealed by Act No. 2001-481, Ala.
7
Acts 2001, § 1, effective January 1, 2002, and was replaced by
§ 7-9A-609, Ala. Code 1975.
44
1150764
wrongful manner in which the repossession was accomplished."
505 So. 2d at 1048.
With that example in mind, we turn to Bain's argument
that HKH had a nondelegable duty to provide emergency medical
physician services that fall within the applicable
standard of
care. Bain first contends that a hospital's duty to provide
emergency medical physician services that fall within the
applicable standard of care is found in regulations issued by
the Board, specifically Ala. Admin. Code (State Board of
Health), Regulations 420-5-7-.04 and 420-5-7-.15. Regulation
420-5-7-.04, which is titled "The Governing Authority,"
provides, in pertinent part:
"(1) A hospital shall have an effective
governing authority that is legally responsible for
the conduct of the hospital as an institution.
"....
"(5)
Contracted
services.
The
governing
authority
shall
be
responsible
for
services
furnished in the hospital whether or not they are
furnished under contracts. The governing authority
shall
ensure
that
a
contractor
of
services
(including one for shared services and joint
ventures)
furnishes
services
that
permit
the
hospital
to
maintain
compliance
with
the
requirements of these rules.
45
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"(a) The governing authority shall ensure that
the services performed under a contract are provided
in a safe and effective manner.
"(b) The hospital shall maintain a list of all
contracted services, including the scope and nature
of the services provided."
(Emphasis added.)
Bain argues that the above-emphasized language imposes a
"nondelegable duty on hospitals for the conduct of their
emergency room physicians irrespective whether they are
employees or independent contractors." Bain's brief, at 58.
However, Bain wholly fails to address Ala. Admin. Code (State
Board of Health), Regulation 420-5-7-.04(4), the subsection
immediately preceding the subsection regarding "contracted
services," which sets forth the regulations regarding "care
of
patients" and states that medical doctors, not hospitals, are
responsible for the care of each patient. Subsection (4)
states, in pertinent part:
"(4) Care of patients. In accordance with
hospital policy, the governing authority shall
ensure that the following requirements are met:
"(a) Every patient is under the care of:
"1. A doctor of medicine or osteopathy ...;
"....
46
1150764
"(b) Patients are admitted to the hospital only
on the recommendation of a licensed practitioner. If
a patient is admitted by a practitioner not
specified in this rule, that patient is under the
care of a doctor of medicine or osteopathy.
"(c) A doctor of medicine or osteopathy is on
duty or on call at all times.
"(d) A doctor of medicine or osteopathy is
responsible for the care of each patient with
respect to any medical or psychiatric problem that:
"1. Is present on admission or develops during
hospitalization ...."
(Emphasis added.)
Thus, when Regulation 420-5-7-.04(5)(a) is read together
with Regulation 420-5-7-.04(4) and the context of those
subsections is considered, it is clear that the regulations do
not impose a specific duty on a hospital to provide its
patients with emergency medical physician services that fall
within the applicable standard of care for an emergency-room
physician and that, instead, each doctor practicing in the
hospital is ultimately responsible for the medical care
rendered to the patients that he or she treats. Furthermore,
as amicus curiae Alabama Hospital Association points out,
Regulation
420-5-7-.04(5)(a)
applies
to
any
potential
services
performed pursuant to a contract with a hospital, which could
47
1150764
include anything from janitorial services to bookkeeping, in
addition to physician services. Thus, we cannot conclude that
a general statement with such broad application is specific
enough to create a duty on a hospital to provide emergency
medical physician services that fall within the applicable
standard of care.
Bain also cites Ala. Admin. Code (State Board of Health),
Regulation 420-5-7-.15, which is titled "Emergency Services,"
which she says creates a nondelegable duty for HKH:
"(1) The
hospital
shall
meet
the
emergency
needs
of patients in accordance with acceptable standards
of practice.
"(2) Organization and direction.
"(a) The services shall be organized under the
direction of a qualified member of the medical
staff.
"(b) The
services
shall
be
integrated
with other
departments of the hospital.
"(c) The policies and procedures governing
medical care provided in the emergency service or
department shall be established by, and are a
continuing responsibility of, the medical staff.
"(3) Personnel.
"(a) The emergency services shall be supervised
by a qualified member of the medical staff.
48
1150764
"(b) There
shall
be
adequate
medical
and
nursing
personnel qualified in emergency care to meet the
written emergency procedures and needs anticipated
by the facility."
(Emphasis added.) The plain language of Regulation
420-5-7-.15 requires a hospital to properly organize, staff,
and equip emergency rooms to meet the emergency needs of
patients in accordance with acceptable standards of practice
of hospitals, not physicians. It does not impose a specific
duty that the hospital provide emergency physician services
that are within the applicable standard of care for emergency-
room physicians.
The question we must ask ourselves in this case is what
specific duty did HKH delegate to Dr. Wigfall that Dr. Wigfall
allegedly negligently performed? As set forth in the
regulations cited above, a hospital has a duty to provide
"adequate"
and
"qualified"
medical
personnel
for
its
patients,
i.e., the services of physicians, in order to properly staff
its emergency room, and there is no argument that HKH violated
that duty. Dr. Wigfall, on the other hand, allegedly violated
his duty of care as an emergency-room physician, i.e., he
allegedly negligently performed the duties he owed Heath as
his physician. The duty of care owed to a patient by a
49
1150764
physician is distinct from the duty of care owed to a patient
by a hospital. See § 6-5-484(a), Ala. Code 1975 (setting forth
the duty of care owed by a physician and by a hospital,
respectively). Unlike the circumstances in General Finance,
supra, where H&B tortiously performed General Finance's
specific statutory duty not to breach the peace, Dr. Wigfall
in the present case did not tortiously perform one of HKH's
duties. Dr. Wigfall allegedly tortiously performed his duty
as a physician to "exercise such reasonable care, diligence,
and skill as physicians ... in the same general neighborhood,
and in the same general line of practice, ordinarily have and
exercise in a like case." § 6-5-484(a).
In light of the distinct duties owed patients by
hospitals and physicians and Bain's failure to identify a
regulation that imposes a specific duty upon a hospital to
provide
its
patients
with
emergency
medical
physician
services
that are within the applicable standard of care, see General
Fin. Corp. v. Smith, 505 So. 2d at 1047, we conclude that Bain
has failed to demonstrate that the Board's regulations impose
a duty on a hospital to provide emergency physician services
that are within the applicable standard of care.
50
1150764
Even if there were some language in the Board's
regulations that could possibly be construed as imposing a
duty on a hospital to provide emergency physician services
that are within the applicable standard of care, Bain has not
cited any authority indicating that the legislature has given
the Board authority to create such a duty, i.e., a duty that
did not otherwise exist by statute or in the common law. The
legislature has given the Board authority to promulgate
"reasonable rules and regulations governing the operation and
conduct of hospitals" that are confined to "setting minimum
standards of sanitation and equipment found to be necessary
and prohibiting conduct and practices inimical to the public
interest and the public health." § 22-21-28, Ala. Code 1975.
Given that the legislature, in the Alabama Medical Liability
Act, § 6-5-480 et seq. and § 6-5-541 et seq., Ala. Code 1975
("the AMLA"), set forth the duty that a hospital owes to a
patient, see § 6-5-484, we are not persuaded that the
legislature gave the Board authority to create a nondelegable
duty to be imposed on hospitals beyond what was specifically
set forth by the legislature in the AMLA. See § 22-21-28
("The [B]oard shall not have power to promulgate any
51
1150764
regulation in conflict with law ...."). Bain has not argued
that anything in the AMLA creates a duty requiring hospitals
to provide emergency medical physician services that fall
within the applicable standard of care.
In addition to all the above, the two regulations Bain
primarily relies upon are taken, nearly verbatim, from federal
regulations promulgated by the Centers for Medicare and
Medicaid Services "for the purposes of determining whether a
hospital qualifies for a provider agreement under
Medicare
and
Medicaid." 42 C.F.R. § 482.1. For example, like Regulation
420-5-7-.04(5)(a), 42 C.F.R. § 482.12(e)(1) requires the
governing body of the hospital to "ensure that services
performed under a contract are provided in a safe and
effective
manner."
Also,
Regulation
420-5-7-.15
is
substantively identical to 42 C.F.R. § 482.55,
which
provides,
in pertinent part, that "[t]he hospital must meet the
emergency needs of patients in accordance with acceptable
standards of practice." It seems likely that the Board's
8
Apparently because these federal regulations were issued
8
for the specific purpose of "determining whether a hospital
qualifies for a provider agreement under Medicare and
Medicaid," 42 C.F.R.
§
482.1, Congress has explicitly rejected
any notion that those regulations establish a duty of care to
a
patient
in
a
medical-malpractice
action:
"[T]he
development,
52
1150764
regulations, insofar as they substantially mirror federal
regulations for determining whether a hospital will qualify
for a provider agreement with Medicare and Medicaid, were
issued for that purpose and not in an attempt to create a new
nondelegable duty for hospitals to provide emergency medical
physician services that are within the applicable standard of
care.
Thus, for all the foregoing reasons, we cannot conclude
that the trial court erred in concluding that the Board's
regulations do not create a nondelegable duty on hospitals to
provide emergency medical physician services that fall within
the applicable standard of care.
Bain also argues that there was an express or an implied
contract between Heath and HKH that imposed upon HKH the duty
to provide Heath with emergency medical physician services
that fall within the applicable standard of care. Initially,
we note that the specific language Bain cites from Heath's
hospital-admission forms as the basis of her claim that there
recognition, or implementation of any guideline or other
standard under any Federal health care provision shall not be
construed to establish the standard of care or duty of care
owed by a health care provider to a patient in any medical
malpractice ... action or claim." 42 U.S.C. § 18122(1).
53
1150764
was an express contract is cited for the first time on appeal.
Regardless, Bain has not directed our attention to any
language in that "paperwork" whereby HKH took upon itself a
contractual duty to provide Heath with emergency physician
services that fall within the applicable standard of care. To
be sure, hospitals owe patients a duty of care. However, this
Court has long held that such a duty sounds in tort and, as
noted above, is specifically set forth in the AMLA.
"'"The duty of a hospital to use
due care in the treatment of its
patients is an obligation created
by law; and the breach of that
duty is a failure to observe a
reasonable standard of due care
under the circumstances which
gives rise to the tort action.
There exists a duty implied by
law, as opposed to a contract
implied by law, to exercise due
care, the breach of which gives
rise to an action in tort. We
again
affirm
those
decisions
which refuse to imply a contract
in law to impose a duty upon a
hospital to use due care in the
treatment of its patients."'"
Marsh v. St. Margaret's Hosp., 535 So. 2d 147, 149 (Ala. 1988)
(quoting Lemmond v. Sewell, 473 So. 2d 1047, 1048-49 (Ala.
1985), quoting in turn Berry v. Druid City Hosp. Bd., 333 So.
2d 796, 799 (Ala. 1976)). Thus, even though Bain has brought
54
1150764
an action in tort, not in contract, the law does not impose an
implied contractual duty on a hospital to exercise due care.
Bain cites no authority that would allow this Court to imply
a contractual duty upon HKH to provide Heath with emergency
physician services that fall within the applicable
standard of
care. Accordingly, Bain has failed to identify a specific
duty upon HKH arising from a contract to provide its patients
with emergency physician services that are within the
applicable standard of care. General Fin. Corp. v. Smith, 505
So. 2d at 1047.
Bain further argues that "[p]ublic policy also justifies
a nondelegable duty on hospitals for the conduct of their
emergency room physicians." Bain's brief, at 59. This is so,
she says, because "[a]ny other rule fosters the type of
carelessness and flippancy that is evidenced in this case."
Id. First, this Court has repeatedly stated that public-
policy arguments directed to this Court are directed to the
wrong branch of State government. See Boles v. Parris, 952 So.
2d 364, 367 (Ala. 2006) ("[I]t is well established that the
legislature, not this Court, has the exclusive domain to
formulate public policy in Alabama."). Further, the
55
1150764
legislature has already set forth the applicable
public
policy
in medical-malpractice cases in § 6-5-540, Ala. Code 1975,
part of the AMLA:
"This Legislature finds and declares that the
increasing threat of legal actions for alleged
medical injury causes and contributes to an increase
in health care costs and places a heavy burden upon
those who can least afford such increases, and that
the threat of such actions contributes to expensive
medical procedures to be performed by physicians and
other health care providers which otherwise would
not be considered necessary, and that the spiraling
costs and decreasing availability of essential
medical services caused by the threat of such
litigation constitutes a danger to the health and
safety of the citizens of this state, and that this
article should be given effect immediately to help
control the spiraling cost of health care and to
insure its continued availability."
To recognize a nondelegable duty in this case solely on
public-policy grounds would contravene the expressed public
policy of this State to "control the spiraling cost of health
care and to insure its continued availability." Id. Generally
speaking, this Court is ill equipped to make policy
determinations -- especially expansions in liability for
highly regulated entities such as hospitals -- that have far-
reaching and potentially unforeseeable consequences.
Finally, as HKH and amicus curiae Alabama Hospital
Association point out, if Bain truly believed that HKH acted
56
1150764
wrongfully in allowing Dr. Wigfall to work in the hospital,
then she could have brought a negligence action directly
against HKH. See Humana Med. Corp. of Alabama v. Traffanstedt,
597 So. 2d 667, 669 (Ala. 1992) (setting forth the "corporate
liability"
theory,
which
is
based
on
a
hospital's
"'independent negligence in appointing to its medical staff a
physician who is incompetent or otherwise unfit, or in failing
to properly supervise its medical staff,'" which is distinct
from a theory of vicarious liability because "typically,
physicians on the staff of a hospital are considered
independent contractors rather than employees [and] vicarious
liability does not attach to a hospital for the negligent acts
of medical staff members" (quoting 8 Causes of Action 427, 431
(1985))).
In Baptist Memorial Hospital System v. Sampson, 969 S.W.
2d 945, 949 (Tex. 1998), the Supreme Court of Texas rejected
a Texas Court of Appeals' decision to "create a nondelegable
duty on a hospital solely because it opens its doors for
business." The court stated:
"[W]e reject the suggestion of the court of appeals
quoted above that we disregard the traditional rules
[of apparent authority] and take 'the full leap' of
imposing a nondelegable duty on Texas hospitals for
57
1150764
the malpractice of emergency room physicians.
Imposing such a duty is not necessary to safeguard
patients in hospital emergency rooms. A patient
injured by a physician's malpractice is not without
a remedy. The injured patient ordinarily has a cause
of action against the negligent physician, and may
retain a direct cause of action against the hospital
if the hospital was negligent in the performance of
a duty owed directly to the patient."
Id. (emphasis added).
We agree with the Texas Supreme Court insofar as it, at
least implicitly, concluded that no injustice is done by
failing to impose a nondelegable duty on a hospital for the
negligence
of
an
independent-contractor
emergency-room
physician. In the present case, Bain has asserted a medical-
malpractice action against the alleged tortfeasor, Dr.
Wigfall; there is no indication in the record that Dr. Wigfall
did not have the proper malpractice insurance; and Bain could
have, but did not, bring a negligence action directly against
HKH for the negligent performance of a duty HKH owed directly
to Heath.
For all the above reasons, Bain has failed to demonstrate
that the trial court erred in entering a summary judgment in
favor of HKH as to Bain's claim that HKH was vicariously
58
1150764
liable for the alleged malpractice of Dr. Wigfall based on a
nondelegable duty.
Conclusion
The trial court's summary judgment in favor of HKH as to
each claim brought against it by Bain is due to be affirmed.
AFFIRMED.
Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Parker and Murdock, JJ., concur in part and dissent in
part.
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PARKER, Justice (concurring in part and dissenting in part).
I concur as to the affirmance of the summary judgment in
favor of the emergency-room nurses. I respectfully dissent as
to the affirmance of the summary judgment in favor of Colbert
County Northwest Alabama Health Care Authority d/b/a Helen
Keller Hospital ("HKH") on Melissa Bain's claim that HKH was
vicariously liable for Dr.
Preston
Wigfall's
alleged
negligence. Specifically, I find that Bain presented
substantial evidence from which the jury could conclude that
HKH is vicariously liable for the acts of Dr. Wigfall, its
emergency-room physician.
I agree with the recitation of the law in the main
opinion on apparent authority and agency by estoppel; I
respectfully disagree, however, with the application of that
law and the resulting conclusion. First, Brown v. St.
Vincent's Hospital, 899 So. 2d 227 (Ala. 2004), is
distinguishable for reasons in addition to those given in the
main opinion. Second, the imposition of liability under these
facts is consistent with the majority of jurisdictions that
have considered this issue.
60
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In Brown, 899 So. 2d at 227, this Court found that the
patient failed to carry her burden of establishing by
substantial evidence a genuine issue of material fact
concerning her claims of apparent authority and agency by
estoppel. The patient had alleged that she saw a single
television advertisement that caused her to believe the
hospital was the employer of obstetricians, including the
doctor she visited. 899 So. 2d at 239. However, the patient
signed a consent form expressly indicating that her doctor was
not an employee of the hospital but was an independent
contractor. The form provided:
"'PHYSICIANS: I understand that my doctor and other
doctors who provide care to me while I am in the
hospital (such as Emergency Department doctors,
doctors who read X-rays and test specimens removed
from me, and doctors and Certified Registered Nurse
Anesthetists who give anesthesia) are not the
agents, servants or employees of St. Vincent's
Hospital,
but
are
individuals
practicing
independently at the hospital.'"
899 So. 2d at 240. Moreover, the patient visited the doctor
on numerous occasions, but only one of those visits was on the
hospital premises. Additionally, though she did call the
hospital after seeing the advertisement to ask if "they had
any obstetricians who were taking new patients," the patient
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ultimately was the one who selected her doctor. She stated
that the hospital gave her only one doctor's name, but she did
not say that she asked for any more names or that she lacked
the freedom to select a doctor elsewhere. Accordingly, the
Court found that the patient's belief that the doctor was an
employee of the hospital was not an objectively reasonable one
so as to overcome the hospital's motion for a summary
judgment.
The facts of this case are distinguishable from those in
Brown. First, there is no evidence in this case indicating
that Bain and her husband Heath were made aware through a
consent form, as in Brown, or through any other means, that
the emergency-room physician who treated Heath was anything
other than an employee of HKH. To the contrary, every form
signed by the Bains contained the name Helen Keller Hospital,
and one form specifically stated "Thank you for choosing Helen
Keller Hospital for your care today" and listed Dr. Wigfall's
name in the "care provided by" field. This fact alone
distinguishes this case from Brown, but numerous additional
facts also distinguish the facts of this case from those in
Brown.
62
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Here, the Bains sought the emergency services of the
hospital generally, not the services of a particular
physician, as did the patient in Brown. There is no evidence
indicating that the Bains had had any prior relationship with
Dr. Wigfall or that they had any choice in his selection as
Heath's
emergency-room
doctor.
Rather,
the
evidence
indicates
that HKH provided them with the services of Dr. Wigfall.
Further, contrary to Brown, the Bains were on the
premises of HKH when Heath was treated in HKH's emergency room
by Dr. Wigfall. In Brown, the patient visited the doctor
numerous times at an office not on the hospital premises.
Significantly, absent from Brown but present here, Dr.
Wigfall wore a badge, presumably provided by HKH, that
displayed the name "Helen Keller Hospital." A badge is
indicative of employment. And all the emergency-room staff
(who Bain assumed, correctly, were employees of the hospital)
took direction from Dr. Wigfall. Based on these facts, Bain
asserted that she assumed Dr. Wigfall was an HKH employee.
Unlike in Brown, there was sufficient evidence here to make
Bain's belief an objectively reasonable one. Thus, here,
unlike in Brown, there is sufficient evidence of apparent
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authority to create a genuine issue of material fact
concerning Bain's claims of apparent authority and agency by
estoppel.
The main opinion notes that even if there is sufficient
evidence of "holding out" by HKH of Dr. Wigfall as its agent
based on Dr. Wigfall's badge and the medical forms containing
the hospital's name, there is insufficient evidence of
reliance on Bain's part. I disagree. One court has said:
"'Reliance ... is established when the plaintiff "looks to"
the hospital for services, rather than to an individual
physician.'" Burless v. West Virginia Univ. Hosps., Inc., 215
W. Va. 765, 777, 601 S.E.2d 85, 97 (2004) (quoting Mejia v.
Community Hosp. of San Bernadino, 99 Cal. App. 4th 1448, 1454,
122 Cal. Rptr. 2d 233, 237 (2002)); see also Gilbert v.
Sycamore Mun. Hosp., 156 Ill. 2d 511, 525, 622 N.E.2d 788,
796, 190 Ill. Dec. 758, 766 (1993) ("The element of
justifiable reliance on the part of the plaintiff is satisfied
if the plaintiff relies upon the hospital to provide complete
emergency room care, rather than upon a
specific
physician.").
This principle is consistent with this Court's decision in
Union Oil Co. v. Crane, 288 Ala. 173, 180, 258 So. 2d 882, 887
64
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(1972), in which this Court found it dispositive that the
plaintiff did business with the alleged principal corporation
only because of a personal relationship with the alleged
agent, not because of any reliance on the reputation of the
corporation. Thus, the Union Oil Court found insufficient
evidence to establish reliance. Id. Here, to the contrary,
the Bains did not visit the emergency room because of a
relationship with any particular doctor and did not even
choose their doctor once there; rather, they visited the
emergency because of the reputation of HKH -- they looked to
HKH for services rather than to an individual physician. Bain
alleged in her affidavit that the Bains sought the care of HKH
because they believed "it had the best reputation for caring
for patients in this area" and that it "would provide the best
emergency care and treatment." The doctor provided by HKH is
a crucial aspect of that emergency care and treatment the
Bains trusted HKH to provide. These facts are indicative of
reliance and are at least sufficient to make the question one
of fact for the jury.
Moreover, the imposition of vicarious liability on
hospitals for the actions of its emergency-room physicians is
65
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neither new nor novel. In fact, most jurisdictions that have
considered this issue have imposed liability on hospitals in
the emergency-room context. See Sanchez v. Medicorp Health
Sys., 270 Va. 299, 307, 618 S.E.2d 331, 335 (2005) (noting
that "the majority of jurisdictions that have addressed the
issue presently before us have decided, on the basis of
apparent agency or agency by estoppel, to impose vicarious
liability on hospitals for the negligence of emergency room
physicians who were not employees of the hospitals but
independent contractors"); Gilbert, 156 Ill. 2d at 522, 622
N.E.2d at 794, 190 Ill. Dec. at 764 ("We join the many courts
that have reached this conclusion."); 64 A.L.R. 6th 249 §§ 13-
14 (2011) (collecting decisions in which courts have
considered whether to impose liability on a hospital for the
negligence of an independent physician for emergency-room
treatment of a patient under a theory of apparent agency or
agency by estoppel and illustrating that most jurisdictions
have come out in favor of liability).
In cases where hospitals were not held to be vicariously
liable for the acts of emergency-room physicians, there was
some indication by the hospital that its emergency-room
66
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physicians were not employees but were instead independent
contractors. See, e.g., Baptist Mem'l Hosp. Sys. v. Sampson,
969 S.W.2d 945, 950 (Tex. 1998) (noting that hospital posted
signs in the emergency room notifying patients
that physicians
were independent contractors and provided patients with
consent
forms
that
informed
patients
of
physicians'
independent-contractor status); Peter v. Vullo, 234 N.C. App.
150, 162, 758 S.E.2d 431, 439 (2014) (noting that hospital
expressly gave notice via consent form that physician was an
independent contractor); Cantrell v. Northeast Georgia Med.
Ctr., 235 Ga. App. 365, 366, 508 S.E.2d 716, 718 (1998)
(noting that hospital posted sign over registration desk and
gave patients treatment-consent forms advising patients that
physicians were not hospital employees); and Holmes v.
University Health Serv., Inc., 205 Ga. App. 602, 603, 423
S.E.2d 281, 283 (1992) (noting that forms plaintiff signed
explicitly stated: "Physicians providing medical services
within this hospital are not employees of
University
Hospital.
Each physician is an independent contractor.").
To the contrary, where patients were given no indication
that
the
emergency-room
physicians
were
independent
67
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contractors, courts have held that the question of apparent
authority was at least a question for the jury -- the trier of
fact. See, e.g., Jennison v. Providence St. Vincent Med.
Ctr., 174 Or. App. 219, 234, 25 P.3d 358, 367 (2001) (finding
it was reasonable for the patient to assume that the
radiologist was a hospital employee where nowhere on the
consent form did it indicate that radiologists were
independent contractors); Abdul-Majeed v. Emory Univ. Hosp.,
213 Ga. App. 421, 423, 445 S.E.2d 270, 272 (1994) (holding
that a question of fact existed regarding whether the hospital
held the doctor out as its agent if the hospital provided the
doctor without explicitly informing the patient that the
doctor was not its employee).
Here, HKH not only took affirmative action that
encouraged the Bains to think that Dr. Wigfall was its
employee -- giving Dr. Wigfall a badge with the hospital's
name and providing the Bains with forms headed by the
hospital's name -- HKH also failed to take any reasonable
effort to disabuse the Bains of that notion. Unlike the
hospitals in the cases discussed above, where the hospitals
took some measure to inform patients that the emergency-room
68
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doctors were not employees of the hospital, HKH did nothing to
indicate that Dr. Wigfall was not its employee.
Additionally, courts finding sufficient evidence to
support vicarious liability have emphasized the patient's
reliance on the hospital, rather than on a particular doctor,
to provide medical services, which is often the case in the
emergency-room context. See, e.g., Porter v. Sisters of St.
Mary, 756 F.2d 669 (8th Cir. 1985) (holding evidence of
apparent authority insufficient where patient sought services
of particular doctor rather than services of hospital
generally); Barrett v. Samaritan Health Servs., 153
Ariz.
138,
735 P.2d 460 (Ct. App. 1987) (holding issue of vicarious
liability was for jury where patient did not have opportunity
to choose physician, who was provided by hospital); and
Gilbert, 156 Ill. 2d at 526, 622 N.E.2d at 796, 190 Ill. Dec.
at 766 ("Decedent did not ask for Dr. Frank, who was not
decedent's physician and who had never before met decedent.
Rather, Dr. Frank was another KMA physician who merely
happened to be covering the emergency room the day decedent
was taken there.").
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In light of the foregoing, I would follow the majority of
jurisdictions and conclude that under
the facts
presented here
there is at least a question of fact as to the alleged
apparent-agency relationship between Dr. Wigfall and HKH.
Accordingly, I would reverse the summary judgment in favor of
HKH on this issue.
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MURDOCK, Justice (concurring in part and dissenting in part).
I concur as to the affirmance of the summary judgment in
favor of the emergency-room nurses. I respectfully dissent as
to the affirmance of the summary judgment in favor of Colbert
County Northwest Alabama Health Care Authority d/b/a Helen
Keller Hospital ("HKH") as it relates to HKH's alleged
liability for deficiencies in the care provided by its
emergency-room physician, Dr. Preston Wigfall.
Even as to HKH, I am inclined to agree with some parts of
the main opinion, including its conclusion that we should not
find that HKH owed the decedent a nondelegable duty based
strictly on regulations promulgated by the State Board of
Health. I cannot agree with the view, however, that HKH did
not owe a nondelegable duty in this particular case based on
the fact that the hospital contractually agreed to provide
emergency-room care to Melissa Bain's husband, Heath. As the
main opinion notes:
"In Boroughs v. Joiner, 337 So. 2d 340 (Ala. 1976),
this Court set forth the general rule that '"one is
not ordinarily responsible for the negligent acts of
his independent contractor. But this rule, as most
others, has important exceptions."' 337 So. 2d at
342 (quoting Dixie Stage Lines v. Anderson, 222 Ala.
673, 675, 134 So. 23, 24 (1931)).
71
1150764
"'One [such exception] is that an employer
is responsible for the manner of the
performance
of
certain
non-delegable
duties, though done by an independent
contractor. An employer who by contract
or law owes a specific duty to another
cannot escape liability for a tortious
performance by reason of the employment of
an independent contractor.'
"General Fin. Corp. v. Smith, 505 So. 2d 1045, 1047
(Ala. 1987) .... Regarding the existence of a duty,
this Court has stated:
"'"A legal duty to exercise
care, therefore, arises where the
parties are bound by contract,
Pugh v. Butler Telephone Co.,
[512 So. 2d 1317 (Ala. 1987)], or
where
the
obligations
are
'expressly or impliedly imposed
by statute, municipal ordinance,
or by administrative rules or
regulations,
or
by
judicial
decisions.' 57
Am.
Jur.
2d,
Negligence § 36 at 382 (1988)."
"'King v. National Spa & Pool Inst., Inc.,
570 So. 2d 612, 614 (Ala. 1990) ....'
"Gowens v. Tys. S., 948 So. 2d 513, 527–28 (Ala.
2006)."
___ So. 3d at ___ (some emphasis added; some emphasis
omitted).
The main opinion states that "Bain has not directed our
attention to any language in [the] 'paperwork' whereby HKH
took upon itself a contractual duty to provide Heath with
72
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emergency physician services that fall within an applicable
standard of care." ___ So. 3d at ___. But consistent with
the above-quoted authority, and lest an agreement to provide
medical services be rendered all but meaningless, such an
agreement necessarily must imply an obligation to provide
services that meet the applicable standard of care imposed by
law. Although the breach of the duty gives rise to a claim in
tort, the presence of that duty, and thus its nondelegability,
arises in this case from the contract whereby the hospital
agreed to provide emergency-room care to Heath. Having
contractually undertaken to provide such care to Heath, the
hospital cannot avoid that duty by contracting with a third
party to stand in its place.
The fact situation in the present case is similar to that
in Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665
(1938). In Pierre, the Pierres purchased from Alabama Power
Company electrical fixtures for their new house. As an
inducement to close on the purchase, Alabama Power agreed to
install the fixtures at no charge. Alabama Power contracted
with a third party to complete the actual installation; during
the installation the subcontractors inadvertently set the
73
1150764
house on fire. The Pierres sued Alabama Power, alleging that
the installation of the fixtures was a nondelegable duty.
This Court agreed and, citing Dixie Stage Lines v. Anderson,
222 Ala. 673, 134 So. 23 (1931), stated:
"In the Anderson Case, supra, after stating the
rule of responsibility for the manner of performance
of his non-delegable duties, though done by an
independent contractor, it was further observed
'that one who by his contract or by law is due
certain obligations to another cannot divest himself
of liability for a negligent performance by reason
of the employment of such contractor.' ...
"And the
Anderson
Case,
supra,
is
authority also
for the conclusion that in such a situation the
'defendant is liable to plaintiff as though the
contractor were the servant or agent of defendant.'
"Under plaintiffs' evidence, therefore, in the
light of this authority, defendant cannot escape
responsibility for the negligent performance of the
installation upon the theory that Bailey was an
independent
contractor.
By
contract
this
installation was a non-delegable duty on defendant's
part so far as these plaintiffs were concerned, and
the contractor may be treated in law as the agent or
servant of defendant, though as between the parties
and in a strict legal sense such relationship did
not in fact exist."
236 Ala. at 525, 183 So. at 668 (emphasis added). See also
Fuller v. Tractor & Equip. Co., 545 So. 2d 757 (1989) (also
relying upon Pierre and Anderson to the same effect). See
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generally Simmons v. Tuomey Reg'l Med. Ctr., 341 S.C. 32, 533
S.E.2d 312 (2000).
Furthermore, I am struggling with the no-apparent-
authority conclusion, and especially with whether there is a
genuine issue of fact in this regard. I find noteworthy the
following excerpt from the main opinion:
"In Hardy [v. Brantley, 471 So. 2d 358 (Miss.
1985)], the court discussed cases from California,
Montana, Arizona, Washington, and Ohio that held
hospitals liable on a theory of vicarious liability
and noted that
"'[t]he basic rationale of these cases is
that, unless there is some reason for a
patient to believe that the treating
physician in a hospital is an independent
contractor, it is natural for him to assume
that he can rely upon the reputation of the
hospital as opposed to any doctor, which is
the reason he goes there in the first
place.
These
cases
recognize
his
prerogative to make that assumption.'
"471 So. 2d at 370.
"The Mississippi Supreme Court stated ... as
follows:
"'Where a hospital holds itself out to the
public as providing a given service, in
this instance, emergency services, and
where
the
hospital
enters
into
a
contractual arrangement with one or more
physicians to direct and provide the
service, and where the patient engages the
services of the hospital without regard to
75
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the identity of a particular physician and
where as a matter of fact the patient is
relying upon the hospital to deliver the
desired health care and treatment, the
doctrine
of
respondeat
superior
applies
and
the hospital is vicariously liable for
damages proximately resulting from the
neglect, if any, of such physicians.'
"471 So. 2d at 371. The Mississippi Supreme Court
noted that the rule was consistent with Restatement
(Second)
of
Torts
§
429
(1966),
which
was
'consistent with the agency principle of apparent
authority long-recognized in [Mississippi].' 471
So. 2d at 370."
___ So. 3d at ___.
I believe the Mississippi Supreme Court correctly
expressed the rationale upon why the doctrine of apparent
authority is applicable in the present case.
76 | February 10, 2017 |
a4bdf418-ec9b-4bdf-85b1-045e5d75dc92 | Beason v. Bowlin | 149 So. 2d 283 | N/A | Alabama | Alabama Supreme Court | 149 So. 2d 283 (1962)
Kenneth BEASON et al.
v.
Lula Beason BOWLIN et al.
7 Div. 505.
Supreme Court of Alabama.
November 29, 1962.
Rehearing Denied February 7, 1963.
*285 Frank B. Embry, Pell City, for appellants.
Starnes & Holladay, Pell City, for appellees.
PER CURIAM.
Complainants, Lula Beason Bowlin, Manley V. Beason, and R. L. Beason, adult children of John L. Beason, who died in November, 1945, and his wife, Sally M. Beason, who died in 1938, filed their bill in the circuit court of St. Clair County, in equity, to sell for division among the joint owners certain lands specifically described in the complaint, there and here referred to as Tracts 1 and 2.
The complaint made certain grandchildren and great grandchildren of John L. and Sally M. Beason parties respondent, along with Tellie Mostiller, Erskin Mostiller and Sennie Hampton, who are not members of the Beason family, but alleged to be successors in title to Tract 2 described in the complaint.
During the progress of the trial it was stipulated and agreed in open court between the parties, through their respective solicitors of record, that title to the land, the subject matter of this suit, was in August Montgomery, who died intestate sometime after the Civil War between the States, leaving surviving three children, by name, Albert J. Montgomery, Mrs. Fannie Hill and Mrs. Sally M. Beason, the latter being the grandmother and great grandmother of some of the respondents, and the mother of complainants as noted above.
*286 It was further stipulated that John L. Beason, husband of Sally M. Beason, acquired by appropriate conveyances, the each one-third interest of Albert J. Montgomery and Mrs. Fannie Hill, thus, owning without question at the time of his death, said acquired interests in both tracts.
The contested issue in this case is the ownership in 1938, and subsequently until now, the one-third interest of Sally M. Beason, which she inherited from her father, Augustus Montgomery.
The respondents by answers and cross-bills assert that John L. Beason was the owner exclusively of both tracts when he died in 1945. They predicated such claim of ownership on adverse possession against his wife with whom he lived until her death in 1938; also, they contend that John L. Beason devised Tract 2 to his grandson, Kenneth Beason, who, in turn, conveyed to appellants Tellie Mostiller, Erskin Mostiller and Sennie Hampton. The other appellants here claim exclusive ownership by virtue of a devise from their father, James S. Beason, who, in turn, claimed exclusively by will from his father, John L. Beason, the father of complainants. The appellants, if we may broadly state, claim exclusive title to the controverted interest of Mrs. Sally Beason by will, adverse possession as against complainants and other co-owners, and by laches and estoppel, of which they charge the complainants with guilt to the injury of appellants and the other respondents.
The trial court rendered a final decree in favor of complainants and ordered the lands sold in accordance with the prayer for relief. The decree defined the interests of all parties to the lands. The effect of the decree was a judicial determination that Mrs. Sally Beason, at the time of her death, had never parted with title to the one-third interest she inherited from her father, Augustus Montgomery, and that the respondents had never acquired by will, or otherwise, more than their pro rata share as remaindermen in the one-third interest of Mrs. Sally Beason.
Chief Justice Brickell, speaking for the Court in the case of Wells v. American Mortgage Company of Scotland, 109 Ala. 430, 445, 20 So. 136, 142, said:
It is without serious dispute in the evidence that John L. Beason and his wife, Sally M. Beason, occupied Tracts 1 and 2, described in the bill, during the lifetime of Mrs. Beason, who, as we have said, died in 1938. If it be conceded that the husband, under any circumstances, can acquire lands of his wife by adverse possession, he certainly cannot do so by having joint possession with her. One of the essential elements of adverse possession is that the possession must be exclusive. "Two persons cannot hold the same property adversely to each other at the same time." Hinton v. Farmer, 148 Ala. 211, 213, 42 So. 563, 564, 121 Am.St.Rep. 63; Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 85 Am.St.Rep. 38; Wells v. American Mortgage Company of Scotland, supra.
After the death of his wife, John L. Beason continued to occupy Tracts 1 and 2 until his death on November 20, 1945. This he had a right to do under the law giving the husband the use of his wife's realty, if she dies intestate, as here. Title 16, Section 12, Code of Alabama, 1940.
A question presented for determination is whether or not Mr. John L. Beason's possession of his wife's interest in the two tracts, after her death in 1938 and until his death in 1945, was hostile to the heirs or remaindermen, and if so, was such hostility actually communicated to the joint owners, or imputed to them.
*287 The possession of Mr. Beason under his statutory right of occupation after the death of his wife is not adverse. White v. Williams, 260 Ala. 182, 69 So.2d 847(10).
This court held in the case of Trufant v. White, 99 Ala. 526, 535, 13 So. 83, 86:
In the case of Foy v. Wellborn, 112 Ala. 160, 165-166, 20 So. 604, 605, it is succinctly observed:
Pertinent to the inquiry here as to what acts and declarations of Mr. John L. Beason would be necessary to change his permissive occupancy under the statute to one of hostility, our cases have held:
We concur with the trial court, after reading the evidence, that John L. Beason did not, after his wife's death, hold adversely to complainants. No evidence was adduced by respondents, who had the burden of proof, that could reasonably sustain their contention of adverse possession or that Mr. Beason's permissive occupancy under the statute had been abandoned or converted into one of hostility to the respondents. The acts of Mr. Beason in his permissive use of the property were reasonably consonant with his occupancy as a life tenant.
Therefore, Kenneth Beason took no part of his grandmother's interest in Tract 2 by devise from his grandfather, John L. Beason, the permissive occupant. He had nothing to will except his own two-thirds interest in this tract.
The evidence shows that Kenneth Beason, pursuant to the devise of his grandfather went into possession of Tract 2, and remained in such possession for a period of years. We can find no satisfactory evidence that his possession was hostile or adverse to the rights of appellees and the other remaindermen in his grandmother's one-third interest. His successors in title, appellants here, are not shown to have gone into possession as we have been able to find. If stipulated by inference, there is no evidence that such possession was adverse or hostile.
Appellants, the devisees of Tract 1 in the will of their father, James S. Beason, contend he acquired title by adverse possession subsequent to the death of the testator, John L. Beason.
We have examined the will of John L. Beason offered as an exhibit, and find that the testator willed to his son, James S. Beason, father of the appellants-respondents "* * * all the land that I own West of the Highway * * *" [Emphasis supplied], which, according to the testimony is Tract 1.
We have concluded here that John L. Beason never acquired title to his wife's one-third interest, before or after his wife's death. Therefore, his will, worded as it is and confining the devise to the land that he owned, devised no property that he didn't own, which was his wife's one-third interest in Tract 1.
Did Mr. James S. Beason's possession after the death of his father in November, 1945, without color of title by will, ripen into adverse possession of the one-third interest of Mrs. Sally Beason to the exclusion of the other joint owners and remaindermen? We think not.
This suit was filed on April 3, 1959, which was thirteen years and approximately five months after the death of John L. Beason. James S. Beason became the executor of his father's will and made two conveyances in his fiduciary capacity of real property left by his father, and one in his individual capacity. None of these conveyances purported to convey any part of Tract 1 or 2 described in this cause. He assessed Tract 1 for taxes from 1945 through 1946. The record is silent so far as we have observed as to assessments for subsequent years.
Even if these conveyances described part of Tract 1, the recordation thereof imputing constructive notice under the statute could not be relied on by one tenant in common to deprive another cotenant of his rights without actual notice. Gilb v. O'Neill, 225 Ala. 92, 142 So. 397(7), 85 A.L.R. 1526.
Herschel Montgomery, a witness for appellants, testified that James S. Beason went into possession of the lands involved here after the death of his father; that *289 he claimed to own the lands; that he lived there and that was all he knew.
Mrs. Kate Hodges, estranged wife of John S. Beason, with whom she had not lived for 20 to 25 years, testified for appellants that her former husband lived on Tract 1 at the time of his death; that she (not her husband) cut some timber after the death of James S. Beason from the lands and sold it for $800.00. Further she stated that Mrs. Sally Beason told her that she had given her interest in the land to her husband, John L. Beason.
If this statement attributed to Mrs. Sally Beason, assuming it to be true, could be construed that she had conveyed the land to her husband, it did not meet the demands of Title 47, Section 22, Code of Alabama, 1940, which provides the manner in which conveyances must be made. We do not construe the statement to mean more than that Mrs. Beason was letting her husband manage the lands.
We again concur with the trial court that the evidence does not sustain the burden cast on appellants and respondents to establish that James S. Beason's possession, after his father's death, was hostile or adverse to the remaindermen in their rights to the one-third interest of Mrs. Beason, nor do we think they have any title thereto except as joint owners along with the other heirs of Mrs. Beason.
The respondents and appellants having failed to establish hostile possession with the other elements of adverse possession as against complainants (appellees here), and the evidence being insufficient, if any at all, of actual notice as required by law to the complainants of any claim of hostile possession, the latter cannot be charged with laches.
The existing family relationship tended to create "a feeling of security and repose," rather than exciting a necessity to act as would be the case if something appeared in the circumstances of the case "to suggest overreaching on the part" of appellants or those under whom they claim. Gilb v. O'Neill, 225 Ala. 92, 142 So. 397(8), supra; Williams v. Massie, 212 Ala. 389, 102 So. 611(8); Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75(5).
Also, it has been held from time to time that the possession of one tenant in common is presumed to be the possession of all contenants. Markstein v. Schilleci, (2), supra.
As was observed by this court, in the case of Parrish v. Davis, 265 Ala. 522, 524, 92 So.2d 897(2-4), trial of this case was had before the court without a jury. Part of the evidence was heard orally and part of it was in the form of depositions, and part by stipulations. "In this situation our review is guided by the settled rule that the finding of the trial court, when testimony is taken orally before it, or partly so, has the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong."
Our view of the evidence in this case is in harmony with the view of the trial court. We think the case should be affirmed and it is so ordered.
The foregoing opinion was prepared by B. W. SIMMONS, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL, and COLEMAN, JJ., concur. | November 29, 1962 |
0d7f846f-c680-4a64-afb5-670568cf8f82 | Ex parte Tenax Corp. | N/A | 1151122 | Alabama | Alabama Supreme Court | Rel: 01/27/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151122
____________________
Ex parte Tenax Corporation and Tenax Manufacturing Alabama,
LLC
PETITION FOR WRIT OF MANDAMUS
(In re: John Dees
v.
Tenax Corporation; Tenax Manufacturing Alabama, LLC; Onin
Staffing, LLC; and Tenax SPA (Italy))
(Conecuh Circuit Court, CV-15-900036)
MAIN, Justice.
1151122
Tenax Corporation ("Tenax") and Tenax Manufacturing
Alabama, LLC ("Tenax Alabama"), petition this Court for a writ
of mandamus directing the Conecuh Circuit Court to enter a
summary judgment in their favor in John Dees's tort action
against them. Tenax and Tenax Alabama contend that they are
immune from Dees's tort claims under the exclusive-remedy
provisions of the Alabama Workers' Compensation Act, § 25-5-1
et seq., Ala. Code 1975. Additionally, Tenax Alabama contends
that it is entitled to a summary judgment because it was not
a legal entity when Dees was injured. We grant the petition
and issue the writ.
Facts and Procedural History
Tenax owns a plant in Evergreen that makes plastic
netting and other plastic products. Dees worked at the plant
for about six months in 2010 and again for about two months in
2013. Dees went back to work at the plant in July 2014, but,
at the direction of the plant's general manager, Dees had
applied to Onin Staffing, LLC ("Onin"), for the job at the
Tenax plant. On January 14, 2015, while operating a machine,
Dees suffered significant injuries to his left arm.
2
1151122
In December 2015, Dees sued Tenax, Tenax Alabama, Tenax
SPA (Italy) (a foreign corporation doing business in Conecuh
County), Onin, and fictitiously named defendants claiming
1
that, while he was operating a machine at the plant as
instructed and according to proper procedures, he was injured
as a result of the alleged defective condition of the machine.
Dees sought workers' compensation benefits from Onin, and he
sought damages under the Alabama Extended Manufacturer's
Liability
Doctrine
("AEMLD")
and
for
negligence
and
wantonness
from the other defendants. In their answer, Tenax and Tenax
Alabama asserted the immunity defense under the Alabama
Workers' Compensation Act and then moved for a summary
judgment on that same ground. Tenax Alabama also claimed that
it was entitled to a summary judgment because it did not exist
as a legal entity at the time of Dees's injury on January 14,
2015.
According to Dees's complaint, in January 2015 he was
employed by Onin and, at the time of his injury, "was acting
within
the
line
and
scope
of
his
job
duties
and
It appears that Tenax SPA manufactured the machine Dees
1
was operating when he was injured. Tenax SPA is not a party
to this mandamus petition.
3
1151122
responsibilities with Defendant Onin." However, Dees
testified in
deposition
that in January 2015 his understanding
was that he was employed by Tenax and that Onin was a "temp
agency." Dees further testified that "if I fill out an
application [asking for the name of my employer], I don't put
Onin Staffing, I put Tenax." According to Dees, Tenax trained
him, supervised him, took any necessary disciplinary actions
against him, and controlled his work. Dees also submitted his
work hours to his supervisor at Tenax, and Dees received and
signed for a Tenax employee handbook. Onin never placed Dees
in any job other than the job at the Tenax plant.
Melvin Owens, the general manager for the Tenax plant,
testified that Tenax had a relationship with Onin whereby Onin
supplied Tenax with temporary labor. To pay the workers
supplied by Onin, Tenax would write Onin a check, and Onin in
turn would withhold appropriate taxes and other items and
issue a check to the workers. In 2014, Dees, who had worked
for Tenax as a permanent employee on two previous occasions,
approached Owens and asked for a job. Owens agreed to hire
Dees but instructed him to go to Onin to "process it through,"
which Dees did. During this third stint with Tenax, Dees
4
1151122
worked full-time, but he was on probationary status and did
not receive benefits from Tenax. During his third stint, Dees
was fired by Tenax in September 2014, but he was rehired about
a month later. When Dees was injured, Tenax prepared an
accident report. Owens testified that he considered Dees "to
be a Tenax employee like any other Tenax worker in the
Evergreen plant" at the time he was injured.
Christa Mrachkovskiy, Onin's director of safety and risk
management, testified in deposition that Onin is a "temporary
agency" that provides workers and that Onin "broker[s] the
relationship between a worker and [Onin's] client, or the
business providing employment to the worker," much like
"Manpower or Labor Finders and other temporary agencies."
According to Mrachkovskiy, Onin charges a business an hourly
rate, "say, $15 an hour. The worker may get $10, and the
remaining $5 goes to for [sic] like workers' compensation
premiums, general liability premiums, health insurance, et
cetera."
Mrachkovskiy
testified
that
Onin
performs
"ministerial duties," such as "paying the worker, taking out
for workers' comp, taking out general liability insurance,
taking out for health insurance," and withholding taxes. Onin
5
1151122
also conducts criminal background checks and drug screenings.
According to Onin's "proposal for staffing services" between
Onin and Tenax:
"As the employer, Onin Staffing assumes all of the
responsibility for personnel administration. These
responsibilities include the withholding of taxes,
payment of wages, employer contributions for FICA,
Federal and State Unemployment taxes, and providing
insurance for occupational injuries, and general
liability insurance coverage up to $1,000,000 per
incident, $2,000,000 aggregate."
Onin did not provide any training to Dees other than
showing him a short video concerning general safety, which is
shown to all workers supplied by Onin. According to
Mrachkovskiy's
deposition
testimony,
at
some
point
Dees
signed
a document that stated, in part: "I understand that I am an
employee of Onin Staffing. Only Onin Staffing or I can
terminate my employment. I also understand that I have exactly
one (1) business day to report back to Onin Staffing for
further job assessment and that potential unemployment
benefits may be denied to [me] for failure to do so." Under
Onin's policies concerning injuries sustained by their
employees in the workplace, employees were required to report
any work-related injury to their field supervisor immediately
and to Onin before the end of the shift during which the
6
1151122
employee was injured. Along with Tenax, Onin investigated
Dees's accident. Mrachkovskiy testified that she considered
Dees to be a dual employee of Onin and Tenax.
It is undisputed that Tenax and Tenax Alabama merged in
December 2014. Tenax was the successor entity, and Tenax
Alabama ceased to exist as a legal entity before Dees was
injured.
After conducting a hearing and reviewing the cases upon
which the parties relied, the trial court denied Tenax and
Tenax Alabama's motion for a summary judgment.
Discussion
I.
Concerning the claims against Tenax Alabama, it is
undisputed that Tenax Alabama was not a legal entity at the
time Dees was injured. In his answer to the mandamus
petition, Dees "concedes that the trial court should have
granted Defendant Tenax Manufacturing Alabama, LLC's Motion
for Summary Judgment. This issue was uncontested at the trial
court level by Plaintiff Dees." Dees's answer, at 1 n.1.
Therefore, a summary judgment is due to be entered in favor of
Tenax Alabama.
7
1151122
II.
Tenax seeks a writ of mandamus directing the trial court
to enter a summary judgment in its favor because, Tenax says,
it is immune from Dees's tort claims under the exclusive-
remedy provisions of the Alabama Workers' Compensation Act.
Specifically, Tenax contends that, although Onin was Dees's
"general employer," Tenax was Dees's "special employer" and,
thus, that the exclusive-remedy provisions of the Workers'
Compensation Act extend to Tenax.
"'"The writ of mandamus is a drastic
and extraordinary writ, to be 'issued only
when there is: 1) a clear legal right in
the petitioner to the order sought; 2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
3) the lack of another adequate remedy; and
4) properly invoked jurisdiction of the
court.' Ex parte United Serv. Stations,
Inc., 628 So. 2d 501, 503 (Ala. 1993); see
also Ex parte Ziglar, 669 So. 2d 133, 134
(Ala. 1995)." Ex parte Carter, [807 So. 2d
534,] 536 [(Ala. 2001)].'
"Ex parte McWilliams, 812 So. 2d 318, 321 (Ala.
2001).
"'Subject to certain narrow exceptions ..., we
have held that, because an "adequate remedy" exists
by way of an appeal, the denial of a motion to
dismiss or a motion for a summary judgment is not
reviewable by petition for writ of mandamus.' Ex
parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758,
761–62 (Ala. 2002)."
8
1151122
Ex parte Kohlberg Kravis Roberts & Co., L.P., 78 So. 3d 959,
965-66 (Ala. 2011).
This Court has repeatedly held that the denial of a
motion to dismiss is reviewable by a petition for a writ of
mandamus when the motion to dismiss asserts immunity under the
exclusive-remedy provisions of the Workers' Compensation Act.
See Ex parte McCartney Constr. Co., 720 So. 2d 910 (Ala.
1998), Ex parte Progress Rail Servs. Corp., 869 So. 2d 459
(Ala. 2003), and Ex parte Rock Wool Mfg. Co., 202 So. 3d 669
(Ala. 2016). Further, this Court agrees with the Court of
Civil Appeals' conclusion in Ex parte Salvation Army, 72 So.
3d 1224 (Ala. Civ. App. 2011), that the denial of a summary-
judgment motion based on a claim of immunity under the
exclusive-remedy provisions of the Workers' Compensation Act
is also an exception to the general rule and is reviewable by
a petition for a writ of mandamus. See Ex parte Salvation
Army, 72 So. 3d at 1228 (stating that "whether a claim of
immunity is denied following a motion to dismiss or a summary-
judgment motion appears to be immaterial to the issue whether
such a denial may be reviewed by mandamus").
9
1151122
In Gaut v. Medrano, 630 So. 2d 362 (Ala. 1993), this
Court stated:
"Alabama Code 1975, § 25–5–53, provides that an
action brought under the Workers' Compensation Act
is the exclusive remedy for an employee's injuries
sustained in the course of his employment. Rhodes v.
Alabama Power Co., 599 So. 2d 27 (Ala. 1992). The
exclusivity bar is an affirmative defense. Rule
8(c), Ala. R. Civ. P. Therefore, on a motion for
summary judgment, the defendants have the burden of
establishing a prima facie showing as to each
element of the defense of exclusivity; if the
defendants are able to carry this burden, then the
plaintiff must present substantial evidence to
overcome this prima facie case. [Ala.]R.Civ.P. 56;
Ala. Code 1975, § 12–21–12. Substantial evidence has
been defined as 'evidence of such weight and quality
that fair-minded persons in the exercise of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved.' West v.
Founders Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989). ...
"The exclusive remedy provision extends to
'special employers,' which have been described as
'individuals or businesses who, for practical
purposes, may be considered primary or co-employers
of the injured employee.' Rhodes, supra, at 28
(quoting Tweedy v. Tennessee Valley Authority, 882
F.2d 477, 479 (11th Cir. 1989)). In Terry v. Read
Steel Products, 430 So. 2d 862 (Ala. 1983) this
Court adopted a three-pronged test for determining
when an employee of a general employer can become
the employee of a 'special employer' for purposes of
workers' compensation:
"'"When a general employer lends an
employee to a special employer, the special
employer becomes liable for workmen's
compensation
[and
thus
immune
from
10
1151122
liability for tort actions brought by the
special employee] only if
"'"(a)
the
employee
has
made
a
contract of hire, express or implied, with
the special employer;
"'"(b)
the
work
being
done
is
essentially that of the special employer;
and
"'"(c) the special employer has the
right to control the details of the work.
"'"When
all
three
of
the
above
conditions are satisfied in relation to
both employers, both employers are liable
for workmen's compensation."'
"430 So. 2d at 865 (quoting 1C A. Larson, The Law of
Workmen's
Compensation,
§
48
(1980)).
The
requirement of a contract of hire comports directly
with our Workers' Compensation Act, which defines an
'employee' as a 'person in the service of another
under any contract of hire, express or implied, oral
or written.' Ala. Code 1975, § 25–5–1(5)."
630 So. 2d at 364 (footnote omitted).
In the present case, Dees concedes that the work being
done by him was that of Tenax and that Tenax had the right to
control the details of his work, and Tenax does not argue that
Dees had entered into an express contract of hire with Tenax.
Thus, the only issue for this Court to decide is whether Dees
had an implied contract of hire with Tenax. If an implied
contract of hire existed between Dees and Tenax, then Tenax
11
1151122
was Dees's "special employer" and the exclusive-remedy
provisions of the Workers' Compensation Act extend to Tenax.
"This Court has considered a number of factors
to be particularly significant to the analysis of
[whether the worker impliedly consented to a
contract of hire]. One consideration is whether the
general employer is, in reality, acting as a 'labor
broker' or a temporary employment agency for the
special employer. Hicks v. Alabama Power [Co.], 623
So. 2d [1050] at 1055 [(Ala. 1993)]; Gaut[v.
Medrano], 630 So. 2d [362] at 367 [(Ala. 1993)].
Another
consideration
is
whether
the
special
employer
provided
the
workers'
compensation
insurance. See Gaut, 630 So. 2d at 363, 368 (holding
that alleged special employer Holnam, Inc., which
did not provide the employee's workers' compensation
insurance, was not entitled to a summary judgment);
Pinson v. Alabama Power Co., 557 So. 2d [1236] at
1237 [(Ala. 1990)] (holding that alleged special
employer Alabama Power Company, which did provide
the employee's workers' compensation insurance, was
entitled to a summary judgment). Still another
important consideration is '"whether the employment
with the borrowing employer was of such duration
that the employee could be reasonably presumed to
have evaluated and acquiesced in the risks of his
employment."' Gaut, 630 So. 2d at 367 (quoting
Vanterpool v. Hess Oil V.I. Corp., 766 F.2d 117, 122
(3d Cir. 1985)); see also Rast Constr., Inc. v.
Peters, 689 So. 2d 781, 784 (Ala. 1996). Always, the
focus is on what the employee intended in providing
services for the alleged special employer.
"Regarding the first consideration, we have
explained:
"'Terry v. Read Steel [Products, 430
So. 2d 862 (Ala. 1983),] and three of the
cases following it [namely, Means v.
International Systems, Inc.,
555 So. 2d 142
12
1151122
(Ala. 1989); Marlow v. Mid South Tool Co.,
535 So. 2d 120 (Ala. 1988); and Pettaway v.
Mobile Paint Mfg. Co., 467 So. 2d 228 (Ala.
1985),] have involved general employers
that
were
unambiguously
temporary
employment placement agencies. Terry and
Pettaway were placed with their special
employers by Manpower, Inc.; Marlow, by
Kelly Services, Inc.; and Means, by Long's
Temporary Services, Inc. In such cases, the
employee applies to the general employer
for the specific purpose of temporary
placement with special employers and thus
necessarily agrees to a contract of hire
with the special employer. For example, the
Court
in
Pettaway,
supra,
stated:
"Approximately
two
weeks
before
his
injury,
Manpower informed Pettaway of an available
work assignment at Mobile Paint. Manpower
asked Pettaway if he would accept such an
assignment,
as
this
was
the
normal
procedure. Pettaway agreed to do so." 467
So. 2d at 228 (emphasis added).
"'In
Bechtel
v.
Crown
Central
Petroleum Corp., 495 So. 2d 1052, 1054
(Ala. 1986), Pep Services, Inc., had
"agreed to supply Crown with gasoline
filling station personnel." The opinion
does not discuss how Bechtel started
working with Pep or with Crown, but it
recites the following facts in rejecting
Bechtel's argument that she had not
consented to a contract of hire with Crown:
"'"Bechtel submitted to the
control and supervision of a
Crown employee, Steve Thornton;
Bechtel wore uniforms supplied by
Crown,
bearing
Crown
labels;
Crown participated in the hiring
process;
the
service
station
13
1151122
manager (a Crown employee) would
sign the weekly time sheets and
had authority to transfer Bechtel
to
another
station
or
to
terminate her. This is clearly
evidence that Bechtel submitted
to employment with Crown, as a
special employer, and, therefore,
entered into a contract of hire
with Crown."
"'Id. The Court stated that there was no
evidence in the record that Bechtel had not
consented to a contract of hire with Crown,
and it affirmed the summary judgment for
Crown.'
"Gaut, 630 So. 2d at 366."
G.UB.MK Constructors v. Garner, 44 So. 3d 479, 488-89 (Ala.
2010) (some emphasis added).
In the present case, Dees intended to enter into a
contract of hire with Tenax. After asking Tenax's plant
manager for a job, Dees applied to Onin for the job at Tenax
at the direction of Tenax's plant manager for the specific
purpose of placement with Tenax; thus,
Dees necessarily agreed
to a contract of hire with Tenax. Also, Dees clearly
submitted to Tenax's control and supervision, and
he
testified
that it was his understanding that he was employed by Tenax.
That testimony is in sharp contrast with cases, such as Gaut
and Hicks v. Alabama Power Co., 623 So. 2d 1050 (Ala. 1993),
14
1151122
in which this Court concluded that there was a genuine issue
of material fact concerning whether an implied contract of
hire existed between the employee and the alleged special
employer. In Gaut, the plaintiff presented evidence
supporting his assertion "that he always believed that ...
[the alleged special employer] was [not] his employer" and
that "he believed [his general employer] was an independent
maintenance contractor." 630 So. 2d at 365. In Hicks, the
plaintiff submitted evidence supporting his assertion "that
once he secured employment with [his general employer], he did
not expect or intend [the general employer] to then transfer
him to [the alleged special employer's] employ." 623 So. 2d at
1055.
Further, contrary to Dees's assertion before this Court,
Tenax
provided
workers'
compensation
insurance,
albeit
through
Onin. In Terry v. Read Steel Products, 430 So. 2d 862 (Ala.
1983), this Court quoted with approval the following from St.
Claire v. Minnesota Harbor Service, Inc., 211 F. Supp. 521 (D.
Minn. 1962):
"'This brings up the final and most damning
fact. What do the defendant and others who use the
services of Manpower get when they buy the commodity
that Manpower is selling? In this case the plaintiff
15
1151122
received a wage of $1.05 per hour but defendant had
to pay $1.71 per hour to get the plaintiff from
Manpower. What did the defendant pay that $0.66
differential for? ... There is more than a vague
connection between the extra $0.66 per hour paid by
defendant and the Workman's Compensation which this
unfortunate plaintiff received. Part of that $0.66
per hour will pay someone's premium, and in the eyes
of the law it must be deemed to have paid the
premium for this plaintiff. In other words, the
plaintiff is suing in tort the man who paid for his
Workman's Compensation. The defendant paid part of
this extra $0.66 per hour for the sole and express
purpose of assuring that employees which Manpower
sent over for temporary employment would be covered
by Workman's Compensation. The defendant paid part
of this extra $0.66 per hour for the sole and
express purpose of not having to defend actions such
as the one which has been brought here. This case
strikes at the heart of the Workman's Compensation
law; this case is in unequivocal opposition to the
well-known
principles
on
which
Workman's
Compensation is founded.'"
Terry, 430 So. 2d at 865 (quoting St. Claire, 211 F. Supp. at
528).
Likewise, in the present case, the uncontradicted
evidence indicated that Tenax paid Onin a rate above the rate
paid to Dees, in part, to pay for workers' compensation
insurance premiums. Mrachkovskiy specifically testified that
the amount above that paid to Dees paid for things "like
workers' compensation premiums." "'[I]f the special employer
doctrine does not apply in such a situation, the employee is
16
1151122
effectively suing the entity that provided his workers'
compensation insurance, which is contrary to the reasons for
and
provisions
of
the
workers'
compensation
statute.'"
Garner,
44 So. 3d at 489 (quoting reply brief).
Also, Dees's activities with Tenax were "of such duration
that [he] could be reasonably presumed to have evaluated and
acquiesced in the risks of his employment." See Garner, 44 So.
3d at 488. "'[T]his is not a case of an employee's being lent
to another employer for a very short time or being lent on an
ad hoc basis and thus having little or no reason to actually
consent to a contract of hire with the borrowing employer.'"
Garner, 44 So. 3d at 489 (quoting Gaut, 630 So. 2d at 367).
Instead, other than being fired for about a month, Dees worked
at the Tenax plant from July 2014 until he was injured in
January 2015. There was no evidence indicating that he worked
anywhere else during that six months, and every day he worked
he used Tenax's equipment and submitted to Tenax's direction.
Based on the above factors, Tenax made a prima facie
showing that it was Dees's special employer, and Dees did not
present substantial evidence to overcome that prima facie
showing. Therefore, the exclusive-remedy provisions of the
17
1151122
Workers' Compensation Act extend to Tenax, and a summary
judgment in favor of Tenax is due to be entered.
Conclusion
Based on the foregoing, we hold that Tenax and Tenax
Alabama have demonstrated a clear legal right to a writ of
mandamus directing the Conecuh Circuit Court to enter a
summary judgment in their favor and against Dees.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the result.
Shaw, J., recuses himself.
18 | January 27, 2017 |
156ae80a-57b5-4927-a7e7-e9005c376f8c | Alabama Dept. of Conservation & Natural Resources v. Kellar | N/A | 1150654 | Alabama | Alabama Supreme Court | REL: 01/27/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150654
____________________
Alabama Department of Conservation and Natural Resources
v.
Jason Kellar
Appeal from Jackson Circuit Court
(CV-15-900181)
MURDOCK, Justice.
The Alabama Department of Conservation and Natural
Resources
("the
Department")
appeals
from
a
judgment
declaring
that § 9-11-88(b), Ala. Code 1975, is void because it is a
1150654
local law and was not properly advertised as such. We dismiss
the appeal based on the trial court's lack of jurisdiction.
Jason Kellar is a licensed commercial fisherman and a
resident of Madison County. He regularly engages in
commercial fishing in the waters of the Tennessee River and
its tributaries situated within the boundaries of Jackson
County. Before the events giving rise to this action, Kellar
used gill or trammel nets in his fishing enterprises in the
Tennessee River. In December 2012, Kellar received
information that the Department would begin enforcing a ban on
gill and trammel net fishing pursuant to § 9-11-88(b).
On August 24, 2015, Kellar sued the Department in the
Jackson Circuit Court seeking a judgment declaring that
§ 9-11-88(b) was unconstitutional because the act
proposing it
was a local law that was not properly advertised as a local
law pursuant to Art. IV, § 106, Ala. Const. 1901. As required
when the constitutionality of a statute is challenged, a copy
of the complaint was served on the attorney general. The
Department answered the complaint; among its affirmative
defenses, the Department pleaded that "[t]his action
is
barred
by Article I, § 14 of the Alabama Constitution (1901)." The
2
1150654
parties stipulated to the relevant facts, and the trial court
held a final hearing on the merits on February 2, 2016.
On February 18, 2016, the trial court entered a final
order in which it concluded that § 9-11-88(b) was a "local
law" and that, as such, it had not been properly advertised.
The trial court accordingly concluded that § 9-11-88(b) was
"unconstitutional, null, and void."
The attorney general appeared as counsel for the
Department and filed a timely notice of appeal from the trial
court's judgment.
We pretermit any discussion of the merits, i.e., the
constitutionality of § 9-11-88(b). We must address instead
the threshold issue of jurisdiction.
Kellar filed this action solely against the Department,
an agency of the State.
"Article I, § 14, Alabama Const. of 1901, provides
generally that the State of Alabama is immune from
suit: '[T]he State of Alabama shall never be made
a defendant in any court of law or equity.' This
constitutional provision 'has been described as a
"nearly impregnable" and "almost invincible" "wall"
that provides the State an unwaivable, absolute
immunity from suit in any court.' Ex parte Town of
Lowndesboro, 950 So. 2d 1203, 1206 (Ala. 2006).
Section 14 'specifically prohibits the State from
being made a party defendant in any suit at law or
in equity.' Hutchinson v. Board of Trs. of Univ. of
3
1150654
Alabama, 288 Ala. 20, 23, 256 So. 2d 281, 283
(1971). Additionally, under § 14, State agencies
are 'absolutely immune from suit.' Lyons v. River
Road Constr., Inc., 858 So. 2d 257, 261 (Ala.
2003)."
Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d
831, 839 (Ala. 2008) (emphasis added). In Harbert, also a
declaratory-judgment action, this Court held: "[O]nly State
officers named in their official capacity -- and not State
agencies -- may be defendants in such proceedings." 990
So. 2d at 841.
In Ex parte Alabama Department of Finance, 991 So. 2d
1254, 1257 (Ala. 2008), this Court noted the six general
categories of actions that do not come within the prohibition
of § 14, one of which is "actions brought against State
officials under
the Declaratory Judgments Act, Ala. Code 1975,
§ 6-6-220 et seq., seeking construction of a statute and its
application in a given situation," and stated that those
"exceptions" "apply only to actions brought against State
officials; they do not apply to actions against the State or
against State agencies." (Emphasis added.)
The Department admits that it did not argue § 14 immunity
in the hearing before the trial court, but, even if a
4
1150654
defendant "raises this argument for the first time on appeal,
'[t]he assertion of State immunity challenges the subject-
matter jurisdiction of the court; therefore, it may be raised
at any time by the parties or by a court ex mero motu.'"
Health Care Auth. for Baptist Health v. Davis, 158 So. 3d 397,
402 (Ala. 2013) (quoting Atkinson v. State, 986 So. 2d 408,
411 (Ala. 2007)).
For the reasons discussed, the judgment of the trial
court against the Department is void. A void judgment will
not support an appeal, and, therefore, the appeal is
dismissed.
APPEAL DISMISSED.
Bolin, Parker, Main, and Bryan, JJ., concur.
5 | January 27, 2017 |
86167880-f8f3-4b2c-912c-d36c2b3db8a3 | Maddox v. Ennis | 147 So. 2d 788 | N/A | Alabama | Alabama Supreme Court | 147 So. 2d 788 (1962)
William Leon MADDOX
v.
Milford ENNIS.
4 Div. 127.
Supreme Court of Alabama.
November 29, 1962.
Rowe & Lane, Enterprise, G. A. Lindsey, Elba, for appellant.
Oliver W. Brantley, Troy, for appellee.
MERRILL, Justice.
This is an appeal from a judgment for defendant in an automobile damage suit.
The accident occurred on a street in Elba at the noon hour. Four cars were proceeding easterly in the right lane of traffic at ten or fifteen miles per hour. Car No. 1, driven by Mrs. Johnson, stopped for pedestrians using a crosswalk. Car No. 2, driven by Hanchey, stopped behind Car No. 1, and Car No. 3, driven by defendant-appellee, stopped behind Car No. 2. Car No. 4, in which plaintiff-appellant was riding as a passenger, was driven by plaintiff's brother-in-law Devane. Car No. 4 struck the rear of Car No. 3 and propelled it into the rear of Car No. 2. In the collision, plaintiff's head struck the windshield and he received other injuries.
Cars 1, 2 and 4 were insured by State Farm Mutual Automobile Insurance Company. *789 Plaintiff sued the drivers of all four automobiles and State Farm retained separate counsel for each of its three policy holders. Prior to the trial, State Farm paid plaintiff $9,250 for a pro tanto settlement and release of the insured Mrs. Johnson, Hanchey and Devane. The complaint was amended to eliminate them as parties, leaving appellee as the sole defendant. The verdict and judgment were for the defendant, the motion for a new trial was overruled, and plaintiff appealed.
Appellant argues that the court erred in giving the requested affirmative charges that the plaintiff could not recover on his wanton count. We have carefully reviewed the evidence and there was no error in the court's action in taking the wanton count from the jury's consideration. The evidence of the witness Edmundson, relied upon by appellant, was not sufficient to make a jury question as to wantonness.
Appellant also argues that the trial court erred in charging the jury that there could be no recovery for any claimed ulcerated condition of his stomach. The automobile accident occurred in February, 1958; in May, 1960, he was examined and found to have developed an ulcer in his stomach.
There was no error in the ruling of the trial court because, first, no claim was made in the complaint for the ulcerated stomach, and there was no proof of any causal connection between appellee's alleged negligence in 1958 and the ulcers in 1960. The law is stated in Southworth v. Shea, 131 Ala. 419, 30 So. 774:
We come now to the question which gave the trial court considerable concern on the motion for a new trialthe admissibility of certain portions of pleas of contributory negligence filed by the witness Devane when he had been one of the defendants to the suit.
As already noted, Devane was the driver of Car No. 4 in which appellant was riding, and appellant sued Devane along with the drivers of Cars 1, 2 and 3. The late Claude Fleming was employed by State Farm to represent Devane and he filed pleas charging appellant with contributory negligence. After State Farm had paid for a pro tanto release and Mrs. Johnson, Hanchey and Devane had been eliminated as defendants, Devane was called as a witness for appellant.
His testimony on direct examination placed most of the blame on appellee and was very favorable to appellant. On cross examination, portions of Devane's Pleas A and B were admitted in evidence over stated objection of appellant. The trial court stated in his opinion on motion for new trial: "It is now conceded by the Court that at the time the portions of Plea A and Plea B were received in evidence that it was error and they should not have been admitted, for the reason that it was not shown that they fit the above rules."
The "above rules" come from the case of Cole v. Louisville & Nashville Railroad Company, 267 Ala. 196, 100 So. 2d 684, where McElroy's "Law of Evidence" was quoted as follows:
And we then held:
We note that Vol. II of "The Law of Evidence in Alabama" (1962), by Judge McElroy, Sec. 181.01, p. 7, states:
Devane's testimony was that he was "looking straight" at appellee's car all the time just prior to the collision. The portions of Pleas A and B admitted in evidence stated the defendant (Devane) was looking to his right, that plaintiff knew this, but failed to call to defendant's attention that appellee's car was stopped or stopping in front of them.
The trial court further stated in his opinion:
When the portions of the pleas were introduced, the court carefully advised the jury that these excerpts should be considered for the purpose of impeachment and for no other purpose.
We think the trial court correctly ruled that the later proof corrected any error in the premature admission of the pleas. "The rule that the admission of evidence prima facie irrelevant may be cured by the subsequent introduction of the necessary preliminary or connecting proof, long prevailing in this jurisdiction, was thus complied with on the trial." Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278.
No reversible error is presented by the argued assignments of error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | November 29, 1962 |
096253c8-988e-4d5a-905b-2e00cb711d49 | Anderson v. Smith | 148 So. 2d 243 | N/A | Alabama | Alabama Supreme Court | 148 So. 2d 243 (1962)
E. C. ANDERSON, as Chief of Police, City of Prichard,
v.
Edward O. SMITH.
1 Div. 33.
Supreme Court of Alabama.
December 20, 1962.
Stone & Howard, Mobile, for appellant.
Howell, Johnston & Langford, Mobile, for appellee.
Wm. R. Lauten and Ralph Kennamer, Mobile, amici curiae.
HARWOOD, Justice.
This is an appeal from an order of the lower court granting a peremptory writ of mandamus against the appellant ordering him to re-instate the petitioner appellee as a police patrolman as of the date of appellee's suspension as such police officer by the appellant who was, at the time of these proceedings, Chief of Police of the City of Prichard.
The appellant has made some nine assignments of error.
*244 Assignment of error No. 3 is not directly or indirectly referred to in appellant's brief, and must be deemed waived.
Assignments 6 and 7 pertain to certain rulings as to the admission or rejection of evidence, these rulings being referred to in a combined general way and by reference to the pages of the record where such rulings may be found. Such assignments are not sufficient to invite our review in that they do not state concisely the error complained of as required by Supreme Court Rule No. 1. See also Hanson v. Kennady, 40 Ala.App. 161, 112 So. 2d 508, and cases therein cited.
Assignment of error No. 1 asserts error on the part of the lower court in overruling appellant's demurrer to the original petition; assignment of error No. 2 asserts error in overruling appellant's demurrer to the petition as amended; assignment of error No. 4 asserts error in sustaining appellee's demurrer to the pleas of appellant; and assignment No. 5 asserts error in sustaining the demurrer to the answer of appellee.
In brief counsel for appellant have set forth four propositions of law to the effect that the court's rulings in the above instances were respectively contrary to the law of this State. The same eight cases are cited in support of each proposition of law.
In the argument portion of their brief counsel for appellant have made a rather general discussion of Act No 370, General Acts of 1953, page 439, and of the decision of this court in Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 84 So. 2d 365, wherein Act 370 was held to be constitutional.
The only reference to any of the pleadings to be found in the argument set forth in appellant's brief is the following statement:
The demurrers filed to the complaint, and to the complaint as amended, and the appellee's demurrers to the pleas of appellee, and the answer of appellee, all contain a large number of grounds.
Clearly in several instances the court's ruling was proper in view of some of these grounds.
Appellant by his general argument must be deemed to have grouped these assignments. This being so, any alleged errors had they been properly specified could not avail the appellant. Christ v. Spizman, 33 Ala.App. 586, 35 So. 2d 568; Wilson v. McClendon, 259 Ala. 382, 66 So. 2d 924. No merit therefore attaches to assignments 1, 2, 4, and 5.
Actually, as we interpret appellant's brief, his argument is directed to a statement by the court of his reasons for sustaining the demurrer to the complaint as amended, in that the court expressed the opinion, after ruling on said demurrer, that Act 370, supra, was unconstitutional. The question on this appeal is whether the ruling of the court is correct, and not the reasons advanced by the court for such ruling. Alabama Public Service Commission v. Mobile Gas Company, 213 Ala. 50, 104 So. 538, 41 A.L.R. 872, and cases therein cited.
We do not wish to be understood as departing from the doctrine of Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 84 So. 2d 365, supra, nor as being in accord with the expressions of the trial court as to the constitutionality of Act 370, supra. Our conclusions in the instant case we feel are necessitated by record and briefs before us, and the rules of appellate practice.
Assignments 8 and 9 assert error in the action of the court in declaring Act 370, supra, to be unconstitutional.
Again, these assignments are directed to reasons given by the court for its ruling *245 on the demurrer to the petition as amended, and what has been said above is applicable to these assignments.
By its attorneys the City of Mobile has filed as amicus curiae brief.
In this brief the attorneys for the City of Mobile have attempted to argue appellant's assignment of error No. 3. As stated above appellants have, by not referring to this assignment in briefs, waived the same.
An amicus curiae is limited to the issues made by the parties to a suit. The appellant having waived assignment of error No. 3, the same cannot be injected into this review by any action on the part of the amicus curiae.
It is our conclusion that the rules of this court, the decisions thereunder, and the requirements of appellate procedure necessitate an affirmance of this decree.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | December 20, 1962 |
338756c7-496d-4be0-bff1-ae693453e5c5 | Cooper v. Wiman | 145 So. 2d 216 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 216 (1962)
Grant COOPER
v.
Martin J. WIMAN, Warden, Kilby Prison.
3 Div. 975.
Supreme Court of Alabama.
September 20, 1962.
Grant Cooper, pro se.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from the Circuit Court of Montgomery County denying appellant's discharge in a habeas corpus proceeding.
Appellant was arrested in November of 1954 for the killing of one Larry Roger Piotrowski in Mobile County, Alabama. Subsequently, he was indicted by the Mobile County Grand Jury for murder in the first degree, and in May, 1955, pleaded guilty to said indictment and was sentenced to life imprisonment. He took no appeal from this judgment and sentence.
In June, 1961, he filed his petition for habeas corpus in the Montgomery Circuit Court, alleging that his judgment of conviction was an absolute nullity and void upon the following single ground:
We think the trial court would have been justified in refusing to take jurisdiction, since the petition shows on its face that the only issue presented was a factual one that could not be reached in a habeas corpus proceeding under Alabama law. Griffin v. State, 258 Ala. 557, 63 So. 2d 682; Ex parte Winnagle, 269 Ala. 668, 115 So. 2d 261. However, the trial court following our suggestion in Ex parte Rockholt, 271 Ala. 68, 122 So. 2d 162, saw fit to issue the writ. Subsequently, the Attorney General filed his motion to vacate the writ and remand the petitioner to the custody of respondent, Martin J. Wiman, Warden of Kilby Prison.
The Warden of Kilby Prison, where appellant is incarcerated, filed his return to the writ. This return shows a lawful complaint and warrant of arrest, a valid indictment, and a judgment of guilty and sentence thereon. The judgment entry shows that the defendant was present with his counsel, and that two days prior to the date of his trial, the defendant, in his own proper person and with his attorney, was allowed to withdraw his plea of "not guilty" and *217 substitute therefor his plea of guilty. The judgment entry further recites that a jury was duly empaneled and sworn according to law, and that said jury, having heard the evidence and the charges of the court, upon their oaths in open court, and in the presence of the defendant and the defendant's attorney, found:
Appellant in his petition did not charge that any constitutional rights belonging to him were violated. His bare contention is that the judgment of conviction is an absolute nullity and void because he was under the influence of narcotic drugs. It is a well-settled principle of law in Alabama that a writ of habeas corpus cannot be used to replace a writ of error or an appeal. Warden v. State, Ala.App., 134 So. 2d 783. The trial court committed no error in discharging the writ and ordering the appellant remanded to the custody of the Warden of Kilby Prison. Griffin v. State, supra; Ex parte Winnagle, supra.
Encouraged by some recent federal court decisions, the criminal of today makes a mockery of our judicial system. Finality of a criminal judgment and sentence today is as outmoded as the Model-T. State and federal courts are now being besieged by prisoners who want a rehearing or a new trial, or any type of hearing which will set them free. Guilt or innocence is no longer the paramount question to be resolved. Indeed, in most of the applications for extraordinary writs by these incarcerated prisoners, they make no claim of innocence, and the allegations of error which they set forth know no bounds except those of their own imagination. Nowhere in this proceedings does appellant assert, or even intimate, that he is not guilty of murder, to which he pleaded guilty. To illustrate further the recklessness with which charges are made, we need go no further than the instant case, for in the brief filed on this appeal, this appellant at this late date charges "that the judgment of his conviction is an absolute nullity and void for reason that he was intimidated by the Circuit Solicitor in pleading guilty." This charge nowhere appears in his petition which he filed in the trial court, and he cleverly conceals any factual statement in brief that would even suggest a remote probability of the truth of this allegation.
Judge Harwood, Presiding Judge of the Court of Appeals (now a Justice of this Court), in Warden v. State, Ala.App., 134 So. 2d 783, pointed out most vividly the proclivity of prisoners incarcerated in prison or jails to file petitions and extraordinary writs of every character and description. A great number of these applications for extraordinary writs rely heavily on such cases as Sublett v. Adams, Warden, 362 U.S. 143, 80 S. Ct. 527, 4 L. Ed. 2d 527. The petitioners take great comfort in the fact that no matter how frivolous their allegations or how utterly deficient their pleadings may be, the state must respond to these ofttimes unintelligible pleadings, letters or memorandums, and/or proceed to costly and time-consuming hearings. The petitioners have nothing to lose, for they know that the very least they can obtain is a day away from their prison surroundings.
Also, Judge Gewin, in his special concurrence in the case of Wiman, Warden et al. v. Argo, Alias, 308 F.2d 674, in the United States Court of Appeals for the Fifth Circuit (August 1962), states as follows:
As stated in Warden v. State, supra:
We find no error to reverse and the case is accordingly affirmed.
Affirmed.
GOODWYN, COLEMAN and HARWOOD, JJ., concur. | September 20, 1962 |
9e0aa2c3-e3ed-4225-9bbb-9632a1df7a42 | Hall v. Gulledge | 145 So. 2d 794 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 794 (1962)
Frances Day HALL et al.
v.
Evelyn Strickland GULLEDGE et al.
6 Div. 670.
Supreme Court of Alabama.
October 18, 1962.
*795 Rives, Peterson, Pettus & Conway, Birmingham, for appellants.
Smyer, White, Reid & Acker, Birmingham, for appellees.
SIMPSON, Justice.
This is an appeal from a decree sustaining demurrer to a bill for declaratory judgment brought before the enactment of Act #72, Special Session Ala.Legis., 1961, 1947, abolishing such appeals.
Appellants filed their bill alleging in substance the following:
That the complainants Pettus are the owners of Lot 14 and complainant Hall is the owner of Lots 27 and 28 of Block 3 of Redmont Park Subdivision in the City of Birmingham;
That Lots 25 and 26 were conveyed in 1950 by deed from Redmont Land Company, the developer of the subdivision, to Magic City Development Company. This deed imposed certain restrictions on the lots for the benefit of complainants and are enforceable by complainants against respondents who had actual or constructive notice thereof. On August 17, 1959, a deed was executed conveying to respondent Evelyn Strickland Gulledge Lot 26 and also in 1959, a deed was executed conveying Lot 25 to respondent Robbie A. Strickland. There is a common boundary line between Lot 27 and Lots 25 and 26. Complainant Hall has restrictions imposed upon her real property by virtue of deed from Redmont Land Company, Inc. to M. C. Stewart, dated December 1, 1924. Such restrictions preclude more than one dwelling being erected upon such land and prescribe the proximity of such a dwelling both to Lenox Road, the street on which the property faces, and to the side lines of the property, one of which is common to Lots 25 and 26. Complainants Pettus have restrictions placed upon the use of their property by virtue of a deed from Redmont Land Company, Inc., to E. L. Ford, dated January 7, 1926, which are similar to those placed upon complainant Hall's property and placed upon the respondents' property.
The reservations, limitations and restrictions involved, pertinent to decision, read:
The bill avers that violations of the restrictions set forth above are threatened by the respondents and that respondents contend that the side line restriction does not apply to the boundary line between the respondent's property and the Hall property for such line is not a side line but rather a rear line. It also avers that respondents contend that the single dwelling restriction does not prohibit building more than one dwelling on Lots 25-26, considered as an entirety.
The bill sought a declaratory judgment stating that the covenants of the deed mean that a dwellling cannot be built closer than 25 feet from the boundary between Lots 25-26 and Lot 27, and that the said boundary line is a side line of Lots 25-26. Further, that the covenant in the deed relative to a single dwelling means that only one dwelling can be constructed on Lots 25-26 as an entirety.
The respondents filed demurrers to the bill which were sustained by the trial court in a decree also dismissing that aspect of the bill seeking a declaration that respondents could not build a house within 25 feet of the common boundary line between Lot 27 and Lots 25-26. It is from this decree that complainants appeal.
If there was error in sustaining the demurrers, then the decree appealed from must be reversed. We have long been committed to the proposition that the only requirement for a bill for a declaratory judgment to withstand a demurrer is that it state a justiciable controversy. If a justiciable controversy is stated, the demurrer should be overruled. We recently stated the rule as follows:
The same rule has been applied in cases involving bills brought for declaratory judgment praying interpretation of deeds. McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635; Pugh v. Whittle, 240 Ala. 503, 199 So. 851.
Appellees insist that the recognized exception to the general rule should be applied in this case, insisting that the demurrer was properly sustained since as a matter of law the bill showed that appellants had no standing to sue. We cannot agree.
*798 In Scheuer v. Britt, 218 Ala. 270, 118 So. 658, we quoted with approval the following from 4 Thompson on Real Prop., § 3398:
We further stated:
Quoting from the opinion in the same case on a former appeal it was noted:
See 60 A.L.R. 1228.
Again, in Virgin v. Garrett, 233 Ala. 34, 169 So. 711, we stated:
Quoting from an earlier case (McMahon v. Williams, 79 Ala. 288, p. 291) we again approved the above principal in the following language:
Appellees contend that the reservation by the grantor of the right to change or modify the restrictions as to any lot in Redmont Park negates any intention to benefit the lands of other owners. We cannot agree with this contention. To do so would be to construe this language as indicative of his intention to the exclusion of all other language in the deed and all surrounding circumstances. We have in the past given effect to restrictions contained in deeds at the instance of grantees of lots in subdivisions where the grantor had expressly reserved the right to waive, release or annul the restrictions contained in the plot and conveyance. Thrasher v. Bear, 239 Ala. 438, 195 So. 441. It seems to us that the power to change the restrictions is only one factor to be considered in determining the intention of the grantor to give the right of enforcement of the restrictions. All language of the deed should be considered in arriving at the grantor's intention. We believe when all the language of the deed under consideration is considered, it is apparent that these complainants (appellants) have a standing to bring this action. We are impelled to the conclusion that the learned trial court erred in sustaining the demurrer directed to the bill and the decree appealed from must be reversed.
This being our conclusion, we believe that we should not proceed to a determination of the meaning of the restrictions sought to be interpreted. This should be made by the trial court after a consideration of the evidence adduced at a hearing on the merits.
Reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | October 18, 1962 |
fb7622da-4999-4dbd-9bd9-71bbfa917252 | Pierce v. Murphree | 145 So. 2d 207 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 207 (1962)
Amos PIERCE
v.
Jesse W. MURPHREE.
7 Div. 502.
Supreme Court of Alabama.
September 20, 1962.
*209 Roy D. McCord and L. D. Martin, Gadsden, for appellant.
Inzer, Martin, Suttle & Inzer, Gadsden, for appellee.
LIVINGSTON, Chief Justice.
On the 8th day of January 1954, the appellant, Amos Pierce, filed his original bill of complaint in the Circuit Court of Etowah County, Alabama, in Equity, against the appellee, Jesse W. Murphree, seeking the specific performance of a contract to sell a certain described 120 acres of land located in Etowah County, Alabama.
The bill alleged, in substance, that in January 1949, the appellant agreed to buy from the appellee, and appellee agreed to sell to appellant, 120 acres of land described in said bill of complaint, at and for the sum of $9500; that he, appellant, was placed in possession of said lands; that the appellee was to apply all amounts due by the appellee to appellant at that time as a credit on the purchase price of said lands, and that appellant would pay the balance of the purchase price to appellee by the year 1952.
The bill further alleged that appellant had paid the balance of the purchase price by April 8, 1952, and prayed that the court grant to the appellant specific performance of the alleged oral contract for the alleged purchase of said lands, or in the alternative to establish a trust in said lands or to determine that appellant had a lien on said lands, and for general relief.
Demurrers to the bill were overruled and the appellee then filed an answer to the bill of complaint as amended, in which he stated, in substance, that he had purchased the real estate involved on January 18, 1949, and the said property was subject to a purchase money mortgage given by appellee to E. A. Rogers, Jr., and Albert S. Rogers.
The appellee further alleged in said answer, which was made a cross bill, that appellant had been in possession of said lands as a tenant of the appellee, and he further denied that he was in any way indebted to the appellant but that appellant was indebted to him for rents. Appellee further alleged in said answer that on April 8, 1952, appellant and his wife had by deed of that date, recorded in Book 501, page 151, in the office of the Judge of Probate of Etowah County, Alabama, conveyed all of their right, title, interest and claim in and to the real estate involved in this suit to appellee, and that, in fact, the appellant was at the time of the execution of said deed indebted to the appellee for rent for the crop years 1949, 1950 and 1951 for said lands, said rent being on the basis of one-fourth of the cotton and one-third of all other crops grown on said property during said crop years, and that at the time said deed was made to appellee a settlement was made with appellant for said rents and other charges due by appellant to appellee. Said answer and cross bill further alleged that after the execution of the aforesaid deed, appellant paid to appellee rent for the crop year 1952, in the amount of $881.02, but that he had not paid any rents on said lands to appellee since 1952.
Appellee prayed in said answer and cross bill for the court to fix and award to him the rents due by appellant to him and to decree and establish that appellant had no right, title, interest or claim in and to the lands involved in said suit, or any part thereof.
On June 24, 1959, appellant amended his bill of complaint by adding thereto paragraphs 1(a) and 1(b), in which he alleged that he had been in continuous possession of the property and had paid for it by working for appellee, as set forth in his original bill of complaint, and further alleged that he had a running account and stated account against appellee.
The appellee also filed an amendment to his answer to said amended bill by adding *210 thereto paragraphs 7(c) and 7(d), the substance of which is that appellee denied the allegations of said last amendment and again asserted that appellant had been in possession of the property as a tenant of the appellee, and appellee also denied that he was indebted in any manner to appellant.
The appellant again, on February 4, 1960, filed an amendment to his bill of complaint in which he again alleged, in substance, that he had paid for the property by his work and labor, and that if he was not entitled to the specific performance, he was entitled to have the property sold under an alleged oral trust for the satisfaction of his claim. In this amendment, appellant attempted to adopt as a part of the pleading the answer that he, the appellant, had filed to certain interrogatories propounded to him by appellee, and he also attempted to adopt as a part of the pleadings certain paragraphs of an answer and cross bill filed by the attorneys of appellee in a suit wherein appellee's wife had sued appellee for divorce.
The appellee filed a motion to strike the last-mentioned amendment as a whole, which motion was overruled, and the motions of appellee to strike the two paragraphs in said amended bill wherein appellant sought to adopt his answer to interrogatories and adopt pleadings in another case were granted by the court.
Appellee's demurrers to the amended bill were overruled.
Appellee then filed an amendment to his answer and cross bill so as to answer the bill as last amended. In effect, this amendment reassigned all matters theretofore set forth in the amended answer and cross bill of appellee in answer to the bill of complaint as last amended, and denied the factual allegations of said last amendment to the bill of complaint, and denied that appellant was entitled to any of the relief prayed for therein.
By decree, dated February 17, 1960, the trial court found and decreed that appellant had no right, title, interest or claim, and no lien or encumbrance upon the property involved in the suit, and that he had no right to possession of said property and was not entitled to relief as prayed in his bill of complaint as last amended. The court further held that the reasonable rental to be paid by appellant to the appellee for the lands involved in the suit from the year 1953 to 1959, both inclusive, was $5,000, and judgment was entered therefor.
From this decree, the appeal is taken.
The evidence in this case was taken before a commissioner and is not attended with the usual presumption of correctness as if heard ore tenus by the trial court. It is therefore our duty to review the evidence and to sit in judgment as to the facts established by it. This duty we have performed with painstaking care.
In the first place, the record is voluminous and is one of the most confusing we have examined. The evidence or the testimony of the parties and their witnesses is in hopeless conflict. Some of the witnesses flatly contradicted themselves. At least one of the witnesses refused to answer several questions bearing on the issues involved.
This is what we believe happened and what we find the facts to be:
Jesse W. Murphree, the appellee, was living in Jackson County, Alabama, in the year 1933. He was married to Sarah Hughes Murphree, and they were living together as husband and wife and had been for a number of years. Sometime after 1933, he moved to Cherokee County, Alabama, but his wife refused to follow him and continued to live in Jackson County. He was completely broke and owned no property whatever. Sometime later, he inherited from his father a one-fifth interest in 340 acres of land. In about 1938, he purchased 88 acres of land in Cherokee *211 County. Immediately thereafter, he gathered some 15 young men who were his neighbors and friends around him, and they entered into an agreement or understanding that they would pool all their resources, which at the time consisted chiefly of labor and tools, and would farm the 88-acre tract that Murphree had bought, finish paying for it, and when this tract was paid for they would buy other tracts until all of them had homes of their own. As a part of this understanding or agreement, title to the land purchased was to be taken in the name of Murphree purely for the convenience of the interested parties, subject to the agreement, however, that when these men had accumulated sufficient credit by their labors to pay for the value of their farm, Murphree would execute and deliver to them deeds conveying to each of them a parcel of land for a home; that Murphree was unable to work and would act as overseer and supervise the purchase and cultivating of these lands. The appellant, Amos Pierce, was one of these young men.
As best we can gather from the record, Murphree acquired title to some 800 acres of land in Cherokee County. It appears that some of the young men dropped out of the scheme or plan at different times.
From about the year 1942 to the year 1949, Amos Pierce continued to live in Cherokee County and continued to labor under the agreement. As best we can gather from the record, these young men were to pay rent on certain portions of the land worked by them, which rent was to constitute a fund to purchase other lands. At the same time, they were to perform labor for Murphree at his sawmill and on other lands owned by Murphree and were not to receive pay for the labor, but the products of their labors and rents were to be used as a fund to purchase other lands.
Under this same arrangement, Murphree purchased 598 acres of land in Etowah County in 1949 from the Rogers Brothers. By agreement of the parties, Pierce moved to Etowah County on 120 acres of the land purchased from Rogers. The land was purchased from the Rogers Brothers for a consideration of some $38,000, of which $10,000 was paid in cash, and a purchase money mortgage executed by Murphree to the Rogers Brothers for $28,000. At the time of the trial of the instant case, this mortgage had been reduced to some $14,000.
The agreement between Murphree and Pierce at the time that Pierce moved to Etowah County and started farming the 120 acres of the Rogers' place was to the effect that when Pierce had paid the sum of $9500, Murphree would deed him the 120 acres. Pierce's prior labors and accumulations of some 6 to 8 years was to be taken in consideration in the purchase of the 120 acres of the Rogers' place, and when Pierce's accumulations and labor amounted to $2000, after he moved to the Rogers' place, Murphree would deed him the 120 acres that he occupied of the Rogers' place, and that if said accumulations amounted to $2000 by the year 1952, Murphree would convey the 120 acres of the Rogers' place to Pierce.
From this confused record, we believe and find that Pierce completed and fulfilled his contract sometime during the year 1952.
In 1951, Murphree's wife sued him for divorce. At this time, some 1400 acres of land, and perhaps more, acquired under the said agreement or arrangement, stood in Murphree's name. There were several of the young men, including Pierce, who were still working for Murphree under the original agreement. Not one word of these agreements was ever put in writing, and apparently no records of anything were kept. At the time the divorce suit was pending against Murphree, he called together the young men in the courthouse in Gadsden, Alabama, with his lawyer from Scottsboro, Alabama, and they reviewed the whole situation, and the young men agreed to give Murphree a quitclaim deed to all the land to enable Murphree to make a satisfactory *212 settlement with his wife in the divorce suit, with the understanding that when he settled with his wife their interest in the land would be protected. He did settle his divorce suit with his wife by paying her $10,000 in cash.
There was introduced in evidence over the objection of the respondent, Murphree, on the trial of this case, a part of the pleadings in the divorce case, which is as follows:
Also, over the objection of the respondent Murphree, the following testimony of Murphree in the divorce case was introduced in this case:
The foregoing testimony was signed by Murphree on July 2, 1952, on the same day Murphree moved the court that his cross bill be dismissed. On July 8, 1952, the divorce decree was entered, and on the same day Murphree's motion to dismiss his cross bill was granted.
On the trial of the instant case, several witnesses were examined by both parties. The evidence of these witnesses, including the parties to the suit, is quite involved and confused, and no attempt will be made to summarize the testimony of each witness. The evidence is often contradictory, almost invariably confused, and even when that is not the case, exceedingly indefinite and inconclusive. In several instances, witnesses would admit in later testimony the very facts that they had earlier denied. Some of the witnesses who are said to have been parties to the agreement or arrangements flatly denied the existence of it. Murphree himself, in effect, said he never heard of it. On the other hand, some of Pierce's witnesses who were also said to be parties to the agreement or arrangements testified that there was such an agreement or arrangements.
Pierce testified that the value of his services performed over a period of about 12 years amounted to twelve or $13,000, and that he performed labor for Murphree some years as much as six months a year, and in other years for a less period of time; that he had received no pay from Murphree whatever. Murphree produced no checks showing payments of any amounts to Pierce during the whole period of time, although one witness for Murphree did testify that he kept Murphree's books and that Pierce was paid for his labor.
In testifying as to the arrangements or agreement between Murphree and the young men who he gathered around him, Mr. Jenings, a witness for Pierce, testified, in part, as follows:
The principles of law applicable to the facts in the instant case cannot be better stated than is found in the language *214 of Justice Simpson in the case of Talley v. Talley, 248 Ala. 84, 26 So. 2d 586, as follows:
As indicated above, and we find, that the appellee Murphree did make an agreement with appellant Pierce, and with others; that the appellant did perform services under the agreement from sometime in the year 1942 until January 1949, at which time the Rogers' place in Etowah County was purchased, and at which time Pierce moved to Etowah County on the 120 acres now claimed by him; that Pierce went into possession of the 120 acres of the Rogers' place with the understanding with Murphree that he was to be given a deed to the 120 acres when his services to Murphree and the rents paid to Murphree would amount to the sum of $2000. Certainly, Pierce would not have moved to Etowah County under a new agreement to the effect that they would pay for the Etowah County land under the new agreement, and that Pierce would lose the value of his services and payments for rent made to Murphree prior to that time.
At the time the quitclaim deed was given by Pierce and others to Murphree, the record title stood in Murphree's name, and according to Murphree's own testimony:
We think the giving of the quitclaim deed was nothing more nor less than a part of the same general plan, or scheme, for the appellant, Pierce, to acquire a home and a parcel of land, and for the purpose of Murphree's making a settlement with his wife in her action for divorce, though the reasons for this maneuver are not at all clear.
We are clear to the conclusion that when Pierce moved on the Etowah County land he had already paid a part of the purchase price, and in our opinion, he paid the balance of the purchase price after he took possession of the 120 acres. He has, therefore, paid the purchase price in full, and he was put in possession by Murphree in accordance with the terms of the agreement and is entitled to specific performance of the contract made by Murphree to convey it to him. This occurred sometime in the fall of 1952, and at which time he was under no more obligations to pay rent to Murphree.
It is true that the whole of the Rogers' place is under the mortgage to the Rogers Brothers, but we are of the opinion, and hold, that it is Murphree's obligation to pay it.
The cause is reversed and remanded to the lower court with instructions to enter a decree in conformity with the above.
Reversed and remanded with directions.
GOODWYN, COLEMAN and HARWOOD, JJ., concur. | September 20, 1962 |
3219dfb4-32d4-4447-8fd9-8e778e49b942 | Bond v. McLaughlin | N/A | 1151215 | Alabama | Alabama Supreme Court | Rel: 02/24/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
_________________________
1151215
_________________________
Kimberly J. Bond
v.
James D. McLaughlin
Appeal from Lee Circuit Court
(CV-08-295)
MAIN, Justice.
On May 28, 2008, Kimberly J. Bond sued her former
attorney, James D. McLaughlin, alleging legal malpractice
under the Alabama Legal Services Liability Act, § 6-5-570 et
seq., Ala. Code 1975. The Lee Circuit Court ("the trial
1151215
court") entered a summary judgment in favor of McLaughlin.
Bond appeals.
Facts and Procedural History
In February 2006, Bond hired McLaughlin to provide legal
services involving the estate of her husband, Kenneth D.
Pylant II, who was killed in a motorcycle accident on
September 5, 2005. According to the complaint in the present
case, McLaughlin failed to properly contest a copy of Pylant's
will that was admitted to probate on November 29, 2005, and,
as a proximate result of McLaughlin's breach of duty, Bond was
injured and suffered damage.
In Bond v. Pylant, 3 So. 3d 852 (Ala. 2008), this Court
addressed the will contest filed by McLaughlin on Bond's
behalf. In that case, this Court held that Bond's will
contest filed in the probate court after the will had been
admitted to probate was a nullity and could not be transferred
to the circuit court and that her will contest filed in the
circuit court was untimely. This Court set forth the facts
and procedural history of the case as follows:
"Kenneth D. Pylant II died on September 5, 2005.
When he died, Kenneth was married to Kimberly Bond;
he had four children from a previous marriage, two
of whom were minors. Subsequently, James Sprayberry,
2
1151215
as executor of Kenneth's estate, filed a petition in
the Lee County Probate Court seeking to admit to
probate a copy of Kenneth's will, which Sprayberry
alleged had been lost or destroyed. Apparently,
Sprayberry, who is an attorney, had a copy of an
unexecuted will he had prepared on Kenneth's behalf,
which he asserted was a copy of the will Kenneth
executed. ... On November 29, 2005, the probate
court held a hearing and that same day entered an
order admitting the copy of the lost will to
probate.
"On April 26, 2006, Bond filed in the probate
court a 'Complaint contesting the Will.' That same
day, Bond also filed in the probate court a motion
to transfer the will contest to the circuit court
pursuant to § 43-8-198, Ala. Code 1975. On May 2,
2006, the probate court purported to transfer the
will contest to the circuit court by having someone
take the file to the circuit court clerk's office.
A member of the probate court's staff informed
Bond's counsel that there was no order of transfer.
On May 30, 2006, the probate court entered an order
again purporting to transfer the will contest to the
circuit court.
"On June 9, 2006, Bond filed a complaint in the
circuit court contesting the will. On June 16, 2006,
Sprayberry, as executor, along with Kenneth's two
adult children, filed an answer and moved to dismiss
the complaint filed in the circuit court on the
ground that the circuit court lacked subject-matter
jurisdiction over the matter. On November 30, 2006,
the circuit court entered an order dismissing Bond's
complaint for lack of subject-matter jurisdiction
because Bond failed to file her will contest in the
circuit court within six months after the will was
admitted to probate as required by § 43-8-199, Ala.
Code 1975. Bond timely appealed."
3
1151215
3 So. 3d at 853-54 (footnotes omitted). This Court affirmed
the judgment of the circuit court dismissing Bond's will
contest for lack of subject-matter jurisdiction. 3 So. 3d at
855.
After the dismissal of Bond's will contest was affirmed
on appeal, pursuant to a petition filed by the executor, the
administration of Pylant's estate was removed from the
probate
court to the circuit court in January 2009. Following a bench
trial at which it received evidence ore tenus, the circuit
court, on October 27, 2009, entered a judgment that, among
other things, determined who was entitled to certain disputed
land and concluded that Pylant's estate was not responsible
for paying certain debts Pylant and Bond owed at his death.
The circuit court's order stated, among several other things,
that "the Court finds that the will at issue in this case is
also valid." One of the three children Pylant and Bond had
together appealed the circuit court's judgment insofar as it
determined who was entitled to the disputed land. Bond
appealed the circuit court's judgment insofar as
it
determined
who was entitled to the disputed land and whether the estate
was responsible for debts Pylant and she owed at his death.
4
1151215
Pylant's former wife, Bethany Pylant, cross-appealed insofar
as the circuit court's judgment determined who was entitled to
the disputed land. After consolidating the appeals and the
cross-appeal, the Court of Civil Appeals stated:
"[W]e reverse the judgment of the circuit court
insofar as it concluded that the separation
agreement did not divide the 71.73-acre parcel and
the 15-acre parcel between Pylant and Bethany before
Pylant's death; we reverse the judgment insofar as
it concluded that Bethany was entitled to an
undivided one-half interest in the 71.73-acre parcel
and the 15-acre parcel and that [the four children
Pylant and Bethany had together] were each entitled
to an undivided one-eighth interest in the 71.73-
acre parcel and the 15-acre parcel; we affirm the
judgment of the circuit court in all other respects;
and we remand the action to the circuit court for
further proceedings consistent with this opinion."
Bond v. Estate of Pylant, 63 So. 3d 638, 647 (Ala. Civ. App.
2010). The circuit court's statement that the "will at
issue," i.e., the copy of the last will, is valid was not
addressed on appeal in the Court of Civil Appeals.
In the present legal-malpractice action, McLaughlin
conceded that he failed to properly file the will contest and,
thus, that he breached the applicable standard of care.
However, McLaughlin moved for
a summary judgment, arguing that
Bond could not prove that, but for McLaughlin's negligence,
she would have received a more favorable result in the
5
1151215
underlying case. Specifically, McLaughlin argued that Bond
failed to show that her will contest would have been
successful. Moreover, McLaughlin argued that Bond's claim
that the will was invalid is barred by the doctrine of res
judicata because, he says, in a prior judgment, the circuit
court stated that "the will at issue in this case is also
valid." Bond filed a response opposing McLaughlin's motion
for a summary judgment and arguing that there was substantial
evidence creating a genuine issue of material fact concerning
whether a properly filed will contest would have been
successful. Specifically, Bond argued that there was
substantial evidence indicating that Pylant had revoked the
will. That evidence consisted of Bond's testimony that Pylant
told her he had destroyed the will and intended to make a new
will and Bethany's testimony that Pylant also told her he had
destroyed the will. Bond also contended that her claim was
not barred by the doctrine of res judicata.
It is undisputed that James Sprayberry, an attorney and
the executor of Pylant's estate, prepared a will for Pylant
and that Pylant executed that will on March 19, 2001.
According to
Sprayberry's deposition
testimony,
he
gave
Pylant
6
1151215
the executed will and told him to put it in his safe-deposit
box or some other safe place. Sprayberry also told Pylant
not to attempt to amend or revoke the will without contacting
him or another attorney. Sprayberry kept a copy of the will
for his records. Between the execution of the will in 2001
and Pylant's death in 2005, Pylant and Sprayberry saw and
spoke to each other a few times a month at the post office.
Pylant never mentioned to Sprayberry that the will had been
destroyed or revoked.
After Pylant's death, Sprayberry and Bond together
searched Pylant's safe-deposit box for the will, but they did
not find it. Bond also searched Pylant's office for the will,
but she did not find it.
In the probate court's order admitting the lost will to
probate, the court stated that "testimony was taken ore tenus"
and that "[t]here was no evidence, according to Dr. Bond, that
the original will was destroyed, cancelled or revoked." In
her deposition in the present case, when asked about that
statement in the probate court's order, Bond testified:
"[Pylant] told me he destroyed his will, but I don't have any
physical evidence of that ... other than he told me that. I
7
1151215
don't have the will shredded. It was not shredded before me."
Bond also testified that she was not represented by counsel at
the probate hearing. Bond maintained throughout her
deposition testimony that Pylant told her that he had
destroyed the will and that he intended to make a new will.
In the 2009 proceedings in the circuit court, Bethany
testified that Pylant also told her that he destroyed the
will.
On August 25, 2016, the trial court entered a summary
judgment in favor of McLaughlin. The court held that Bond
failed to prove that, but for McLaughlin's negligence, she
would have received a better result in the underlying
proceeding and that Bond's claim was barred by the doctrine of
res judicata.
Standard of Review
"We review a summary judgment de novo. Potter v.
First Real Estate Co., 844 So. 2d 540, 545 (Ala.
2002) (citing American Liberty Ins. Co. v. AmSouth
Bank, 825 So. 2d 786 (Ala. 2002)).
"'"We apply the same standard of review the
trial court used in determining whether the
evidence presented to the trial court
created a genuine issue of material fact.
Once a party moving for a summary judgment
establishes that no genuine issue of
material fact exists, the burden shifts to
8
1151215
the
nonmovant
to
present
substantial
evidence creating a genuine issue of
material fact. 'Substantial evidence' is
'evidence of such weight and quality that
fair-minded persons in the exercise of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved.'
In reviewing a summary judgment, we view
the evidence in the light most favorable to
the
nonmovant
and
entertain
such
reasonable
inferences as the jury would have been free
to draw."'
"844 So. 2d at 545 (quoting Nationwide Prop. & Cas.
Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369,
372 (Ala. 2000)) (citations omitted).
"Summary
judgment
is
appropriate
only
when
there
is no genuine issue of any material fact and the
moving party is entitled to judgment as a matter of
law . Rule 56(c)(3), Ala. R. Civ. P."
Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So. 2d
1135, 1139 (Ala. 2006).
Discussion
On appeal, Bond contends that the trial court erred in
entering a summary judgment in favor of McLaughlin on her
legal-malpractice claim. Specifically, Bond argues that she
presented substantial evidence creating a genuine issue of
material fact concerning whether the will contest in the
underlying action, had it been properly filed, would have been
9
1151215
successful and that her claim is not barred by the doctrine of
res judicata.
I.
First, Bond argues that the trial court erred in entering
a summary judgment in favor of McLaughlin on her legal-
malpractice claim
because
McLaughlin
conceded
that
he
breached
the applicable standard of care in the underlying will contest
and because, Bond says, she presented substantial evidence
that her will contest would have been successful.
"A plaintiff in a legal malpractice action must prove the
same basic elements as in a negligence action: duty, breach,
proximate cause, and damage[]." Pickard v. Turner, 592 So. 2d
1016, 1019 (Ala. 1992).
"[T]o
prevail
in
a
legal-malpractice
action,
the
plaintiff must prove that, but for the attorney's
negligence, the legal matter concerning which the
attorney is alleged to have been negligent would
have been resolved more favorably to the plaintiff.
Pickard v. Turner, 592 So. 2d 1016, 1019 (Ala.
1992). To meet this burden, the plaintiff must prove
(1) that, in the absence of the alleged malpractice,
the plaintiff would have been entitled to a more
favorable result in the legal matter concerning
which the attorney is alleged to have been
negligent, and (2) that the attorney's negligence in
fact caused the outcome of the legal matter to be
less favorable to the plaintiff than the outcome
would have been in the absence of the alleged
malpractice.
Pickard,
592
So.
2d
at
1020
10
1151215
('"Generally, actionable [legal] malpractice cannot
be established in the absence of a showing that the
attorney's wrongful conduct has deprived the client
of something to which he would otherwise have been
entitled." [7A C.J.S. Attorney and Client § 255 at
462 (1980).] A lawyer cannot be expected to achieve
impossible results for a client.'); Hall v. Thomas,
456 So. 2d 67, 68 (Ala. 1984) ('A claim for
malpractice requires a showing that in the absence
of the alleged negligence the outcome of the case
would have been different.' (citing Mylar v.
Wilkinson, 435 So. 2d 1237 (Ala. 1983)))."
Bonner v. Lyons, Pipes & Cook, P.C., 26 So. 3d 1115, 1120
(Ala. 2009).
In the present case, it is undisputed that McLaughlin
breached the applicable standard of care in the underlying
will contest. Thus, we must decide only whether Bond
presented substantial evidence that, but for McLaughlin's
breach, the will contest would have been resolved more
favorably to her. That issue hinges on whether Bond presented
substantial evidence that Pylant had revoked the will admitted
to probate and, thus, that a copy of the revoked will should
not have been probated as a lost will.
Section 43-8-136(b), Ala. Code 1975, provides, in
relevant part: "A will is revoked by being burned, torn,
canceled, obliterated, or destroyed, with the intent and for
11
1151215
the purpose of revoking it by the testator or by another
person in his presence by his consent and direction."
In Stiles v. Brown, 380 So. 2d 792 (Ala. 1980), this
Court stated:
"The fact that the will left in the testator's
possession cannot be found after his death creates
a presumption that the will was destroyed by the
testator animo revocandi, or with intent to revoke.
The presumption referred to is not an irrebuttable
conclusion of law; it is a mere inference of fact.
Our cases clearly hold that this presumption of
revocation or inference of fact is rebuttable and
the burden of rebutting the presumption is on the
proponent of the will."
380 So. 2d at 795 (internal citations omitted).
In the present case, assuming that, through Sprayberry's
testimony and the statement in the probate court's order
admitting the lost will to probate that Bond had offered no
evidence indicating that the
will had been revoked, McLaughlin
presented evidence sufficient to overcome the rebuttable
presumption that the lost will was revoked, the burden then
shifted to Bond to present substantial evidence that the will
had been revoked. Bond presented her testimony and Bethany's
testimony that Pylant told them, separately, that he had
destroyed the will. These statements are admissible under an
exception to the hearsay rule. See Rule 803(3), Ala. R. Evid.
12
1151215
(providing that the following is not excluded by the hearsay
rule: "A statement of the declarant's then existing state of
mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and
bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
execution,
revocation,
identification,
or
terms
of
declarant's
will"). Pylant's alleged statements to Bond and Bethany
constitute "evidence of such weight and quality that fair-
minded persons in the exercise of impartial judgment can
reasonably infer" that Pylant had revoked the will. Thus,
Bond has presented substantial evidence creating a genuine
issue of material fact to be resolved by the finder of fact.
We note that McLaughlin and the trial court in its
summary-judgment order place great emphasis on the fact that
Bond must ultimately prove that the result of the underlying
proceeding --the will contest–- "would" have been different,
rather than "may" have been different. At the summary-
judgment stage in the present case, it is true that Bond was
required to present "substantial evidence" that the result of
the underlying proceeding "would" have been different, but
she
13
1151215
did not have to present undisputed evidence or definitively
prove that the result of the underlying proceeding would have
been different. At this stage, Bond was required to present
evidence from which the finder of fact could infer that the
result of the underlying proceeding would have been different.
We hold that Bond has presented such evidence.
II.
Lastly, Bond contends that the trial court erred in
determining that her claim was barred by the doctrine of res
judicata.
This Court has stated: "Both collateral estoppel and res
judicata are affirmative defenses; thus, the party raising the
defense has the burden of proving each element." Lee L. Saad
Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516 (Ala.
2002).
"[R]es judicata and collateral estoppel are two
closely related, judicially created doctrines that
preclude the relitigation of matters that have been
previously adjudicated or, in the case of res
judicata, that could have been adjudicated in a
prior action.
"'The doctrine of res judicata, while
actually embodying two basic concepts,
usually refers to what commentators label
"claim
preclusion,"
while
collateral
estoppel ... refers to "issue preclusion,"
14
1151215
which is a subset of the broader res
judicata doctrine.'
"Little v. Pizza Wagon, Inc., 432 So. 2d 1269, 1272
(Ala. 1983) (Jones, J., concurring specially). See
also McNeely v. Spry Funeral Home of Athens, Inc.,
724 So. 2d 534, 537 n.1 (Ala. Civ. App. 1998). In
Hughes v. Martin, 533 So. 2d 188 (Ala. 1988), this
Court explained the rationale behind the doctrine of
res judicata:
"'Res judicata is a broad, judicially
developed doctrine, which rests upon the
ground that public policy, and the interest
of the litigants alike, mandate that there
be an end to litigation; that those who
have contested an issue shall be bound by
the ruling of the court; and that issues
once tried shall be considered forever
settled between those same parties and
their privies.'
"533 So. 2d at 190. The elements of res judicata are
"'(1) a prior judgment on the merits, (2)
rendered
by
a
court
of
competent
jurisdiction,
(3)
with
substantial
identity
of the parties, and (4) with the same cause
of action presented in both actions.'
"Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634,
636 (Ala. 1998). 'If those four elements are
present, then any claim that was, or that could have
been, adjudicated in the prior action is barred from
further litigation.' 723 So. 2d at 636. Res
judicata, therefore, bars a party from asserting in
a subsequent action a claim that it has already had
an opportunity to litigate in a previous action.
"The corollary to the above-stated rationale is
that the doctrine of res judicata will not be
applied to bar a claim that could not have been
15
1151215
brought in a prior action. Old Republic, supra, 790
So. 2d at 928. See also United States v. Maxwell,
189 F. Supp. 2d 395, 406 (E.D. Va. 2002);
Restatement (Second) of Judgments, § 26(1)(c)
(1982),
Restatement
(Second)
of
Judgments,
§
51(1)(a). 'In order for a judgment between the same
parties to be res judicata, it must, among other
things, ... involve a question that could have been
litigated in the former cause or proceeding.'
Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93
(1910). See also Dekle v. Vann, 284 Ala. 142, 223
So. 2d 30 (1969), in which this Court held that a
prior judgment in equity ordering the defendants to
open a wall adjacent to the plaintiff's land was not
res judicata in a subsequent action seeking damages
for trespass, because the equity court lacked
jurisdiction to award punitive damages."
Saad, 851 So. 2d at 516-17 (footnotes omitted).
In the present case, McLaughlin has the burden of proving
the affirmative defense of res judicata. His argument rests
on the following statement found in the circuit court's 2009
order: "Moreover, the court finds that the will at issue in
this case is valid." The first paragraph of that order, which
was quoted by the Court of Civil Appeals in Bond v. Estate of
Pylant, states:
"'[T]he Court finds that a valid and binding order
was entered on or about January 26, 1994 divorcing
[Pylant] and [Bethany]. Additionally, no common-law
marriage was established after that date between
[Pylant] and [Bethany]. Moreover, the Court finds
that the will at issue in this case is also valid.'"
63 So. 3d at 642.
16
1151215
It is unclear from the circuit court's order exactly why
it stated that the will was valid. It appears that, among
several issues in that case, the only contention concerning
the validity of the will was made by Bethany. Bethany had
argued that she and Pylant had established a common-law
marriage after their December 26, 1994, divorce and that they
were still legally married at the time of his death. Thus,
she alleged that the will was invalid so that, if the circuit
court found that she and Pylant were still married at the time
of his death, she could inherit as the surviving spouse under
the laws of intestate succession. However, immediately
preceding its statement that the will is valid, the circuit
court explicitly found that Bethany and Pylant were not
married at the time of his death. Therefore, because the
circuit court found that Bethany and Pylant were not married
at the time of his death, the court's statement that "the will
at issue in this case is valid" was unnecessary to resolve any
argument that was before it and was therefore dictum.
Furthermore, as this Court recognized in Bond v. Pylant,
"'[a] circuit court's jurisdiction over a will contest is
17
1151215
statutory and limited.'" 3 So. 3d at 855 (quoting Forrester v.
Putman, 409 So. 2d 773, 775 (Ala. 1981)).
"'In Alabama, a will may be contested in two
ways: (1) under § 43-8-190, Ala. Code 1975, before
probate, the contest may be instituted in the
probate court or (2) under § 43-8-199, Ala. Code
1975, after probate and within six months thereof,
a contest may be instituted by filing a complaint in
the circuit court of the county in which the will
was probated.'"
Bond v. Pylant, 3 So. 3d at 854 (quoting Stevens v. Gary, 565
So. 2d 73, 74 (Ala. 1990)).
Bond did not contest the will before probate, and,
because of McLaughlin's negligence, she did not properly
contest the will within six months after probate by filing a
complaint in the circuit court. Likewise, there is no
indication that Bethany contested the will under § 43-8-190,
Ala. Code 1975, before probate or under § 43-8-199, Ala. Code
1975, after probate. Therefore, no will contest was before
the circuit court when it administered the estate and issued
its 2009 order. In fact, the circuit court would not have had
jurisdiction to hear a contest to Pylant's will at that time.
As stated in Saad, supra, "[t]he doctrine of res judicata will
not be applied to bar a claim that could not have been brought
in a prior action." 851 So. 2d at 517. In the present
18
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situation, a will contest was not before the circuit court
during the administration of Pylant's estate in 2009 and could
not have been raised in the circuit court during those
proceedings. Therefore, the same cause of action was not
presented in that prior case and in the present case; thus,
that prior action is not res judicata in the present action.
Conclusion
Based on the foregoing, we reverse the trial court's
judgment and remand the case for proceedings consistent with
this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan,
JJ., concur.
19 | February 24, 2017 |
6e1da5b7-b1cc-4bfd-be92-8465bf0e2063 | Bowen v. State | 145 So. 2d 421 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 421 (1962)
William F. BOWEN, Jr.
v.
STATE of Alabama.
8 Div. 106.
Supreme Court of Alabama.
October 4, 1962.
Jas. W. Baker, Huntsville, for appellant.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
The appellant was indicted, tried and convicted of murder in the first degree and sentenced to death. The appeal is under the automatic appeal statute. Consistent with our duty in such cases, we have searched the record for prejudicial error but find none.
The appellant stabbed the victim fourteen times with a kitchen butcher knife, resulting in her death. The facts are revolting in the extreme and it would be purposeless to relate them here. Appellant interposed a plea of insanity as well as not guilty but there was little evidence, if any, to support the insanity plea. Insanity is an affirmative defense which the accused must clearly prove to the reasonable satisfaction of the jury. Walker v. State, 269 Ala. 555, 114 So. 2d 402; Reedy v. State, 246 Ala. 363, 20 So. 2d 528. This he failed to do.
*422 With respect to his plea of not guilty, it was clearly not well taken since appellant made a voluntary confession of being guilty of the crime and also admitted it on the stand when he testified as a witness in his own behalf.
Appellant contended that he was under the influence of narcotics when he perpetrated the murder but whether he was so under the influence of narcotics as not to know what he was doing was a question for the decision of the jury. Lakey v. State, 258 Ala. 116, 61 So. 2d 117.
Moreover, there was no evidence of a diseased mind and temporary mania not the result of a diseased mind is not a valid defense of justification. Barbour v. State, 262 Ala. 297, 78 So. 2d 328.
Appellant argues error in the overruling of his challenge for cause of one of the veniremen on the list from which the jury was to be selected. The juror stated on voir dire that he knew about the case and had talked about it but had no fixed opinion, could listen to the evidence and "could sit on a jury and still return a fair verdict based on the evidence." Under the authorities, this juror was not subject to challenge and the ruling of the trial court was correct. Willingham v. State, 262 Ala. 550, 80 So. 2d 280; Peterson v. State, 227 Ala. 361, 150 So. 156; Thomas v. State, 150 Ala. 31, 43 So. 371; Ragsdale v. State, 134 Ala. 24, 32 So. 674; Hawkins v. State, 29 Ala.App. 221, 195 So. 762.
There were several objections to the introduction of evidence but the court's rulings thereon resulted in no prejudice to the appellant.
There were no written requested charges for the appellant and the court's oral charge was a full, fair and correct exposition of the relevant law. We find no error to reverse.
Affirmed.
All Justices concur except LAWSON, J., not sitting. | October 4, 1962 |
e944dd81-90ba-49c0-9a4d-d08877868dfd | Washington v. State | 148 So. 2d 206 | N/A | Alabama | Alabama Supreme Court | 148 So. 2d 206 (1962)
Caliph WASHINGTON
v.
STATE of Alabama.
6 Div. 524.
Supreme Court of Alabama.
October 4, 1962.
Rehearing Denied January 17, 1963.
*207 K. C. Edwards, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Robt. M. Hill, Jr., Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
This is the second appeal of Caliph Washington from a conviction for first degree murder in the Circuit Court of Jefferson County, Alabama, Bessemer Division. He was convicted and sentenced to death. The case comes here under the automatic appeal statute, Act No. 249, Acts of Alabama 1943, p. 217, approved June 24, 1943, Title 15, Sec. 382(1) et seq. Code of Alabama 1940.
On the former appeal, the essential facts and the evidence are set out in the opinion of the court. They are substantially the same as the record now before us, and it would serve no good purpose to repeat them here. We reversed and remanded the case to the circuit court for errors therein pointed out. 269 Ala. 146, 112 So. 2d 179.
During the first trial, a Negro soldier was called to the stand and stated that his name was Furman Jones and that he was presently in the Army but that his home was in South Carolina. Jones further testified that the appellant, Washington, boarded a bus in Mississippi on which he was riding, and in the course of conversation informed him that he, the appellant, had killed a police officer. Jones appeared in the first trial through the cooperation of the United States Army even though he was then stationed in Texas.
As noted above, the judgment of conviction on the first trial was reversed. During the course of the second trial, the state offered in evidence the testimony of Furman Jones, given in the previous prosecution, Jones not being present in court. His testimony was admitted over the objection of appellant's counsel, and this appeal is based primarily on an assignment of error concerning the admissibility of Jones' testimony given on the previous trial.
It is the well-settled rule in Alabama that when a witness is a nonresident, or has removed from the state permanently or for an indefinite time, his sworn testimony taken on any previous trial for the same offense may be offered in a subsequent trial if a proper predicate is laid.
In this state, upon the proper proof of the absence from the jurisdiction of a witness who has previously given sworn testimony before a tribunal of competent jurisdiction, the earlier testimony may be introduced. Reeves v. State, 264 Ala. 476, 88 So. 2d 561; Lovejoy v. State, 32 Ala.App. 110, 22 So. 2d 532, cert. den. 247 Ala. 48, 22 So. 2d 537; Pruitt v. State, 92 Ala. 41, 9 So. 406; Burton v. State, 107 Ala. 68, 18 So. 240; Lett v. State, 124 Ala. 64, 27 So. 256; Percy v. State, 125 Ala. 52, 27 So. 844; Jacobi v. State, 133 Ala. 1, 32 So. 158, appeal dismissed 187 U.S. 133, 23 S. Ct. 48, 47 L. Ed. 106; Wilson v. State, 140 Ala. 43, 37 So. 93.
However, it is equally clear that in the absence of the proper predicate, prior testimony of the witness is inadmissible. Wigginton v. State, 205 Ala. 147, 87 So. 700; Wilson v. State, 140 Ala. 43, 37 So. 93; Sims v. State, 139 Ala. 74, 36 So. 138.
The state laid its predicate in the instant case in the following manner: The state offered in evidence a letter from the Chief of Police in Jonesville, South Carolina, to the effect that Furman Jones had been released from the Army and that his mailing address was Box 465, Jonesville, South Carolina. The trial court properly *208 sustained objection to this letter on the ground that it was hearsay. Thereafter, Mr. McAdory, Clerk of the Bessemer Division of the Circuit Court of Jefferson County, took the witness stand and identified the subpoena docket in the case then on trial and verified that Furman Jones' address was listed as Box 465, Jonesville, South Carolina. McAdory further identified an official sheriff return which indicated that a subpoena was sent to Furman Jones at the above address on November 20, 1959. The subpoena docket and sheriff's return were introduced as state exhibits. Thereafter, Mr. Brown, a deputy sheriff of the county, testified that he himself had put the subpoena in an envelope addressed to Jones at the above-stated address.
There was no evidence that Jones was ever a resident of the State of Alabama or ever intended to take up residence here.
We are not to be understood as holding that the subpoena for Jones' appearance at the trial was effective. Nevertheless, it was some evidence as to his residence. Hardaman v. State, 17 Ala.App. 49, 81 So. 449.
We need no citation of authority to support the principle that a court can take judicial knowledge of its own records, and that the trial court in this instance could take judicial notice of the former trial of the appellant.
Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. 31 C.J.S. Evidence § 124, p. 736. Therefore, the trial court could take judicial knowledge of the fact that at the time Furman Jones testified in the previous trial he was a resident of South Carolina.
It was held in South Highlands Infirmary v. Imperial Laundry Co., 25 Ala.App. 461, 149 So. 106, that residence in the state at a particular time, for aught appearing, presumably continued ever since.
The sufficiency of a predicate for the introduction of testimony given by a witness on a former trial is addressed to the trial court's sound discretion. Woodward v. State, 253 Ala. 259, 44 So. 2d 241; Liverpool & London & Globe Ins. Co. v. Dickinson, 244 Ala. 381, 13 So. 2d 570; Patterson v. State, 234 Ala. 342, 175 So. 371.
We hold that a proper predicate was established for the admission of the testimony of Furman Jones, given on the previous trial of the appellant.
Assignments of error 2 through 8 are based on the lower court's refusal to give requested charges 6, 5, 17, 13, 14, 10 and 9. Although these assignments of error are not argued in brief, we have carefully considered them and are clear to the conclusion that each of the charges was clearly and adequately covered in the oral charge of the court and other given charges requested by the appellant. Chambers v. State, 264 Ala. 8, 84 So. 2d 342; Nelson v. State, 35 Ala.App. 1, 46 So. 2d 231.
Appellant's 9th assignment of error was predicated on the refusal by the trial court to grant a new trial to the appellant on the ground that the verdict was contrary to the great weight of the evidence.
The trial judge is much closer to the facts than this Court, having the advantage of being present at the trial and observing the demeanor of the witnesses who testified, which must be given due consideration. For this reason, this Court would not overturn the lower court's refusal to grant a new trial unless the evidence plainly and clearly shows that the verdict of the jury is wrong and unjust. Caldwell v. State, 203 Ala. 412, 84 So. 272.
We are clear to the conclusion that the evidence in the instant case is sufficient to justify the verdict reached by the jury. In fact, this is the second jury which has reached the same verdict.
*209 The Court has carefully examined the record, as is our duty under the automatic appeal statute, supra, and find no error to reverse.
Affirmed.
SIMPSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.
COLEMAN, Justice (dissenting).
I do not think that a proper predicate was laid for the admission, on the second trial, of the testimony given by Furman Jones on the former trial, and, therefore, am of opinion that the court erred in allowing his testimony to be admitted on the instant trial. As I understand the opinion of the majority, they hold that Jones' former testimony laid its own proper predicate. I, therefore, respectfully dissent. | October 4, 1962 |
58d65259-6757-4493-988b-11a0a4afc8c6 | Sparks v. West Point Manufacturing Company | 145 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 816 (1962)
Guy SPARKS, as Commissioner of Revenue,
v.
WEST POINT MANUFACTURING COMPANY.
3 Div. 972.
Supreme Court of Alabama.
October 18, 1962.
*817 MacDonald Gallion, Atty. Gen., and Herbert I. Burson, Jr., Asst. Atty. Gen., for appellant.
Rushton, Stakely & Johnston, Montgomery, Moore, Thomas, Taliaferro, Forman & Burr, Birmingham, and Morgan S. Cantey, West Point, Ga., for appellee.
LAWSON, Justice.
The question in this case is whether a domestic corporation, in computing its net income for state income tax purposes, is authorized by the provisions of § 402(6), Title 51, Code 1940, to deduct dividends received from a foreign subsidiary corporation of which it owns as much as fifty per cent of the capital stock, which subsidiary did no business in Alabama nor paid any income tax to the State of Alabama.
The trial court answered the question in the affirmative in accordance with the contention of the taxpayer, West Point Manufacturing Company, and the Commissioner of Revenue of the State of Alabama has appealed.
The question was here on appeal from a decree overruling a demurrer, but we declined to answer it on the ground that there were considerations, such as the construction which had been placed on § 402(6), Title 51, by the Department of Revenue which should be taken into consideration before a construction was placed on that section. See Grant v. West Point Manufacturing Co., 272 Ala. 280, 130 So. 2d 336.
The trial which followed our affirmance of the decree overruling the demurrer has shed no light on the question for determination. The answer to the question depends upon the construction to be placed upon § 402(6), Title 51, which reads:
The quoted subsection was not artfully drawn. It contains careless language and grammatical errors. But in the interpretation of statutes, courts are not bound by grammatical rules and may ascertain the meaning of words by the context. Cavender v. Hewitt et al., 145 Tenn. 471, 239 S.W. 767, 22 A.L.R. 755; Southern Pacific Co. et al. v. Riverside County, 35 Cal. App. 2d 380, 95 P.2d 688. See Ex parte State ex rel. Lawson, 241 Ala. 304, 2 So. 2d 765.
Despite the imperfections in the subsection, we think it clear from the language used that its general purpose is to prevent double taxation.
We construe the statute as follows:
A domestic corporation, in computing its net income for state income tax purposes, is permitted to deduct the amounts received as dividends from another corporation "which is taxable under this title" upon its net income. If the dividend paying corporation pays income tax on its income to the State of Alabama, then a domestic corporation which owns stock in that corporation *818 may deduct amounts received as dividends on the stock so owned. It matters not whether the dividend-paying corporation is domestic or foreign if it pays income tax to the State of Alabama on its earnings. A foreign corporation which carries on its business in this state can be subject to the state income tax laws.
Where a domestic corporation owns stock in a subsidiary corporation, that is, a corporation of which another corporation owns as much as fifty per cent of its capital stock, the said domestic corporation may deduct the dividends it receives from the subsidiary corporation, provided either the subsidiary corporation or its parent corporation pays state income taxes on the income of the subsidiary corporation.
In the instant case, the taxpayer, West Point Manufacturing Company, is the parent corporation, owning more than fifty per cent of the capital stock of its foreign subsidiary. Neither the parent corporation, the taxpayer, nor the subsidiary corporation has paid income taxes to the State of Alabama on the income of the subsidiary. Hence, the taxpayer is not entitled to deduct the dividends which it received from its subsidiary.
There is nothing in the legislative history of § 402(6), Title 51, which justifies a contrary holding. The provisions of that subsection are in substantially the same language as used in § 26(6) of the 1933 income tax act (Act 169, approved April 17, 1933, General and Local Acts of Alabama, 1933 Extra Session, pp. 150, 170), which act became effective when Amendment XXV to the Constitution of Alabama was proclaimed ratified on August 2, 1933. Section 26(6), supra, is in all respects original. It is in no wise amendatory of any preceding legislation, as held by the trial court. The 1932 income tax act (Act 117, approved October 22, 1932, General Acts of Alabama, Extra Session 1932, p. 127), referred to in the decree of the trial court, never became effective because the proposed amendment to the Constitution seeking to authorize the tax therein levied was not ratified by the electorate of this state.
The trial court seems to have entertained the view that the use of the word "any" before the words "subsidiary corporation" shows that the legislature intended for the dividends received by all domestic corporations from all subsidiary corporations to be deductible. But this conclusion can only be reached by disregarding the qualifying language of the subsection which we have italicized above. Every clause of the subsection must be given effect in the light of the subject matter and the context. Downing v. City of Russellville, 241 Ala. 494, 3 So. 2d 34; Ex parte Miles, 248 Ala. 386, 27 So. 2d 777.
The decree of the trial court is reversed and the cause is remanded for the entry of a decree in accordance with this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 18, 1962 |
97c3bb60-89e1-4423-a890-c9e315482fb1 | University Toyota v. Hardeman | N/A | 1151204 | Alabama | Alabama Supreme Court | REL: 01/27/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151204
____________________
University Toyota and University Chevrolet Buick GMC
v.
Beverly Hardeman and Vivian Roberts
Appeal from Colbert Circuit Court
(CV-15-900364)
STUART, Justice.
University Toyota and University Chevrolet Buick GMC
(hereinafter referred to collectively as "the University
dealerships") appeal the order of the Colbert Circuit Court
allowing Beverly Hardeman and Vivian Roberts to pursue their
1151204
claims against the University dealerships in arbitration
proceedings conducted by the American Arbitration Association
("the AAA") instead of the Better Business Bureau of North
Alabama ("the BBB"), the entity identified in the controlling
arbitration agreements. We reverse and remand.
I.
In December 2011, Hardeman purchased a 2012 GMC Acadia
sport-utility vehicle from Jim Bishop Buick in Tuscumbia; in
April 2013, Roberts purchased a 2013 Toyota Tacoma pickup
truck from Jim Bishop Toyota in Tuscumbia (Jim Bishop Buick
and Jim Bishop Toyota are hereinafter referred
to
collectively
as "the Jim Bishop dealerships"). In conjunction with their
purchases of those vehicles, Hardeman and Roberts purchased
service contracts entitling them to no-cost oil changes for as
long as they owned their respective vehicles. The Jim Bishop
dealerships thereafter provided Hardeman and Roberts free oil
changes pursuant to those service contracts without issue.
At some point in time, the Jim Bishop dealerships were
sold and rebranded as the University dealerships. Initially,
the University dealerships honored the no-cost oil-change
service contracts sold by their predecessors in interest, the
2
1151204
Jim Bishop dealerships; however, they eventually stopped
providing no-cost oil changes to customers who held those
contracts, such as Hardeman and Roberts. On October 29, 2015,
Hardeman and Roberts filed a demand for arbitration with the
BBB, the dispute-resolution entity identified in arbitration
agreements they had executed when they purchased their
vehicles, on behalf of themselves and all similarly situated
individuals, based on the University dealerships' refusal to
honor the service contracts sold by the Jim Bishop
dealerships. The subject arbitration agreements provided, in
relevant part:
"Buyer/lessee and dealer agree that all claims,
demands, disputes, or controversies of every kind or
nature between them arising from, concerning or
relating to ... service contracts or other products
purchased as an incident to the sale, lease or
financing of the vehicle ... shall be settled by
binding arbitration conducted pursuant to the
provision[s] of the Federal Arbitration Act, 9
U.S.C. Section 1 et seq. ...
"Either party may demand arbitration by filing
with the Better Business Bureau of North Alabama,
P.O. Box 383, Huntsville, AL 35804, (256) 532-1437,
a written demand for arbitration along with a
statement of the matter in controversy."
It appears, however, that the BBB informed Hardeman and
Roberts that it did not conduct class-action arbitration
3
1151204
proceedings, and they accordingly withdrew their arbitration
demand.
On December 2, 2015, Hardeman and Roberts filed a
complaint in the Colbert Circuit Court naming as defendants
the University dealerships and asserting breach-of-contract,
conversion, and unjust-enrichment claims. Hardeman and
Roberts also sought class certification of their claims,
asserting that over 100 individuals had similarly been injured
by the University dealerships' failure to honor certain
service contracts sold by their predecessors in interest, the
Jim Bishop dealerships. On January 17, 2016, the University
dealerships moved the trial court to compel Hardeman and
Roberts to arbitrate their claims in accordance with the
arbitration agreements they had executed when they purchased
their vehicles and accompanying service contracts.
In
support
of that motion, the University dealerships submitted into
evidence copies of the arbitration agreements and
an
affidavit
from the former owner of the Jim Bishop dealerships
authenticating the agreements and explaining the interstate
nature of the underlying transactions with Hardeman and
Roberts. Hardeman and Roberts thereafter filed a response
4
1151204
opposing the University dealerships' motion to compel
arbitration, asking the trial court to allow their action to
proceed either in state court or, in the alternative, in an
arbitral forum other than the BBB, i.e., one that would
conduct class-action arbitration proceedings. On May 19,
2016, the trial court entered an order directing that
Hardeman's and Robert's claims be sent to arbitration before
the AAA with the AAA arbitrator to subsequently decide whether
class-action arbitration was available to them. On May 26,
2016, Hardeman and Roberts did in fact initiate an arbitration
proceeding before the AAA.
On June 3, 2016, the University dealerships moved the
trial court to alter, amend, or vacate its May 19 order,
arguing that the subject arbitration agreements required any
arbitration proceedings between the parties to be
conducted by
the BBB and that Hardeman and Roberts had no right,
contractual
or
otherwise,
to
engage
in
class-action
arbitration proceedings. After becoming aware that Hardeman
and Roberts had initiated the AAA arbitration proceeding, the
University dealerships also moved both the trial court and the
AAA to stay those proceedings until their pending motion to
5
1151204
alter, amend, or vacate the trial court's May 19 order was
decided. Hardeman and Roberts opposed the University
dealerships' motions, and, on August 19, 2016, the trial court
entered its final order, stating:
"In the above-styled case, [Hardeman and
Roberts] claim that [the University dealerships]
failed to honor lifetime oil change contracts to
customers
who
purchased
cars
from
their
dealership[s]. The dealership[s] [were] sold, and
[the University
dealerships] deny any responsibility
for the contracts. [Hardeman and Roberts] seek to
enforce the contract for themselves, and any other
customers similarly situated.
"At the time of [Hardeman's and Roberts's]
purchase[s], ... arbitration agreement[s] [were]
signed. The agreement[s] state[] that arbitration
would be through the [BBB]. [Hardeman and Roberts]
state, however that [the] BBB has refused, or is not
capable of, making the initial determination as to
whether they will be allowed to proceed as a class
action.
"As a result of [the] BBB's inability to make
this determination, [Hardeman and Roberts] asked
this court for an order allowing arbitration to
proceed
through
[the]
AAA.
[The
University
dealerships] object and request that the case
proceed with a case-by-case arbitration with [the]
BBB.
"After hearing arguments, this court does order
that the parties shall begin arbitration with [the]
AAA. The arbitrator should first determine whether
[Hardeman and Roberts] may proceed as a class. If
the arbitrator selected through the AAA determines
that the parties may not proceed to seek a global
settlement, arbitration by [the] AAA shall cease
6
1151204
immediately. The parties, at that point, must seek
arbitration through [the] BBB, on a case-by-case
basis, in accordance with the agreement."
On August 23, 2016, the University dealerships filed their
notice of appeal to this Court.1
II.
In BankAmerica Housing Services v. Lee, 833 So. 2d 609
(Ala. 2002), this Court considered a similar case in which the
appellant had succeeded in the trial court in its attempt to
compel arbitration but thereafter filed an appeal to this
Court arguing that the trial court had compelled arbitration
in a manner inconsistent with the governing arbitration
provision. We stated then that we would review the order
compelling arbitration de novo to determine whether the trial
court,
although
granting
the
requested
relief,
had
nevertheless committed an error substantially prejudicing the
party seeking review. Lee, 833 So. 2d at 617.
III.
It is undisputed in this case (1) that Hardeman's and
Roberts's purchases of automobiles and service contracts from
On September 1, 2016, this Court entered an order staying
1
all court and arbitration proceedings involving this case
pending further order of the Court.
7
1151204
the Jim Bishop dealerships affected interstate commerce; (2)
that
both
Hardeman
and
Roberts
executed
arbitration
agreements
in conjunction with their purchases; (3) that those
arbitration agreements are valid; and (4) that those
2
arbitration agreements encompass the underlying dispute
regarding the University dealerships' responsibility to honor
the service contracts purchased by Hardeman and Roberts.
Thus, it is also undisputed that the University dealerships
were entitled to have the arbitration agreements enforced and
their motion to compel arbitration granted. Elizabeth Homes,
L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala. 2003). The issue
before this Court is whether the trial court, though granting
Hardeman and Roberts have not explicitly argued that the
2
arbitration agreements they executed are unconscionable or
otherwise invalid either because they do not specifically
provide for class-action arbitration or because the chosen
forum does not
conduct
class-action arbitration. Both federal
and state caselaw is clear, however, that such arguments have
no merit. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l
Corp., 559 U.S. 662, 684 (2010) ("[A] party may not be
compelled under the [Federal Arbitration Act] to submit to
class arbitration unless there is a contractual basis for
concluding that the party agreed to do so."), and Med Center
Cars, Inc. v. Smith, 727 So. 2d 9, 20 (Ala. 1998) ("Although
the plaintiffs' contentions are practically appealing, after
reviewing the authorities we conclude that to require
class-wide arbitration would alter the agreements of the
parties, whose arbitration agreements do not provide for
class-wide arbitration.").
8
1151204
the motion to compel arbitration, properly enforced the
arbitration agreements
inasmuch as it did not
require
Hardeman
and Roberts to arbitrate their claims before the BBB, the
forum agreed to by the parties. For the reasons that follow,
we must answer that inquiry in the negative.
In American Express Co. v. Italian Colors Restaurant, ___
U.S. ___, 133 S.Ct. 2304 (2013), the Supreme Court of the
United States emphasized that arbitration agreements are
simply a species of contract and, like all contracts, must be
enforced according to their terms:
"Congress enacted the [Federal Arbitration Act,
9 U.S.C. § 1 et seq.,] in response to widespread
judicial hostility to arbitration. See AT&T
Mobility [LLC v. Concepcion], [563 U.S. 333, 339
(2011)]. As relevant here, the Act provides:
"'A written provision in any maritime
transaction
or
contract
evidencing
a
transaction
involving
commerce
to
settle
by
arbitration
a
controversy
thereafter
arising out of such contract or transaction
... shall be valid, irrevocable, and
enforceable, save upon such grounds as
exist at law or in equity for the
revocation of any contract.' 9 U.S.C. § 2.
"This text reflects the overarching principle that
arbitration
is
a
matter
of
contract.
See
Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63,
67 (2010). And consistent with that text, courts
must 'rigorously enforce' arbitration agreements
according to their terms, Dean Witter Reynolds Inc.
9
1151204
v. Byrd, 470 U.S. 213, 221 (1985), including terms
that 'specify with whom [the parties] choose to
arbitrate their disputes,' Stolt–Nielsen [S.A. v.
AnimalFeeds Int'l Corp.], [559 U.S. 662,] 683
[(2010)],
and
'the
rules
under
which
that
arbitration will be conducted,' Volt Information
Sciences, Inc. v. Board of Trustees of Leland
Stanford Junior Univ., 489 U.S. 468, 479 (1989)."
This Court has held likewise, explaining this principle as
follows in Lee:
"When
a
trial
court
compels
arbitration,
it
must
do so in a manner consistent with the terms of the
arbitration provision. See Ex parte Cappaert
Manufactured Homes, 822 So. 2d 385, 387 (Ala. 2001)
('[section] 5 [of the Federal Arbitration Act]
mandates
that
the
method
set
forth
in
the
arbitration agreement be followed'); Southern Energy
Homes Retail Corp. v. McCool, 814 So. 2d 845 (Ala.
2001) (trial court directed to vacate its order
because it failed to compel arbitration in a manner
consistent with the terms of the agreement between
the parties); Ex parte Dan Tucker Auto Sales, [718
So. 2d 33, 36-38 (Ala. 1998)] (trial court erred in
assigning administrative fees of arbitration to the
defendant when the Rules of the AAA provided for the
relief of a party in the event of hardship). A
trial court's order compelling arbitration that
changes the terms of the arbitration provision will
be reversed when
"'it appears that the trial court, although
it ordered the parties to arbitrate, failed
to
compel
arbitration
in
a
manner
consistent
with
the
terms
of
[the]
arbitration provision.'
"McCool, 814 So. 2d at 849."
10
1151204
833 So. 2d at 618. See also Okay v. Murray, 51 So. 3d 285,
291 (Ala. 2010) (holding that a trial court must give effect
to the terms of an arbitration provision when compelling
arbitration).
The arbitration agreements executed by Hardeman and
Roberts in this case required them to resolve disputes
"concerning or relating to ... service contracts or other
products purchased as an incident to the sale, lease or
financing of the vehicle ... by binding arbitration."
Moreover, the arbitration agreements specifically set forth
the procedure for initiating any arbitration proceedings –-
"[e]ither party may demand arbitration by filing with the
[BBB] ... a written demand for arbitration along with a
statement of the matter in controversy." This fact
distinguishes the instant case from cases like Robertson v.
Mount Royal Towers, 134 So. 3d 862, 863 (Ala. 2013), in which
the parties executed a predispute arbitration agreement that
did not name a forum for arbitration and the trial court
accordingly had to fill in the "gap" and appoint an arbitrator
of its choosing to hear the dispute. This Court affirmed the
order of the trial court compelling arbitration in Robertson,
11
1151204
concluding that the fact the parties did not name an
arbitrator indicated that the identity of the arbitrator was
not "an integral and essential part" of their agreement to
arbitrate. 134 So. 3d at 869. Conversely, however, the
arbitration agreements in this case do identify a forum for
arbitration –– the BBB. The fact that the parties named a
specific forum in which either party could initiate
arbitration indicates that the specific forum was
"an
integral
and essential part" of their agreement to arbitrate, and the
trial court was accordingly required to give effect to that
intent when it compelled arbitration.
Justice Murdock in his dissent argues that this case is
essentially undistinguishable from Robertson, because, he
asserts, once the BBB forum "became unavailable, a gap was
effectively created, just as in Robertson, that was left to be
filled by the trial court." ___ So. 3d at ___. In fact,
however, there is no evidence indicating that the BBB forum is
unavailable to Hardeman and Roberts. To the contrary,
Hardeman and Roberts initiated arbitration before the
BBB
and,
for all that appears, the BBB would have conducted arbitration
proceedings resolving Hardeman's and Roberts's disputes with
12
1151204
the University dealerships had Hardeman and Roberts not
voluntarily chose to withdraw their arbitration demand.
Indeed, the BBB is presumably still willing and ready to
conduct arbitration proceedings to resolve Hardeman's and
Roberts's disputes with the University dealerships; it has
merely indicated that it will not conduct a single class-
action arbitration proceeding to resolve the claims of every
aggrieved
customer
that
purchased
a
no-cost
oil-change
service
contract from the Jim Bishop dealerships that the University
dealerships now will not honor.
To the extent the dissent is concluding that the BBB
forum is unavailable because of the BBB's policy not to
conduct class-action arbitration, we disagree. Hardeman and
Roberts have no right to engage in class-action arbitration
proceedings, because the arbitration agreements they entered
into contain no provision authorizing the arbitration of
class-action claims. The Supreme Court of the United States
has recognized that the differences between bilateral and
class-action
arbitration
are
sufficiently
great
that
it
should
not be assumed that the parties to an arbitration agreement
have implicitly agreed to allow class-action arbitration
13
1151204
merely because they failed to address that issue in the
arbitration agreement. See Stolt-Nielsen S.A. v. AnimalFeeds
Int'l Corp., 559 U.S. 662, 687 (2010) ("We think that the
differences
between
bilateral
and
class-action
arbitration
are
too great for arbitrators to presume, consistent with their
limited powers under the [Federal Arbitration Act], that the
parties' mere silence on the issue
of
class-action
arbitration
constitutes consent to resolve their disputes in class
proceedings."). The United States District Court for the
Middle District of Alabama has further explained:
"It is helpful initially to address the effect
of a valid arbitration agreement's silence as to the
availability of class-wide relief in the arbitrable
forum. Under Alabama law, 'classwide arbitration is
permitted only when the arbitration agreement
provides for it.' Taylor v. First N. Am. Nat'l
Bank, 325 F. Supp. 2d 1304, 1320 n. 28 (M.D. Ala.
2004) (citing Med. Ctr. Cars, Inc. v. Smith, 727 So.
2d 9, 20 (Ala. 1998)); see also Hornsby v. Macon
Cnty. Greyhound Park, Inc., No. 10cv680 ... (M.D.
Ala. June 13, 2012) (explaining that, because the
arbitration agreement 'says nothing about classwide
arbitration,'
Alabama's
'default
rule,
that
"classwide arbitration is permitted only when the
arbitration agreement provides for it," kicks in.')
(quoting Taylor, 325 F. Supp. 2d at 1320 n. 28).
Based
upon
these
authorities,
if
Plaintiffs
ultimately are required to arbitrate their disputes,
class-wide arbitration would be unavailable because
the Arbitration Agreement does not expressly provide
for it.
14
1151204
"Moreover, and more to the point for purposes of
this opinion, the fact that there is no class-action
vehicle available to Plaintiffs in the arbitral
forum does not mean, as Plaintiffs contend, that the
Arbitration Agreement is unenforceable and that
class litigation is available in a judicial forum.
As the district court highlighted in Hornsby, 'the
Eleventh Circuit has held that arbitration clauses
are enforceable even when their application may
effectively prevent plaintiffs from pursuing their
claims as a class action.' ... (citing Caley [v.
Gulfstream Aerospace Corp.], 428 F.3d [1359,] 1378
[(11th Cir. 2005)], which rejected the plaintiffs'
argument
that
the
arbitration
agreement
was
unconscionable
under
Georgia
law
because
it
'preclude[d] class actions'). And post-Caley, the
Supreme Court has ruled that 'a party may not be
compelled under the [Federal Arbitration Act] to
submit to class arbitration unless there is a
contractual basis for concluding that the party
agreed to do so' and that consent to class
arbitration cannot be inferred where the agreement
is silent as to the availability of class-action
procedures. Stolt–Nielsen S.A. v. AnimalFeeds Int'l
Corp., 559 U.S. 662, 684 (2010)."
Chambers v. Groome Transp. of Alabama, 41 F. Supp. 3d 1327,
1350 (M.D. Ala. 2014). In sum, Hardeman and Roberts have no
basis on which to force the University dealerships to engage
in class-action arbitration proceedings before the BBB –– or
the AAA for that matter –– and the BBB's policy of not
conducting class-action arbitrations accordingly in no way
renders the BBB forum unavailable to Hardeman and Roberts.
15
1151204
Finally, in spite of the clear language in the
arbitration
agreements,
Hardeman
and
Roberts
make
the
argument
–– unsupported by any citations to caselaw, statute, or other
authority –– that "[a]ll the arbitration agreement explicitly
states is that 'either party may demand arbitration by filing
with the [BBB].' What occurs after filing this demand is left
unsaid." Hardeman and Roberts's brief, p. 10. To the extent
that Hardeman and Roberts are arguing that they were required
only to initiate arbitration with the BBB, but were then free
to withdraw that claim and to pursue a resolution in some
other forum, their argument is clearly without merit; to
accept it would defeat the very purpose of having an
arbitration agreement.
IV.
The University dealerships appeal the order of the trial
court allowing Hardeman and Roberts to arbitrate the claims
they
asserted
against
the
University
dealerships
in
arbitration proceedings conducted by the AAA, notwithstanding
the fact that the arbitration agreements executed by Hardeman
and Roberts identify the BBB as the entity that is to resolve
any disputes that are subject to the arbitration agreements.
16
1151204
Because a trial court can compel arbitration only in a manner
consistent with the terms of the applicable arbitration
agreement, we reverse the trial court's order compelling
arbitration and remand the cause for the entry of a new order
compelling Hardeman and Roberts to arbitrate their claims
against the University dealerships before the BBB if they wish
to pursue those claims.
REVERSED AND REMANDED.
Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Parker, J., concurs in the result.
Murdock, J., dissents.
17
1151204
MURDOCK, Justice (dissenting).
I respectfully dissent. I see no basis in the text of
the parties' arbitration agreements for concluding that the
provision in the agreements that a party may demand
arbitration by making a filing with the Better Business Bureau
of North America ("the BBB") establishes a requirement that
such a claim be arbitrated with the BBB that is "an integral
and essential part" of the parties' contract that, if
incapable of being performed, undermines the parties' more
fundamental agreement to arbitrate their disputes. This is
especially true given the strong federal policy in favor of
arbitration upon which this Court has frequently relied.
The arbitration agreements executed by Beverly Hardeman,
Vivian Roberts, and Jim Bishop Buick and Jim Bishop Toyota,
the
predecessor dealerships to
University Toyota and
University
Chevrolet
Buick
GMC
("the
University
dealerships"),
require them to resolve disputes "concerning or relating to
... service contracts or other products purchased as an
incident to the sale, lease or financing of the vehicle ... by
binding arbitration." Although those agreements subsequently
set forth a procedure for initiating an
arbitration
proceeding
18
1151204
-- "[e]ither party may demand arbitration by filing with the
[BBB] ... a written demand for arbitration" -- nothing in the
arbitration agreements
explicitly states that only the
BBB may
conduct the arbitration. At a minimum, nothing in the
agreements states that the agreement to arbitrate is a nullity
if the organization chosen to conduct the arbitration is
unable to do so.
This Court often has acknowledged, and espoused, that the
policy in favor of arbitration imposed by the Federal
Arbitration Act ("the FAA") is a strong one. See, e.g., Ocwen
Loan Servicing, LLC v. Washington, 939 So. 2d 6, 14 (Ala.
2006) (noting that the United States Supreme Court recognized
a strong federal policy favoring arbitration and that any
doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration); Ameriquest Mortg. Co. v.
Bentley, 851 So. 2d 458, 463 (Ala. 2002); Auto Owners Ins.,
Inc. v. Blackmon Ins. Agency, Inc., 99 So. 3d 1193, 1196 (Ala.
2012). See generally Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24–25 (1983). Consistent with this
policy, in Robertson v. Mount Royal Towers, 134 So. 3d 862,
863 (Ala. 2013), when the chosen arbitrator was not available,
19
1151204
the Court nonetheless said that arbitration must go forward
with the trial court filling the gap.
I disagree with the main opinion that this case is
distinguishable from cases like Robertson, in which the
parties executed a predispute arbitration agreement that did
not name a forum for arbitration. Even reading the parties'
agreements as designating the BBB as the forum for
arbitration, once that forum became unavailable, a gap was
effectively created, just as in Robertson, that was left to be
filled by the trial court. Nothing in the arbitration
agreements states that the use of arbitration will be
contingent upon the availability of the BBB as the forum. And
any effort somehow to glean this intent from the language of
the agreements (which, in my view, would fail in any event) is
made that much more difficult by the strong federal policy in
favor of arbitration. In short, as was the case in Robertson,
and especially in the context of the strong federal policy
favoring arbitration, I do not find in the language of the
parties' agreements any language that allows me to agree with
the main opinion that the agreements indicate that the
20
1151204
identity of the arbitrator was "an integral and essential
part" of their agreements to arbitrate.
In fact, the indistinguishability of this case from
Robertson is borne out by this Court's decision in Ex parte
Warren, 718 So. 2d 45 (Ala. 1998). In Warren, as in the
present
case
(according
to
the
University
dealerships'
reading
of the arbitration agreements), the arbitration agreement
specified a particular arbitrator but, as in the present case,
the designated arbitrator was not available to conduct the
arbitration. Nonetheless, as in Robertson, the parties'
agreement to arbitrate was upheld. The Warren opinion reasons
as follows:
"The Warrens next argue that the arbitration
agreement is void because the arbitrator that it
specifies ... is no longer in existence. ...
"Under the Federal Arbitration Act, the fact
that an arbitrator named in the arbitration
agreement is unable to act as an arbitrator over the
parties' controversy does not necessarily void the
arbitration agreement. ...
"'....'
"Based upon § 5 [of the FAA], federal courts
have established the general rule that, where the
arbitrator named in the arbitration agreement cannot
or will not arbitrate the dispute, a court does not
void the agreement but instead appoints a different
arbitrator. Astra Footwear Industry v. Harwyn Int'l
21
1151204
Inc., 442 F. Supp. 907 (S.D. N.Y. 1978); see, also,
McGuire, Cornwell & Blakey v. Grider, 771 F. Supp.
319 (D. Colo. 1991). ...
"However,
the
federal
courts
have
also
recognized an exception to the general rule: where
it is clear that a specific failed term of an
arbitration agreement is not an ancillary logistical
concern but, rather, is as important a consideration
as the arbitration agreement itself, a court will
not sever the failed term from the rest of the
agreement and the entire arbitration provision will
fail. Zechman v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 742 F. Supp. 1359 (N.D. Ill. 1990)."
718 So. 2d at 48. The Warren opinion then proceeds to uphold
the parties' arbitration agreement despite the unavailability
of the designated arbitrator, citing, inter alia, McGuire,
Cornwell & Blakey v. Grider, 771 F.Supp. 319 (D. Colo. 1991),
for the proposition that "where there was no indication that
the naming of a specific arbitrator was central to the
parties' agreement to arbitrate, the named arbitrator's
unwillingness to arbitrate the parties' dispute did not void
the arbitration agreement." 718 So. 2d at 48-49. It appears
to me that the same proposition applies to the present case.
The main opinion takes issue with the proposition that
the BBB is unavailable to arbitrate this matter because, it
posits, the parties have no right to engage in class-
arbitration proceedings in the first place. Because the only
22
1151204
type of claim that may be arbitrated, according to the main
opinion, is the individual claim of each plaintiff, and
because the BBB is available to arbitrate such a claim, the
BBB is not "unavailable." In this regard, the main opinion
states:
"To the extent the dissent is concluding that
the BBB forum is unavailable because of the BBB's
policy not to conduct class-action arbitration, we
disagree. Hardeman and Roberts have no right to
engage in class-action arbitration proceedings ...."
___ So. 3d at ___.
But the question whether Hardeman and Roberts have a
right to engage in class-action arbitration is itself, as the
trial court held, a question for the arbitrator. As Hardeman
and Roberts point out, their contracts with the University
dealerships expressly state that "any question regarding
whether a particular controversy is subject to arbitration
shall be decided by the arbitrator." Compare, e.g., Max of
Birmingham, Inc. v. Edwards, 973 So. 2d 1050, 1054 (Ala.
2007); Polaris Sales, Inc. v. Heritage Imports, Inc., 879
So. 2d 1129, 1133–34 (Ala. 2003).
And, contrary to the main opinion, existing precedents do
not establish that the proper answer to the question of
23
1151204
arbitrability necessarily turns on the lack of any verbiage in
the parties' agreements expressly authorizing the arbitration
of such claims. It is certainly true that the United States
Supreme Court made a couple of statements in Stolt-Nielsen
S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 687
(2010), that, at first glance, might appear to indicate that
arbitration
of
class
claims
requires
contractual
language
that
expressly provides for the arbitration of such claims. For
example, the Court stated:
"An
implicit
agreement
to
authorize
class-action
arbitration, however, is not a term that the
arbitrator may infer solely from the fact of the
parties' agreement to arbitrate. This is so because
class-action arbitration changes the nature of
arbitration to such a degree that it cannot be
presumed the parties consented to it by simply
agreeing to submit their disputes to an arbitrator."
559 U.S. at 685. Later in the opinion the Court concluded:
"We think that the differences between bilateral and
class-action arbitration are too great for arbitrators to
presume, consistent with their limited powers under the FAA,
that the parties' mere silence on the issue of class-action
arbitration constitutes consent to resolve their disputes in
class proceedings." 559 U.S. at 687.
24
1151204
But, in actuality, the Stolt-Nielsen opinion is one that
merely holds -- and this really was nothing novel but,
instead, was the application of a very basic principle -- that
the arbitrators could not decide to arbitrate class claims, as
they attempted to do, without basing that decision on some
contractual agreement by the parties to do so. In Stolt-
Nielsen,
the
arbitration
panel
actually
undertook
to
arbitrate
the class claims in deference to policy concerns, not based on
a contractual agreement, express or implied, for the
arbitration of such claims. The panel was forced to resort to
such policy concerns as the basis for its decision because --
and
this
is
the
distinguishing
characteristic
of
Stolt-Nielsen
-- the parties had actually stipulated to the arbitration
panel that they did have any agreement between themselves on
this issue. In effect, the parties actually stipulated that
their arbitration agreement could not be read as either
expressly or implicitly providing for arbitration of class
claims.
The Stolt-Nielsen Court explained itself as follows:
"The parties
selected
a
panel
of
arbitrators
and
stipulated that the arbitration clause was 'silent'
with respect to class arbitration. Counsel for
AnimalFeeds explained to the arbitration panel that
25
1151204
the term 'silent' did not simply mean that the
clause
made
no
express
reference
to
class
arbitration. Rather, he said, '[a]ll the parties
agree that when a contract is silent on an issue
there's been no agreement that has been reached on
that issue.'"
_______________
"Whether enforcing an agreement to arbitrate or
construing
an
arbitration
clause,
courts
and
arbitrators must 'give effect to the contractual
rights and expectations of the parties.' Volt
[Information Sciences, Inc. v. Board of Trustees of
Leland Stanford Jr. Univ., 489 U.S. 468] at 479
[(1989)]. In this endeavor, 'as with any other
contract,
the
parties'
intentions
control.'
Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth,
Inc., 473 U.S. 614, 626 (1985). This is because an
arbitrator derives his or her powers from the
parties' agreement to forgo the legal process and
submit their disputes to private dispute resolution.
See AT & T Technologies, Inc. v. Communications
Workers,
475
U.S.
643,
648–649
(1986)
('[A]rbitrators derive their authority to resolve
disputes only because the parties have agreed in
advance to submit such grievances to arbitration').
...
"....
"From these principles, it follows that a party
may not be compelled under the FAA to submit to
class arbitration unless there is a contractual
basis for concluding that the party agreed to do so.
In this case, however, the arbitration panel imposed
class arbitration even though the parties concurred
that they had reached 'no agreement' on that issue
.... The panel's conclusion is fundamentally at war
with the foundational FAA principle that arbitration
is a matter of consent."
559 U.S. at 668-69, 682-84 (some emphasis added).
26
1151204
As the United States Court of Appeals for the Second
Circuit noted in Jock v. Sterling Jewelers Inc., 646 F.3d 113
(2d Cir. 2011):
"The [Supreme] Court's interpretation of the
parties' 'silence' is key. Our dissenting colleague
states
that
he
believes
the
'silence'
in
Stolt–Nielsen
was
interpreted
as
'simply
reflect[ing] the fact each party recognized the
arbitration clause neither specifically authorized
nor specifically prohibited class arbitration.'
Dissenting Op. at 128 (citing Brief for Respondent
at 26, Stolt–Nielsen ...). The dissent, however,
fails to acknowledge that although that is the
interpretation that the Respondent in Stolt–Nielsen
wished the Court to adopt, that is not the
interpretation that the Court did adopt. To the
contrary, the Court interpreted the stipulated
silence to mean that 'the parties agreed their
agreement was "silent" in the sense that they had
not reached any agreement on the issue of class
arbitration.' Stolt–Nielsen, 130 S.Ct. at 1768.
See also id. at 1766 ('The parties ... stipulated
that the arbitration clause was "silent" with
respect to class arbitration. Counsel for [the
Respondent] explained to the arbitration panel that
the term "silent" did not simply mean that the
clause
made
no
express
reference
to
class
arbitration. Rather, he said, "[a]ll the parties
agree that when a contract is silent on an issue
there's been no agreement that has been reached on
the issue."'). The Court further noted that
'parties were in complete agreement regarding their
intent.' Id. at 1770. That is to say, according to
the majority in Stolt–Nielsen, there was no express
or implicit intent to submit to class arbitration.
Indeed, the dissent in Stolt–Nielsen pointed out
that the majority's interpretation of 'silence' was
incongruous with the Respondent's interpretation.
Id. at 1781 (Ginsburg, J., dissenting ) ...."
27
1151204
646 F.3d at 120 (some emphasis added).
In other words, the facts before the Supreme Court in
Stolt-Nielsen involved a unique situation in which
the
parties
had stipulated that they there was no agreement between them
-- express or implied -- regarding the arbitrability of class
claims. Because of this, the Jock court concluded in the case
before it that "[t]he plaintiffs' concession that there was no
explicit agreement to permit class arbitration ... is not the
same thing as stipulating that the parties had reached no
agreement on the issue." 646 F.3d at 123 (emphasis added).
The United States Court of Appeals for the Fifth Circuit
in Reed v. Florida Metropolitan University, Inc., 681 F.3d 630
(5th Cir. 2012), reached the opposite conclusion about what
Stolt-Nielsen meant. The Fifth Circuit surmised that an
agreement stating that "any dispute" could be
arbitrated
could
not be interpreted as implicitly permitting arbitration of
class claims because the agreement did not expressly discuss
such claims. The Fifth Circuit concluded: "At most, the
agreement in this case could support a finding that the
parties did not preclude class arbitration, but under
Stolt-Nielsen this is not enough." Id. at 644.
28
1151204
After Jock and Reed were decided, the Supreme Court
decided Oxford Health Plans LLC v. Sutter, ___ U.S. ___, 133
S. Ct. 2064 (2013). Sutter involved a putative class action
in state court by physicians who alleged that Oxford had
failed to make "full and prompt" payment in violation of their
agreements and state laws. Oxford moved to compel arbitration
pursuant to a clause in the agreements, and the state court
granted the motion. The arbitrator allowed the arbitration to
proceed on a class basis, on the ground that the agreement
permitted in arbitration everything that it prohibited from
being brought in court. In the arbitrator's view, because
class action "is plainly one of the possible forms of civil
action that could be brought in a court," but had been
prohibited by the agreement from being brought in court, it
must be permitted in arbitration. ___ U.S. at ___, 133 S. Ct.
at 2067. While the arbitration proceeded, the United States
Supreme Court issued its ruling in Stolt-Nielsen, and Oxford
asked the arbitrator to reconsider his class-arbitration
decision. The arbitrator issued a new opinion holding that
Stolt-Nielsen had no effect because, unlike the parties in
Stolt-Nielsen, the parties before him disputed the meaning of
29
1151204
their contract, and, in his view the agreement authorized
class arbitration. On appeal, the district court declined to
vacate the arbitrator's decision, and the United States Court
of Appeals for the Third Circuit affirmed it.
The United States Supreme Court granted certiorari to
address the split among the Second, Third, and Fifth Circuits
on the issue whether an arbitrator who has allowed class
arbitration in circumstances in which the agreement is silent
on the matter "exceeded [his] powers" under § 10(a)(4) of the
FAA. In unanimously affirming the judgment of the Third
Circuit, the Supreme Court ruled that, under § 10(a)(4), the
"sole question" for a reviewing court is whether the decision
as to arbitrability is based in the parties' contract: the
"sole question" "is not whether the arbitrator construed the
parties' contract correctly, but whether he construed it at
all." ___ U.S. at ___, 133 S. Ct. at 2071. The Court
specifically emphasized that
"[w]e overturned the arbitral decision [in Stolt-
Nielsen] because it lacked any contractual basis for
ordering class procedures, not because it lacked, in
Oxford's terminology, a 'sufficient' one. The
parties in Stolt–Nielsen had entered into an unusual
stipulation that they had never reached an agreement
on class arbitration. See 559 U.S., at 668–669. In
that circumstance, we noted, the panel's decision
30
1151204
was not -- indeed, could not have been -- 'based on
a determination regarding the parties' intent.'
Id., at 673, n.4."
___U.S. at ___, 133 S. Ct. at 2069.
3
The main opinion quotes Chambers v. Groome Transportation
of Alabama, 41 F. Supp. 3d 1327, 1350 (M.D. Ala. 2014), as
summarizing Alabama's position on the matter. And, indeed,
this Court has stated: "[C]lass-wide arbitration is not
permitted
absent
an
agreement
permitting
disposition
of
claims
on such a basis ....." Leonard v. Terminix Int'l Co., L.P.,
854 So. 2d 529, 535 n.2 (Ala. 2002) (citing Med Ctr. Cars,
Inc. v. Smith, 727 So. 2d 9, 20 (Ala. 1998) (emphasis added)).
This Court's very few pronouncements on the issue, however, do
not go further than do the pronouncements of the United States
Supreme Court and, in particular, do not hold that an intent
by the parties to provide for the disposition of class claims
through arbitration may be found only in express contractual
language to that effect and may not be implied from more
general contractual language providing for the arbitration of
disputes.
See Stuart Boyarsky, Silence Is Golden: How Oxford
3
Health
Affects
Class
Arbitration,
20
westlawjournalclassaction
1 (August 23, 2013), for a succinct summary of federal case
history on this issue.
31
1151204
In accordance with the foregoing, I am compelled to
conclude that the trial court did not err in consigning to the
arbitrator the question of arbitrability presented here or in
designating an arbitrator other than the BBB in this regard.
32 | January 27, 2017 |
02e0240c-95f4-4e81-aad8-b3a54c00a113 | Vickers v. Vickers | 144 So. 2d 8 | N/A | Alabama | Alabama Supreme Court | 144 So. 2d 8 (1962)
Dozler VICKERS et ux.
v.
Etta VICKERS.
1 Div. 48.
Supreme Court of Alabama.
August 30, 1962.
*9 Fred F. Smith, Jr., Prichard, for appellants.
Harry Seale, Mobile, for appellee.
HARWOOD, Justice.
Appellee filed a bill of complaint for specific performance against appellants, her son and his wife, alleging that she had purchased a house and three lots from them for $4,000, that she had been placed in possession of the property and that the deed should have conveyed "to her full and complete legal title," but the deed in fact only conveyed to her a life estate in the property; that she had made demand on the defendants that they give her the deed agreed upon, and they refused.
Demurrer to the bill was overruled, answer was filed and testimony taken before the trial court. Appellants were ordered to convey full title to complainant within five days from the date of the decree, and in the event they failed so to do, the register was ordered to execute such a deed for and in behalf of the defendants. This appeal followed.
The first assignment of error is that the court erred in overruling the demurrer to the bill on the ground that there was no equity in the bill. Appellants argue that the allegations of fraud do not sufficiently set out the facts constituting the fraud.
Conceding, without deciding, that this contention is correct, it cannot be applied here. The demurrer was addressed to "the complainants' Bill and separately and severally to each count and aspect thereof." When so, the demurrer is to the bill as a whole. Murphy v. Pickle, 264 Ala. 362, 87 So. 2d 844. The demurrer was also overruled generally. The effect of such a ruling was a ruling on the demurrer to the bill as a whole, Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749, and only those grounds going to the bill as a whole which are argued in brief will be considered on review. Haavik v. Farnell, 264 Ala. 326, 87 So. 2d 629. Since the bill here stated an equitable right to relief in specific performance, the demurrer was properly overruled. Dean v. Clark, 270 Ala. 55, 116 So. 2d 379. Moreover, even though the bill may not have sufficiently alleged fraud, the ground of demurrer that there is no equity in the bill will not reach the defect when the bill, as here, contains a general allegation of fraud. Summers v. Summers, 218 Ala. 420, 118 So. 912.
Assignment of error four charges that the court erred in overruling the demurrer on the ground that the bill was barred by laches. The bill shows that the deed to the life estate was executed and delivered to appellee on January 21, 1956, but the suit was not filed until February 24, 1961. The bill alleged that complainant was "old and unable to read and write but meagerly, and she relied on the representation of the Defendants that the instrument so prepared and executed by them conveyed to her full legal title to such property and accepted the deed and paid the consideration therefor * * *."
In brief appellants argue matters of evidence in support of this assignment of error, but the ground is limited to the bill of complaint, and the only element of laches shown in the bill is passage of time.
Mere delay that has wrought no disadvantage to another, or that has not operated to introduce changes or conditions and circumstances in consequence of which there can be no longer a safe determination of the controversy, will not serve to bar a complainant's right or remedy. Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141.
In view of the fact that there is nothing in the bill of complaint to show that injury *10 has resulted to the appellants, or any of the other heirs of appellee, by her delay in filing her bill, the doctrine of laches does not bar her, and is not a good ground of demurrer. It is only where the bill shows laches on its face that a demurrer may take the point. Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779; Craig v. Root, 247 Ala. 479, 25 So. 2d 147. The ground of demurrer which is the basis of assignment of error four was properly overruled.
Assignment of error thirteen reads:
This is not a proper assignment of error. Roan v. Smith, 272 Ala. 538, 133 So. 2d 224; Mulkin v. McDonough Construction Co. of Ga., 266 Ala. 281, 95 So. 2d 921; Thompson v. State, 267 Ala. 22, 99 So. 2d 198; King v. Jackson, 264 Ala. 339, 87 So. 2d 623.
Assignment of error fifteen reads:
This assignment of error is not sufficient. In Life & Casualty Ins. Co. of Tenn. v. Womack, 228 Ala. 70, 151 So. 880, we said:
The evidence was in direct conflict. Some of the six children present at the trial testified for their mother, some for their brother. Appellants produced evidence that the property was worth $8,000 when conveyed to appellee, while appellee's witness testified it was not worth over $3,000. The trial court heard and observed the witnesses and chose to believe appellee and her witnesses.
Where the testimony is given ore tenus, the judgment or decree of the trial court has the effect of a jury verdict, and will not be disturbed upon appeal unless plainly wrong, and the reviewing court will not substitute its own judgment for that of the trier of facts, even though this court might have reached a different conclusion. Kyser v. Doan, 271 Ala. 229, 122 So. 2d 764; Whiteside v. Brown, 266 Ala. 27, 93 So. 2d 747. Applying this rule, we cannot say that the decree of the trial court was manifestly wrong.
Assignment of error five is not clear and definite. "When the assignment of error is uncertain and indefinite as to the particular error complained of, this court will decline to consider it." Giardina v. Stagg, 214 Ala. 301, 107 So. 857, and cases there cited. See also, Globe & Rutgers Fire Ins. Co. v. Jones, 213 Ala. 656, 106 So. 172; Beasley-Bennett Electric Co. v. Gulf Coast Chapter, etc., Ala., 134 So. 2d 427; Orso v. Cater, 272 Ala. 657, 133 So. 2d 864.
From the filing of this case in circuit court, up to and including its submission here, the name of the complainant-appellee has been and is listed as Etta Vickers. She testified that her name is Eddie Vickers and *11 the deed conveying the life estate was made to Eddie Vickers. Some reference in the deed to appellee should be made to the fact that the Etta Vickers in this suit, and Eddie Vickers to whom the deed is made, is one and the same person. This will avoid irregularity in a future abstract of the property.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | August 30, 1962 |
1ebf09bf-3542-4a50-a6f7-d4e297a5deff | BOARD OF WATER & SEWER COM'RS OF MOBILE v. Spriggs | 146 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 146 So. 2d 872 (1962)
BOARD OF WATER AND SEWER COM'RS OF the CITY OF MOBILE et al.
v.
W. G. SPRIGGS et al.
1 Div. 877.
Supreme Court of Alabama.
October 25, 1962.
Hardy B. Smith of Gaillard, Gaillard & Smith, Mobile, for appellants.
Albert S. Gaston, Mobile, for appellees.
COLEMAN, Justice.
This is an appeal by respondents from a decree overruling motions to discharge and to dissolve a temporary injunction. Errors severally assigned are that the court erred in overruling each motion, respectively.
Respondents moved to discharge the injunction, "because it affirmatively appears from the Bill of Complaint that the said bill is not properly verified as required by statute and rules of this Court."
*873 It is settled that a verification wherein affiant affirms merely that certain facts are, "true to the best of his knowledge, information and belief," means nothing "more than the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their truth," and, "an affidavit of belief in their truth simply amounts to nothing." Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506; Brooks v. Everett, 271 Ala. 380, 124 So. 2d 100.
The verification in the instant case is merely that affiants say that the facts stated in the bill "are true and correct to the best of their knowledge, information and belief." The verification is insufficient.
Complainants reply, however, that the motion to discharge did not point out the defect in the verification with sufficient certainty, and, therefore, the motion to discharge was overruled without error, citing Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208.
In Barnett, on appeal from decree, which, inter alia, overruled demurrer to the bill and motions to dissolve and to discharge a temporary injunction, this court held that the trial court did not err in overruling a ground of demurrer which attempted to question the verification of the bill. This court said: "That ground of demurrer * * * did not point out the defect in the verification with sufficient certainty." 235 Ala. at page 327, 179 So. at page 210.
We have examined the record in Barnett. The ground of demurrer charging defect in the verification recites as follows:
The motion to discharge in the instant case is to the same effect. If the ground of demurrer in Barnett was lacking in certainty, then the instant motion to discharge was also lacking in certainty.
In Barnett, the lack of certainty was in the ground of a demurrer while the lack here is in the ground of a motion to discharge. We see no reason, however, why a motion to discharge may be less certain than a demurrer. As to certainty in pointing out a defective verification, both demurrer and motion should conform to the same standard because both constitute nothing more or less than a pleading which points out a defect in the pleading of the opposite party. In this respect, they stand on the same ground.
We have noted further in the Barnett record that the motion to discharge in that case contained several grounds which did point out the defect in the verification with certainty, e. g., "(5) The affidavit does not state the reason for B. F. Weathers making it instead of the officer filing the suit." This court held that the motion to discharge in Barnett, was also overruled without error, but not because the motion failed to point out the defect in the verification with sufficient certainty. The holding was that the motion to discharge, as to the defect in the verification, "was waived, as a matter of law, by defendant's filing his answer and going to trial on the merits of the case." 235 Ala. at page 328, 179 So. at page 210. There was no such waiver of the motion to discharge in the instant case.
We hold that the instant motion to discharge failed to point out the defect in the verification with sufficient certainty and, for that reason, was overruled without error.
Complainants are two individuals who appear to have acted jointly in bidding to perform the work on a construction job. Respondents are the Board of Water and Sewer Commissioners of the City of Mobile and the members of the board. The bill of complaint recites:
The prayer is to restrain respondents from forfeiting complainants' bid bond and, on final hearing, to declare the bid bond null and void and to permanently restrain its forfeiture by respondents.
On an ex parte application by complainants, the court ordered that a temporary restraining order issue as prayed upon complainants' making bond, conditioned as provided by law, for $350.00. Bond was made and temporary injunction issued. Respondents moved to dissolve on the ground that there is no equity in the bill for several reasons, among them being the following:
This court has held that; under § 4526, Code 1907, which, without material change is § 1052, Title 7, Code 1940; a respondent may move to dissolve an injunction for want of equity in the bill. The court said:
A bill without equity will not support an injunction of any character, under any circumstances. McHan v. McMurry, 173 Ala. 182, 55 So. 793; Hamilton v. Alabama Power Company, 195 Ala. 438, 70 So. 737; Pearson v. Duncan & Son, 198 Ala. 25, 73 So. 406, 3 A.L.R. 242; Coley v. English, 204 Ala. 691, 87 So. 81; Wallace v. Lindsey, 270 Ala. 401, 119 So. 2d 186; Brotherhood of Locomotive F. and E. v. Hammett, Ala., 144 So. 2d 58.
The rule is that the equity of a bill must be sustained on the facts alleged and not on those inferred. The equity of a bill must rest on facts alleged and not on conclusions which are stated in the bill but not supported by the facts alleged. The following statement of this court supports this rule:
The equity of the instant bill is rested on the principle which has been referred to by this court as follows:
The validity of the equitable principle which permits a contracting party to obtain cancellation for his own unilateral mistake has been recognized by this court as follows:
Cases on the general rule permitting cancellation of a contract for unilateral mistake are referred to in 59 A.L.R. 809. On page 827 appears a section of the annotation on application of the rule to bids for public improvements. Examination of the following cases supports the annotator's statement that one essential condition to relief is as follows:
Moffett, Hodgkins & Clarke Co. v. City of Rochester, 178 U.S. 373, 20 S. Ct. 957, 44 L. Ed. 1108; Geremia v. Boyarsky, 107 Conn. 387, 140 A. 749; Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N.E. 564, 10 L.R.A.,N.S., 114, 117 Am.St.Rep. 224; Bromagin v. Bloomington, 234 Ill. 114, 84 N.E. 700; Board of School Comrs. v. Bender, 36 Ind.App. 164, 72 N.E. 154; Board of Regents v. Cole, 209 Ky. 761, 273 S.W. 508; St. Nicholas Church v. Kropp, 135 Minn. 115, 160 N.W. 500, L.R.A.1917D, 741; Barlow v. Jones, N.J.Eq., 87 A. 649; City of New York v. Dowd Lumber Co., 140 App.Div. 358, 125 N.Y.S. 394; Harper, Inc. v. City of Newburgh, 159 App.Div. 695, 145 N.Y.S. 59; Leonard v. Howard, 67 Or. 203, 135 P. 549.
Examination of the instant bill for facts, not conclusions, to show that to deny cancellation would be unconscionable discloses the following averments:
That respondents advertised for bids; that this was the second advertisement; that all bids submitted on the first advertisement had been rejected because, in opinion of respondents, the bids were too high; that bids were submitted on the second advertisement in amounts of $78,948.86, $69,245.06, and $44,303.39, respectively; that the *877 lowest bid was that of complainants; and that complainants had inadvertently failed to follow the specifications. The averment as to inadvertence is more conclusion than fact, as is the further averment that complainants' bid "is actually below what it would cost them to perform the work."
We do not think that, on these averments, it must be concluded that respondents would derive an unconscionable advantage if complainants be denied cancellation. In Leonard v. Howard, supra, it appears that the amount of the bid was $4,975.00. In refusing to hold that the bidder was entitled to cancellation for unilateral mistake of the bidder resulting from his inattention, the court said:
In the instant case, complainants allege that to do the work would cost them more than their bid, but fail to allege what the reasonable cost or value of the work would be, so that the court might ascertain whether the disparity between bid and reasonable value is so great that it would be unconsionable to hold complainants to their bid.
Complainants allege that they "inadvertently" failed to follow the route in the specifications. In granting cancellation, the Connecticut court said:
In Steinmeyer v. Schroeppel, supra, however, the Illinois court held that the mistake was not excusable; and in Leonard v. Howard, supra, relief was denied, the court saying: "* * * the low bid * * * was the result of a mistake, and this mistake the result of * * * careless examination of the plans." For aught that is averred, the instant mistake resulted from careless examination of plans.
We are of opinion that the bill is without equity because the facts averred fail to show that holding complainants to their bid would be unconscionable or that their negligence was excusable.
The trial court erred in not sustaining the motion to dissolve the injunction for want of equity in the bill, and the decree is reversed, and one is here rendered sustaining the motion and dissolving the injunction. Woodward v. State, 173 Ala. 7, 55 So. 506.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 25, 1962 |
220908ca-e534-4d48-aa4b-f1bf1115858b | Grigsby v. Liles | 147 So. 2d 846 | N/A | Alabama | Alabama Supreme Court | 147 So. 2d 846 (1962)
Lloyd GRIGSBY, Jr.
v.
Charles W. LILES.
8 Div. 76.
Supreme Court of Alabama.
October 4, 1962.
*847 Potts & Young, Florence, for petitioner.
E. B. Haltom, Jr., Florence, opposed.
COLEMAN, Justice.
This is a review, by certiorari, of the judgment of the Court of Appeals in Grigsby v. Liles, Ala.App., 147 So. 2d 836.
In the circuit court, Liles, the plaintiff, brought action for personal injury allegedly sustained while he was a passenger in an automobile driven by defendant, Grigsby. Judgment for plaintiff was rendered by consent. Within 30 days thereafter, plaintiff filed a motion to set aside the consent judgment and the court granted plaintiff's motion.
From the judgment setting aside the consent judgment, defendant appealed to the Court of Appeals. Later, but prior to submission, defendant filed in the Court of Appeals a petition in the alternative for an alternative writ of mandamus or rule nisi directed to the judge of the circuit court requiring him to vacate the judgment setting aside the consent judgment or to show cause why he should not do so. Attached to said petition in the alternative is the certificate of counsel for defendant that he has personally delivered a copy of the petition to the circuit judge.
The Court of Appeals dismissed the appeal but awarded a peremptory writ of mandamus requiring the circuit judge to vacate the order setting aside the consent judgment. Plaintiff applied for certiorari to review the decision of the Court of Appeals and we granted the writ.
Defendant raises the point that the circuit judge, to whom the writ is directed by the Court of Appeals, is the only party who has standing to apply for certiorari to review the Court of Appeals, and that, because the judge did not apply for certiorari, we are without jurisdiction to entertain plaintiff's application for certiorari.
The certificate of appeal discloses that notice of appeal was served on plaintiff's attorney "as attorney of record for said appellee." The record filed in the Court of Appeals is styled Grigsby v. Liles, 147 So. 2d 836. The record bears certificate of *848 defendant's counsel that a copy of the assignments of error has been served on the "Attorneys of Record for Appellee." The briefs filed by defendant in the Court of Appeals bear certificate that a copy of the brief has been served on "attorneys of record for Appellee." We have not found where the circuit judge has filed a return or any other pleading or writing in the Court of Appeals, or that he has been served with process or notice other than the certificate showing that a copy of defendant's petition in the alternative for mandamus was delivered to the circuit judge by defendant's attorney.
In support of his argument that the circuit judge is a necessary party to plaintiff's application for certiorari, defendant cites Ex parte Ewart-Brewer Motor Co., 211 Ala. 191, 99 So. 836, and Wilkes v. Hawkins, 240 Ala. 85, 195 So. 446.
In the Motor Company case, supra, this court dismissed a petition for certiorari to the Court of Appeals on the ground that "these petitioners (for certiorari) not being parties to the record (in the Court of Appeals) are not in position to file this petition in their names." The petitioners there sought to review the judgment of the Court of Appeals in Ex parte Cunningham, 19 Ala.App. 584, 99 So. 834, wherein the Court of Appeals had awarded mandamus, on application of the plaintiff, to require the circuit judge to vacate an order setting aside a default judgment theretofore rendered in favor of the plaintiff.
Examination of the original records of the Motor Company case, in this court, and Ex parte Cunningham in the Court of Appeals, discloses that Ex parte Cunningham did not commence by appeal as did the instant case. The Cunningham case commenced by petition for alternative writ of mandamus, or other appropriate writ, to be issued to the circuit judge to require him to vacate the order complained of. Endorsement on the record shows that the Court of Appeals ordered the rule nisi to issue as prayed, returnable on a certain day. The record contains the return made by the respondent circuit judge. Nowhere in the record in the Cunningham case do we find where Ewart-Brewer Motor Company was made a party in the Court of Appeals. The petition for certiorari filed in the Supreme Court in the Motor Company case commences as follows:
In the Motor Company case, this court relied on Wilson v. Duncan, 114 Ala. 659, 21 So. 1017, wherein it was decided that one, not a party to a petition for mandamus filed in the city court against a probate judge, could not appeal the ruling of the city court. The Motor Company case must be regarded as establishing the rule that one, not a party to a proceeding commenced by petition for mandamus in the Court of Appeals, cannot have review of the decision of the Court of Appeals by certiorari in the Supreme Court.
Such, however, is not the instant case. The instant proceeding in the Court of Appeals was not commenced by petition for mandamus. So far as we have found, the record discloses no process issued to the circuit judge and no appearance by him in the Court of Appeals. If the circuit judge be a party to the proceeding in the Court of Appeals, he is made a party only by the writ which will issue as a result of the decision of the Court of Appeals. The only adverse party made by the record on which the decision of the Court of Appeals is based is the plaintiff.
The practice of asking for alternative relief by mandamus when appeal is taken, but does not lie, is of long standing in this court. This court has said:
and also:
In as much as plaintiff, in the case at bar, is a party to the record filed in the Court of Appeals, on which record the decision here complained of is based, we are of opinion that plaintiff does have standing to apply for certiorari to review that decision. Defendant's insistence to the contrary is not well taken. Wilkes v. Hawkins, supra, does not hold to the contrary.
As stated above, in the instant case, the Court of Appeals, on the application for mandamus, reviewed an order wherein the circuit court vacated its own judgment which had been entered by agreement of the parties, and granted a new trial on plaintiff's motion therefor. The Court of Appeals concluded that the circuit court had erred in vacating the judgment.
The Court of Appeals held that a consent judgment can be set aside only on the following grounds, to wit, fraud, mutual mistake, or lack of consent. The Court of Appeals further held that the plaintiff's motion to vacate the consent judgment, although made within thirty days, was not governed by the law applicable to motions made within thirty days after judgment.
We understand the Court of Appeals to hold that the trial court is not permitted to exercise a sound discretion in setting aside a consent judgment, although the motion to set aside is made within thirty days. The opinion quotes Freeman on Judgments to the effect that a judgment by consent is an exception to the rule that a court may modify its judgments during the term, and that a consent judgment may not be set aside except for fraud, mutual mistake, or lack of consent. Whatever may be the rule as to the power of a court to modify a consent judgment, we are of opinion that the correct rule is that during the term a court of general jurisdiction has power to set aside or vacate a consent judgment in the exercise of a sound discretion and that the action of such court in so doing is irrevisable except for abuse of such discretion. We believe this rule is supported by the following cases:
In Alspaugh v. Ionia Circuit Judge, 126 Mich. 67, 85 N.W. 244, the trial court, on its own motion, set aside a judgment of nonsuit which had been entered by consent. The appellate court affirmed saying: "* * * We are of the opinion that the action of the circuit court was within a proper discretion. * * *"
In Fitzgerald v. Fitzgerald, 129 Minn. 414, 152 N.W. 772, the trial court denied a motion to vacate a judgment which had been rendered on consent of the parties. The appellate court affirmed, saying: "* * * The trial court found the facts against plaintiff, the findings are not clearly against the evidence, * * * and we have no alternative but to affirm the order. The same conclusion follows if the motion be treated as one calling for the exercise of the court's discretion. * * *"
In Raines v. Lane, 198 Ga. 217, 31 S.E.2d 403, the appellate court affirmed the action of the trial court in dismissing a motion to set aside a consent judgment. In the report of the case, the "Syllabus by the Court" states, "2. A motion to set aside a judgment *850 is addressed to the sound discretion of the court."
In J. L. Hudson Co. v. Barnett, 255 Mich. 465, 238 N.W. 243, the trial court granted a motion for a new trial which had the effect of vacating a judgment whereby plaintiff agreed to accept the goods sued for in an action of replevin. On the second trial, judgment for money was rendered against the defendants. On appeal from the second judgment, defendants contended that the trial court erred in setting aside the first judgment "* * * on plaintiff's claim that it consented to such judgment on account of an erroneous apprehension of the facts and law. * * *" In affirming the trial court, the appellate court said:
In Whitson v. Bates, 246 App.Div. 726, 283 N.Y.S. 663, the defendant appealed from a judgment which apparently had been entered against him by consent. The appellate court, in refusing relief on the appeal, indicated that defendant could have relief in the trial court, and said: "* * The remedy of the defendant, if such consent was entered into by mistake or inadvertence, is to apply at Special Term to be relieved from the terms thereof, which will be granted or refused as a matter of discretion. * * *"
In Allen v. Fewel, 337 Mo. 955, 87 S.W.2d 142, the trial court denied a motion to set aside a judgment which had been entered by consent of plaintiff's counsel. The appellate court affirmed, saying: "A motion to vacate a judgment is addressed to the sound discretion of the trial court. (Citations Omitted.) The exercise of discretion by the trial court can only be interfered with when it is apparent that it has been abused. (Citation Omitted.)"
In Sherrill v. Board of Commissioners of Stephens County, 191 Okl. 373, 130 P.2d 100, the trial court refused to vacate a judgment which had been entered by agreement. The appellate court found that the movant had not been injured by the judgment and affirmed, saying: "* * * No abuse of discretion being shown, it is our duty to affirm the judgment appealed from. * * *"
In some jurisdictions, it may be that consent judgments are regarded as being different from other judgments so that the court entering a consent judgment is not permitted to vacate the same, in the exercise of a sound discretion, on motion made within the term. See McArthur v. Thompson, 140 Neb. 408, 299 N.W. 519, 139 A.L.R. 413. In the McArthur case, however, the holding was not that the trial court erred in vacating a consent decree. The holding was that the trial court erred in modifying a consent decree.
We have examined the cases cited by the Court of Appeals. Of the Alabama cases cited, those which constituted a review of the action of a nisi prius court in vacating or refusing to vacate a consent judgment or decree, on motion made during the term or within thirty days, are as follows: Charles v. Miller, 36 Ala. 141; Ex parte Gresham, 82 Ala. 359, 2 So. 486; Senn v. Joseph, 106 Ala. 454, 17 So. 543; National Bread Company v. Bird, 226 Ala. 40, 145 So. 462; Louisville & Nashville Railroad Company *851 v. Bridgeforth, 20 Ala.App. 326, 101 So. 807. On such review, by this court or the Court of Appeals, the action of the trial court was reversed in only one instance, i. e., in Senn v. Joseph, supra.
In Senn v. Joseph, the plaintiff had applied to the trial court to set aside a consent judgment which had been rendered on the agreement of her attorney, "* * * upon the ground that she had never authorized her attorney to make such an agreement * * *." The opinion states that this fact was not controverted. The trial court denied plaintiff's motion to vacate the judgment. This court held that the trial court erred in denying plaintiff's motion, declaring that an attorney, as such, has no authority to accept a less amount than is owing and due, nor in the absence of express authority, to compromise and accept in payment of a litigated claim an amount less than that he is instructed by his principal to demand and collect, and which, as attorney, he has undertaken to collect. We think it may be fairly said that the trial court's denial of the motion to vacate was an abuse of discretion in Senn v. Joseph.
In National Bread Company v. Bird, supra, this court, on application for mandamus, reviewed the action of the trial court in vacating a consent judgment and denied the writ. In holding that the order vacating the judgment would not support an appeal, this court said:
The reference to "plenary power" indicates to us that the authority to vacate a consent judgment was regarded as an authority to exercise a sound discretion.
In Louisville & Nashville Railroad Company v. Bridgeforth, supra, the Court of Appeals said:
We are of opinion and hold that a court of general jurisdiction has power, in the exercise of a sound discretion, to vacate a consent judgment on motion duly made within thirty days after the judgment is rendered, and that when reviewed, the action of court in granting or denying the motion will not be disturbed except for abuse of discretion.
We think that the statement of the trial court in the instant case that "* * And the court is apprehensive that the settlement might not have been entered into freely and voluntarily and without pressure." amounts to a finding that there was an absence of actual consent on the part of the plaintiff in the instant case. That finding *852 should not be disturbed unless it is shown to be palpably wrong.
We do not understand that the Court of Appeals, in reviewing the testimony, accorded any presumption whatever in favor of the findings of the trial court based on the testimony heard ore tenus on the motion for new trial.
In reviewing, on petition for mandamus, a refusal to transfer a cause to equity, this court said that while mandamus of this sort is appellate in character, affording a remedy where no appeal is available, it, mandamus, is only to be granted on a clear showing of error in the trial court to the injury of petitioner, and that the appellate court should not disturb the finding of the trial court except for manifest error or abuse of discretion. Ex parte Perusini Const. Company, 242 Ala. 632, 636, 7 So. 2d 576.
We are of opinion that the action of the trial court in granting a new trial in the case at bar must be regarded as correct unless such action constitutes an abuse of discretion or is plainly and palpably wrong. If the action of the trial court constitues an abuse of discretion or is plainly and palpably wrong, then the writ of mandamus was properly awarded by the Court of Appeals. On the other hand, if no abuse of discretion is shown and if the trial court is not shown to be plainly and palpably wrong, then the action of the trial court should not be disturbed.
The plaintiff in the instant case does not have the burden of showing that the trial court abused its discretion in denying a continuance. On this review, the burden is on the defendant to show that the trial court abused its discretion in vacating the judgment.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration in accordance with the views herein expressed.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, and MERRILL, JJ., concur. | October 4, 1962 |
5724348a-7e56-4b4c-9fb9-c7d5c61e1d84 | TAXPAYERS AND CITIZENS v. Lawrence County | 143 So. 2d 813 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 813 (1962)
TAXPAYERS AND CITIZENS OF LAWRENCE COUNTY
v.
LAWRENCE COUNTY et al.
8 Div. 97.
Supreme Court of Alabama.
July 12, 1962.
Rehearing Denied August 30, 1962.
*814 Thos. C. Pettus, County Sol., Moulton, and J. O. Sentell, Jr., Montgomery, for appellants.
R. L. Almon, Moulton, Harry R. Teel, Wm. Alfred Rose and White, Bradley, Arant, All & Rose, Birmingham, for appellees.
GOODWYN, Justice.
This is a warrant validation proceeding brought in the circuit court of Lawrence County, in equity, by Lawrence County and its governing body, the Board of Revenue of said county, appellees here, against the taxpayers and citizens of said county, appellants here, under the provisions of Code 1940, Tit. 7, §§ 169 to 176, as amended. The appeal is from a decree validating the warrants. Our conclusion is that the decree is due to be affirmed.
The question of paramount concern is whether the Board of Revenue has authority to issue the proposed refunding warrants. Another point insisted on relates to the trial court's finding that the issuance of such refunding warrants does not constitute constructive fraud.
As to the Board's Authority to Issue the Warrants
The warrants are designated in the Board's authorizing resolution as "State Gasoline Tax Anticipation Refunding Warrants, Series 1961A," and are in the aggregate principal amount of $1,175,000. They are to be issued in exchange for outstanding warrants of the same amount maturing prior to the year 1968, on a warrant-for-warrant basis. The refunding warrants, like those outstanding, are payable, both as to principal and interest, solely out of the county's distributive portion (under Code 1940, Tit. 51, §§ 655 and 657, as amended) of the gasoline tax levied by the state (under Code 1940, Tit. 51, § 647, as amended) and are not general obligations of the county. No question is presented as to the validity of the outstanding warrants. The refunding warrants are to be in the denomination of $1,000 each (as are the outstanding warrants), to be numbered consecutively from 1 to 1,175, inclusive, to be dated October 1, 1961, and a portion thereof are to mature in each of the years 1970 through 1980 with the first date of maturity being April 1, 1970, and the last April 1, 1980.
The outstanding warrants were issued at various times between August 15, 1952, and April 1, 1959, for the purpose of constructing, maintaining and improving public roads and bridges in the county. With respect to the refunding warrants, the Board, in its authorizing resolution, included, among its findings and determinations, the following:
Code 1940, Tit. 23, § 43, as amended by Act No. 729, appvd. Sept. 17, 1953, Acts 1953, Vol. II, p. 984, provides that the governing bodies of the several counties of the state "have general superintendence of the public roads, bridges and ferries within their respective counties so as to render travel over the same as safe and convenient as practicable"; that "to this end they have legislative, judicial, and executive powers, except as limited in this chapter"; that they "are courts of unlimited jurisdiction and powers as to the construction, maintenance and improvement of the public roads, bridges and ferries in their respective counties, except as their jurisdiction or powers may be limited by the local or special statutes of the state"; and that they may "make and enter into such contracts as may be necessary, or as may be deemed necessary or advisable by such courts, or boards, to build, construct, make, improve and maintain a good system of public roads, bridges and ferries in their respective counties." It also provides that "no contract for the construction or repair of any public roads, bridge or bridges, shall be made where the payment of the contract price for such work shall extend over a period of more than twenty years." (The 1953 amendment changed the period referred to in the last quoted provision from ten years to twenty years. In other respects, § 43 has remained unchanged since adoption of the 1940 Code, and its predecessor statutes were practically the same. See: Act No. 505, § 1, appvd. Sept. 22, 1915, Gen.Acts 1915, p. 573; Act No. 347, § 157, appvd. Aug. 23, 1927, Gen. Acts 1927, pp. 348, 391; Code 1923, § 1347.)
It has been held that warrants payable solely from a county's distributive part of the state gasoline tax "do not fall within any constitutional prohibition" (Isbell v. Shelby County, 235 Ala. 571, 573, 180 So. 567, 569; Lyon v. Shelby County, 235 Ala. 69, 71, 177 So. 306; Herbert v. Perry, 235 Ala. 71, 72, 177 So. 561; In re Opinion of the Justices, 230 Ala. 673, 163 So. 105), and are not bonds or debts of the county (Littlejohn v. Littlejohn, 195 Ala. 614, 617, 71 So. 448; Cochran v. Marshall County, 242 Ala. 314, 319, 6 So.2d 489). Accordingly, whether the refunding warrants may be issued depends upon whether the legislature has given the county authority to that end.
This court has held that a county's governing body, under the provisions of § 43, Tit. 23, supra, can contract for payment of the cost of constructing, improving, and maintaining roads and bridges by issuing interest bearing warrants payable solely out of the county's distributive part of the state gasoline tax, and that such warrants are not prohibited by the county financial control act (Code 1940, Tit. 12, Chap. 6, § 78). Cochran v. Marshall County, 242 Ala. 314, 6 So. 2d 489, supra; Isbell v. Shelby County, 235 Ala. 571, 180 So. 567, supra.
Our real problem is to determine, first, whether there is authority for issuing refunding warrants of the character here involved and, second, if so, whether the maturity dates of some of such refunding warrants may be fixed at a time more than twenty years after issuance of the outstanding warrants for which they are to be exchanged.
Appellees take the position, in which we concur, that what was said in Dodson v. Beaird, 237 Ala. 587, 590, 187 So. 862, calls for an affirmative answer to these questions. Appellants, on the other hand, argue that § 81, Tit. 12, Code 1940, and *816 Act No. 308, appvd. June 28, 1943, Gen. Acts 1943, p. 279 (§ 81(1), Tit. 12, Recompiled Code 1958), are the only authority for refunding outstanding warrants of the character here involved; that these statutes authorize a refunding only with respect to such warrants outstanding on the effective dates of such laws; that the warrants to be refunded in the instant case were issued (between 1952 and 1959) after the effective dates of said statutes and, hence, cannot be refunded.
Assuming, without deciding, that § 81, Tit. 12, and Act No. 308 relate to warrants of the character here involved, we entertain the view that such enactments were not intended to take away the authority given by § 43, Tit. 23. Certainly, there is nothing in either § 81 or Act No. 308 indicating a clear intent to repeal any authority given by § 43. "Repeal by implication is not favored. It is only when two laws are so repugnant to or in conflict with each other that it must be presumed that the Legislature intended that the latter should repeal the former." State v. Bay Towing & Dredging Company, 265 Ala. 282, 289, 90 So. 2d 743, 749; City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159.
In Dodson v. Beaird, supra, it is said:
The statute dealt with in Isbell v. Shelby County, supra, was § 1347, Code 1923, the predecessor of § 43, Tit. 23, Code 1940. As already noted, the two statutes are practically the same, except as to a change in the contract period from ten to twenty years. It seems obvious, therefore, that the court, in Dodson v. Beaird, had § 1347 under consideration.
An examination of the record in Dodson v. Beaird reveals that the maturity date of some of the refunding warrants was more than ten years (that being the prescribed period at that time) after the date of issue of the outstanding warrants to be refunded. All of the refunding warrants in the instant case mature within twenty years after their date. On the authority of Dodson v. Beaird we hold that the county is not precluded from issuing refunding warrants even though some of them mature more than twenty years after issuance of the outstanding warrants for which they are to be exchanged.
As to Constructive Fraud
There can be no question that the burden was on respondents (appellants) to establish constructive fraud in the issuance of the proposed refunding warrants. It has been held many times that the action of a county governing body, in the exercise of discretionary powers vested in it, is not subject to judicial review except for fraud, corruption or unfair dealings. Bentley v. County Commission for Russell County, 264 Ala. 106(7), 84 So. 2d 490, and cases there cited; Van Antwerp v. Board of Commissioners of City of Mobile, 217 Ala. 201, 115 So. 239. The evidence in this case was taken ore tenus and the usual presumption in favor of the trial court's findings from the conflicting tendencies of evidence so taken calls for an affirmance of its finding on the issue of constructive fraud. From a full consideration of the evidence we certainly cannot say that such finding was plainly and palpably wrong.
The decree appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 12, 1962 |
44a6966f-3ce8-4205-b999-1fc268428538 | Grice v. Taylor | 143 So. 2d 447 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 447 (1962)
Charles D. GRICE et al.
v.
Thomas J. TAYLOR et al.
1 Div. 25.
Supreme Court of Alabama.
July 12, 1962.
Thompson & White, Bay Minette, for appellants.
J. B. Blackburn, Bay Minette, for appellees.
*448 SIMPSON, Justice.
Complainants (appellees) filed a bill of complaint on September 27, 1955 against the respondents (appellants) praying for an injunction to restrain respondents from cutting timber and trespassing on the property involved in this suit. Complainants sought also damages for the trespass committed in cutting and removing timber from the property.
There is no need to encumber this recital with all the various interlocutory pleadings which were filed before the case was at issue. Suffice it to say that ultimately respondents filed an amended motion to redeem the lands from tax sale and complainants filed an amended bill so as to make the case a proceeding in personam to quiet title to the forty acres involved.
The trial court, after hearing the testimony, rendered a final decree denying respondents' motion to redeem from tax sale, quieting title in complainants, and permanently enjoining respondents from trespassing on the property, and entered a decree in favor of complainants and against respondent Charles D. Grice for $700.00 for trespass committed by him in cutting and removing timber from the property.
From this decree respondents have appealed.
Appellees have filed a motion to dismiss the appeal on the ground that the appeal came too late. The final decree is dated April 24, 1961, and the appeal was taken October 24, 1961. Appellees contend that this is not timely under the provisions of Title 7, § 788, Code of Alabama of 1940, which requires the appeal to be taken "within six months".
The motion to dismiss is not well taken. Title 1, § 12, Code of 1940, provides that in computing time the first day is excluded and the last day included. The question raised was settled in Boyett v. Frankfort Chair Co., 152 Ala. 317, 44 So. 546. We held in that case, where the final decree was rendered January 25, 1906, and the appeal taken January 25, 1907, under a statute providing that appeals must be taken "within one year from the rendition of the judgment or decree" that the appeal came in time. See also Odom v. Odom, 272 Ala. 164, 130 So. 2d 10, and cases therein cited.
We turn then to the merits of the case.
Respondents (appellants) are the heirs of C. F. Grice, deceased, who died intestate in 1918, leaving surviving him a widow, and for the purposes of this case, these appellants. Appellants introduced a certified copy of a quitclaim deed from Samuel M. Pickler and John B. Foley to C. F. Grice, dated July, 1905, and recorded July 17, 1905, which deed conveyed the property involved in this litigation.
Complainants offered in evidence a certified copy of a tax deed from the State of Alabama, by Auditor, to T. L. Taylor, dated April 19, 1922, and filed for record January 18, 1927. Further exhibits by complainants (appellees) complete the chain of title from this tax deed to the present appellees.
Concededly, the tax deed, under which appellees claim, is invalid. No notice of the sale was given respondents (appellants) and the lands were sold during the minority of one of the respondents and during the time when the widow of C. F. Grice was living. The record, however, shows without dispute that T. L. Taylor, appellees' predecessor, got a tax deed to the property in 1922 and that he and those who claim title through him paid taxes on the property from 1922 up until the time of the filing of the bill in 1955. None of the appellants has paid taxes on the land since 1922 up until 1953, and in fact the record shows that during most of the time since 1922 all of them have lived outside the state of Alabama.
The widow of C. F. Grice died in North Carolina in 1943. At all times pertinent *449 to this case, all other respondents had attained full age.
After hearing all of the evidence the trial court found that complainants (appellees) were in possession of the property involved at the time the suit was filed and that no suit was pending to test their title; that the respondents and each of them failed to prove their title to the property and have failed to prove the allegations of their motion to redeem the property from tax sale, and that their right to redeem the property is barred by the Short Statute of Limitations (Title 51, § 295, Code of Alabama 1940).
The question before us is whether there was legal evidence before the trial court sufficient to sustain the decree vesting title to the land in appellees. We hold there was. It is conceded that this so-called short statute of limitations applies alike to valid and void tax sales, even though the void sale was made before it has such application, where actual, open and notorious adverse possession for three years by the tax purchaser or his successor in title is proved. Morris v. Mouchette, 240 Ala. 349, 199 So. 516; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479; MacQueen v. McGee, 260 Ala. 315, 70 So. 2d 260. Of course, the statute does not begin to run until the purchaser is in adverse possession and has become entitled to demand a deed to the property from the Judge of Probate. Perry v. Marbury Lumber Co., 212 Ala. 542, 103 So. 580; Loper v. E. W. Gates Lumber Co., 210 Ala. 512, 98 So. 722; Odom v. Averett, supra; Singley v. Dempsey, 252 Ala. 677, 42 So. 2d 609; Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779; Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239.
The question of adverse possession is one of fact in each case to be determined by the trier of the facts. In this case, the trial judge. There was ample evidence to support his finding. The record shows that appellees or their predecessor in title worked the trees for turpentine for several years and that such operations were plainly visible from the public road. These acts of possession have been determined by this court to be effective notice of occupancy and possession of land of the type involved here. Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558. See also Pfaffman v. Case, 259 Ala. 411, 66 So. 2d 890.
We believe that the record supports a finding by the trial court that the appellants are barred by Title 51, § 295, Code 1940. Since the evidence was taken ore tenus on the question of adverse possession for the prescribed period, we will not disturb it here unless the conclusion is clearly and palpably erroneous. This we can not say. Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897; Laney v. Dean, 267 Ala. 129, 100 So. 2d 688.
We are constrained to hold that the assignments of error are without merit.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | July 12, 1962 |
0ee5b6d4-817a-4343-940c-0669ab094005 | Kemp v. Jackson | 145 So. 2d 187 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 187 (1962)
Charles W. KEMP et al.
v.
Clint JACKSON, Adm'r.
6 Div. 450.
Supreme Court of Alabama.
September 20, 1962.
*188 Sadler, Sadler, Sullivan & Herring, Birmingham, for appellants.
Parsons, Wheeler & Rose, Birmingham, for appellee.
COLEMAN, Justice.
This is an appeal by two, of three defendants, from a judgment for plaintiff, in an action for wrongful death of plaintiff's intestate. Verdict and judgment were against all three defendants, to wit, Kemp, Copeland, and Gamble. Kemp and Copeland appealed. Gamble was summoned to appear and unite in the appeal, but he has not done so.
The case went to the jury under Count B, which alleges that Kemp operated, for hire, motor vehicles known as wreckers to bring in disabled automobiles; that plaintiff's intestate, Clint Jackson, verbally contracted with or engaged from Kemp, for $40.00 which was paid to Kemp, a wrecker with a driver to bring intestate's disabled automobile into Birmingham from a place near Cullman; that Kemp, or his employee acting within the line and scope of his employment, requested intestate to ride in the cab of the wrecker from Birmingham to the place where intestate's automobile was, to show the driver of the wrecker where the automobile was and identify it; that intestate did ride in the wrecker from Birmingham to a place near Garden City where the wrecker, while en route, was in collision with another motor vehicle; that the wrecker was driven on said trip by Copeland who was the employee of Kemp; that the latch on the right door of the cab of the wrecker was, at the time intestate engaged the wrecker and at the time of collision, in a defective, dangerous, and unsafe condition; that, on the trip, the wrecker was involved in a collision with an automobile; that the defective latch on the right door of the wrecker failed to hold said door closed, the door came open, and intestate was thrown out of the wrecker through said open door and suffered injuries whereof he died; that Copeland, who was the employee of Kemp and acting within the line and scope of his employment, was negligent in so transporting intestate in the cab of said wrecker with said defective, dangerous, and unsafe latch, knowing the same to be defective, dangerous, and unsafe; that Gamble so negligently operated an automobile at said time and place that it ran into the wrecker, injuring intestate so that he died; that the injury *189 and death of intestate were proximately caused by the concurring negligence of Copeland and Gamble, and that Copeland was the agent of Kemp and was acting within the line and scope of his agency.
Defendants pleaded in short with leave, etc.
We understand that it is not disputed that intestate was driving his automobile toward Birmingham; that the automobile broke down near Cullman; that intestate left the car and went to Birmingham where he engaged a wrecker from Kemp to bring the car to Birmingham; that intestate and his brother got into the wrecker, which had one seat and was driven by Copeland as employee of Kemp, and proceeded toward Cullman; that Copeland was driving the wrecker and seated on the left side, intestate's brother was seated in the middle, and intestate was sitting on the right next to the right door of the wrecker.
It appears without dispute that when the journey began the latch of the right door of the wrecker was defective, and that defendant Copeland had prior knowledge of the defect. He testified as follows:
At some disputed time, at the beginning of or during the journey, Copeland undertook to fasten the right door with a chain. Evidence for appellants tended to show that the door was fastened with the chain before the wrecker left Kemp's garage. Evidence for plaintiff tended to show that the chain was not placed on the door until after the wrecker had proceeded several miles to the highway, and that intestate had no knowledge of a defective latch until that later time.
On the highway, the wrecker met a car driven by defendant Gamble. Evidence tends to show that Gamble drove his car so that it struck the left side of wrecker and knocked the wrecker over on its right side. The wrecker was stopped, or almost stopped, and on the right side or shoulder of the highway at the time of collision. There is no insistence that Copeland was negligent in the manner of driving the wrecker.
Copeland and intestate's brother did not suffer severe injury. Intestate suffered injuries which caused his death a few days later. After the collision, intestate was pinned under the right side of the wrecker. As to intestate's position, one witness testified as follows:
Intestate's brother testified that after the wrecker came to rest, intestate was pinned "down," and the right door of the wrecker "was bent all up. It was open."
This assignment recites as follows:
At page 132 of the transcript, the following appears:
Assignment 18 makes no reference to the refusal of any charge requested in writing by appellants. The assignment and the transcript, as quoted above, compel us to conclude that appellants are here complaining of the court's action in refusing to instruct the jury in accordance with a request which appellants made orally and not in writing. It has been held by this court that it will not reverse a judgment of the circuit court for its refusal to give a charge asked, unless it appear that such charge was put in writing as the statute provides. Jacobson v. State, 55 Ala. 151; Green v. State, 66 Ala. 40. The declination of a trial court to instruct the jury in consonance with, or on the subject of, verbal suggestion by counsel presents no matter for review on appeal, even though the suggestion was well founded. Mullins v. Lemley, 205 Ala. 593, 88 So. 831. See also: Brock v. State, 235 Ala. 304, 178 So. 548; Krasner v. Gurley, 248 Ala. 686, 29 So. 2d 224; Keel v. Weinman, 266 Ala. 684, 98 So. 2d 611; § 273, Title 7, Code 1940. Assignment 18 is without merit.
Assignment 4 is that the court erred in refusing to give at appellants' request the following written charge:
Without considering other possible defects, we are of opinion that Charge II is erroneous because it omits the element of appreciation on the part of the plaintiff's intestate. Although the charge requires the jury to be reasonably satisfied that intestate had knowledge of the defective condition of the door and the foreseeable results thereof, the charge fails to require that the jury be reasonably satisfied that intestate appreciated the danger. This court has said:
In Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, 1946, Vol. 4, Part 1, § 2515, page 721, the writer says:
While there is a distinction between contributory negligence and assumption of risk, Foley v. Pioneer Min. & Mfg. Co., infra, certain elements are common to both. With respect to contributory negligence this court has said:
So for the defense of assumption of risk to apply, we think "there must have been an appreciation or consciousness of the danger" with which the risk is attended. Charge II fails to require such appreciation and was refused without error.
These assignments take the point that the court erred in refusing the affirmative charge with hypothesis separately requested in writing by defendants Kemp and Copeland. Without extended discussion, we conclude that, inasmuch as Copeland was acting within the line and scope of his employment by Kemp, both Copeland and Kemp were liable or neither was liable.
These defendants assert that they were entitled to affirmative instructions for four reasons, to wit: (A) for that the evidence shows as a matter of law that intestate assumed the risk of the defective door and, therefore, no recovery can be had against appellants for his injury or death resulting from that defect; (B) for that the evidence shows as a matter of law that intestate was guilty of negligence which proximately *192 contributed to his injury and that plaintiff was, therefore, barred from recovery against appellants for injury caused by their simple negligence; (C) for that the evidence was insufficient to show that intestate was not a guest subject to the guest law, § 95, Title 36, Code 1940, and so barred from recovery against appellants for their simple negligence; and (D) for that the only negligence charged against appellants, namely, transporting intestate in the wrecker with a defective door latch, was not shown to be the proximate cause of intestate's death.
(C) It seems appropriate to consider first the contention that intestate was a guest under § 95, Title 36, Code 1940, which has been construed in Blair v. Greene, 247 Ala. 104, 22 So. 2d 834; Sullivan v. Davis, 263 Ala. 685, 83 So. 2d 434, 59 A.L.R.2d 331; Klein v. Harris, 268 Ala. 540, 108 So. 2d 425. The rule of those cases is that if the trip is for any benefit to the driver, conferred or anticipated, it is sufficient to take the case out of the guest statute, but a mere incidental benefit to the driver is not sufficient. The benefit to the driver must in some way have induced the driver to extend the offer to the rider, and the benefit must be material and tangible and must flow from the transportation provided.
The evidence for appellants was to effect that intestate was permitted to ride the wrecker at his own request and for his own benefit merely. This evidence would justify a finding that intestate was a guest and not entitled to recover for an injury caused by simple negligence of the driver or operator of the wrecker.
On the other hand, defendant Kemp admitted that intestate made a payment to Kemp for sending the wrecker to bring in intestate's car. Intestate's brother, Charles, testified with respect to intestate's riding in the wrecker as follows:
We are of opinion that the jury could find that the carriage of intestate conferred a benefit on defendant, Kemp, which was material and tangible under the above stated rule and that, under the statute, intestate was not a guest but was a passenger to whom appellants owed a duty which has been stated as follows:
We do not understand appellants to contend that the jury could not find that transporting *193 intestate in the wrecker with the defective door latch constituted a breach of the duty of reasonable care owed by appellants to intestate, if intestate was ignorant of the defect and appellants had knowledge of it. We hold that the jury could find (1) that intestate was not a guest under the guest statute, and (2) that knowingly transporting intestate in the wrecker with the defective door latch was negligence on the part of appellants.
(A) The familiar rule is that when the affirmative charge is refused and the party who requested the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party, and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of the trial court in refusing the charge must be affirmed. Louis Pizitz Dry Goods Company v. Harris, 270 Ala. 390, 118 So. 2d 727.
We are of opinion that the evidence reasonably supports an inference that intestate did not voluntarily, with full knowledge and appreciation of the danger, assume the risk of the defective door latch.
Evidence for appellants is to effect that the chain was applied to the door before the wrecker left the garage. Appellants contend that under that view of the facts, intestate assumed the risk.
Evidence for plaintiff, however, is to effect that the chain was not placed on the door until after the wrecker had traveled out to the highway and rain had commenced to fall. The brother of intestate testified that at that time, the defendant Copeland "taken a chain and tied the door"; it was "A trace chain"; it was "looped" around the door handle; the other end of the chain was "tied" around a metal rod back of the seat; at that time the window glass was not all the way up; but the chain did not remain in that position. Intestate's brother testified as follows:
We understand that intestate's brother was holding the chain, as thus described, at the time of collision.
Clearly, intestate did not assume the risk at the time he left the garage in the wrecker if, at that time, the chain was not affixed to the door and intestate had no knowledge of any defect in the door latch.
Appellants argue, however, that intestate accepted the risk when he continued to ride in the wrecker after the chain had been placed on the door out on the highway. They state in brief:
Appellants' argument, as we understand it, is that, when the chain was placed on the door, intestate was bound to leave the wrecker or be deemed to have assumed the risk of injury resulting from the defective door latch.
An essential element of assumption of risk is that plaintiff must have exposed himself voluntarily.
If intestate had knowledge and appreciation of the danger, and also had a reasonable choice whether he should continue to ride in the wrecker or get out on *195 the highway in the rain, then he might be deemed to have "voluntarily" assumed the risk. On the other hand, if intestate did not have a reasonable choice, then his assumption of the risk could not be deemed voluntary. We think the evidence permits the latter inference and that we cannot say as a matter of law that intestate voluntarily assumed the risk.
(B) This court has said: "* * * There is a well-defined distinction between assumption of risk and contributory negligence. * * *" Foley v. Pioneer Min. & Mfg. Co., 144 Ala. 178, 182, 40 So. 273, 274. Concerning the doctrine of volenti non fit injuria, this court has quoted with approval as follows:
We are not to be understood as disregarding the distinction between the two defenses. What has been said, however, with respect to the evidence supporting a reasonable inference that intestate did not assume the risk, applies also to contributory negligence. We are of opinion that the evidence reasonably supports an inference that intestate was not guilty of a failure to exercise reasonable care for his own safety. The issue of contributory negligence was submitted to the jury without error.
(D) Appellants argue that the only inference supported by the evidence is that, even if appellants be held guilty of negligence in transporting intestate with a defective door latch, such negligence of appellants was not the proximate cause of the injury, for the reason that the negligence of defendant Gamble in driving his car so as to strike the wrecker and knock it over was an independent, intervening cause that could not have been foreseen by appellants as a natural and probable consequence of their negligence in transporting intestate with a defective door latch, citing Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474.
In the Courson case, this court held that the negligence of the defendant railroad in maintaining a door in an improper condition was not the proximate cause of plaintiff's injury where the door was forced open by another passenger and glass from the door fell on and cut the plaintiff. The rule as to proximate cause was stated as follows:
As it appears to us, the evidence in the instant case reasonably supports an inference that the injury sustained by intestate, which caused his death, may have resulted solely from the force of Gamble's car when it struck the wrecker; that is, the wrecker door may have been forced open solely by the blow, and not because the latch was defective.
On the other hand, we think it could also be reasonably inferred that the defective condition of the latch concurred with the force of the blow from Gamble's car, so that the opening of the door of the wrecker was not caused solely by the force of the blow from Gamble's car, but also by the defective latch, and that, without the *196 defect in the latch, the door would not have opened and intestate would not have suffered the injury which caused his death.
Plaintiff's contention is that the defect in the latch was a concurring cause of the opening of the door; that the opening of the door caused intestate to fall or be thrown out of the wrecker and suffer injury which caused his death; and that, because appellants were negligent in transporting intestate in the wrecker with the defective latch, appellants are liable for the consequence of the defect, namely, intestate's death.
This court has said:
The evidence here supports an inference that a danger reasonably to be foreseen, as a natural result of the defective door latch, is the danger that the door might open and a person riding in the wrecker might fall or be thrown out of the door and injured. It was not necessary that the particular consequence of appellants' negligence with respect to the defect could have been foreseen by appellants. It was sufficient that the injuries sustained by intestate were the natural, although not the inevitable result of appellants' negligence respecting the latch. Intestate's being thrown out the door was an injury likely to ensue from the negligence of appellants, or, at least, the jury could reasonably so infer.
In Courson's case, glass falling out of the door was not the natural or likely consequence of the door's jamming and, therefore, injury from the falling glass was not reasonably to be anticipated as a foreseeable result of negligence in allowing the door to become defective and jammed or stuck. In the instant case, a passenger's falling or being thrown from the wrecker was a natural and likely consequence of the defective door latch and, therefore, injury to the passenger from so falling was reasonably to be anticipated as a foreseeable result of negligence in maintaining the defective latch. It is difficult to see how a door's becoming jammed or stuck would cause glass to fall out of the stuck or jammed door of the railroad coach. It is not difficult to see how a defective door latch would cause a passenger to fall or be thrown through the opened door of the wrecker.
We are not persuaded that the evidence requires us to hold, as a matter of law, that appellants' neglect, in knowingly transporting intestate with the defective door latch, was not a concurring, proximate cause of intestate's death. The affirmative charge with hypothesis requested by appellants was refused without error.
The judgment is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., concur. | September 20, 1962 |
29d2e511-3ced-4c3e-a7f3-e8bc3615e0d6 | Shirley v. McNeal | 145 So. 2d 415 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 415 (1962)
Lola P. SHIRLEY et al.
v.
Edward E. McNEAL et al.
6 Div. 698.
Supreme Court of Alabama.
August 30, 1962.
Rehearing Denied October 18, 1962.
J. Terry Huffstutler, Birmingham, for appellants.
John J. Smith and Geo. S. Brown, Birmingham, for appellees.
SIMPSON, Justice.
Edward E. McNeal and Pansy Louise McNeal, appellees, filed their original bill, and subsequently an amended bill, against Lola P. Shirley, as administratrix of the estate of Gordon M. Parson, deceased, and Rodney R. Parsons and Dr. M. B. Parsons, all heirs of Gordon M. Parson, deceased. ("Parson" seems to have been used interchangeably with "Parsons".) They sought to establish a resulting trust in favor of complainants and to enjoin the administratrix of the estate of Gordon M. Parson from any action ousting the complainants from the possession of the real estate involved herein pending this litigation. An agreement was reached between counsel for complainants and respondents whereby *416 it was agreed that a restraining order should be issued by the court upon the posting of bond by complainants. The bond was posted and the restraining order entered by consent.
The case was tried on the substantial issue remaining, i. e., whether or not the complainants under the facts and law were entitled to have impressed on the real property involved a resulting trust in their favor.
The bill alleged that on or about August 10, 1948, they bought from Lena Saizis, a widow:
and
The cause was tried ore tenus by the court, who at the close of the testimony entered a decree impressing a resulting trust upon the property in favor of complainant Edward E. McNeal.
The court's decree alludes to much of the evidence adduced at the trial of this cause. It is reproduced in part here for an understanding of the facts of the case:
The first two assignments claim error in the action of the trial court in overruling the demurrer to the amended or substitute bill. The third assignment is the claimed error in the rendering of the final decree in favor of appellee.
We, like the trial court, think it "best to put the dispute at rest on the merits without too much regard to the generality of the pleading". Nevertheless, the allegations of the bill show that there was no hostile adverse possession on the part of the decedent, but to the contrary, clearly states that at no time since the purchase did Mr. Parson make any claim or assert any interest or right in or to the dwelling house and lot. We entertain the view, therefore, that the demurrer on the ground that the complaint showed on its face that the action was barred by the statute of limitations was not well taken. The ten-year statute of limitations based on adverse possession does not begin to run in such a case as long as there is a recognition of the trust by the trustee. Sykes v. Sykes, 262 Ala. 277, 78 So. 2d 273; Jacksonville Pub. Serv. Corp. v. Profile Cotton Mills, 236 Ala. 4, 180 So. 583.
Appellants next claim error in the court's rendering its final decree establishing a resulting trust in the property in favor of appellee McNeal. In the case of J. A. Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35, the court thus exposited the doctrine:
Where the purchase is evidenced by an executory contract in writing, a portion of the money being paid, balance to be paid in deferred installments, an equitable interest or title vests in the purchaser. Love v. Butler, 129 Ala. 531, 30 So. 735; Heard & Lee v. Heard, 181 Ala. 230, 61 So. 343; Bessemer Coal, Iron & Land Co. v. Bullard, 215 Ala. 433, 111 So. 5.
In such cases, this court has approved the rule that a party to such purchase, who makes the cash payment, or his aliquot portion thereof, and becomes absolutely bound for the deferred installments, and thereafter pays the same, the deed being taken in the name of another, a resulting trust arises. Upchurch v. Goodroe, 242 Ala. 395, 6 So. 2d 869; Bibb v. Hunter, 79 Ala. 351; Butts v. Cooper, 152 Ala. 375, 44 So. 616; Watkins v. Carter, 164 Ala. 456, 51 So. 318; J. A. Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35(5).
Such is the law, generally, on the subject. 5th Pomeroy, Eq.Jur., § 1037, pp. 71-72.
It, of course, is well settled that the evidence of payment of the purchase price or an aliquot part thereof must be full, clear and satisfactory. J. A. Owens & Co. v. Blanks, supra. The trial court believed such a case was made in the present litigation. There is much evidence to the effect that the $500.00 down payment was made by appellee McNeal; that all subsequent payments were also made by him. We cannot say that the trial court's finding in that regard was clearly wrong. He states that the reason for title being taken in Parson's name was not clear, but we know of no rule which requires the motivations of the parties to be shown by full and satisfactory evidence.
The issue tried in the court below presented purely questions of fact for the trial judge. He heard and had an opportunity to see the witnesses, many of whom have no interest in the outcome of this litigation. He found that the appellee, McNeal, paid the down payment and became obligated to pay the deferred installments. Such facts are sufficient basis for the relief granted in the decree. We should not substitute our judgment as to the facts unless his conclusion is palpably wrong and unjust, which we cannot so affirm. Culpepper v. Davis, 267 Ala. 541, 103 So. 2d 179; Beavers v. Harris, 265 Ala. 548, 93 So. 2d 161; Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897; Casey v. Krump, 260 Ala. 280, 69 So. 2d 864.
*421 The argument of learned counsel for appellants is most cogent, but in view of the presumption attending the ruling below on conflicting matters of fact, we are persuaded that to disturb that ruling would be unwarranted.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | August 30, 1962 |
64bf2c1e-ba48-4b09-bc06-01aff4e1cff5 | Campbell v. Davis | 145 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 725 (1962)
H. L. CAMPBELL, Administrator,
v.
Leon DAVIS et al.
4 Div. 82.
Supreme Court of Alabama.
September 20, 1962.
Rehearing Denied October 25, 1962.
Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.
Tipler & Fuller, Andalusia, for appellees Leon Davis and Bobby Barlow.
Allen Cook, Andalusia, for appellee Jackie Lewis.
PER CURIAM.
On the evening of May 22, 1960 an automobile accident occurred in Covington County, Alabama, in which two persons were killed and a third seriously injured. As a result of the accident, three claims have been filed against the estate of Charles Melvin Locke in the Probate Court of Covington County. Actions by and on behalf of Leon Davis and P. P. Lewis, as administrator of the estate of Jackie Lewis, against Locke for the wrongful deaths of Virgil Eugene Davis and Jackie Lewis and by Bobby Barlow for personal injuries received in the accident are pending in the Circuit Court of Covington County.
On August 31, 1960 H. L. Campbell filed his petition in the Probate Court of Covington County, Alabama, praying that he be appointed as administrator of the estate of Charles Melvin Locke, deceased. Upon presentation of the petition to the Probate Court an order was entered appointing him as such administrator upon the filing of bond in the penal sum of $200.00 conditioned and payable according to law.
Following his appointment as administrator of the estate of Charles Melvin Locke, deceased, the claims referred to above were filed. On October 3, 1960 the appellant as administrator filed notice of the disallowance of the claims.
On March 28, 1961 appellant as administrator of the estate of Charles Melvin Locke, deceased, filed his verified petition seeking the revocation of the letters of administration previously issued to him. Demurrers were filed to the petition by the various claimants with the result that the court entered a judgment sustaining certain grounds of the demurrers and further ordering and adjudging that appellant's petition be dismissed out of court. This is an appeal from that judgment.
Since the case is here on appeal from the judgment of the Probate Court sustaining demurrers of the claimants to appellant's petition and dismissing the petition the allegations of fact contained in the petition must be treated on appeal as the facts in the case. The allegations of the petition show substantially the following:
*726 Appellant filed his petition seeking administration of the estate of Charles Melvin Locke, deceased, on advices that Charles Melvin Locke at the time of his death was an inhabitant of Covington County, Alabama, that he died in Covington County at or near the town of Lockhart, Alabama, on or about the 22nd day of May 1960, leaving no last will or testament insofar as he knew and that Charles Melvin Locke died seized and possessed of "real and personal estate in this State consisting chiefly of a few items of personal property, exact amount and items being unknown to Petitioner, and it being unknown as to whether he owned any realty or not", all of said estate being estimated to be worth $100.00 and probably not more; that appellant was requested to file his petition for letters of administration on the estate of the deceased and relying upon such representations he filed the petition and in doing so acted in complete good faith.
Subsequent to appellant's appointment as such administrator he made investigations as to the legal residence of his intestate and the estate, if any, owned by him at the time of his death and located in Covington County, Alabama. He then discovered that his intestate was not a resident of the State of Alabama at the time of his death and had never resided in the State of Alabama, but on the contrary resided with his mother and father in the State of Florida in Okaloosa County and further that his intestate had no personal property or real property whatsoever in the State of Alabama at the time of his death other than items of clothing and personal effects upon him at the time of his death at or near Lockhart, Alabama, at which time appellant's intestate, while a transient in Alabama, was accidently killed in an automobile accident in which another automobile or automobiles were involved.
Since appellant's appointment as administrator of said estate only three claims have been filed against the estate, all of which were for injuries or death arising out of the alleged negligent operation of an automobile which appellant's intestate was allegedly operating at the time and place where he himself was accidently killed.
The petition further shows on information and belief that on the date of the accident appellant's intestate was possessed of the potential or contingent right of exoneration and indemnity under an automobile liability insurance policy which provided among other things that the insurer would pay on behalf of the intestate all sums which he should become legally obligated to pay as damages because of injury or death sustained or arising out of the operation or use of the automobile specified in the policy.
The said policy of insurance was numbered FAM785151, was issued to Charles Locke, the father of Charles Melvin Locke, deceased, was dated December 30, 1959 and expired December 30, 1960. The policy was issued by Indemnity Insurance Company of North America through Brooks Insurance Company in Crestview, Florida, and was in full force and effect on the date of the accident. The insurance policy was at all times physically located in the State of Florida. The policy among other things provided that no action shall lie against the Company unless, as a condition precedent thereto, the insured shall have fully complied with all terms of this policy; nor until the amount of the insured's obligation to pay shall have been finally determined, either by judgment against the insured after actual trial, or by written agreement of the insured, the claimant and the company.
It is further alleged that there has been no final determination to pay any damages as a result of the injuries or death of the claimants either by judgment against the insurer after actual trial or by written agreement of the insured, the claimant and the insurance company as provided for by the terms of the policy of insurance.
It is further alleged in appellant's petition, upon information and belief, that the said insurer is a Pennsylvania corporation *727 duly admitted to transact business in the State of Alabama as well as in the State of Florida, and was on the date of said accident and was at the time of the filing of the petition, doing business by agent in Covington County, Alabama, as well as in Okaloosa County, Florida; that appellant's intestate at no time had any tangible assets or estate of any kind or any character in the State of Alabama unless the said indemnity policy of insurance could be said to be within the State of Alabama at the time of the death of appellant's intestate and to constitute an asset of his estate; that appellant's intestate had never been liable and was not upon the date of his death, liable in the State of Alabama for any debts, liabilities or obligations unless the said claims against his estate for the alleged wrongful injuries and death constitute claims and make the said claimants or their estates creditors of the estate of appellant's intestate; that no one other than appellant had applied for administration of his intestate's estate in the State of Alabama and that all of the heirs of appellant's intestate are non-residents of the State of Alabama.
Appellant's petition further alleges that if the matters and things alleged therein on information and belief as to his intestate's right of indemnity for exoneration under said insurance policy are correct, that such right of exoneration or indemnity does not constitute an asset of his intestate's estate in Covington County, Alabama, where said decedent died, within the meaning of Section 80, Title 61, Code of Alabama 1940, and neither did it have a situs in Covington County, Alabama, at the time of the death of appellant's intestate or at any time thereafter.
It is further alleged that his petition for letters of administration filed in the Probate Court of Covington County as aforesaid was improvidently made and that the said order appointing him as such administrator was likewise improvidently made and entered in that the Probate Court of Covington County, Alabama, had no jurisdiction in the matter.
From our consideration of the principles involved and the authorities cited to us in the excellent briefs filed by attorneys on both sides of the case we think that the decree of the lower court should be affirmed. So far as we can ascertain, however, the question in Alabama is novel. We state the question for decision as follows:
There is no question of the authority of the probate courts of this state to grant letters of administration in the estates of persons not domiciled in Alabama by virtue of our statute (Section 80, Title 61, Code of 1940). The only requisites to the exercise of the court's authority in making such appointments are:
From our consideration of the authorities it appears to be the general rule prevailing in this country that a deceased insured's potential right of exoneration under an insurance policy does constitute sufficient "assets", "property" or "estate" of a non-resident decedent to justify a grant of an administration of his estate in the state in which he dies. While the right of the decedent's personal representative to the benefits of the indemnity clause contained in the policy of insurance will not mature until suit is brought against him, nevertheless, it has a present value to the estate. Re Breese's Estate, 51 Wash. 2d 302, 317 P.2d 1055; Gordon v. Shea, 300 Mass. 95, 14 N.E.2d 105; Re Vilas' Estate, *728 166 Or. 115, 110 P.2d 940; Re Klipple's Estate, (Fla.App.) 101 So. 2d 924, 67 A.L.R.2d 932; Annotation: "Liability insurer's potential liability to estate dependent upon establishment of claim against estate, as justifying grant of administration under statutes making existence of assets or property a condition of grant", 67 A.L.R. 2d 936.
It is argued by appellant that the right of indemnity could not be an asset because no judgment has been recovered against the estate of Charles Melvin Locke, deceased. We do not believe the situation is altered if the maturity of the right of indemnity is delayed until a judgment is rendered. The insurance coverage still has a present value to the estate. We think that the problem was well answered in the case of Robinson v. Dana's Estate, 87 N.H. 114, 174 A. 772, 94 A.L.R. 1437, 1440 where it was said:
We conclude that the judgment of the lower court should be affirmed.
In view of our holding, there is no need of determining whether the personal effects and clothing of the decedent Locke were sufficient "assets" in Covington County to authorize appointment of the administrator in that County.
The foregoing opinion was prepared by STAKELY, Supernumerary Justice of this court, and adopted by the court as its opinion.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, COLEMAN and HARWOOD, JJ., concur. | September 20, 1962 |
7708ff69-b21d-4026-81e0-0fc1cab8e62a | Prince v. Bryant | 145 So. 2d 837 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 837 (1962)
Bessie Mae PRINCE
v.
B. G. BRYANT.
3 Div. 962.
Supreme Court of Alabama.
October 18, 1962.
*838 Clifford J. Durr, Montgomery, for appellant.
Walter J. Knabe and Rodney R. Steele, Montgomery, for appellee.
LAWSON, Justice.
This suit was filed in the Circuit Court of Montgomery County by Bessie Mae Prince against B. G. Bryant and B. G. Smith, who were police officers of the City of Montgomery.
The complaint contained three counts. In Count I the plaintiff sought damages of both the defendants for false imprisonment.
Count II was against the defendant Bryant and read as follows:
Count III was against the defendant Bryant for an assault and battery.
Smith was stricken as a party defendant. Demurrer to Count II was sustained. Bryant then interposed pleas of the general issue to Counts I and III and a special plca to Count I which, in substance, alleged that plaintiff was arrested by the defendant for an offense committed in his presence and while in the execution of his duties as a police officer of the City of Montgomery.
There was a jury verdict in favor of the defendant, Bryant. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, she has appealed to this court.
The first argued assignment of error is to the effect that the trial court erred in sustaining defendant Bryant's demurrer to Count II of the complaint.
Count II was designed, no doubt, as an action on the case for malicious prosecution, but it is insufficient for that purpose because it avers, in substance, that the prosecution of the plaintiff followed an arrest not under process issued by lawful authority.
*839 Most of our cases, as well as those of the Court of Appeals, which have considered the question have held or observed that a count in case for malicious prosecution which avers the arrest of the plaintiff by the defendant or at the latter's instigation must contain averments showing that the arrest was under process issued by lawful authority. Sheppard v. Furniss, 19 Ala. 760; Williams v. Ivey, 37 Ala. 244; Holly v. Carson, 39 Ala. 345; Davis v. Sanders, 133 Ala. 275, 32 So. 499; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685; Grissom v. Lawler, 10 Ala.App. 540, 65 So. 705; Casino Restaurant, Inc., v. McWhorter, 35 Ala.App. 332, 46 So. 2d 582. See Western Union Telegraph Co. v. Thompson, 5 Cir., 144 F. 578.
In Sanders v. Davis, 153 Ala. 375, 380-381, 44 So. 979, it was observed:
As to the statement just quoted, it is sufficient to point out that Count II does not show "a legal arrest as the commencement of a valid judicial proceeding."
In Sears, Roebuck & Co. v. Alexander, 252 Ala. 122, 39 So. 2d 570, we held good as against demurrer a count charging the malicious prosecution of plaintiff in the Recorder's Court of the City of Birmingham for the violation of an ordinance of that City, which count did not even aver the arrest of the plaintiff on the charge. We pointed out that an arrest was not necessary to the commencement of the valid judicial proceeding which was begun in the recorder's court in such a manner as to be legally sufficient to support a judgment of conviction. The holding in that case has no application here, for Count II alleges an arrest of the plaintiff by the defendant.
Count II may be good as a count in trespass for false imprisonment although it does not actually allege that imprisonment followed the arrest. An illegal arrest is both technically and in fact a false imprisonment and the additional allegation of an imprisonment is not essential to the statement of a cause of action for false imprisonment. Strain v. Irwin, 195 Ala. 414, 70 So. 734.
But even if Count II be held good as a count for false imprisonment, it does not follow that a reversal must result because the charge of false imprisonment was submitted in Count I, to which demurrer was overruled. Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473.
As to those assignments which point out alleged errors in the court's oral charge, it is sufficient to say that no exceptions were taken to the oral charge. Boles v. Bonner, 267 Ala. 342, 101 So. 2d 544; Self v. Baker, 266 Ala. 572, 98 So. 2d 10.
There was no error in giving defendant's requested charge No. 10. That charge did not require the plaintiff to prove both counts and it did not require the jury to find for the defendant if every member of the jury was not reasonably satisfied, but only that they could not find for the plaintiff. Jones v. Union Foundry Co., 171 Ala. 225, 55 So. 153, cited in Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So. 2d 912.
We are of the opinion that the trial court erred in giving charge No. 11 at the request of the defendant. The law does not presume that a defendant in a civil case is guilty of any wrong, but we think it is erroneous to instruct a jury in a civil case to the effect that it is its duty to attempt to reconcile all of the evidence in the case with the theory that the defendant has done no wrong. The effect of this charge, in our opinion, is to place too high a degree of proof upon the plaintiff. See Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22; Hill *840 Grocery Co. v. Wilson, 265 Ala. 49, 89 So. 2d 687.
Charge No. 13 given at the request of the defendant asserts a correct principle of law, Sanders v. Davis, 153 Ala. 375, 44 So. 979.
The trial court erred in giving charge No. 14 requested by defendant. This charge is bad for the reason, if for no other, that it predicated a verdict for defendant without regard to what the jury may have believed in respect of the case stated in Count III, which charged assault and battery. Piggly-Wiggly Alabama Co. v. Rickles, 212 Ala. 585, 103 So. 860. This court has held that a charge which tends to limit the recovery to part only of the counts in the complaint, or which excludes one theory of plaintiff's case which is supported by a scintilla of evidence, should be refused. Lambert v. Birmingham Electric Co., 244 Ala. 333, 13 So. 2d 579; Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; Sloss-Sheffield Steel & Iron Co. v. Smith (Ala.), 40 So. 91. In disposing of charge No. 14 in this manner, we are not to be understood as holding that it states a correct principle of law. That question is not determined.
Defendant's given charge No. 15 might well have been refused on the ground that it is predicated on the jury's belief from the evidence. We have said that reversible error will not be predicated on giving or refusing a charge which is improperly hypothecated on belief rather than on reasonable satisfaction from the evidence. Walker v. Bowling, 261 Ala. 46, 72 So. 2d 841; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164. We can see no prejudicial error in the giving of charge No. 15.
Plaintiff's charges 5, 6 and 7 were refused without error. Aside from the fact that they clearly state abstract legal principles without instructing the jury as to the effect of those principles upon the issues involved (Frith v. Studdard, 267 Ala. 315, 101 So.2d 305), their substance was fairly and fully covered in the oral charge of the court. Atlantic Coast Line R. Co. v. Glass, 255 Ala. 183, 50 So. 2d 749.
Plaintiff's charges 8 and 12 were refused without error, if for no other reason, because they state abstract legal principles without instructing the jury as to their effect upon the issues involved. Frith v. Studdard, supra; Fleetwood v. Pacific Mutual Life Ins. Co., 246 Ala. 571, 21 So. 2d 696, 159 A.L.R. 171.
Aside from any other reason, plaintiff's charge No. 13 was refused without error because it is predicated on the jury's belief from the evidence rather than on the jury being reasonably satisfied from the evidence. Davis v. Wingard, 269 Ala. 535, 114 So. 2d 450, and cases cited. Plaintiff's charge No. 10 was properly refused for the same reason. It was not even predicated on a belief from the evidence, simply on the jury's belief.
The appellant, plaintiff below, insists that she was entitled to the affirmative charge as to Count III, the assault and battery count, inasmuch as the defendant admitted that he pushed the plaintiff through a doorway and there was no special plea of justification interposed to Count III.
We have said that in trespass for an assault and battery, justification should be specially pleaded. Lunsford v. Walker, 93 Ala. 36, 8 So. 386.
But the record discloses that the case was tried by the parties as if the defense of justification had been properly pleaded. We will, therefore, treat the case as if this defense had been specially pleaded. Martin v. Martin, 237 Ala. 512, 187 So. 732; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580.
In view of a reversal because of the giving of defendant's charges 11 and 14, we do not discuss the assignments of error to the effect that the court erred in overruling the grounds of the motion for new trial which took the point, in effect, that the verdict *841 was not sustained by the great preponderance of the evidence. Metropolitan Life Ins. Co. v. James, 228 Ala. 383, 153 So. 759.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 18, 1962 |
dde44292-5cf2-4453-990e-6180a251f1b8 | Engel v. Amonett | N/A | 1160113 | Alabama | Alabama Supreme Court | REL: 06/23/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1160113
____________________
Mark Robert Engel and Daniel Michael Engel
v.
Bonita Engel Amonett and Marion Thomas Whitman
Appeal from Mobile Probate Court
(No. 2016-0517)
WISE, Justice.
Mark Robert Engel and Daniel Michael Engel appeal from
the Mobile Probate Court's order disqualifying them as co-
executors of their mother's estate and appointing a third
party to administer the estate. We affirm.
1160113
Facts and Procedural History
On November 23, 2015, Rositha Lorsch Engel1 died. In her
will, she named Mark Robert Engel and Daniel Michael Engel as
co-executors. On March 9, 2016, Mark and Daniel filed a
petition for letters testamentary in the Mobile Probate Court.
The petition listed Rositha's heirs as her four children:
Marion Thomas Whitman ("Thomas"), Mark Robert Engel, Daniel
Michael Engel, and Bonita Engel Amonett.
On May 5, 2016, Bonita and Thomas filed an objection to
the appointment of Mark and Daniel as co-executors of their
mother's
estate,
arguing
that
Mark
and
Daniel
were
disqualified from serving as co-executors for the reasons
stated in § 43-2-22, Ala. Code 1975. Specifically, they
contended that Mark and Daniel, either directly or by agent,
had been selling Rositha's personal property, as well as
personal property of other individuals located in Rositha's
residence, by way of the Internet without having the authority
to do so. Bonita and Thomas asserted that such actions
reflected
"intemperance,
improvidence,
or
want
of
understanding" such that Mark and Daniel were disqualified
1The decedent's name is also spelled "Roswitha" in the
record.
2
1160113
from serving as the co-executors of Rositha's estate, and they
asked that the Mobile County general administrator or some
other neutral party be appointed to administer the estate.
They also requested that Mark and Daniel be enjoined from
selling any of Rositha's personal property and that they be
required to account for, and turn over the proceeds from, any
items that had already been sold.
The probate court conducted a hearing on May 9, 2016. On
May 13, 2016, it entered an order in which, with the consent
of all parties, it enjoined all parties from "disposing [of],
transferring,
giving
away,
spending,
or
otherwise
dissipating"
property belonging to the estate.
The probate court conducted a pretrial conference on July
11, 2016. Thereafter, on July 21, 2016, it entered an order
in which it stated that it would conduct a hearing on October
13, 2016, and that the triable issues for that hearing were:
"A. Whether or not Mark Robert Engel and Daniel
Michael Engel should be appointed as co-executors as
stated in the Last Will and Testament of Rositha L.
Engel dated April 15, 2008;
"B. Whether or not Mark Robert Engel and Daniel
Michael Engel sold personal property of decedent and
committed waste of estate assets or diverted any
estate assets;
3
1160113
"C. If Mark Robert Engel and Daniel Michael
Engel sold personal property and committed waste of
assets, what is the value of the personal property
sold and should they return the value to the estate;
and
"D. Whether or not the Court should appoint the
Mobile County General Administrator to administer
decedent's estate."
The probate court conducted the hearing on the petition
on October 13, 2016. Afterward, on October 17, 2016, it
entered an order in which it stated:
"This cause came before the Court on October 13,
2016, on the Petition for Letters Testamentary filed
by Mark Robert Engel and Daniel Michael Engel and
the
Objection
to
Appointment
of
Personal
Representative
and
Motion
to
Appoint
General
Administrator or Other Neutral Representative filed
by Bonita Engel Amonett and Marion Thomas [Whitman].
Appearances were noted in the record. This cause is
properly
before
the
Court
pursuant
to
its
jurisdiction and authority as conferred by statute,
local act and Constitutional provisions. Upon
consideration
of
the
evidence
and
argument
presented, the Court FINDS, CONCLUDES AND ORDERS as
follows:
"1. The Petition for Letters Testamentary is
DENIED IN PART. The proffered will is admitted to
probate; however, the Objection to Appointment of
Personal Representative and Motion to Appoint
General
Administrator
or
Other
Neutral
Representative is SUSTAINED and GRANTED.
"2. Frank H. Kruse, General Administrator of
Mobile County Probate Court shall be appointed
Personal Representative of the Estate and Letters of
4
1160113
Administration with the Will Annexed shall issue
forthwith.
"3. Mark Robert Engel and Daniel Michael Engel
are ORDERED to provide an accounting to the Personal
Representative of any personal property sold or put
up for sale since the date of decedent's death.
"4. Mark Robert Engel and Daniel Michael Engel
are
ORDERED
to
turn
over
to
the
Personal
Representative any assets in their possession
belonging to the Estate.
"5. The Personal Representative is ORDERED to
file an inventory on or before November 18, 2016."
(Capitalization in original; emphasis added.)
On November 4, 2016, Mark and Daniel filed a notice of
appeal to this Court.
Standard of Review
"'Because the
probate
court's
judgment
is based, in part, upon testimony adduced
at an ore tenus proceeding, we presume its
judgment to be correct, and we will not
reverse its judgment unless it is "palpably
erroneous." Cox v. Logan, 262 Ala. 11, 13,
76 So. 2d 169, 171 (1954). A more recent
statement of the "ore tenus" rule, as
applicable in an appeal from a probate
court's judgment, appears in Craig v.
Perry, 565 So. 2d 171, 175 (Ala. 1990)
(citations omitted):
"'"[W]hen a court hears ore tenus
evidence in a nonjury case, its
ruling based on that evidence is
presumed correct and will be
overturned
only
if
clearly
5
1160113
erroneous or manifestly unjust.
...
The
presumption
of
correctness
is
especially
applicable where ... the evidence
was conflicting. The weight to
be given the witnesses' testimony
[is] for the trial judge, because
he had the opportunity to view
the
witnesses
and
their
demeanor."'
"Barron v. Scroggins, 910 So. 2d 780, 782-83 (Ala.
Civ. App. 2005)."
McGallagher v. Estate of DeGeer, 934 So. 2d 391, 401 (Ala.
Civ. App. 2005).
Discussion
Mark and Daniel argue that the probate court erred in
disqualifying them from being the co-executors of their
mother's estate. Specifically, they contend that the probate
court stated that it was disqualifying them because the heirs,
which included them, did not get along and for "efficiency of
administration," which they assert are not proper grounds for
disqualifying them from serving as co-executors. Therefore,
Mark and Daniel conclude, the probate court's order should be
reversed and they should be appointed as the co-executors of
their mother's estate.
6
1160113
Bonita and Thomas argue that the probate court's order
was "grounded in the reasons enumerated by Ala. Code [1975,]
§ 43-2-22(a)," and that that court did not err in finding that
Mark and Daniel were disqualified from serving as
co-executors
for the reasons stated in § 43-2-22. Section 43-2-22(a)
provides, in relevant part:
"No person must be deemed a fit person to serve as
executor who is under the age of 19 years, or who
has been convicted of an infamous crime, or who,
from
intemperance,
improvidence
or
want
of
understanding, is incompetent to discharge the
duties of the trust."
Bonita and Thomas contend that Mark's and Daniel's "entire
appeal is predicated on the assumption that the Probate
Court's Final Order was solely based on 'efficiency of
administration'" and that "[t]he basis for this wrongful
assumption are two gratuitous sentences that were uttered by
the judge at the close of the trial prior to entering the
final order." Instead, they assert that
"the [probate court] made no indication in [its]
verbal statements that this was the sole reason for
[its] decision. The Final Order itself, read in
light of the pleadings and, in particular, the
Objection, clearly reflects that the basis of the
[court's] decision was the finding that Mark's and
Daniel's conduct (including but not limited to their
efforts to sell the Decedent's personal property)
reflected intemperance, improvidence, and/or want of
7
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understanding, which disqualified them from serving
as co-executors of the Decedent's Estate."
We agree with Bonita and Thomas. In their objection to
the appointment of Mark and Daniel as co-executors, Bonita and
Thomas argued that Mark and Daniel were disqualified from
serving as co-executors for the reasons stated in § 43-2-22
because they and/or their children had been placing Rositha's
personal property for sale on various sites on the Internet.
Also, the probate court entered an order enjoining all parties
from "disposing [of], transferring, giving away, spending, or
otherwise dissipating" property belonging to the estate.
Finally, the probate court entered an order in which it stated
that the issues to be tried at the hearing were 1) whether
Mark and Daniel sold Rositha's personal property and committed
waste of estate assets or diverted any estate assets, and, if
so, 2) what was the value of the personal property sold and
should the value be returned to the estate, and 3) whether the
court should appoint the general administrator to administer
the estate. Clearly, the issue about which the probate court
was concerned was whether Mark and Daniel were disqualified
from serving as co-executors for the reasons stated in § 43-2-
22.
8
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Also, the evidence presented during the hearing focused
on the question of Mark's and Daniel's fitness to serve based
on whether they should be disqualified pursuant to § 43-2-22.
During the hearing, Bonita testified that Daniel, his wife,
and his three children lived with their mother for at least
eight years during which time Daniel did not work and that
Daniel did not pay their mother rent or pay for utilities
during the time his family lived with her. She explained that
Daniel had previously owned a contracting business but that
the business had suffered when the economy took a downturn.
Bonita stated that, eventually, her mother had put a deadbolt
lock on the door to her bedroom because she felt like some of
her things, including coins, were missing and that Daniel or
his children might have taken them.
Bonita testified that, after her mother died, some items
of her mother's personal property were placed for sale on
various Internet sites. She stated that she e-mailed Mark and
told him that Daniel and his daughter were putting their
mother's personal property up for sale on various Internet
sites. Bonita testified that Mark had indicated that he would
say something to Daniel but that the sale of her mother's
9
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personal property still continued. She also testified that,
at some point, Mark blocked her texts and e-mails.
Bonita testified that she and her children had visited
with her mother frequently before her death and that they all
had items of personal property in her mother's house. She
also testified that, when she tried to enter and retrieve some
of those items after her mother died, Daniel refused to let
her in and called law-enforcement authorities.
Bonita testified that she and Mark had talked about their
mother's estate and that, at a Christmas gathering, Mark had
expressed concern about Daniel's serving as the executor. In
particular, she explained that her father's estate, the Mylan
Engel estate, was still open nine years after his death
because it involved a great deal of land; that some of the
farmland is leased and the checks on the leased land had been
being made out to her father's estate; and that, after her
mother died, one of those rent checks had been made out to
Daniel instead of to her father's estate. Bonita also stated
that Mark was concerned that Daniel was "pocketing" the money
paid for the lease of the farmland.
10
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Bonita testified that, a few days before her mother's
death, Mark and Daniel decided to put their mother's house in
Mark's name, for the benefit of the siblings, and that she
agreed to it. She explained that they did so in an attempt to
protect Daniel's share of their mother's estate from his
business creditors.
Bonita testified that Mark and Daniel were identical
twins; that, because of that, they had a "bond"; and that Mark
had concerns about Daniel's handling their mother's estate.
She stated that Daniel had built a house for Mark and that he
repeatedly complained that Mark had never paid him. However,
Mark showed her a copy of the check he had given Mark and
explained that he had put money in Daniel's account and that
Daniel's creditors had gotten the money, so he had then given
the money for the house to their mother for Daniel's benefit.
Thomas testified that he lived with his mother in her
house until she died. After she died, he said, Mark and
Daniel made things so difficult for him that he moved out.
Specifically, Thomas testified that they blocked the driveway
to keep him from coming and going; that Daniel said that he
and Mark were going to throw Thomas out of the house; that
11
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they said that it was their house and that they were the
executors of their mother's will and they could legally do
what they wanted; that they did many loads of laundry near his
room during the evenings when he was home; and that Daniel
broke some of their mother's furniture after he complained
about their doing the laundry there. He also testified that
Daniel allowed his own children to drive their mother's car
after she died, even though she never would have let them
drive it if she were alive.
Thomas
testified
that
Lehman
Farms
had
a
lease
arrangement with Mylan Engel's estate, the proceeds of which
basically paid the taxes on the land. He also testified that,
shortly after their mother's death, he saw a check from Lehman
Farms that was made out to Daniel personally instead of to
Mylan Engel's estate. He further testified that he had made
Mark aware that Daniel had received a check and that Mark had
indicated that he would look into it.
Thomas testified that, during the Christmas gathering,
Mark had expressed concern about Daniel's fitness to serve as
an executor of their mother's estate. He also testified that
Bonita had made him aware that items of their mother's
12
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personal property were being placed for sale on various
Internet sites. Finally, he stated that his mother had wanted
all of her clothing and personal items that were in her
bedroom to go to Bonita, but that Mark and Daniel were not
going to let that happen.
Thomas testified that he agreed with Bonita's objection
to Mark's and Daniel's serving as co-executors of their
mother's estate. He also testified that he always knew that
Daniel was "shady" and "underhanded" and that he would "lie[],
steal[], [and] cheat[]." However, he stated that he "didn't
see it coming with Mark."
Mark testified that he had notified various entities that
their mother had died, that he had filed her tax returns, and
that he had kept a diary of transactions regarding the estate
that had occurred since her death. He also testified that
Bonita had used one of their mother's credit cards after their
mother died and that he had told her not to use it again.
Finally, he testified that he personally paid the premiums for
the insurance on his mother's vehicle after she died to keep
it insured.
13
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Mark testified that, at the time of the hearing, Daniel
and his children were still living in their mother's house.
He also testified that Bonita's children often stayed there,
that one of them lived there for many years, and that their
mother paid for food, living expenses, and tuition for that
child. Finally, he testified that Thomas lived in their
mother's house and did not pay for anything.
Mark testified that he knew that his mother had gotten a
deadbolt lock for her bedroom door because she felt like
people were going in there and taking things. He stated that
there was a competition between Daniel and Bonita and their
children and that, in his opinion, their mother had been
brainwashed to think that Bonita's children could do no wrong
and that Daniel's children could do no right. Mark admitted
that, shortly before she died, their mother asked him to get
her furs and jewelry and give them to Bonita because she was
concerned about those items being in the house when she was no
longer there.
Mark testified that, shortly before their mother died, he
used a power of attorney she had given him to put the title to
her house in his name because of concerns the children had
14
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about Daniel's creditors. Although he agreed that the house
belonged to all four children, he acknowledged that Daniel was
still living in the house and that there had not been any
discussion about his paying rent to the estate, but he stated
that their mother would not want Daniel to pay rent. When he
was asked how long Daniel would be allowed to live in the
house rent free, Mark stated: "Well, once this gets resolved,
then we'll distribute it. We'll get rid of everything. I
can't do anything while my hands are tied."
Mark testified that there had been an altercation at the
house between Bonita and Daniel, that items were being taken
out of the house, and that he went to the house to try to keep
the peace. He also testified that he did not know anything
about their mother giving certain items to certain children
before she died and that he would contend that all such items
needed to be returned and distributed according to the terms
of their mother's will. However, Mark later admitted that he
took his mother's bedroom furniture after she died because she
had previously told him that she wanted him to have it.
With regard to the lease arrangement with Lehman Farms,
Mark testified that a check for rent had been made out to
15
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Daniel following their mother's death. However, he explained
that the land that was being leased had been split between the
four children and that the rent had been paid to his mother,
who in turn had paid the taxes for the parcels that belonged
to Daniel, Thomas, and Bonita. He also explained that Daniel
handled everything with regard to the land in their father's
estate and that he assumed that Daniel talked with a
representative of Lehman Farms about the rent check after
their mother died. When asked if Daniel told the
representative to make the check payable to him alone, Mark
said: " I guess. I mean, you have to ask him that. I can't
answer that." Mark further stated that his initial concerns
about Daniel's being a co-executor of their mother's estate
were erased once Daniel clarified why he had received a rent
check from Lehman Farms.
On cross-examination, Mark admitted that, although he had
not thought about it, at least a portion of the rent paid by
Lehman Farms may have been an asset of their mother's estate.
He stated that he had not notified Lehman Farms about their
mother's death and that he assumed that Daniel had instructed
Lehman Farms to make out the rent checks to him.
16
1160113
Mark was asked about Bonita's informing him that items
that belonged to their mother were being offered for sale on
the Internet. The following then occurred:
"A. Bonita sent me a notice saying things were
being listed. I had no knowledge. I immediately
e-mailed Daniel and said, 'If this is going on, it
better stop.' But I don't live there. I don't come
and go there. So I, you know -- I'm being -- You're
asking me to be responsible for behavior that I
can't be responsible for.
"Q. And I'll accept that you made that
communication, but Daniel didn't stop; did he?
"A. I don't know.
"Q. Well, if the time that we first came down
here in either May or June and we got the status quo
order --
"A. Uh-huh.
"Q. -- things were still being listed on the
Internet then; weren't they?
"A. I don't know. I don't do social media and
all that stuff. I just opened a Facebook [social-
media] page for the first time, so I can't really --
"Q. Mark, you weren't concerned enough about
that problem that you monitored to see (inaudible)
--
"A. I told him.
"Q. -- your brother?
"A. I told him repeatedly if that's going on to
stop.
17
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"Q. But you didn't --
"A. Now, what he does with it --
"Q. You didn't follow through to make sure he
stopped?
"A. Well, I mean, how do you want me to make him
stop. If someone's doing something, I can't make
them -- I can't control people's behaviors. All I
can do is notify them; tell them to stop, which I
did. I e-mailed him and told him and told him if
it's going on, it needs to stop. If you sold
anything, you need to retrieve it. I specifically
told him that.
"And the reason I blocked them is because they
wouldn't stop harassing me. I -- you know, at some
point I have to make a living. I can't be -- I
can't, all day long, be bombarded with them -- with
stupid questions. I can't handle that."
Mark testified that he believed that he could carry out
his duty as the executor of the estate. He also testified
that their mother had said that she wanted him and Daniel to
be the executors of her estate because she was afraid that
Bonita "would spend everything on purses and clothing and
jewelry and stuff like that." However, he admitted that he
had declared bankruptcy approximately 20 years before.
Finally, Mark stated that his parents' estates were
intertwined and that he believed appointing another person to
18
1160113
handle their mother's estate would unnecessarily add expense
and time to the administration of her estate.
Daniel testified he and Bonita and Thomas had had some
issues during the seven or eight years that he and his
children lived in their mother's house. He also testified
that their mother had invited them to move in after he lost
his business and that, while he was there, he remodeled the
house. Daniel further testified that, when he was living
there after the first time he separated from his wife, he paid
their mother $1,200 per month and he paid all the household
bills. He added that Thomas never contributed anything to the
house or expenses.
Daniel admitted that his daughter Hannah had placed some
items of their mother's personal property for sale on the
Internet. However, he testified that they had not been sold
and that the items were at the house. Daniel stated that he
himself had not placed any items of their mother's personal
property for sale. He also stated that, even though the items
indicated that they had been placed for sale on the Internet
by Daniel Engel, he was not the person who had placed them for
sale.
19
1160113
Daniel testified that there were approximately 13 parcels
of real estate in his father's estate and that, before he
died, his father had also designated parcels for each of the
children and for their mother. He also testified that Lehman
Farms leased property from his father's estate as well as
parcels that belonged to the children and their mother and
that all the rent was paid to their mother until she died.
Daniel stated that, after their mother died, he learned about
the land and the arrangement with Lehman Farms. He also
stated that Lehman Farms took it upon itself to write the rent
check to him after their mother died.
Daniel testified that their mother had been sole executor
of their father's estate before she died and that he had
helped her handle it. He also testified that he and Mark were
now the co-executors of their father's estate and that one-
third of the acreage in their father's estate would go to
their mother's estate. Finally, he testified that he was
asking that he and Mark be allowed to serve as the co-
executors of their mother's estate because appointing a third
party would cost additional money and consume more time.
At the end of the hearing, the probate court stated:
20
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"It seems to me, clear, that -- and it's
unfortunate that we see it in this court all the
time, that the siblings cannot get along. And the
estate administration will be more efficient with a
neutral third party. And with any luck, maybe over
time, the sibling relationships will be repaired.
I certainly hope that. And I am pleased to hear
that you all, at least, sound open to that.
"So my inclination is to appoint Frank Kruse
because he's the County General Administrator."
Thereafter, the probate court entered a written order in which
it stated, in relevant part:
"This cause came before the Court on October 13,
2016, on the Petition for Letters Testamentary filed
by Mark Robert Engel and Daniel Michael Engel and
the
Objection
to
Appointment
of
Personal
Representative
and
Motion
to
Appoint
General
Administrator or Other Neutral Representative filed
by Bonita Engel Amonett and Marion Thomas [Whitman].
Appearances were noted in the record. This cause is
properly
before
the
Court
pursuant
to
its
jurisdiction and authority as conferred by statute,
local act and Constitutional provisions. Upon
consideration
of
the
evidence
and
argument
presented, the Court FINDS, CONCLUDES AND ORDERS as
follows:
"1. The Petition for Letters Testamentary is
DENIED IN PART. The proffered will is admitted to
probate; however, the Objection to Appointment of
Personal Representative and Motion to Appoint
General
Administrator
or
Other
Neutral
Representative is SUSTAINED and GRANTED.
"2. Frank H. Kruse, General Administrator of
Mobile County Probate Court shall be appointed
Personal Representative of the Estate and Letters of
21
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Administration with the Will Annexed shall issue
forthwith.
"3. Mark Robert Engel and Daniel Michael Engel
are ORDERED to provide an accounting to the Personal
Representative of any personal property sold or put
up for sale since the date of decedent's death.
"4. Mark Robert Engel and Daniel Michael Engel
are
ORDERED
to
turn
over
to
the
Personal
Representative any assets in their possession
belonging to the Estate.
"5. The Personal Representative is ORDERED to
file an inventory on or before November 18, 2016."
(Capitalization in original; emphasis added.)
After reviewing the orders entered before the hearing and
the language in the final order, we cannot conclude that the
probate court found that Mark and Daniel were disqualified
simply on the basis of "efficiency of administration."
Rather, it is clear to this Court that the probate court found
that Mark and Daniel were disqualified for reasons of
improvidence or want of understanding, as set forth in § 43-2-
22.
Further, the evidence supports the probate court's order.
"'Improvidence means a lack of care and
foresight,
of
forehandedness, of
thrift,
of
business capacity. It does not mean,
however, that the capacity for care and
foresight must needs to be proved by the
accumulation of any considerable estate,
22
1160113
for men are largely creatures of time and
chance. Improvidence in this connection
means only that probable lack of care and
foresight in the management of the estate's
only asset which would endanger its safety
in case administration should be committed
to appellee.'
"Nichols v. Smith, 186 Ala. 587, 591–92, 65 So. 30,
31 (1914)."
Thames v. Thames, 183 So. 3d 168, 180 (Ala. Civ. App. 2015).
"Improvidence as here used has been defined as
that probable lack of care and foresight in the
management of the estate which would endanger its
safety in case administration should be committed to
the applicant. Nichols v. Smith, 186 Ala. [587,]
592, 65 So. 30 [(1914)]; 33 C.J.S., Executors and
Administrators, p. 947, § 46, subsec. e; In re
Ferguson's Will, 41 Misc. 465, 84 N.Y.S. 1102 [(N.Y.
Sur. 1903)].
"The disqualifying term means more than
the
lack
of capacity to accumulate a considerable estate
(Nichols v. Smith, supra, 186 Ala. at page 591, 65
So. 30) ....
"A much quoted New York decision observed that
improvidence, as termed in the statute, 'refers to
habits of mind and conduct which become a part of
the man, and render him generally, and under all
ordinary circumstances, unfit for the trust or
employment in question.' In Matter of Flood's Will,
236 N.Y. 408, 411, 140 N.E. 936, 937 [(N.Y. 1923)],
quoting Emerson v. Bowers, 14 N.Y. 449 [(N.Y.
1856)]. See also In re Schwartz' Estate, 138 Misc.
537, 246 N.Y.S. 478, 480 [(N.Y. Sur. 1930)]."
Griffin v. Irwin, 246 Ala. 631, 635, 21 So. 2d 668, 671
(1945).
23
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"'Improvidence' is
thus defined in
42
C.J.S., p.
472:
"'In general, a lack of business
capacity,
care
and
foresight,
forehandedness, prudence, or thrift; and,
more specifically, a want of care and
foresight in the management of property.
The term refers to habits of mind and
conduct which become a part of the man and
render him generally and under all ordinary
circumstances unfit for the trust or
employment in question; but does not
necessarily imply a failure to accumulate
any considerable estate.'
"Webster's
New
International
Dictionary,
2d
Ed.,
defines 'improvidence' as 'want of foresight or
thrift.'"
Smith v. Rice, 265 Ala. 236, 248, 90 So. 2d 262, 273 (1956).
During the hearing, Bonita and Thomas presented evidence
indicating that Daniel had had difficulties with his own
financial affairs; that their mother had provided financial
support for Daniel and his family; that their mother had put
a deadbolt lock on her bedroom door because she felt like some
of her things, including coins, were missing and that Daniel
or his children might have taken them; and that, after their
mother died, at the very least, Daniel's daughter had placed
items of their mother's personal property for sale on various
sites on the Internet. They also presented evidence
24
1160113
indicating that Bonita had notified Mark about the items that
had been placed for sale on the Internet; that he had
indicated that he would say something to Daniel but that it
continued; and that, at some point, Mark blocked her texts and
e-mails. Further, Bonita testified that a rent check from
Lehman Farms had been made out to Daniel personally and that
Mark had, at one time, expressed concerns about Daniel's
"pocketing" the money.
During his testimony, Mark appeared to show a lack of
appropriate concern about Daniel and his actions with regard
to the Lehman Farms rent checks, to not paying rent for the
time he lived in their mother's house, and to the possible
sale
of
their
mother's
property
on
the
Internet.
Specifically, he appeared to take Daniel's representations as
true, to not follow up on questions about Daniel's actions, to
not make sure that personal property was not being sold, and
to act as if his hands were somehow tied. Mark also offered
what appeared to be inconsistent testimony about whether his
mother had given property to her children before her death.
At one point, he stated that he did not know about any such
25
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gifts, but he later stated that he had taken a bedroom suite
she had stated she wanted him to have.
In light of the evidence presented, the probate court
could have reasonably concluded that there were questions as
to Mark's and Daniel's willingness, ability, and fitness to do
what was best for the estate. Specifically, it could have
concluded that Daniel's actions before their mother died and
both Daniel's and Mark's actions after their mother died
demonstrated improvidence and a want of understanding such
that they were disqualified from serving as the co-executors
for her estate.
"Our ore tenus standard of review is well settled.
'"When a judge in a nonjury case hears oral
testimony, a judgment based on findings of fact
based on that testimony will be presumed correct and
will not be disturbed on appeal except for a plain
and palpable error."' Smith v. Muchia, 854 So. 2d
85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v.
Skelton, 675 So. 2d 377, 379 (Ala. 1996)).
"'"The ore tenus rule is grounded upon the
principle that when the trial court hears
oral testimony it has an opportunity to
evaluate the demeanor and credibility of
witnesses." Hall v. Mazzone, 486 So. 2d
408, 410 (Ala. 1986). The rule applies to
"disputed issues of fact," whether the
dispute
is based entirely
upon oral
testimony or upon a combination of oral
testimony and documentary evidence. Born
v. Clark, 662 So. 2d 669, 672 (Ala. 1995).
26
1160113
The
ore
tenus
standard
of
review,
succinctly stated, is as follows:
"'"[W]here the evidence has been
[presented]
ore
tenus,
a
presumption
of
correctness
attends
the
trial
court's
conclusion on issues of fact, and
this Court will not disturb the
trial court's conclusion unless
it
is
clearly
erroneous
and
against the great weight of the
evidence, but will affirm the
judgment if, under any reasonable
aspect,
it
is
supported
by
credible evidence."'
"Reed v. Board of Trs. for Alabama State Univ., 778
So. 2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane,
342 So. 2d 358, 360 (Ala. 1977))."
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
For the above-stated reasons, the probate court could
have reasonably concluded that Mark and Daniel were
disqualified from serving as the co-executors of their
mother's estate pursuant to § 43-2-22. Accordingly, we affirm
the probate court's judgment.
AFFIRMED.
Stuart, C.J., and Shaw, Main, and Sellers, JJ., concur.
27 | June 23, 2017 |
6ffcce8b-953a-410d-8d7b-b979decf9591 | Fidelity Serv. Ins. Co. v. AB Legg & Sons Burial Ins. Co. | 145 So. 2d 811 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 811 (1962)
FIDELITY SERVICE INSURANCE COMPANY
v.
A. B. LEGG & SONS BURIAL INSURANCE COMPANY, Inc.
6 Div. 840.
Supreme Court of Alabama.
October 18, 1962.
Tweedy & Beech, Jasper, for appellant.
Fite & Fite, Jasper, for appellees.
*812 HARWOOD, Justice.
Originally the appellant here had filed a suit against the appellees claiming $5,000.00 damages for breach of warranty in a deed by which the appellee had conveyed certain lands to the appellant. After delivery of the deed, the appellant resold a portion of the land described in the deed and subsequently was forced to repurchase the land that he had conveyed because of a defect in the title to the portion thereof.
Upon the filing of the suit for breach of warranty by the appellant, the appellee moved to transfer the cause to equity, which motion was granted.
In equity, the appellant filed a bill setting forth that in the transactions which led to the execution of the deed referred to in the breach of warranty suit, the negotiations were handled by the agents or officers of the appellant, and by the agents or officers of the appellee; that in these negotiations the officers or agents of the appellant were fully informed by the agents of the appellee that certain of the lands under consideration had been previously conveyed to the Alabama Power Company; that the appellee did not sell the land described in the breach of warranty suit to the appellant and that the appellant did not buy such land; that the deed given the appellant should not have included the land described in the breach of warranty suit and if such land was included in the deed it was erroneously included due to a mutual mistake of the parties; that the appellee did not know at the time the deed was executed that the said land was included, but relied upon C. G. Harper, who wrote the deed, to omit therefrom the said land, C. G. Harper having been instructed by the appellee to omit said land; that the appellee relied upon the said Harper writing the deed according to such instructions and the appellee did not know the land was included therein at the time the deed was executed; that the appellee did not sell to the appellant the land described in the breach of warranty suit and the appellant did not pay the appellee for said land; that in executing the deed referred to in the breach of warranty suit the appellee relied upon said Harper to so write the deed as to comply with the agreement and understanding of the parties and the instructions of the appellee.
In the hearing on the bill the testimony was taken ore tenus before the court.
Mr. W. L. Legg and Mr. Joe Legg, officers of the A. B. Legg & Sons Burial Insurance Company, Inc., testified for the appellee, and Mr. Brooks Glass and Mr. Billy Graham, officers of the Fidelity Service Insurance Company, were the witnesses for the appellant.
The evidence presented by the Leggs was to the effect that several conferences were held between A. B. Legg, Jr., who was deceased at the time of the trial, W. L. Legg, and Joe Legg, representing the Legg Company, and Mr. Brooks Glass and Mr. Billy Graham, officers of Fidelity, concerning the land transfer. Each of the Leggs testified that Mr. Glass and Mr. Graham were told specifically that, of the 160 acres involved in this suit, a portion thereof which came up to 510 feet mean sea level had been sold to the Alabama Power Company with an easement to flood up to 522 feet mean sea level. The Leggs testified that a map was shown to Glass and Graham which indicated in color the area to be flooded, and that this area amounted to 114 acres and said 114 acres could not be conveyed by the Leggs because of the previous sale thereof to the Alabama Power Company; that comment was made that the remaining part of the 160 acres would be a valuable asset as lake front property; that when Mr. Graham commented he did not fully understand the transaction, the details were explained fully the second time and both Mr. Glass and Mr. Graham stated they then understood that the 114 acres would not be a part of the trade.
In this discussion it was also agreed that an area on which is located Natural Bridge, and 10 acres at a highway intersection leading *813 to Natural Bridge, was to be excluded from the deed.
All witnesses testifying below agreed that the Natural Bridge area and the 10 acres at the highway intersection were to be excluded.
The deed was prepared by Mr. C. G. Harper, a retired employee of the Legg Company, who continued to come to the Legg office virtually every day. Mr. Joe Legg instructed Mr. Harper as to the contents of the deed and testified that he specifically instructed Mr. Harper to omit from the deed that portion of the property that had been sold to the Alabama Power Company, the Natural Bridge area, and the highway intersection acres.
After the deed had been prepared, Mr. A. B. Legg, Jr., deceased at the time of the trial, delivered the deed to Fidelity's office in Birmingham. Prior to delivery, the Leggs checked the deed to assure themselves that the Natural Bridge lands had been omitted from the description, but they did not check the exclusion of the land sold to the Power Company.
The Fidelity agents had no part in the preparation of the deed and did not see it until it was delivered.
Upon delivery of the deed, Mr. Legg also presented the deeds conveying the land to the Legg Company and also abstract of title, though the abstracts were not up-to-date.
For the appellant, Mr. Glass and Mr. Graham testified that the lands in the deed delivered to them were checked against the deeds of conveyance to the Legg Company and everything was in order.
They further testified that at the time of delivery of the deed to them they were informed by Mr. Legg that an additional 40 acres in Franklin County that had previously been discussed was excluded from the deed because the Leggs had found they did not own it. No mention was made at this time of the exclusion of the 114 acres involved in this suit.
Both Mr. Glass and Mr. Graham testified that there had never been any discussion with the Legg brothers relative to the exclusion of any property previously sold to the Alabama Power Company and that the only exclusions mentioned in their conferences were limited to the Natural Bridge property and the 10 acres at the highway intersection; and later upon the delivery of the deed the omission of the 40 acres in Franklin County. They each also denied that any map was ever produced or shown in any of their conferences.
Testimony was also offered by Fidelity through its witnesses that the basis for the whole land transaction was a statement of assets and liabilities of the Legg Company of December 31, 1957, filed with the State Superintendent of Insurance. This statement shows a book value of the property of the Legg Company in Winston County as $17,200.00, at a value of $10.00 per acre. It is further shown that the deed recites a conveyance of 1,720 acres in Winston County of which the 160 acres involved in this suit was a part.
In rebuttal to this testimony the witnesses for the appellee, the Legg Company, testified that the statement of assets of December 31, 1957, was discussed but was not in itself the basis for the transaction in that there was a gentlemen's agreement that the Legg Company was to transfer all of its bonds to the Fidelity Company; that the statement recites $69,000.00 in bonds when in fact the Leggs delivered an additional $5,000.00 in bonds. To this appellant's witnesses testified that the total amount of bonds received by Fidelity was $69,000.00, the amount shown in the statement.
Upon the conclusion of the hearing the court entered a decree to the effect that the deed in question be reformed and corrected by striking therefrom the land previously conveyed to the Alabama Power Company, and that no title to said previously conveyed *814 land passed or vested by the deed by which appellant purportedly conveyed said land.
The court also filed an opinion with its decree in which it set forth:
From the decree of the court, and its order overruling a motion to set the same aside, this appeal was perfected.
By its assignments of error argued in briefs of counsel for appellant three points for decision have been raised for review, which points will be decisive of this appeal. The points are:
We will write to these points in their numerical order.
1. In Eastis v. Beasley, 214 Ala. 651, 108 So. 763, the court held that a bill alleging that through error and inadvertence the property was described as in "range 3 west" instead of "range 2 west," was a sufficient allegation of mutuality of mistake in the description of the deed.
In Gilmore v. Sexton, 254 Ala. 560, 49 So. 2d 157, the court considered the sufficiency of a bill substantially similar to the present one. After an extensive review of the authorities, the court held the bill sufficient in the aspect charging a mutual mistake of the parties in describing the lands intended to be conveyed, and that the bill stated a case for reformation of the deed.
Under the above authorities, and the cases cited and discussed therein, it is our conclusion that the court properly overruled the demurrer to the bill in its aspect of stating a mutual mistake in the description of the land intended by the parties to be conveyed.
2. Counsel for appellant argues that the evidence shows only a unilateral mistake, rather than a mutual mistake and therefore no reformation of the deed could be had under the provisions of Section 59, Title 9, and Section 136, Title 47, Code of Alabama, 1940.
As stated by Bouldin, J., in City of Oneonta v. Sawyer, 244 Ala. 25, 12 So.2d 82:
Counsel stress in their argument the fact that the appellee had the deed prepared by their former employee Mr. Harper, and that the appellant never saw the deed until it was delivered to them by the appellants. Answer to this argument is to be found in the following excerpt from McCaskill v. Toole, 218 Ala. 523, 119 So. 214:
3. We are not unmindful that the rule in causes pertaining to reformation of deeds that the burden on the complainant is to establish his case by clear, convincing and satisfactory evidence. Great Atlantic & Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 2 So. 2d 425.
The evidence was heard ore tenus in the court below. True, there was an irreconcilable contradiction between the evidence presented by the respective parties. In such event, the finding of the trial judge as the effect of a jury verdict, and every presumption will be indulged in favor of the lower court's decree, and it will not be disturbed unless palpably wrong. Hodges v. Beardsley, 269 Ala. 280, 112 So. 2d 482; Harrison v. Harrison, 261 Ala. 648, 75 So. 2d 620.
The evidence presented by the appellee was ample in its tendencies to the degree required to support the decree rendered, and it is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | October 18, 1962 |
2735472f-dc44-4ded-a8c2-9c2244fb6388 | Ragland v. State Farm Mutual Automobile Ins. Co. | N/A | 1160140 | Alabama | Alabama Supreme Court | Rel: 05/19/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1160140
____________________
Lamar Ragland
v.
State Farm Mutual Automobile Insurance Company
Appeal from Etowah Circuit Court
(CV-16-900523)
BRYAN, Justice.
Lamar Ragland appeals the dismissal of his bad-faith
claim against State Farm Mutual Automobile Insurance Company.
For the reasons set forth herein, we dismiss the appeal.
Procedural History
1160140
On July 21, 2016, Ragland filed a complaint in the Etowah
Circuit Court ("the circuit court") seeking punitive damages
from State Farm based on State Farm's alleged bad-faith
failure to pay and related failure to subject his claim for
underinsured-motorist ("UIM") benefits to a cognitive review.
In his complaint, Ragland alleged that he had an automobile-
liability policy with State Farm that included UIM benefits;
that he had been injured in an automobile accident in January
2012 that was caused by Joshua Clayton Baker's negligence and
wantonness; that he had incurred damages "in a determinable
amount"; that Ragland had "settled his claim with [Baker], who
paid close to policy limits"; that Baker was underinsured;
that Ragland was entitled to UIM benefits from State Farm "in
the same amount that [Ragland] would be entitled to from
[Baker]"; that counsel for State Farm had admitted in a
telephone conversation on July 21, 2014, that coverage
existed; and that, after almost two years, State Farm had not
paid any UIM benefits and had not offered a reasonable amount
to settle the claim.
On August 25, 2016, State Farm filed a motion to dismiss
Ragland's complaint without prejudice, pursuant to Rule
2
1160140
12(b)(1) and 12(b)(6), Ala. R. Civ. P.; it further alleged
that the complaint was due to be dismissed based on the
doctrine of collateral estoppel. State Farm alleged that
Ragland had filed a separate civil action in the circuit court
on May 30, 2014, which was assigned case no. CV-2014-9000484
("Ragland I"); that Ragland's complaint in Ragland I
contained
one count against State Farm seeking to recover UIM benefits
from State Farm resulting from the January 2012 automobile
accident involving Baker, an allegedly underinsured motorist;
that Ragland sought an undetermined and unliquidated amount of
damages in that action and a judgment against State Farm up to
the limits of his policy with State Farm; that Ragland had
filed an amended complaint in Ragland I on April 8, 2016,
reasserting his claim for UIM benefits and had added a bad-
faith claim against State Farm for refusing to pay the same
UIM benefits that were at issue and were sought to be
determined in that case; that State Farm had filed a motion to
dismiss the amended complaint in Ragland I as "procedurally
improper, or, in the alternative, to dismiss the amended
complaint without prejudice for lack of subject-matter
jurisdiction"; that the circuit court had dismissed the newly
3
1160140
asserted bad-faith claim in the amended complaint in Ragland
I without prejudice on May 4, 2016, leaving in place the
original complaint; and that a trial in Ragland I on Ragland's
claim for UIM benefits was still pending.
State Farm argued that Ragland had refiled on July 21,
2016, as a separate action, the same bad-faith claim against
State Farm the circuit court had dismissed on May 4, 2016, in
Ragland I. State Farm argued that the complaint Ragland filed
on July 21, 2016, was due to be dismissed for lack of subject-
matter jurisdiction or, alternatively, for failure to state a
claim upon which relief could be granted, because, it said,
the bad-faith claim was premature in light of the fact that
there had been no determination of liability on the part of
the allegedly underinsured motorist.
Thus, it
argued, because
there had been no determination that Ragland was legally
entitled to UIM benefits from State Farm, Ragland could not
maintain a bad-faith claim against State Farm. See generally
LeFevre v. Westberry, 590 So. 2d 154, 158 (Ala. 1991)
("'[T]here can be no breach of an uninsured motorist contract,
and therefore no bad faith, until the insured proves that he
4
1160140
is legally entitled to recover.'" (quoting Quick v. State Farm
Mut. Auto. Ins. Co., 429 So. 2d 1033, 1035 (Ala. 1983))).
Ragland's complaint filed on July 21, 2016, which was
assigned case number CV-2016-900523, was transferred to the
same circuit judge to whom Ragland I had been assigned, and
the two actions were consolidated. After conducting a
hearing, the circuit court, on October 5, 2016, entered an
order
dismissing,
without
prejudice,
Ragland's
complaint
filed
in case no. CV-2016-900523 without citing its reasons for
doing so. Ragland timely appealed. Ragland's claim for UIM
benefits is still pending in the circuit court.
On February 22, 2017, the clerk of the Supreme Court
entered an order remanding this case to the circuit court for
a determination as to whether an order pursuant to Rule 54(b),
Ala. R. Civ. P., would be proper in light of this Court's
decision in Hanner v. Metro Bank & Protective Life Insurance
Co., 952 So. 2d 1056, 1059 (Ala. 2006), which held that a
judgment disposing of fewer than all aspects of a consolidated
action is not final and appealable. On remand, the circuit
court entered an order pursuant to Rule 54(b) certifying the
October 5, 2016, order as a final judgment.
5
1160140
Analysis
State Farm moved this Court to dismiss Ragland's appeal
as being from a nonfinal judgment. State Farm argued that the
October 5, 2016, order dismissing Ragland's complaint without
prejudice was not a final judgment that could support an
appeal and, alternatively, that a Rule 54(b) certification of
the order was improper.1 Generally speaking, an order
dismissing a claim without prejudice will not support an
appeal. See Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995)
(holding that an order dismissing a complaint without
prejudice was not a final judgment that would support an
appeal).2 However, "exceptions" to that rule have been
1If an order does not have the requisite elements of
finality in its own right, notwithstanding the fact that
additional claims remain pending in the trial court, a Rule
54(b) certification, in and of itself, will not make the order
final and appealable. See, e.g., Haynes v. Alfa Fin. Corp.,
730 So. 2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b)
certification of finality to be effective, it must fully
adjudicate at least one claim or fully dispose of the claims
as they relate to at least one party.").
2In Palughi, the Court stated:
"This Court has held that the words 'without
prejudice,' when used in an order, 'mean that there
is no decision of the controversy on its merits, and
[that an order containing those words] leaves the
whole subject in litigation as much open to another
suit as if no suit had ever been brought.' Vacalis
6
1160140
recognized. See, e.g., Hutchinson v. Miller, 962 So. 2d 884
(Ala. Civ. App. 2007) (concluding that an action dismissed
without prejudice based on the lack of subject-matter
jurisdiction "conclusively determined the issues before the
court" and was sufficient to support an appeal); and Double B
Country Store, LLC v. Alabama Dep't of Transp., 171 So. 3d 28,
30-31 n. 1 (Ala. Civ. App. 2015) (concluding that an order
dismissing the plaintiff's action without prejudice based on
the lack of subject-matter jurisdiction was sufficient to
support an appeal because the trial court conclusively
determined that it did not have power to entertain the
plaintiff's action).
In the present case, unlike in Hutchinson and Double B
where the trial courts conclusively determined the issue of
those courts' subject-matter jurisdiction to hear the
plaintiffs' actions, the circuit court in the present case did
v. Lowry, 279 Ala. 264, 267, 184 So. 2d 345, 347–48
(1966); see, also, Taylor v. Major Finance Co., 289
Ala. 458, 268 So. 2d 738 (1972). An appeal will
ordinarily lie only from a final judgment; that is,
a judgment that conclusively determines the issues
before the court and ascertains and declares the
rights of the parties. Rule 54(b), A[la]. R. Civ. P.
..."
659 So. 2d at 113.
7
1160140
not conclusively determine that Ragland could not bring his
bad-faith claim in the circuit court. Indeed, both Ragland
and State Farm agree that Ragland's bad-faith claim against
State Farm may be brought in the circuit court –- the parties
simply disagree on the proper time to bring that claim.
However, we need not decide whether the circuit court's order
dismissing Ragland's bad-faith claim
without
prejudice
had
the
requisite elements of finality to support an appeal because,
even if we assume that it did, we agree that the October 5,
2016, order was improperly certified as a final judgment
pursuant to Rule 54(b).
In Hanner v. Metro Bank & Protective Life Insurance Co.,
supra, this Court held that "a trial court must certify a
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.,
before a judgment on fewer than all the claims in a
consolidated action can be appealed." 952 So. 2d at 1061. In
the present case, Ragland's bad-faith claim was consolidated
with Ragland's pending UIM claim, but the circuit court
"disposed of," at least for the time being, only Ragland's
bad-faith claim. Thus, without an order certifying the
October 5, 2016, order as final pursuant to Rule 54(b),
8
1160140
Ragland's appeal would have been dismissed. Hanner, 952 So. 2d
at 1062. Consistent with the procedure discussed in Hanner,
we remanded the case "'to the trial court for a determination
as to whether it chooses to certify the order as final,
pursuant to Rule 54(b), and, if it so chooses, to enter such
an order and to supplement the record to reflect that
certification.'" 952 So. 2d at 1061-62 (quoting Foster v.
Greer & Sons, Inc., 446 So. 2d 605, 609 (Ala. 1984)). As
noted above, the circuit court certified its October 5, 2016,
order as final pursuant to Rule 54(b).
Rule 54(b) provides:
"When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment."
Assuming that the circuit court's October 5, 2016, order
is eligible for consideration as a final judgment that would
support an appeal in its own right, we must still consider
"whether the trial court exceeded its discretion in
determining that there was no just reason for delay in the
9
1160140
entry of the judgment." Lighting Fair, Inc. v. Rosenberg, 63
So. 3d 1256, 1265 (Ala. 2010). State Farm argues that the
circuit court exceeded its discretion in entering a Rule 54(b)
certification of the October 5, 2016, order because, it says,
the dismissal of Ragland's bad-faith claim is "inextricably
intertwined" with Ragland's still pending UIM claim against
State Farm. See Meeks v. Morrow, 151 So. 3d 1069, 1074 (Ala.
2014) ("'[A] Rule 54(b) certification should not be entered if
the issues in the claim being certified and a claim that will
remain pending in the trial court "'are so closely intertwined
that separate adjudication would pose an unreasonable risk of
inconsistent results.'"'" (quoting Schlarb v. Lee, 955 So. 2d
418, 419-20 (Ala. 2006))). Additionally, State Farm contends
that the Rule 54(b) certification was improper because the
question whether the circuit court properly dismissed
Ragland's bad-faith claim could become moot depending on the
outcome of the still pending UIM claim.
In Lighting Fair, supra, the trial court entered an order
disposing of fewer than all the claims pending and certified
the adjudication of those claims as final pursuant to Rule
54(b). On appeal, this Court noted the possibility that the
10
1160140
claims and issues before the Court on appeal could be rendered
moot by the adjudication of the claims that remained pending
in the trial court. The Court then noted:
"[T]he United States Courts of Appeals for the
Seventh
and
First
Circuits
have
specifically
considered mootness in determining whether there is
no just reason for delay in the entry of a judgment
under Rule 54(b), Fed. R. Civ. P. See, e.g., Lottie
v. West American Ins. Co., 408 F. 3d 935, 940 (7th
Cir. 2005) ('[W]e might never have to consider at
all the bad faith and race discrimination claims if
the contract claim is resolved in favor of West
American. There would be no reason to consider
whether the insurer's breach was so egregious that
it amounted to bad faith if there was no breach.
Likewise, there would be no reason to consider
whether West American breached the contract on
account of race if West American did not in fact
breach the contract.'); Horn v. Transcon Lines,
Inc., 898 F. 2d 589, 592 (7th Cir. 1990) ('The
possibility that developments in the litigation may
moot a claim suggests that appellate resolution be
deferred.'); Spiegel v. Trustees of Tufts College,
843 F. 2d 38, 44–45 (1st Cir. 1988) ('Should Spiegel
prevail on Count IV –- and we intimate no view of
the matter –- she might well have her tenure, her
monetary balm, and payment for her litigation
expenses. The first three statements of claim would
be largely (if not entirely) mooted and the need for
appellate review would vanish. Appellate courts,
understandably, have treated such a possibility as
a major negative in the Rule 54(b) equation.')."
Lighting Fair, 63 So. 3d at 1264–65. The Court in Lighting
Fair concluded that the trial court exceeded its discretion in
finding that there was no just reason for delay in certifying
11
1160140
as final any claim that could be rendered moot upon final
adjudication of the claims still pending in the trial court.
Thus, the appeal challenging the judgment on those claims was
dismissed as one taken from a nonfinal judgment.
In the present case, it was undisputed below that the
viability of Ragland's bad-faith claim was entirely dependent
on the success of his still pending UIM claim. At the hearing
on State Farm's motion to dismiss, counsel for Ragland stated:
"If we lose our U[I]M case, we'll gladly dismiss the bad faith
case. So I acknowledge you can't have bad faith if you don't
have a contract claim." Ragland's counsel is correct. In
order to prevail on a bad-faith claim against an insurance
company, a plaintiff must prove, among other things, the
existence of "an insurance contract between the parties and a
breach thereof by the defendant." National Sec. Fire & Cas.
Co. v. Bowen, 417 So. 2d 179, 183 (Ala. 1982). See also State
Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 318 (Ala. 1999)
(holding that Alabama law "limit[ed] bad-faith liability to
those cases in which the insured is entitled to benefits under
the policy"). Ragland's claim for UIM benefits under his
policy with State Farm is still pending, and this Court is not
12
1160140
privy to any information from that case regarding the basis
for State Farm's challenge to Ragland's claim that he is
entitled to UIM benefits pursuant to his insurance contract
with State Farm. However, it is undisputed that, in the event
that Ragland is not successful in his bid to recover UIM
benefits from State Farm in that pending action, Ragland
cannot bring a bad-faith claim against State Farm, either for
failing to pay benefits under the contract or for failing to
subject his claim to a cognitive evaluation or review. See
Bowen and Slade, supra. Because it is undisputed that
Ragland's bad-faith claim could be rendered moot if State Farm
prevails in the pending UIM case between the parties, we
conclude that the circuit court exceeded its discretion in
concluding that there was no just reason for delay in the
entry of a final judgment and by certifying its October 5,
2016, order as final pursuant to Rule 54(b). Accordingly,
Ragland's appeal is due to be dismissed as taken from a
nonfinal judgment. See Lighting Fair, supra.
13
1160140
Conclusion
The appeal is dismissed as being from a nonfinal
judgment.
APPEAL DISMISSED.
Bolin, Parker, and Main, JJ., concur.
Murdock, J., concurs in the result.
14 | May 19, 2017 |
18049b4d-2b84-414d-9240-5cbb53fb8f1d | Barry v. Thomas | 142 So. 2d 918 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 918 (1962)
Hattle BARRY et al.
v.
Jasper J. THOMAS et al.
1 Div. 951.
Supreme Court of Alabama.
June 21, 1962.
*919 Vernon Z. Crawford, Mobile, for appellants.
Austill, Austill & Austill, Mobile, for appellees.
LAWSON, Justice.
This is a statutory bill in equity by Jasper, David and Samuel Thomas against Hattie *920 Barry and others to quiet title to a lot in Whistler, Mobile County, particularly described in the bill, which was filed as permitted by § 1109, Title 7, Code 1940.
The respondents filed an instrument which is captioned "Demurrer, Answer and Cross Bill." The demurrer, which contained several grounds, was overruled. The complainants-cross respondents answered the so-called cross bill.
Following a hearing wherein the evidence was taken ore tenus, the trial court decreed that the complainants-cross respondents are the owners as tenants in common of the suit property and that the respondents-cross complainants have no right, title or interest in or to the suit property.
From that decree the respondents-cross complainants, to whom we will sometimes hereinafter refer as the respondents, appealed to this court. The complainants-cross respondents will be referred to hereinafter sometimes simply as the complainants.
That part of the instrument filed by the respondents which purports to be the answer to the bill simply denies each and every allegation of each paragraph of the bill and demands strict proof of the same. That is not a compliance with the provisions of § 1111, Title 7, Code 1940, although it may be sufficient to put in issue the title claimed by complainants in their bill. Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824. But see Stewart v. Childress, 269 Ala. 87, 111 So. 2d 8.
The provisions of § 1111, Title 7, relative to what the answer should contain in a proceeding of this kind if the respondent claims any estate or interest in and incumbrance upon the suit property, are found in that part of the instrument filed by the respondents which they have denominated a cross bill.
The so-called cross bill seeks no relief other than to have the court decree that the respondent Hattie Barry and not the complainants have title to the suit property.
Under our recent decisions a cross bill is not necessary to obtain such relief in a proceeding of this kind if the respondent makes an adequate answer under § 1111, Title 7, supra, and the proof shows that respondent has the better title and has peaceable possession. Chestang v. Tensaw Land & Timber Co. (Ala.), 134 So. 2d 159; Myers v. Moorer (Ala.), 134 So. 2d 168.
We will consider the averments of the so-called cross bill as being but a part of the answer and the cross bill and the answer thereto will be disregarded.
As we have shown, the witnesses were examined in the presence of the trial court and the rule is well settled that a trial court's finding in an equity case upon oral testimony has the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong. Wilfe v. Waller, 263 Ala. 110, 81 So. 2d 614; Stewart v. Childress, supra; King v. King, 269 Ala. 468, 114 So. 2d 145.
But the above rule does not affect our duty of ascertaining that part of the evidence offered which we may consider in determining the rights of the parties under the pleadings. Act No. 101, approved June 8, 1943, General Acts 1943, p. 105 (1955 Cum. Pocket Part, Vol. II, p. 81, § 372[1], Title 7); Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; Family Discount Stamp Co. of Georgia, etc. v. State of Alabama, Ala., 148 So. 2d 218. The 1943 act cited above provides in substance that in equity cases it is unnecessary that objection be made to any testimony or evidence which may be offered by either party and on the consideration of such cases the trial court should consider only such testimony as is relevant, material, competent and legal, and on appeal this court shall consider only such testimony as is relevant, material, competent and legal, unless specific objection was interposed and a ruling made on such objection by the trial court.
Under the rule of the 1943 act, supra, the testimony of the witness George *921 K. Williams, Jr., an attorney and official of an abstract company, as to the contents of certain documents affecting the suit property which he found while making a search of the deed records in the office of the Judge of Probate of Mobile County, cannot be considered by us in determining the rights of the parties to this litigation. Such testimony is hearsay and violative of the best evidence rule. Jones v. Melindy, 62 Ark. 203, 36 S.W. 22; Green v. Baker, 66 Mont. 568, 214 P. 88; City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712; New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 136 A.2d 742.
The suit property was included as Lot 6 of Block 5 in a plat made and recorded in 1939 by one Otto Neese, which plat is known as "Neese's First Addition to Whistler." Neese was the grantee in two deeds executed by one J. E. Buck on May 20, 1929. One is a warranty deed, the other a quitclaim deed. It seems to be conceded that the description in one of these deeds covered the suit property.
On October 8, 1946, Neese and wife executed a warranty deed purporting to convey the suit property to one Jesse Thomas and wife, Marselite, which deed contained this clause: "To have and to hold the same unto the said Jesse Thomas and Marselite Thomas, during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple, and to the heirs and assigns of such survivor forever."
Jesse Thomas, who was a brother of the complainants, lived on the suit property with his wife, Marselite, until he died, intestate, on or about April 20, 1953. Jesse and Marselite Thomas had no children. Marselite Thomas continued to occupy the suit property until she died intestate on or about December 9, 1959.
Marselite Thomas was survived by two sisters, a brother, and by a large number of nieces and nephews. All of the persons designated as her heirs at law or next of kin, except her sister, Hattie Barry, joined in the execution of a quitclaim deed wherein they purported to convey their interest in the suit property to the said Hattie Barry, whose name is sometimes spelled Hattie Barret.
The respondent Hattie Barry claims fee simple title to the suit property through the deed from J. E. Buck to Otto Neese. The other two persons named as respondents to the original bill, Joshua Russell and Ryvana Calabep, are a brother and sister of Marselite Thomas, but they joined in the deed to their sister, Hattie Barry.
The complainants do not claim under any paper title. But they say that the respondent Hattie Barry, claiming as she does under the deed from Buck to Neese, executed in 1929, has no title to the suit property in that Buck had no title to convey. The complainants took the position that prior to that time their father, Andrew Thomas, had acquired title to the suit properly by prescription and that they, together with their brother, Jesse Thomas, became the owners of the property when their father died intestate in 1933.
It is settled in this state that actual adverse possession of land for twenty years or more without the recognition of adverse claim creates a conclusive presumption of title. Sibley v. Hutchison, 218 Ala. 440, 118 So. 638, and cases cited; Stearnes v. Woodall, 218 Ala. 128, 117 So. 643; Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553, and cases cited.
The evidence shows beyond peradventure that Andrew Thomas was in the actual adverse possession of property situated in the vicinity of the lot involved in this litigation, claiming to own it as his own, for more than twenty years before Neese obtained his deed from Buck.
The testimony is in conflict as to the exact location of the property so held by Andrew Thomas, deceased. There was evidence offered by the respondents going to show that Andrew Thomas was never in *922 possession of the property now known at Lot 6, Block 5, of the Neese subdivision, but was in possession of the property now known as Lot 2, Block 5, of that subdivision. However, there was ample evidence offered by the complainants to support a finding that it was the property now known at Lot 6, Block 5, the suit property, which was in the actual adverse possession of Andrew Thomas for more than twenty years prior to the time Buck executed his deed to Neese.
As we have shown, the testimony was taken orally before the court and under the presumption which prevails when the testimony is so taken, we cannot say that the testimony was not sufficient to support a finding that Andrew Thomas acquired title to the suit property by prescription long before Buck executed his deed to Neese, as well as a finding that Andrew Thomas was the owner of the suit property at the time he died intestate in 1933, for title acquired by prescription is regarded in law as having vested a perfect title equivalent to one acquired by a formal grant or conveyance, which title can only be divested in the manner in which any title may be divested, such as by conveyance or by actual adverse possession. Milstead v. Devine, 254 Ala. 442, 48 So. 2d 530.
It is a familiar rule that the possession of one tenant in common is prima facie thereby the possession of all and it does not become adverse to the contenants unless they are actually ousted, or short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenants on notice of its adverse character. Hames v. Irwin, 253 Ala. 458, 45 So. 2d 281. This rule is not affected by the fact that the wife of one of the contenants is joined as a grantee in a conveyance and that she occupied the premises with her husband. See Annotation on the "Right of spouse of cotenant to acquire and hold title adversely to other cotenants" in 153 A.L.R. beginning at page 678.
Jesse Thomas and the complainants became the owners of the suit property as tenants in common when their father, Andrew Thomas, died in 1933. Under the evidence, the complainants did not know of a deed from Neese to Jesse and Marselite Thomas until after the latter's death in 1959, a few months before this bill was filed. The character of the possession of Jesse and Marselite Thomas is certainly not shown to have been adverse to the complainants. On the contrary, there is evidence going to show that the complainants constructed a home on the lot in question without knowledge of the Neese deed so as to afford a place for Jesse and Marselite to live. Jesse was blind and the evidence amply supports a conclusion that the complainants permitted him to live on the "home place" because of this infirmity.
There is no evidence of scrambling possession in that there is nothing to support a legal inference that anyone claiming under Marselite Thomas has been in possession of the suit property subsequent to her death. Nor is there any evidence to show the actual possession of the property in anyone other than the complainants subsequent to the death of Marselite Thomas.
The complainants sought to show that they were in the actual possession of the property at the time the suit was filed. The respondents say that the evidence was not sufficient to show actual possession. We see no occasion to determine whether the evidence was sufficient to show that the complainants were in the actual possession of the property at the time the suit was filed because in a suit to quiet title a complainant is not required to prove actual possession notwithstanding he made such allegation, since such allegation is not essential for the relief sought if he shows constructive possession. Ellis v. Womack, 247 Ala. 254, 23 So. 2d 859.
Section 1109, Title 7, Code 1940, authorizes this type of proceeding by a party *923 in possession "whether actual or constructive" and it is true that when one has a legal estate or fee in land, he has constructive possession, unless there is actual possession in someone else. George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202; Milstead v. Devine, supra; Sibley v. Hutchison, supra.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | June 21, 1962 |
fdd982d8-5815-4b31-8949-7216b4b66042 | Dowda v. State | 145 So. 2d 830 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 830 (1962)
Robert Jack DOWDA, d/b/a Service Sales Company,
v.
STATE of Alabama.
3 Div. 994.
Supreme Court of Alabama.
October 18, 1962.
Hill, Robison & Belser, Montgomery, for appellant.
MacDonald Gallion, Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellee.
LAWSON, Justice.
This is an appeal from a decree of the Circuit Court of Montgomery County, in Equity, dismissing an appeal from a final assessment made by the State Department of Revenue.
Appeals from such final assessments are authorized by § 140, Title 51, Code 1940, which, in parts here pertinent, reads:
The assessment of the Department of Revenue sought to be reviewed was made and entered on the minutes of that department on October 13, 1961.
A notice of appeal and a bond to secure costs were filed within the thirty-day period *831 with the Register of the Circuit Court of Montgomery County, in Equity.
However, no notice of appeal was filed with the secretary of the Department of Revenue until November 17, 1961, more than thirty days after the assessment which was sought to be reviewed was made and entered on the minutes of the Department of Revenue.
The appellant insists that the failure to timely file the notice of appeal with the secretary of the Department of Revenue has worked no injury to the State of Alabama and hence insists that the trial court erred in dismissing the appeal from the final assessment since a notice of appeal and a bond to secure costs were timely filed with the Register. In support of this contention the appellant relies on our holdings to the effect that on appeal to this court from the circuit courts we do not dismiss the appeal merely because the citation of appeal provided by § 801, Title 7, Code 1940, was served later than the time provided for such service by that statute unless some injury or inconvenience is shown. Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So. 2d 585; Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 99 So. 2d 688.
The rule of the cases just cited does not control here. The service of the citation of appeal as provided by § 801, Title 7, Code 1940, is not an act which plays a part in the perfection of an appeal to this court under the general statutes. An appeal is perfected from the circuit court to this court under the general statutes by the mere act of lodging good and sufficient security for costs with the proper officer. § 792, Title 7, Code 1940; Thompson v. Menefee, 218 Ala. 332, 118 So. 587; Maya Corp. v. Smith, 239 Ala. 470, 196 So. 125; General Assembly of Colored Cumberland Presbyterian Church, U. S. A., v. Patterson, 256 Ala. 50, 53 So. 2d 621; Wade v. Town of Helena, 270 Ala. 718, 121 So. 2d 896.
But under the provisions of § 140, Title 51, Code 1940, the timely filing of a notice of appeal with the secretary of the Department of Revenue is one of the things which the taxpayer must do in order to perfect his appeal. In other words, without the timely filing of that notice the appeal is not perfected irrespective of the fact that a notice of appeal and the bond to secure costs were timely filed with the Register of the Circuit Court to which the appeal is attempted to be taken.
We are of the opinion that the Circuit Court of Montgomery County, in Equity, correctly dismissed the appeal since it was not taken in accordance with the terms and provisions of § 140, Title 51, Code 1940. See Ex parte State ex rel. Attorney General, 252 Ala. 149, 39 So. 2d 669.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 18, 1962 |
1f817bbe-317c-4432-95dd-aa0039078984 | Tanner v. Case | 142 So. 2d 688 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 688 (1962)
John L. TANNER
v.
A. B. CASE.
1 Div. 976.
Supreme Court of Alabama.
June 14, 1962.
*689 Gordon & Jansen and Caffey, Gallalee & Caffey, Mobile, for appellant.
Austill, Austill & Austill, Mobile, for appellee.
SIMPSON, Justice.
The original bill of complaint was filed by appellee September 1, 1949. It was a bill to quiet title in complainant to certain lands located in Mobile County, and to cancel "whatever document the respondent may have or hold under or to which he wrongfully claims title or interest in said property". Paragraph 3 of the bill alleges that respondent claims or is reputed to claim some right, title, interest or encumbrance upon the suit property and avers certain tax deeds of the property to respondent's predecessors in title. The prayer offers to pay whatever is found to be due by any lien or encumbrance, etc. The bill as amended sought a redemption of the lands from void tax sales. It was alleged that complainant was in possession of the property, either actual or constructive, at the time of the filing of the bill. By further amendment complainant alleges "that if the complainant is mistaken as to complainant being in possession of said lands either actual or constructive at the time of the filing of the bill of complaint in this cause, then complainant alleges in the alternative that complainant is and was at the time of the filing of the bill of complaint * * * the owner of the lands described in the bill of complaint; that respondent is in possession of said lands claiming to own the same by virtue of a sale to the State of Alabama for payment of ad valorem taxes and deeds to respondent's predecessors in title from the State Land Commissioner of Alabama; that said tax sales were and are void. Complainant offers to do equity and to pay all taxes, fees and costs necessary to redeem the lands from said tax sales". We are impressed with the redundancy of amendments to the original bill, since under the authorities the original bill would have sufficed to allow the complainant to effect a redemption from a tax sale.
There was a further allegation to the effect that respondent cut timber on the land during the pendency of the suit and a prayer for a reference, etc.
The stipulation of the parties set out below will adequately set out the issues and facts:
The case was tried ore tenus and the court entered a final decree in favor of complainant, finding that all tax deeds were void and that title to said lands was vested in complainant and that "the respondent John L. Tanner and his predecessors in title have not shown by the evidence such possession of the lands described in and covered by the tax sales for non-payment of State and County ad valorem taxes * * * as to preclude the complainant from his right, as owner of said lands, to redeem the same from said void tax sales".
The court further found that respondent cut and removed timber from said land and ordered a reference to ascertain the dates, amounts and reasonable value of timber cut and removed after the filing of the bill, and to determine the amount required for the redemption of said lands from the tax sales.
From this decree respondent has appealed.
Appellant makes numerous assignments of error. However, he states in brief that "the theory seriously insisted upon is that as a bill to redeem from a tax sale, the complaint did not contain equity because it was not filed within the time limited by statute for redeeming from tax sales."
In Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So. 2d 411, we stated that the purpose of the statute (Title 51, § 296, Code) "was to save to an owner of land sold for its taxes the right to redeem it without limit of time provided he has such possession of it, as may be sufficient for that purpose." National Fireproofing Corp. v. Hagler, 226 Ala. 104, 145 So. 421; Georgia, etc. Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794; Chestnutt v. Morris, 223 Ala. 46, 135 So. 344; Threadgill v. Home Loan Co., 219 Ala. 411, *692 122 So. 401; Bell v. Propst, 220 Ala. 641, 127 So. 212; Morris v. Card, 223 Ala. 254, 135 So. 340, 344; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202.
The complainant must have such possession as will require some nature of suit by the purchaser at tax sale to recover it from him, but it need not be such peaceable possession as will quiet title; it may be scrambling possession. Constructive possession is sufficient, provided of course the tax purchaser has not been in actual, adverse possession for the requisite period. National Fireproofing Corp. v. Hagler, supra.
In this case we are dealing with wild, unimproved lands. Such was the situation in the Tensaw Land & Timber Co. case just quoted from. There we noted:
It is insisted by appellant that the judgment should have been in his favor because, he contends, he or his predecessors in title have acquired title to the property by adverse possession.
It seems to us that the validity of the contention of the appellant turns upon questions of fact. The evidence was not all in agreement. However, there was substantial evidence to the effect that the little house which appellant's predecessors claimed to have built on the land subsequent to the tax purchase, was in fact not located on the land at all. From a consideration of all the evidence the trial court resolved the factual issues in favor of appellee finding that appellant had failed to show by the facts acquisition of any right through adverse possession. We, therefore, would not be authorized to disturb that finding. Spruiell v. Stanford, 258 Ala. 212, 61 So. 2d 758.
Answering other contentions of appellant, which are by his own statement, less seriously insisted upon, we believe it sufficient merely to note that a bill to quiet title is a proper method to cancel a tax deed and effect a redemption; and ejectment is also proper if the tax purchaser is in possession. Morris v. Card, 223 Ala. 254(6), 135 So. 340; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202.
An owner of property in actual possession may bring a bill to quiet title and redeem from a purchaser at a tax sale, even though the statutory period of three years has elapsed. Code 1940, Title 51, § 296; National Fireproofing Corp. v. Hagler, supra. The filing of the bill to quiet title is not an admission that the tax deed is valid. Burdett v. Rossiter, supra.
Where the allegations of a bill show in substance that complainants are in peaceable possession of the lands, claiming to own them in their own right and that respondent claims some interest or title by virtue of a tax sale and that no suit is pending to enforce or test the validity of the respondent's claim of title, the bill is, by virtue of this section, essentially a proceeding in equity for redemption from a tax sale with the idea that the holder of the tax title shall be reimbursed for his lawful charges, and the tax title then removed as a cloud on the title of the one entitled to redeem. Moorer v. Chastang, 247 Ala. 676, 26 So. 2d 75. We find, therefore, no error in overruling the demurrer to the original bill.
The three year statute of limitations (Title 51, § 295) against recovery of land sold for taxes does not begin to run until *693 purchaser is in adverse possession and has become entitled to demand a deed to it from the judge of probate. Perry v. Marbury Lumber Co., 212 Ala. 542(17), 103 So. 580; Loper v. Gates Lumber Co., 210 Ala. 512, 98 So. 722; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479; Singley v. Dempsey, 252 Ala. 677, 42 So. 2d 609; Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779; Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239.
The proof of an unbroken chain of title in complainant, possession, actual or constructive, makes out a prima facie case, casting on defendant the burden of proving his defense of the statute of limitations by evidence of actual, adverse possession, after becoming entitled to a deed as purchaser at a tax sale, for three years before commencement of the suit. Loper v. Gates Lumber Co., supra. Likewise, in the absence of actual possession by one claiming under a tax title no presumptions are indulged in favor of the regularity of proceedings for the sale of lands for the non-payment of taxes, and one who asserts his right under such title, unless relieved therefrom by statute, has the burden of showing the validity and regularity of such proceedings. Galloway Coal Co. v. Warrior Beach Creek Coal Co., 204 Ala. 107, 85 So. 440.
The record discloses that the trial court heard the testimony of numerous witnesses, many of whom testified that respondent's predecessors were never in possession of the lands. It is clear from the above cases that failure to prove actual open, adverse possession for the statutory period is fatal to one claiming under the tax deed. Cases supra. There was substantial evidence to support the trial court's finding. It is not our province to disturb it here.
The lands involved in this proceeding were described as wild, open timber lands. Where such is the case and there has never been any real occupancy of the land, possession is regarded as constructive and follows the title of the original owner. Bobo v. Edward Realty Co., 250 Ala. 344, 34 So. 2d 165.
Likewise, we have held that constructive possession by the record owner (complainant) is sufficient possession by him, within the meaning of Title 51, § 296 to require some nature of suit by the tax sale purchaser to recover the land from the record owner. Singley v. Dempsey, supra. However, the record owner need not wait to be sued under the section referred to above. Moorer v. Chastang, supra.
The trial court found that the respondent and his predecessors in title had not shown by their evidence such possession of the lands described in the tax deeds as to preclude the complainant (appellee) from his right to redeem. The trial court saw and heard the witnesses. The lands and locations of fences, houses, etc. were frequently identified to the court by the witnesses pointing their location out on charts and maps. It is abundantly clear that his finding of fact is superior to any we can make here, and should not be disturbed.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | June 14, 1962 |
440d55a5-62ed-4439-b8db-928c00c56936 | Cooper v. Cooper | 144 So. 2d 62 | N/A | Alabama | Alabama Supreme Court | 144 So. 2d 62 (1962)
Gordon COOPER et al.
v.
Willine Patterson COOPER et al.
8 Div. 92.
Supreme Court of Alabama.
August 30, 1962.
H. H. Conway, Albertville, for appellants.
J. S. Stone, Guntersville, for appellees.
HARWOOD, Justice.
In the proceedings below the complainants who are the children and heirs of A. W. Cooper, deceased, filed a bill seeking to cancel a deed purporting to convey their respective interest in the lands of A. W. Cooper, deceased.
*63 The grantees in the deed were John Rex Cooper, the youngest child of the deceased A. W. Cooper, and Ida L. Cooper, his widow.
In 1945 John Rex Cooper was in the military service and overseas. The other heirs, being desirous to make a gift to John Rex Cooper of their respective interest in the lands of their deceased father, agreed that they, and their respective husbands and wives would join in a deed conveying their said interest to John Rex Cooper. It was further agreed that they would convey to Ida L. Cooper, their mother, a life estate in said lands, with the remainder over in fee simple to John Rex Cooper.
A deed to the land was prepared conveying the interests of the heirs in the said lands to Ida L. Cooper for and during her natural life and unto John Rex Cooper, his heirs and assigns, in remainder in fee simple. This deed is dated 10 February 1945, and was signed by the complainants hereto and their respective spouses. The acknowledgments to the signatures of those heirs who did complete their execution of the deed carry varying dates from February 1945 to 9 January 1954.
The bill further alleges that it was the understanding of the grantors, and all of the heirs of A. W. Cooper, that the deed would not be delivered until all of the heirs of A. W. Cooper, and their spouses, had properly executed the deed.
In this connection the deed was turned over to the grantee of the life estate, Ida L. Cooper, with the understanding that she would obtain the signatures and acknowledgments of all of the heirs.
John Rex Cooper returned from military service, married, and had one child, John Rex Cooper, Jr. This child and the wife of John Rex Cooper, Willine Patterson Cooper, are the respondents in this proceeding, John Rex Cooper having died in January 1961.
The bill further alleges that after the execution of the deed by the complainants, but before all of the heirs of A. W. Cooper had signed and executed the deed, the deed was recorded in the probate office of Marshall County on 4 August 1954; that in April or May 1961, some one of the complainants learned of the recordation of the deed, which was a month or two before the bill was filed.
A demurrer was filed to the bill on the grounds, among others, that laches on the part of the complainants was shown on the face of the bill.
The bill further avers that Nell Benson, on behalf of the other complainants, sought legal advice with reference to the effect of the recording of said deed and was informed by a competent lawyer of Marshall County that the complainants had "signed away their rights and there was no legal action that they could take for relief." Complainants allege that they were lulled into inaction by this advice, and further by their understanding that all of the heirs would eventually sign and execute the deed in question.
The court sustained the demurrers and dismissed the bill. Hence this appeal.
In his decree dismissing the bill the court stated that the demurrer was well taken and "should be sustained on the grounds of laches. McCary v. Robinson [272 Ala. 123], 130 So. 2d 25."
Filing the deed for registration constituted notice to all the world including these appellants. Sec. 95, Tit. 47, Code of Alabama 1940.
The defense of laches is available by demurrer if the bill shows on its face that the claim is barred by laches. Drummond v. Drummond, 232 Ala. 401, 168 So. 428.
In McCary v. Robinson, referred to in its order by the lower court, the bill showed affirmatively that the complainant had immediate *64 knowledge of the transactions and of the claimed fraud, but nevertheless waited for five years until after the death of her husband, who was a grantor, and the death of other parties, who were the grantees, to initiate the proceedings to set aside the deed. It was deemed the bill showed on its face that the complainant was guilty of laches.
The court stated that the bill showed on its face that the circumstances surrounding the execution of the instruments sought to be vacated had become so obscured by the lapse of more than five years, and the death of the parties, as to render it difficult if not impossible to do justice.
It was further held that a court of equity may refuse relief by applying the doctrine of laches even though the claim be not tarred by the statute of limitations.
In the present case the complainants signed the deed in 1945. Some acknowledged the deed in that year and others acknowledged the deed in 1954. The deed was recorded in 1954 and by operation of law the complainants must be deemed to have had notice of the deed. The deed contained no restrictions whatsoever.
It was not until 6 July 1961, and after the death of John Rex Cooper, that these proceedings were brought, a period longer in time than that which the court considered sufficient to invoke the doctrine of laches in McCary v. Robinson, supra.
The complainants cannot be heard to say that they were lulled into inaction by erroneous advice of an attorney. We do not intimate that this advice was erroneous, but observe that the omissions, as well as the commissions, of an attorney are to be regarded as the acts of the client whom he represents, and his neglect is equivalent to the neglect of the client himself. See 7 C.J.S. Attorney and Client § 67.
Furthermore, John Rex Cooper the grantee of the remainder had died. His status was therefore changed by his death. Even had the demurrers been overruled and the complainants permitted proof on the bill, their efforts would necessarily have been blocked by the so-called "Dead Man's Statute," Sec. 433, Tit. 7, Code of Alabama 1940, since the only possible effect of a hearing on the merits would have been a diminution or destruction of the estate of the deceased John Rex Cooper.
The decree sustaining the demurrer and dismissing the bill is therefore due to be affirmed and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | August 30, 1962 |
4b232104-45f6-4d47-b792-91c4b2f80d7b | Liberty National Life Insurance Co. v. Harrison | 145 So. 2d 219 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 219 (1962)
LIBERTY NATIONAL LIFE INSURANCE COMPANY
v.
Geraldine HARRISON.
8 Div. 9-11.
Supreme Court of Alabama.
September 20, 1962.
*220 Starnes & Starnes, Guntersville, and Wm. N. Ray, Birmingham, for appellant.
Rankin Fite, Hamilton, and Scruggs & Scruggs, Guntersville, for appellee.
COLEMAN, Justice.
This is an appeal by defendant, the insurer, from judgments for plaintiff, the beneficiary, in actions to recover accidental death benefits provided for in three insurance policies on the life of the insured, Harrison. Ordinary death benefits due under the policies have been paid.
A separate action was brought on each policy, but the actions were consolidated on the trial and on this appeal. Plaintiff and defendant are the same in each action. The case was tried without a jury.
Each complaint claims a sum certain due on a policy whereby defendant insured the life of Harrison "against bodily injuries effected solely through external, violent, and accidental means and effected directly and independently of all other causes." Plaintiff avers that Harrison, on May 27, 1957, received bodily injuries effected directly and independently of all other causes through external, violent, and accidental means, which resulted in his death on the date aforesaid.
The parties agreed as follows: to submit by pleading in short by consent; that the parties might submit the relevant, transcribed testimony of any witnesses who testified in the case of State v. Peyton which had been previously tried, subject to legal objections and exceptions thereto; and that, in addition to the transcribed testimony, either party might examine additional witnesses and present any other evidence deemed necessary.
The policies are in evidence. By one policy, defendant promised to pay on proof that insured "* * * has sustained bodily injuries effected solely through external, violent, and accidental means, which injuries have directly and independently of all other causes caused the death of the Insured * * * except that no benefit shall be payable * * * if death results * * from any of the Exclusions * * *" listed *221 in the policy. Under exclusions, the policy recites that it does not provide any benefit for loss which results from:
The other two policies provide that insurer will pay on proof that death resulted "* * * directly, and independently of all other causes, from bodily injuries sustained solely through violent, external and accidental means * * *," and further that no such accidental benefit shall be payable "* * * if death result * * * from participating in an assault or felony * *."
It was stipulated that the insured, Harrison, on May 27, 1957, "died of a gunshot or pistol wound which arose at or near * * *" a place where a certain plant was being constructed by Gulf States Construction Company. The evidence shows that on the stipulated occasion, several men were wounded and two, including Harrison, were killed by gunfire.
The stipulation shows that the death of insured resulted from injuries "effected" or "sustained" by violent and external means. Plaintiff contends that the cause of death was also accidental. Defendant contends to the contrary. Defendant contends that Harrison had voluntarily placed himself in a situation from which his death was not unforeseen and, therefore, not accidental; and also, that he was engaged in the affray and, for that reason, was excluded from coverage.
Plaintiff offered the transcribed testimony of some seventeen witnesses who had testified in the Peyton case. Defendant offered the transcribed testimony of nine such witnesses. With respect to the conduct of Harrison on the occasion of the shooting, the transcribed testimony is in irreconcilable conflict. For example:
Ernest Peters testified that he did not know who fired the first shot, that Harrison was standing by his pick-up truck at that time, and that the witness did not see Harrison with a gun.
Peyton testified that Al Thomas was shooting point-blank at Harrison, that Harrison "never had a gun"; that Peyton did not shoot at Smith, did not shoot anybody, and did not tell any of the men to shoot anybody.
Jim Summers testified that Smith "started it," "he pulled that pistol out and went to shooting."
D. C. Maze testified that Al Thomas shot Harrison over the top of the car, that was the first shot fired, and Harrison did not have a gun.
On the other hand, Smith testified that the first shot fired hit him in the arm, that somebody fired the first shot from the highway, that Smith did not know who fired the first shot, that Peyton told one of the men to kill Smith, that the man shot Smith one time, and that Smith saw Peyton shoot at Smith four times.
Glenn Mathis testified that he saw Harrison; that Harrison had a pistol in his hand pointed at Humphrey; that Harrison said "I am going to drop you Bill," and started shooting; and that to the best of the witness' knowledge, Harrison's shot was the first shot fired.
Frank Burton testified that Harrison "opened firing," that Harrison had a nickelplated pistol, that Harrison shot his gun until it would not shoot any more, that Harrison was shooting at Humphrey, and that Al Thomas did not kill Harrison.
Humphrey testified that he was shot by Harrison and thought Harrison fired the first shot.
In addition to transcribed testimony, plaintiff offered that of R. B. Hobson who testified ore tenus in the instant case. Defendant argues that the court erred in permitting *222 Hobson, over defendant's objection that proper predicate had not been laid, to testify that the witness, Smith, made a statement to Hobson, as follows:
Harrison is sometimes called the preacher.
This testimony of Hobson was offered by plaintiff for the purpose of impeaching the transcribed testimony of Smith which defendant had offered in evidence under the agreement. Before the defendant's objection to the question was overruled and Hobson's testimony admitted as quoted above, a lengthy colloquy between court and counsel had taken place. Plaintiff's purpose in offering Hobson's testimony, defendant's objection, and the court's ruling are shown by the following excerpts from the colloquy:
*223 Examination of the transcribed testimony of Smith in the record before us has not disclosed any predicate laid to impeach him. We have not found where Smith was asked whether or not, at the specified time and place, he, Smith, made to Hobson the statement which Hobson says Smith made. We have not found where the trial court excluded Hobson's testimony. As this record stands, the court admitted the testimony over objection that proper predicate was lacking and, in so doing, the court erred to a reversal.
This court has held that the testimony of a witness, given on a former trial and admitted on a later trial because the witness was then unavailable, is not impeachable by proof of his self-contradictory statement unless a predicate was laid in such former testimony. The Law of Evidence in Alabama, McElroy, Second Edition, Vol. 1, § 157.02. This court said:
In the instant case, plaintiff argues:
This argument of plaintiff is the same argument which was overruled by the majority of this court in First National Bank of Talladega v. Chaffin, 118 Ala. 246, 24 So. 80. It has long been the rule that where a cause is tried by the court without a jury, the admission of illegal evidence raises the presumption of injury, and requires the reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment. When this announcement was made, over a vigorous dissent, in First National Bank of Talladega v. Chaffin, supra, it overruled many cases. The rule has been adhered to in later decisions. Deal v. Houston County, 201 Ala. 431, 78 So. 809; Lallande v. Brown, 121 Ala. 513, 25 So. 997; Miller v. Mayer, 124 Ala. 434, 26 So. 892; Black v. Pate, 130 Ala. 514, 30 So. 434; Romano v. Brooks, 142 Ala. 514, 39 So. 213; Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640; Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86; Dutton v. State, 226 Ala. 1, 145 So. 581; Pigford v. Billingsley, 264 Ala. 29, 84 So. 2d 664.
*224 In view of another trial, we are not to be understood as commenting on the evidence or its effect other than to say that with Hobson's testimony excluded, the remaining evidence is in conflict. We cannot know how far the trial court was influenced in the finding of fact by the evidence erroneously admitted.
We are of opinion that the judgment ought to be reversed and the cause remanded for another trial.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., concur. | September 20, 1962 |
5789ad93-847d-4fa1-853e-e2477b4c198b | Boohaker v. Trott | 145 So. 2d 179 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 179 (1962)
C. A. BOOHAKER, formerly d/b/a Cab Lumber Co.
v.
J. Allen TROTT, Jr., d/b/a Mecho of Alabama.
8 Div. 103.
Supreme Court of Alabama.
September 20, 1962.
*180 Ross, Ross & Ross, Bessemer, Culver & Miller, Huntsville, for appellant.
Horace E. Garth, Huntsville, for appellee.
HARWOOD, Justice.
The complaint below was in a single common count and claimed $1365.00 for work and labor done.
The defendant filed a sworn plea questioning the jurisdiction of the court below. A demurrer to this plea being sustained, issue was joined on a plea of the general issue, and an additional plea in short by consent, with leave, etc.
The action of the court in sustaining the plaintiff's demurrer to the sworn plea going to the jurisdiction of the court below is not raised in this appeal.
The evidence shows that the defendant below, who is the appellant here, and who for convenience will hereinafter be referred to as the defendant, had been awarded a contract for the construction of Monte Sano school in Huntsville.
In turn, the defendant entered into a subcontract with the plaintiff below for the installation of the plumbing in the school. This included the construction of a large septic tank which was to be thirty-one and one-half feet long by nine feet wide, and eleven feet deep.
Under the original agreement between the plaintiff and the defendant, the plaintiff was to receive $10,500.00 for the plumbing work. The original agreement did not contain a "rock" clause and at the plaintiff's request the contract was amended by a letter from the defendant to the plaintiff which read: "This is to amend our contract dated November 25, 1958, on the above referred to job as follows: `We will pay as an addition to the contract $35.00 per cubic yard for rock excavation as defined in the specifications and determined by the architect. We trust this meets your approval.'"
The plaintiff introduced evidence tending to show that as he proceeded with the excavation for the reception of the septic tank, which was being done with a machine called a back hoe, rock was hit at a depth of about six feet, and could not be handled with the back hoe. He contacted the defendant's superintendent on the job and requested that the architect be sent for.
*181 Work on the excavation was discontinued awaiting an inspection of the alleged rock formation by the architect.
During this waiting period, according to the plaintiff, he was urged by the defendant, and also by the defendant's superintendent, to go ahead and complete the excavation "regardless." We interpret this to mean regardless of an inspection by the architect.
After about a week the plaintiff moved in a jack-hammer and air compressor, and a crew of five men and removed some thirty-nine cubic yards of sandstone which the plaintiff contends was rock.
The evidence presented by the defendant was directed toward showing that the material which the plaintiff claims was rock was in fact a soft and disintegrated type of sandstone which should not be classed as rock.
In this connection Mr. Tom Jones, the architect, testified that upon being requested to inspect the alleged rock encountered in the excavation, he took with him Paul Walker, another employee of his architectural firm, to the excavation. The reason he had Walker go with him was because of Walker's prior experience in determining what was rock since he, Jones, had had no prior experience along this line.
They went to the excavation, obtained a ladder and climbed down to the bottom. According to Mr. Jones, they found a thin layer of moist sandstone which, with the aid of a pipe found in the excavation, they were able to pry loose. This substance was crumbly and was not rock and Mr. Jones stated they pushed the pipe into this substance maybe three inches.
Mr. Walker testified that the sandstone they found at the bottom of the excavation could be pried up with the pipe, and that they did not take a core drill and get a sample of what might be under this thin top layer. According to Mr. Walker, they did not go down any deeper in what they "were standing on" and he did not know what might be under this layer.
The plaintiff in rebuttal introduced evidence tending to show that sandstone occurs in layers. The top layer generally from two to six inches thick is often moist and soft, while the deeper layers are hard and brittle, and properly classified as rock.
All in all a question for the jury as to the nature of the formation encountered in the excavation was presented, and by their verdict it is apparent that the jury found this issue in favor of the plaintiff.
However, the evidence shows that a dispute arose between the plaintiff and the defendant as to whether or not the material encountered in the excavation was rock, and therefore as to whether the plaintiff was entitled to any additional payment under the "rock" clause contained in the contract as amended.
The plaintiff testified that after he had completed the excavation he met the architect, Mr. Jones, one morning at the school site: "As I was coming out, he was going in. And I asked himwe were on friendly termsand I said, `Tom, when are you going to pay me for my rock?' And he said, `The way I wrote those specifications, that ain't rock.' And I just laughed. I thought he was kidding."
The plaintiff testified that it was very likely that he saw the defendant at the school site on August 7, 1959, at about 5:30 P.M., and the defendant told him that he was in the process of ordering the final payment from the Board of Education for the school construction and the defendant advised him that he had forwarded the plaintiff's claim for reconsideration to the Board of Education and they had denied the extra claim for excavating rock on the basis of the architect's report.
The plaintiff further testified that he did not recall the exact date of this conversation but at that time he imagined that he had told Mr. Boohaker, the defendant, to go ahead and send his final check without taking into consideration the rock clause, as he was needing the money.
*182 The record further shows that the septic tank excavating was finished between the 10th and 14th of June 1959. Plaintiff billed the defendant for the additional amount claimed under the "rock" clause on 29 July 1959.
The defendant's version of his conversation with the plaintiff relative to the dispute over whether the sandstone encountered should be classified as rock, and their negotiations in connection therewith are well illustrated by the following excerpts from the defendant's testimony:
Defendant further testified that it was on the basis of their conversations that he mailed to the plaintiff a check in the amount of $2,514.30, dated September 14, 1959; that he told the plaintiff that he was going to issue the check and that it would be in full settlement of all claims, and the plaintiff had replied: "Send me the check."
The sum of money represented by the check, together with prior payments to the plaintiff, and charge backs on the contract for work done on the excavation by the defendant, amounted to $10,500.00, the price agreed upon between the plaintiff and defendant for the plumbing work.
The check dated September 14, 1959, was received in evidence, and shows on the face of the check the following legend: "By Endorsement this check is accepted in full payment of the following account: `Monte Sano Contract.'"
On the reverse side of the check appears the following legend: "Endorsement below acknowledges in full settlement of any and all claims as indicated in margin on face of this check."
The plaintiff testified that prior to endorsing and cashing the same, he typed under the legend appearing upon the face of the check the following: "Partial payment balance due. Rock clause $1365.00."
In reference to this check, the record shows the following during the cross-examination of the plaintiff:
*183 Assignments of error 10, 12, 14, 15, and 20, are grouped for argument in appellant's brief. Assignments 10 and 12 relate to the refusal of appellant's requested charges 1 and 2, which are affirmative in nature. Assignments 14 and 15 relate to the refusal of appellant's requested charges 3 and 4, which charges concern the effect of the plaintiff's action in cashing the check of 14 September 1959, with the legends appearing on the check. Assignment 20 alleges error in the action of the court in overruling defendant's motion for a new trial. Two of the grounds of the motion for a new trial relate to the refusal of defendant's requested charges 1 and 2.
Thus all of these assignments pertain to, and relate to, the sufficiency of the undisputed evidence concerning the acceptance and cashing of the check of 14 September 1959, and its legal effect in creating an accord and satisfaction.
When assignments of error are so related and present a single question, it is proper to group them for argument in brief. Wells Co. v. Lane, 217 Ala. 10, 115 So. 77, and the rule that if assignments are argued in bulk, and one assignment is not well taken, then review of the other assignments will be pretermitted, will not be invoked. White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812.
Counsel for appellant argues that the check of 14 September 1959, related only to the original contract and the sum claimed for the rock excavating arose under a separate contract, and therefore the check can in no way be considered as an accord and satisfaction of the additional claim for excavating the rock.
We do not agree. The work was done under a contract entered into in November 1958, which contract was amended by adding the "rock" clause. All work had been completed under the contract as amended. A balance was due the plaintiff, though a dispute arose between the plaintiff and defendant as to the amount of this balance due.
Under these conditions the defendant mailed the check of 14 September 1959, with the legends thereon. After adding the statement "Partial payment balance due. Rock Clause $1,365.00," the plaintiff cashed the check.
The issuance of the check of September 14, 1959, with the legends indicating that it was in full payment of the claim of the plaintiff, as well as the fact that a bona fide dispute existed between the parties as to the amount due, is established by undisputed evidence. The fact that the plaintiff attempted to "amend" the legend on the check cannot avail him.
The principles governing the above undisputed facts are clearly set forth in Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662, wherein the court wrote:
Again, in Brackin v. Owens Horse and Mule Co., 195 Ala. 579, 71 So. 97, we find the following doctrine enunciated:
And in Newell Contracting Co. v. Lacy, 229 Ala. 208, 155 So. 379, we find this court commenting:
In Leader v. Vaughan, 20 Ala.App. 545, 103 So. 718, a dispute had arisen between the parties as to the balance due on an attorney's fee. The defendant sent to the plaintiff a check on the face of which was written: "In full for lawyer's fee to date." The plaintiff cashed the check, and then sued for the balance he alleged to be due. From a judgment for the plaintiff, the defendant appealed. In reversing the judgment, the Court of Appeals wrote:
We think the doctrines enunciated in the above cases necessitate the conclusion that the lower court erred in refusing charges 1 and 2, which were affirmative in nature.
Reversed and Remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | September 20, 1962 |
a2312b2d-a04f-4986-b062-86ea5a411b26 | Foster v. North American Bus Industries, Inc. | N/A | 1150716 | Alabama | Alabama Supreme Court | REL: 04/28/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150716
____________________
Debra Mae Foster
v.
North American Bus Industries, Inc.
Appeal from Calhoun Circuit Court
(CV-12-900631)
MURDOCK, Justice.
Debra Mae Foster appeals from a summary judgment entered
by the Calhoun Circuit Court in favor of North American Bus
Industries, Inc. ("NABI"), in Foster's action alleging
1150716
retaliatory discharge. We reverse the judgment of the trial
court and remand the case.
I. Facts
NABI is a bus manufacturer whose principal production
facility is located in Anniston. NABI has what it refers to
as a "no-fault, points-based attendance and absenteeism
policy." The "Attendance and Absenteeism Policy" ("the
policy") organizes reasons for absences into sections, with
points accumulated for the type of absence, ranging from
1/4 point to 2 points. An accumulation of six points or more
qualifies
an
employee
for
"release[]
from
employment
automatically." An "absence" is defined as "the failure of
employees to be checked in when they are scheduled to work
and/or to remain on the job for the entire scheduled shift."
Under the section "Absences for the following will have
zero (0) points charged" is listed "Job-related injury or
illness," along with other reasons such as "Jury Duty" and
"Required Military Leave." Under the "1 Point" subsection of
the "Point System (values assigned for the described
occurrences)" section, the policy states, in part:
2
1150716
"Absence from two or more consecutive full shifts
for the same reason if a medical excuse is provided
that explains the nature of the illness.
"Absences due to illness or injury to the
employee or members of their immediate
family
(spouse,
children)
require
a
medical
excuse for verification purposes. The
excuse must be presented on the day the
employee returns to work or the absences
will count (1) point for each day absent.
"Failure to provide adequate medical documentation
for each day will result in (1) point for each day
missed."
Under the "2 Points" subsection, the policy states: "Absence
with no call in. The call must be received at least
(30) minutes prior to shift startup. *Note: Absences from
two (2) consecutive shifts without proper notification will be
considered a voluntary quit without notice." The policy also
separately states: "Any absence must be reported at least
thirty (30) minutes before scheduled startup. A supervisor or
department manager must receive all calls. ... If the
supervisor is not available, a message can be left on the
appropriate department extension identified by the shift
supervisor."
NABI hired Foster as a full-time harness technician on
May 29, 2012. Foster worked the day shift, from 6:00 a.m.
3
1150716
until 2:00 p.m. or 4:00 p.m. She normally worked Monday
through Friday. Foster's immediate supervisor was Tammy
Roper, a senior team leader, whose job was to walk the floor
to ensure that harness technicians met their quotas. Judy
Wright is NABI's Staffing and Benefits Manager, a position in
Human Resources ("HR"). According to NABI, Wright's job is to
coordinate
leave
arrangements
for
employees
with
non-work-related illnesses or injuries. Also according to
NABI, Wright and Roper made the decision to hire Foster, and
they were the principal employees involved in the decision to
terminate her employment.
As a harness technician, Foster was responsible for
putting relay switches, module boxes, and horn switches onto
a steel panel. Foster would initially carry the empty steel
panel to her station by herself. After she had completed her
work on the panel, she would get another employee to help her
carry it to a cart. The steel panels Foster worked on weigh
about 14 pounds before the installation of switches and
modules. After installation, they weigh about 22 pounds.
On Tuesday, July 10, 2012, at around 3:30 p.m., Foster
was drilling a screw into a steel panel when the panel flipped
4
1150716
forward, knocking off Foster's safety glasses and hitting her
in the forehead, causing her to fall back into her chair.
Then, according to Foster, "everything got black." No one
else witnessed the accident. Because Roper was on vacation
that week, Foster first reported the injury to Carol Brasher,
whose responsibilities included providing parts, assisting
less experienced employees, and being a first responder for
workplace injuries. After Foster sat in a chair by Brasher's
desk for about 30 minutes, Brasher took her to the office of
Debra Hale, NABI's on-site nurse. Among other things, it was
Hale's job to coordinate leave and obtain health care for
work-related illnesses or injuries. Hale was not in her
office, so Brasher and Foster returned to Foster's work
station and waited there. Sometime thereafter, Hale came to
see Foster.
Hale asked Foster what had happened, and Foster related
the details of the accident. Foster informed Hale that she
had a headache, and Hale assessed Foster for signs of a
concussion. According to Hale, Foster had an abrasion on her
right arm, but Foster did not exhibit any signs of serious
head trauma. Another employee noted that Foster had a mark on
5
1150716
her forehead. Hale told Foster that if she exhibited any
further symptoms of headaches or any nausea, she should
contact Hale and Hale would send Foster to the hospital for
further evaluation.
After Foster's shift ended on July 10, she drove herself
home. Later that night Foster began feeling worse and started
vomiting. Because of her worsening condition, Foster went to
Regional Medical Center ("RMC") in Anniston the following
morning instead of showing up for her shift at NABI. Hale
then received a telephone call from an RMC employee (Foster
had given the employee Hale's telephone number) telling her
that Foster was there receiving treatment and claimed that her
injuries were the result of a workplace injury. There is a
dispute as to what occurred next in the conversation.
According to Foster, the RMC employee informed Foster that
Hale said that Foster was not injured on the job and therefore
that NABI would not pay for her medical care, and Foster told
the RMC employee that she wanted to be seen at RMC anyway.
According to Hale, she told the RMC employee that NABI used
Stringfellow Hospital for emergency visits and that NABI would
not pay for Foster to be seen at RMC. Following a CT scan of
6
1150716
her head and several other tests, Foster was diagnosed with a
concussion, and she was given two shots to help with her pain.
Foster was given a "Work/School Absence Form" from RMC
dated Wednesday, July 11, 2012, which stated, in part:
"Please excuse the above-named individual from work/school.
They were seen today in the Emergency Department, and should
be able to return to work/school in two (2) days from the
above date." Foster testified that her husband, Randy Foster,
dropped off this doctor's note at the guard station located at
the front of the NABI facility with the understanding that the
excuse was to be delivered to HR. Randy Foster also testified
that he left this doctor's note with the security guards
posted at the front of the NABI facility. Hale testified that
Foster gave her this doctor's excuse when she returned to work
on Monday, July 16.
On Friday, July 13, 2012, Foster went to Oxford Family
Practice, her primary-care physician at that time, for
further
evaluation. At the conclusion of that visit, Foster received
a form from her physician stating that she should be excused
from work for the dates of July 13 through 15 and that she
could return to work on July 16, 2012. The form contained
7
1150716
nothing more than the relevant dates and the doctor's
signature. Foster testified that this was the excuse she
brought in to Hale on July 16. NABI contends that Foster gave
this excuse to Roper.
NABI's attendance records show that Foster did not
receive any points for her absences from July 11 through
July 13, which were her remaining scheduled workdays that
week, because she was listed as "Consecutive Days Absence only
if medical documentation provided."
Foster returned to work on Monday, July 16, 2012. Roper
also returned to work from vacation on that date, and she was
informed of Foster's accident. At around 9:30 a.m. that
morning, Hale took Foster to Physicians' Care, an approved
medical-services provider for NABI employees who had suffered
on-the-job injuries, for evaluation. Physicians' Care
released Foster for work on the same date, July 16, 2012, and
Foster resumed her shift that day.
Foster worked as usual between July 16 and July 18.
Foster testified in an affidavit filed after her deposition
that, during this period, she and Roper had a conversation in
which Roper stated that Foster "might have to find something
8
1150716
else." Foster responded: "Are you talking about another
job?" Roper replied: "I'm just saying." Roper and NABI deny
that this conversation occurred.
On July 18, 2012, Patty Wyatt, one of Foster's coworkers,
reported to Roper that Foster was feeling ill and nauseated.
Wyatt and Roper went to check on Foster, and Foster reported
that she had been throwing up. Roper noted that Foster was
breathing heavily. Hale then came to Foster's station, and
she took Foster to NABI's on-site doctor. After a while,
Foster left work and went to Physicians' Care for treatment
around 11:00 a.m.
At 6:45 p.m. on the night of July 18, 2012, Foster
returned to RMC complaining of abdominal pain, vomiting, and
bloody stools. Foster was admitted to the hospital for
further testing. Medical records show that Foster had an
emergency CT scan of her head on July 18 but that it did not
find any abnormalities to explain her symptoms.
Randy Foster testified that he "personally left a message
on Tammy Roper's voicemail on July 19, 2012, and told her that
[Foster] was in the hospital and [he] did not know how long
she would be in there, but she would be unable to go back to
9
1150716
work for a while." He stated that he believed he used the
hospital telephone to leave the message and that he placed the
call before Foster's shift began. Roper testified that
sometime after Foster's shift started she received a
telephone
call from Foster's husband informing her that Foster had been
hospitalized and that Foster would be out for two or three
days. An entry in Hale's contemporaneous notes for July 19,
2012 (a Thursday), states: "Debra [Foster] did not come into
work. T[ammy] Roper received a phone call that she was in the
hospital and would be out for a few days, per Debra's
husband." NABI cites Randy Foster's telephone records to
relate that he placed a call to Roper from his cellular
telephone nearly two hours after Foster was to have started
her shift.
Hale telephoned Foster later in the day on July 19. Hale
testified that she asked Foster if her hospitalization was
related to her work injury, but Foster simply replied that she
was on heavy medication and in no condition to talk so she
would call her later. Foster testified that Hale told her
during this conversation: "If you are in the hospital because
of your injury at NABI, I have nothing to say to you!"
10
1150716
Foster was discharged from the hospital on Sunday,
July 22, 2012. Foster testified that her husband telephoned
Roper on Sunday, July 22, and left a voicemail on her
telephone stating that Foster had been released from the
hospital but that she would be out of work until the doctor
cleared her to return to work. Roper denies receiving any
telephone call between July 22 and July 25 accounting for
Foster's whereabouts during that period.
Both Foster and Randy Foster testified that, after Foster
was discharged from RMC, Randy Foster drove them to the NABI
facility to deliver a doctor's note from RMC that excused
Foster from working until August 6, 2012. The note stated, in
part: "P[atient] was admitted to the hospital 7/19/12 [and]
discharged 7/22/12 due to medical reasons. She will need ...
leave until Wednesday 8/6/12 when cleared to return to work."
Foster and Randy Foster testified that they were unable to go
farther than the guard post at the front of the Anniston
facility because Foster felt too sick and they did not have a
pass to get into the facility. Accordingly, they left the
note with the guards, instructing them to give the note to
Roper.
11
1150716
Roper denies ever receiving the note. NABI states that
leaving medical excuses with the guards, who were not NABI
employees, was not proper protocol. NABI also asserts that
Foster could have entered the facility and given the note to
someone in HR because she had her employee-identification
card.
It is undisputed that Foster did not show up for work on
July 23 or July 24. Foster testified that she received a
telephone call from Judy Wright on July 23 informing her that
Foster was going to receive a point on her absence record
because she was not at work that day. Wright denies making
such a telephone call. On July 25, Foster called Wanda
Maddox,
another
NABI
employee
with
supervisory
responsibilities, informing Maddox that she had been released
from the hospital.
According to Wright, on July 25 and July 26, she
telephoned Foster and left voicemails seeking medical
documentation for her work absences on July 23 and July 24.
She said that Foster returned her calls on the night of
July 26 and complained that Hale had not set up an appointment
for neurological testing and indicated that she would "think
12
1150716
about" providing medical documentation for her absences.
Wright asserts that Foster was angry during the telephone
call. Foster denies talking to Wright on July 26, though
telephone records appear to establish that Foster made such a
call.
NABI terminated Foster's employment on July 30, 2012.
Its stated basis for doing so was two consecutive days of
absence from work on July 23 and July 24 without calling in
before each shift.
Foster continued to be seen by doctors for symptoms
related to her head injury. On August 21, 2012, she was seen
by Dr. Dalla M. Russell following a referral from Physicians'
Care. Dr. Russell's diagnosis note from that date states in
part: "Congestion with Post-concussive syndrome of headache,
dizziness and nausea."
Foster filed an action alleging retaliatory discharge
against NABI in the Calhoun Circuit Court on December 11,
2012, following Foster's initiation of proceedings to recover
worker's compensation benefits. On January 23, 2013, NABI
answered the complaint and denied the allegations. Following
extensive discovery, NABI filed a motion for a summary
13
1150716
judgment on November 18, 2015. Foster filed a response in
opposition to the summary-judgment motion. In support of that
response, Foster filed new affidavits from herself and her
husband. On February 1, 2015, NABI filed a reply to Foster's
response. Additionally, it filed motions to strike portions
of the new affidavits submitted by Foster and her husband,
contending that portions of the affidavits contradicted their
previous testimony or other record evidence.
On February 19, 2015, the trial court entered an order
granting NABI's motion for a summary judgment. The order
offered no reasons for the decision, beyond stating that,
"[a]fter reviewing all appropriate filings in this case and
considering the oral arguments offered by each side at the
hearing in this matter, the Court finds there exists no
genuine issues of material fact." The trial court did not
rule on NABI's motions to strike.
Foster filed a timely notice of appeal.
II. Standard of Review
"We review a summary judgment de novo, seeking
to determine whether the evidence presents a genuine
issue of material fact and whether the movant was
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P. If the movant makes a prima
facie case that no genuine issue of material fact
14
1150716
exists, the burden then shifts to the nonmovant to
present substantial evidence creating such an issue.
Bass v. SouthTrust Bank, 538 So. 2d 794, 798 (Ala.
1989). Evidence is 'substantial' if it is of 'such
weight and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer
the existence of the fact sought to be proved.' West
v. Founders Life Assurance Co. of Florida, 547 So.
2d 870, 871 (Ala. 1989). This Court must review the
record in a light most favorable to the nonmovant
and must resolve all reasonable doubts against the
movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d
412, 413 (Ala. 1990)."
Ford v. Carylon Corp., 937 So. 2d 491, 493–94 (Ala. 2006).
III. Analysis
Foster broadly contends that a number of disputed facts
preclude the entry of a summary judgment in this retaliatory-
discharge action.
"In Alabama Power Co. v. Aldridge, 854 So. 2d 554,
563 (Ala. 2002), this Court articulated the
following test for determining whether a plaintiff
may recover for retaliatory discharge under § 25-5-
11.1[, Ala. Code 1975]:[1]
"'In order for an employee to establish a
prima facie case of retaliatory discharge
1Section 25-5-11.1 provides:
"No employee shall be terminated by an employer
solely because the employee has instituted or
maintained any action against the employer to
recover workers' compensation benefits under this
chapter or solely because the employee has filed a
written notice of violation of a safety rule
pursuant to subdivision (c)(4) of Section 25-5-11."
15
1150716
the employee must show: (1) an employment
relationship, (2) an on-the-job injury,
(3) knowledge on the part of the employer
of
the
on-the-job
injury,
and
(4)
subsequent
termination
of
the
employment
based
solely
upon
the
employee's
on-the-job injury and the filing of a
workers' compensation claim.'"
Falls v. JVC America, Inc., 7 So. 3d 986, 989 (Ala. 2008).
As is the case with many retaliatory-discharge actions,
there is no dispute between the parties about the first three
elements; the disagreement arises over whether Foster was
terminated because of her on-the-job injury and the filing of
a worker's compensation claim. We have established a burden-
shifting process in such cases.
"'We
hold
that
an
employee
may
establish a prima facie case of retaliatory
discharge
by
proving
that
he
was
"terminated" because he sought to recover
worker's
compensation
benefits,
which
would
be an impermissible reason. The burden
would then shift to the defendant employer
to come forward with evidence that the
employee was terminated for a legitimate
reason, whereupon the employee must prove
that the reason given by the employer was
not true but a pretext for an otherwise
impermissible termination.'
"Twilley [v. Daubert Coated Prods., Inc.], 536
So. 2d [1364,] 1369 [(Ala. 1988)]. We note that it
would be more appropriate to say that, after the
[employer] has met [its] burden of coming forward
with evidence of a legitimate reason, '"[t]he
16
1150716
[employee] then has the burden of going forward with
rebuttal evidence showing that the [employer's
stated] reasons"' for terminating the [employee] are
not true. Twilley, quoting Pushkin v. Regents of
the University of Colorado, 658 F.2d 1372, 1387
(10th Cir. 1981). The [employee] does not have to
'prove' that the employer's stated reason is not
true
unless
the
[employer's]
evidence
is
sufficiently certain, without more evidence from the
[employee], to support a [judgment as a matter of
law]. If the [employee's] prima facie case is
strong, and the [employer's] evidence of an asserted
reason is weak or equivocal, the jury might simply
disbelieve the [employer].
"....
"Alabama's worker's compensation laws should be
liberally construed in favor of the employee in
order to advance and effectuate their beneficent
purposes."
Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120, 1122-23
(Ala. 1992).
This Court previously has suggested that courts may
consider several factors in evaluating whether a
plaintiff has
established a prima facie case of retaliatory discharge, such
as
"'1) knowledge of the compensation claim by
those making the decision on termination,
2) expression of a negative attitude toward
the
employee's
injured
condition,
3) failure to adhere to established company
policy, 4) discriminatory treatment in
comparison
to
similarly
situated
employees,
5) sudden changes in an employee's work
17
1150716
performance
evaluations
following
a
workers'
compensation
claim,
and
6) evidence that the stated reason for the
discharge was false.'
"... Many states consider '[p]roximity in time
between the filing of the workers' compensation
claim and discharge....' Rebarchek v. Farmers Coop.
Elevator & Mercantile Ass'n, 272 Kan. 546, 555, 35
P.3d 892, 899 (2001)."
Alabama Power Co. v. Aldridge, 854 So. 2d 554, 564–65 (Ala.
2002) (quoting Chhim v. University of Houston, 76 S.W.3d 210,
218 (Tex. Ct. App. 2002)).
Foster notes that she presented evidence of several of
the foregoing factors. There was a relatively close proximity
between the date on which Foster filed a claim for worker's
compensation benefits and the date of her discharge. She was
injured on July 10, 2012, and filed her claim for benefits on
that date; she was discharged on July 30, 2012. There is no
dispute that those who made the decision to terminate Foster's
employment, Wright and Roper in particular, knew about
Foster's worker's compensation claim. Foster presented
evidence (albeit disputed) indicating that Debra Hale
expressed
a negative
attitude about
Foster's
injured
condition. There is also a conflict in the evidence as to
18
1150716
whether NABI adhered to the policy in terminating Foster's
employment.
Considering the foregoing evidence, we find no difficulty
in concluding that Foster presented a prima facie case of
retaliatory discharge. Therefore, it was incumbent upon NABI
to present evidence indicating that Foster's employment was
terminated for a legitimate reason.
NABI contended that it terminated Foster's employment
pursuant to the "Attendance and Absenteeism Policy," which it
says dictates that an employee is terminated if he or she
fails to show up for scheduled work two consecutive days
without calling in to a supervisor 30 minutes before his or
her shift on each day. Specifically, NABI says Foster was
terminated after she was a "no-call, no-show" on July 23 and
July 24, 2012. NABI argues that there are no exceptions to
this policy, and it presented evidence it says demonstrates
that it terminated the employment of 44 employees for
violating this same "no call, no show" policy between
July 2010 and February 2013.2
2It is worth noting that the vast majority of the listed
44 employees were temporary workers.
19
1150716
It is undisputed that Foster herself did not call in to
a supervisor and that she did not show up for work on July 23
and July 24, 2012. Because NABI presented evidence of a
legitimate reason for terminating Foster's employment, the
burden shifted back to Foster to show that the reason given by
NABI was not true but was a pretext for an otherwise
impermissible termination.
Foster argues that she presented a variety of evidence
indicating that NABI's stated basis for terminating her
employment was untrue. First, she states that she fulfilled
the requirements of the policy because her husband telephoned
Roper on July 22, 2012, and left a voicemail informing Roper
that Foster would not be coming back to work for at least a
few days.
NABI responds that Roper never received such a call. It
is true that Randy Foster's telephone records do not show a
telephone call to Roper on July 22, 2012, and that Roper sent
an e-mail to her colleagues on July 23, 2012, after Foster's
shift had started asking if they knew where Foster was. NABI
argues that, even if Roper had received such a call, the call
did not fulfill the requirement in the policy that Foster had
20
1150716
to call in each day at least 30 minutes before her shift
began.
NABI's contention that Roper never received Randy
Foster's telephone call ignores the fact that Randy Foster
testified that he made such a call and the possibility that
Randy Foster used the hospital's telephone to do so, as he had
done on July 19, which would explain why the records for his
cellular telephone did not reflect such a call. Thus, there
is a conflict in the evidence on this point that raises a
material question of fact.
The problem with NABI's argument that the telephone call
described by Foster did not fulfill the policy's call-in
requirement is that NABI allowed such a telephone call from
Randy Foster to be sufficient on an earlier occasion. It is
undisputed that Randy Foster telephoned Roper on July 19,
2012, and that he left a voicemail to inform Roper that Foster
was in the hospital and that she would be out of work for at
least a few days. NABI did not terminate Foster's employment
for her absences from work on July 19 and July 20, 2012, even
though, according to Roper and NABI, Randy Foster did not call
in on July 19 until after Foster's shift had started and no
21
1150716
call was made to Roper on Foster's behalf on July 20.
Moreover, it is undisputed that no one called in before
Foster's shifts on July 11, 12, or 13, yet Foster was not
charged any points for her absences from work on those days
because she had delivered medical-excuse notes for those
absences either before or after the fact. In other words, the
evidence in the record indicates that NABI did not
consistently apply the "no-call, no-show" policy in Foster's
case, which raises the possibility of pretext.
Foster next observes that, even if Randy Foster had not
made the telephone call, she and Randy dropped off a medical-
excuse note at the guard station at the front of the Anniston
facility on July 22, 2012, that explicitly indicated that she
would be unable to return to work until August 6, 2012.
Foster argues that this should have been sufficient to fulfill
the requirements of the policy because the policy expressly
provides that a "[j]ob-related injury or illness" is
completely excused. Foster contends that it defies common
sense that she would have had to call in each day before her
shift beginning on July 23, 2012, when her medical-excuse note
22
1150716
explicitly stated that she could not work until August 6,
2012.
NABI offers multiple responses to Foster's contentions
about the medical-excuse note dated July 22, 2012. First, it
contends that NABI never received the note and that this
failure was Foster's fault because she should have and could
have delivered the note in person and because the guards
posted at the front of the Anniston facility were not NABI
employees. Second, NABI contends that, even if NABI personnel
had received the medical excuse, the note would not have
sufficiently apprised them that Foster's absence was the
result of her on-the-job injury. Third, NABI argues that its
policy requires employees to call in each day even if an
employee has a medical excuse that provides for a multiple-day
absence.
Whether Foster's method of delivering the medical-excuse
note was sufficient is an issue of fact. Both Foster and
Randy Foster testified that Randy delivered a medical-excuse
note on July 11, 2012, to the guards posted at the guard
station at the front of the Anniston facility, and the
evidence appears to indicate that NABI personnel received that
23
1150716
excuse because Foster was not charged any points for her
absences on July 11 and July 12, 2012. Given this previous
experience and the fact that no one appears to have told
Foster that such a method of delivery was inappropriate, there
remains an issue of fact as to whether Foster's method of
delivering the July 22, 2012, medical-excuse note was
sufficient.
NABI's contention that the content of the July 22, 2012,
medical-excuse note was not sufficient to apprise NABI
personnel that Foster's absences on July 23 and July 24 were
related to her on-the-job injury rings more hollow than its
protest concerning the method of the delivery of the note.
NABI argues that "the note's ambiguous message did not reveal
the origin of [Foster's] second hospital visit." This is
because the note simply stated that Foster was in the hospital
for "medical reasons" and that "[s]he will need ... leave
until Monday 8/6/12 when she should return to work." One
problem with NABI's argument is that NABI accepted as
sufficient two previous medical-excuse notes that were at
least as vague as the July 22, 2012, note. The first note,
dated July 11, 2012, simply stated, in pertinent part:
24
1150716
"Please excuse the above-named individual from work/school.
They were seen today in the Emergency Department, and should
be able to return to work/school in two (2) days from the
above date." The second note, dated July 13, 2012, merely
provided the relevant dates that Foster should be excused from
work and the doctor's signature. Neither note expressly
stated what kind of injury prevented Foster from returning to
work or that the injury was work-related. Despite these
deficiencies, it is undisputed that Foster was not charged any
points for her absences from work from July 11 through
July 13, and NABI's documentation stated that Foster was
"Consecutive Days Absence only if medical documentation
provided."
NABI's third rejoinder -- that the policy required
employees to call in each day even if they submitted a medical
excuse that provided for a multiple-day absence -- also does
not square with NABI's previous practice in this case. As we
already noted, it is undisputed that no one called in before
Foster's shifts on July 11, 12, or 13, yet Foster was not
charged any points for her absences from work on those days
because
she
delivered
medical-excuse notes
for
those
absences.
25
1150716
Moreover, NABI's actions after Foster's absences on
July 23 and July 24 cast further doubt on whether calling in
each day was an unequivocal requirement. Wright testified as
follows in her deposition:
"Q. Right. Your note says husband, Debra Foster's
husband, calls Tammy Roper to report she had been
admitted to the hospital. That wouldn't be good
enough to cover anything the 19th?
"A. It would be if she had produced the medical
documentation that I asked her for, which she failed
to do.
"Q. So you go back, in other words, you do have a
procedure for allowing an employee to go back and
document it after the fact?
"A. Yes. In a case such as this when the husband
had reported that she was in the hospital, you know,
we would expect to get documentation to substantiate
that, because if you noticed the record there on her
attendance with all of the zeros, they're either
consecutive days absence or she was absent due to
doctor visits or whatever related to the injury that
was reported."
Wright also testified that the reason she waited until
July 30, 2012, to terminate Foster's employment was to give
Foster a chance to submit medical documentation for her
absences because she wanted "[j]ust to give that employee the
benefit of the doubt as we do with all of our employees, or
try to." This indicates that the real issue was not that
26
1150716
Foster failed to call in before each shift but, rather, that
she
allegedly
failed
to
provide
adequate
medical
documentation
for her absences after the fact.
In addition to all the foregoing, there is evidence
indicating that, even if NABI never actually received the
July 22, 2012, medical-excuse note -- an issue that, as we
have said, is a question of fact -- it was aware that Foster's
absences on July 23 and July 24 were related to her on-the-job
injury. Foster talked to Wanda Maddox on July 25 and told
Maddox that she had been released from the hospital. Wright
testified that she talked to Foster on July 26 and that Foster
expressed anger that Hale had not set up an appointment for
Foster to receive neurological testing. NABI personnel also
were well aware that Foster had been absent from work
frequently since the July 10 accident. These communications
and the context suggest, at least, that NABI knew Foster's
absences were related to her July 10 accident.
Finally, Foster contends that there is one other
compelling piece of evidence that shows that NABI's stated
reason for termination of her employment was a pretext. Foster
cites the portion of her affidavit she submitted in opposition
27
1150716
to NABI's motion for a summary judgment in which she recounted
a conversation she had with Roper shortly after her accident
in which Roper stated that Foster "might have to find
something else." Foster responded: "Are you talking about
another job?" Roper replied: "I'm just saying." Foster
argues that this conversation indicated that NABI did not want
to employ Foster following her on-the-job injury.
NABI disputes this evidence by contending that Foster's
testimony about this conversation directly contradicted
testimony she provided in her deposition. NABI quotes Enoch
v. Firestone Tire & Rubber Co., 534 So. 2d 266, 269 (Ala.
1988), for the proposition that "on a motion for summary
judgment, a party may not create an issue of fact 'with an
affidavit that merely contradicts without explanation,
previously clear testimony.'" (Quoting Van T. Junkins &
Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th
Cir. 1984).) This argument was a basis of NABI's motion in
the trial court to strike portions of Foster's affidavit,
which motion was not granted.
We first note, however, that evidence of the conversation
Foster recounted in the affidavit was present in the record
28
1150716
before the taking of her deposition and the submission of
Foster's post-deposition affidavit. Included in NABI's
submissions in support of its motion for a summary judgment
were handwritten contemporaneous notes Foster made concerning
her interactions with NABI personnel pertaining to
her
on-the-
job injury. One of those notes recounted the conversation
Foster alleges she had with Roper shortly after her accident.
NABI did not question Foster about this note in her
deposition.
Moreover, as Foster also argues, the portion of her
deposition NABI cites as "contradicting" her affidavit
testimony does not do so in the manner contemplated by the
cited proposition. The testimony consists merely of the
following colloquy:
"Q. Ok. Has anyone at NABI ever expressed any
hostility for making a Worker's Comp. claim?
"A. Not that I recall.
"Q. Have you ever heard anybody at NABI say
anything negative about any other employees because
they filed a Worker's Comp claim?
"A. Not that I recall."
The conversation between Roper and Foster does not necessarily
indicate that Roper had "hostility" toward Foster for filing
29
1150716
of a worker's compensation claim or that Foster must have
understood the conversation in this manner. It does shows at
least that Roper thought Foster's injured status would make it
difficult for NABI to continue to employ her. But the
conversation does not directly "contradict[][,] without
explanation, previously clear testimony." Enoch, 534 So. 2d
at 269. In any event, as already noted, evidence of the
conversation is present in the record even without Foster's
affidavit.
NABI disputes that the conversation between Roper and
Foster highlighted in Foster's affidavit ever occurred, and it
argues that the affidavit contradicts Foster's previous
testimony in that regard, but NABI does not dispute that such
a conversation, if it occurred, is damaging to its assertion
that there is no evidence of a pretextual termination of
employment. Once again, the evidence of the conversation
raises questions of fact as to whether the conversation
occurred, what its meaning was if it did occur, and whether it
sufficiently demonstrates that NABI's stated reason for
30
1150716
terminating Foster's employment was untrue. The answers to
such questions require a jury determination.3
IV. Conclusion
Based on the foregoing, we conclude that numerous issues
of fact preclude the entry of a summary judgment in this case.
More specifically, Foster introduced sufficient rebuttal
evidence in support of her position that NABI's stated reason
for terminating Foster's employment was a pretext so as to
create a genuine issue of material fact. Accordingly, the
judgment of the trial court is reversed and the cause is
remanded for further proceedings.
REVERSED AND REMANDED.
Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur.
3NABI has filed a motion requesting permission to file a
surreply brief in an effort to focus this Court's attention on
certain parts of the record that NABI contends conflict with
factual assertions made by Foster in her reply brief. Having
reviewed the entirety of the record, including the portions
that are the subject of NABI's motion, and seeing no need for
additional briefing, this Court by separate order is denying
NABI's motion.
31 | April 28, 2017 |
8293a4e6-9bb6-482b-b7f9-26c2371ac30c | Copeland v. Turner | 143 So. 2d 625 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 625 (1962)
Mabel J. COPELAND, Guardian,
v.
Noel M. TURNER, Executor.
1 Div. 969.
Supreme Court of Alabama.
July 26, 1962.
*626 Beddow, Embry & Beddow, and Roderick M. MacLeod, Jr., Birmingham, and Vickers, Riis, Murray & Curran, and J. Manson Murray, Mobile, for appellant.
Austill, Austill & Austill, Mobile, for appellee, and Wm. H. McDermott, Mobile, guardian ad litem, for Janie T. Baxter.
LAWSON, Justice.
Shephard L. Baxter died on December 1, 1958, leaving his widow, Janie T. Baxter, surviving him. They had been married for many years and had no children. At the time of his death Baxter was about ninety years of age and his widow was about seventy years old.
On November 26, 1958, the decedent executed a will, the material parts of which read:
Janie T. Baxter had been mentally deranged for more than a year prior to her husband's death and within a short time thereafter she began to live in Birmingham, Jefferson County, with her sister, Mabel J. Copeland.
*627 On January 13, 1959, Janie T. Baxter was adjudged insane by the Probate Court of Jefferson County and letters of guardianship were on that day issued to Mabel J. Copeland.
The will of Shephard L. Baxter was admitted to probate by the Probate Court of Mobile County on January 29, 1959, and letters testamentary were duly granted to Noel M. Turner, the executor named in the will.
On July 23, 1959, Mabel J. Copeland, as guardian of Janie T. Baxter, filed a petition wherein she alleged that it "would be to the best interest of the Widow, Janie T. Baxter, to dissent from the Will of her husband" and prayed for an order declaring such dissent. This petition was filed under the authority of § 21, Title 61, Code 1940, which in pertinent parts reads:
Upon the filing of the last-mentioned petition, William H. McDermott, an attorney, was appointed guardian ad litem "to represent and protect the interest of said person of unsound mind, Janie T. Baxter, in this proceeding."
On August 24, 1959, Noel M. Turner, as executor of the estate of Shephard L. Baxter, filed his answer to the petition filed by Mabel J. Copeland, as guardian of Janie T. Baxter, to dissent from the will of her late husband, Shephard L. Baxter.
Noel M. Turner, as executor of the estate of Shephard L. Baxter, deceased, filed his petition for the removal of the administration of the estate of Shephard L. Baxter from the Probate Court of Mobile County, Alabama, to the Circuit Court of Mobile County, Alabama, in Equity. An order of removal was made and entered on October 14, 1959.
Thereafter a hearing was held in the Circuit Court of Mobile County, in Equity, at which testimony was introduced upon written interrogatories and cross-interrogatories in accordance with the provisions of § 21, Title 61, Code 1940.
On December 19, 1960, a final decree was rendered disallowing the dissent from the will as prayed for in the petition of Mabel J. Copeland, as guardian, on the ground, "That it has not been shown by the Testimony that it is to the interest of the Widow, to be allowed to DISSENT."
From that decree Mabel J. Copeland, as guardian of Janie T. Baxter, has appealed to this court.
The only argued assignment or error is to the effect that the trial court erred in not allowing the dissent.
The guardian ad litem joins in the brief filed on behalf of the executor, Noel M. Turner, which seeks to uphold the decree of the trial court.
An insane widow or one acting for her does not come into court for the purpose of dissenting from her husband's will on like terms and in the same legal status as if she were sane.
As to the sane widow, we have said that she has a clear legal right to dissent from *628 the will of her husband under the provisions of § 18, Title 61, Code 1940. Cogburn v. Callier, 213 Ala. 46, 104 So. 330.
But the right given a sane widow to dissent from her husband's will by § 21, Title 61, supra, is personal to the widow. In Crenshaw v. Carpenter, 69 Ala. 572, decided by this court in 1881, it was held that an insane widow is incapable of entering a dissent and that a dissent entered for her by another, as next friend, was not authorized by the provisions now codified as § 18, Title 61, Code 1940.
Apparently to meet the decision in the case of Crenshaw v. Carpenter, supra, the legislature in 1884 passed an act (Act No. 9, approved December 3, 1884, Acts of Alabama 1884-1885, p. 74), the provisions of which are now codified as § 21, Title 61, Code 1940.
Section 21, Title 61, does not give to the guardian or next friend the right to make an election on behalf of the insane widow. The guardian or next friend is simply given the right to petition the probate court for an order allowing the dissent, and the court's right to make such an order is dependent upon the fact that the court is satisfied from the testimony of at least two disinterested witnesses that it is to the interest of the widow to dissent from the will.
We have found no Alabama case and none has been cited to us wherein this court has been called upon to establish the rules or tests to be applied in determining whether or not a dissent on behalf of an insane widow is to her interest.
We have read with interest the texts and cases cited from other jurisdictions which disclose very divergent points of view as to what constitutes the "best interest" of an insane ward. See Page on Wills, Vol. 4, p. 37, § 1363, and cases cited; also annotations in 74 A.L.R. 452 and 147 A.L.R. 336.
Most of the cases deal with the situation in which some provision was made for the widow in the will and the issue was whether or not "her best interest" required that the statutory interest be claimed in preference to the testamentary provisions. As before stated, the courts have expressed widely divergent points of view as to how to go about determining the "best interest" of the insane ward under those circumstances.
We are not called upon here to lay down any rules applicable to all cases and we think it would be a mistake to attempt to do so.
In fact, our study of the texts and cited cases has led us to the conclusion that in determining whether or not it is to the interest or "best interest" of an insane widow to dissent from a will, no hard and fast rule should be laid down. Whether or not her interest will be best subserved by a dissent must be determined from all the facts and circumstances in a particular case. It seems to us that a test which is valuable in one case might lead to a ridiculous result in another case.
So, then we must inquire as to the situation in which Janie T. Baxter is placed by reason of the provisions of her husband's will and whether it is to her advantage to take under it or to dissent and take under the statute.
Janie T. Baxter was mentally incompetent at the time her husband, Shephard L. Baxter, executed his will, wherein he left his entire estate, valued at approximately $35,000, in trust for the use and benefit of the said Janie T. Baxter. Under the will the trustee is authorized to expend and apply all of the income and "any portion of the corpus of said trust as might be necessary" to provide for the "comfort and health and maintenance" of the wife, Janie T. Baxter. No more money would be available for the use of Janie T. Baxter if the dissent was allowed.
The testator, Shephard L. Baxter, named as trustee his nephew, in whom he had great confidence. This record indicates that this confidence was well placed. The trustee, Noel M. Turner, is shown to be an astute *629 business man who has served for approximately twelve years as co-trustee of a trust of approximately $105,000 in value. He has served as executor of an estate valued at over $200,000. The record also shows that Noel M. Turner is an experienced business man of considerable wealth. The heads of two of the largest financial institutions in the state testified that in their opinion he was altogether capable of managing a trust estate of $35,000 without furnishing any surety and that they would "unhesitatingly" lend him the sum of $35,000 without any security.
On the other hand, the guardian has had no experience in handling a trust estate. Her business experience has not been of the kind which would qualify her to administer the affairs of her insane sister as well as the trustee, Noel M. Turner.
We cannot say that the trial court erred in refusing to allow the dissent.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | July 26, 1962 |
825b987a-b145-4722-8787-a2d4839c13d4 | New York Times Company v. Sullivan | 144 So. 2d 25 | N/A | Alabama | Alabama Supreme Court | 144 So. 2d 25 (1962)
The NEW YORK TIMES COMPANY et al.
v.
L. B. SULLIVAN.
3 Div. 961.
Supreme Court of Alabama.
August 30, 1962.
*28 T. Eric Embry, Beddow, Embry & Beddow and Fred Blanton, Birmingham, and Lord, Day & Lord and Herbert Wechsler, New York City, for appellant New York Times.
Chas. S. Conley and Vernon Z. Crawford, Montgomery, for individual appellants.
R. E. Steiner, III, Sam Rice Baker, M. R. Nachman, Jr., Steiner, Crum & Baker and Calvin M. Whitesell, Montgomery, for appellee.
HARWOOD, Justice.
This is an appeal from a judgment in the amount of $500,000.00 awarded as damages in a libel suit. The plaintiff below *29 was L. B. Sullivan, a member of the Board of Commissioners of the City of Montgomery, where he served as Police Commissioner. The defendants below were The New York Times, a corporation, and four individuals, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery.
Service of the complaint upon The New York Times was by personal service upon Dan McKee as an agent of the defendant, and also by publication pursuant to the provisions of Sec. 199(1) of Tit. 7, Code of Alabama 1940.
The Times moved to quash service upon it upon the grounds that McKee was not its agent, and The Times, a foreign corporation, was not doing business in Alabama, and that service under Sec. 199(1) was improper, and to sustain either of the services upon it would be unconstitutional.
After hearing upon the motion to quash, the lower court denied such motion.
In this connection the plaintiff presented evidence tending to show The Times gathers news from national press services, from its staff correspondents, and from string correspondents, sometimes called "stringers."
The Times maintained a staff correspondent in Atlanta, Claude Sitton, who covered eleven southern states, including Alabama.
During the period from 1956 through April 1960, regular staff correspondents of The Times spent 153 days in Alabama to gather news articles for submission to The Times. Forty-nine staff news articles so gathered were introduced in evidence.
Sitton himself was assigned to cover in Alabama, at various times, the so-called "demonstrations," the hearings of the Civil Rights Commission in Montgomery, and proceedings in the United States District Court in Montgomery. During his work in Alabama, he also conducted investigations and interviews in such places as Clayton and Union Springs. On some of his visits to Alabama, Sitton would stay as long as a week or ten days.
In May of 1960, he came to Alabama for the purpose of covering the Martin Luther King trial. After his arrival in Montgomery, he "understood" an attempt would be made to serve him. He contacted Mr. Roderick McLeod, Jr., an attorney representing The Times, and was advised to leave Alabama. Shortly after this he called McKee, the "stringer" in Montgomery, and talked generally about the King trial with him.
In addition, The Times made an active effort to keep a resident "stringer" in Montgomery at all times, and as a matter of policy wanted to have three "stringers" in Alabama at all times.
The work of "stringers" was outlined by Sitton as follows: "When The Times feels there is a news story of note going on in an area where a particular stringer lives, * * * The Times calls on a stringer for a story."
"Stringers" fill out blank cards required by The Times, which refer to them as "our correspondents." Detailed instructions are also given to "stringers" by The Times.
"Stringers" also on occasions initiate stories to The Times by telephone recordation. If these stories were not accepted, The Times pays the telephone tolls.
A "stringer" is usually employed by another newspaper, or news agency and is called upon for stories occasionally, or offers stories upon his own. A "stringer" is paid at about the rate of a penny a word. No deductions are made from these payments for such things as income tax, social security, insurance contributions, etc., and "stringers" are not carried on the payroll of The Times. Up to July 26 for the year 1960, The Times had paid Chadwick, the "stringer" in Birmingham, $135.00 for stories accepted, and paid McKee $90.00.
*30 It further appears that upon receipt of a letter from the plaintiff Sullivan demanding a retraction and apology for the statements appearing in the advertisement, which is the basis of this suit, the general counsel of The Times in New York requested the Assistant Managing Editor of The Times to have an investigation made of the correctness of the facts set forth in the advertisement in question. The Times thereupon communicated with McKee and asked for a report. After his investigation, McKee sent a lengthy wire to The Times setting forth facts which demonstrated with clarity the utter falsity of the allegations contained in the advertisement. McKee was also paid $25.00 by The Times for help given Harrison Salisbury, a staff correspondent of The Times when he was in Alabama on an assignment in the spring of 1960.
The Times also has a news service and sells to other papers stories sent it by its staff correspondents, "stringers," and local reporters. In this connection the lower court observed:
About three quarters of the revenue of The Times comes from advertisements. In 1956, The New York Times Sales, Inc., was set up. This is a wholly owned subsidiary of The Times and its sole function is to solicit advertising for The Times only.
All of the officials of "Sales" are also officials of The Times.
Two solicitors for "Sales," as well as two employees of The Times have at various times come into Alabama seeking advertising for The Times. Between July 1959 and June 3, 1960, one representative spent over a week in this State, another spent a week and a third spent three days. Advertising business was solicited in Birmingham, Montgomery, Mobile, and Selma. Between January 1, 1960 and May 1960, inclusive, approximately seventeen to eighteen thousand dollars worth of advertising was thus sold in Alabama, while in the period of 1956 through April 1960, revenues of $26,801.64 were realized by The Times from Alabama advertisers.
The Times sends about 390 daily, and 2,500 Sunday editions into Alabama.
Shipments are made by mail, rail, and air, with transportation charges being prepaid by The Times. Dealers are charged for the papers.
Credit is given for unsold papers and any loss in transit is paid by The Times.
Claims for losses are handled by baggagemen in Alabama, and The Times furnishes claim cards to dealers who bring them to the baggagemen, The Times paying for losses or incomplete copies upon substantiation by the local Alabama baggagemen.
Account cards of various Alabama Times dealers show that credit was thus given for unsold merchandise.
We are here confronted with the question of in personam jurisdiction acquired by service upon an alleged representative of a foreign corporation.
The severe limitations of the doctrine of Bank of Augusta v. Earle (1839) 13 Pet. 519, 13 U.S. 519, 10 L. Ed. 2d 274, that a corporation "must dwell in the place of its creation, and cannot migrate to another sovereignty," proving unsatisfactory, the courts, by resort to fictions of "presence," "consent," and "doing business," attempted *31 to find answers compatible with social and economic needs. Until comparatively recent years these bases of jurisdictions have tended only to confuse rather than clarify, leading the late Judge Learned Hand to remark that it was impossible to determine any established rule, but that "we must step from tuft to tuft across the morass." Hutchinson v. Chase and Gilbert, (2 Cir.) 45 F.2d 139.
In Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565, the court held that the Fourteenth Amendment to the Federal Constitution required a relationship between the State and the person upon whom the State seeks to exercise personal jurisdiction, and there must be a reasonable notification to the person upon whom the State seeks to exercise its jurisdiction. The required relationship between the State and the person was held to be presence within the State, and as a corollary, no state could "extend its process beyond that territory so as to subject either persons or property to its decisions."
In Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091 (1927), the United States Supreme Court sustained the validity of a non-resident motorist statute which provided that the mere act of driving an automobile in a state should be deemed an appointment of a named state official as agent to receive service in a suit arising out of the operation of the motor vehicle on the highway of such state. The dangerous nature of a motor vehicle was deemed to justify the statute as a reasonable exercise of police power to preserve the safety of the citizens of the state, and the consent for service exacted by the State for use of its highways was reasonable.
In 1935 the same reasoning was applied in upholding a state statute permitting service on an agent of a non-resident individual engaged in the sale of corporate securities in the state in claims arising out of such business. Henry L. Doherty and Co. v. Goodman, 294 U.S. 623, 55 S. Ct. 553, 79 L. Ed. 1097.
Corporations being mere legal entities and incapable of having physical presence as such in a foreign state, and its agents being limited by the scope of their employment, neither the "presence" theory nor the "consent" theory could satisfactorily be applied as a basis for personal jurisdiction.
As to personal jurisdiction over non-resident corporations, the rule therefore evolved that such jurisdiction could be based upon the act of such corporations "doing business" in a state, though echoes of the "presence" and "consent" doctrines may be found in some decisions purportedly applying the "doing business" doctrine in suits against foreign corporations. See Green v. Chicago Burlington and Quincy Ry., 205 U.S. 530, 27 S. Ct. 595, 51 L. Ed. 916, when "presence" of a corporation was found to exist from business done in a state, and Old Wayne Mutual Life Ass'n. of Indianapolis v. McDonough, 204 U.S. 8, 27 S. Ct. 236, 51 L. Ed. 345, where implied consent to jurisdiction was said to arise from business done in the state of the forum.
The term "doing business" carries no inherent criteria. It is a concept dependent upon each court's reaction to facts. These reactions were varied, and the conflicting decisions evoked the observation of Judge Learned Hand, then fully justified, but no longer apt since the "morass" has been considerably firmed up by subsequent decisions of the United States Supreme Court.
In International Shoe Co. v. State of Washington et al., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, the old bases of personal jurisdiction were re-cast, the court saying:
That the new test enunciated is dependent upon the degree of contacts and activities exercised in the forum state is made clear, the court saying:
In accord with the above doctrine is our case of Boyd v. Warren Paint and Color Co., 254 Ala. 687, 49 So. 2d 559.
In 1957 the United States Supreme Court handed down its opinion in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223. This case involved the validity of a California judgment rendered in a proceeding where service was had upon the defendant company by registered mail addressed to the respondent at its principal place of business in Texas. A California statute subjecting foreign corporations to suit in California on insurance contracts with California residents even though such corporations could not be served with process within its borders.
The facts show that petitioner's son, a resident of California, bought a life insurance policy from an Arizona corporation, naming petitioner as beneficiary. Later, respondent, a Texas corporation, agreed to assume the insurance obligations of the Arizona company, and mailed a re-insurance certificate to the son in California, offering to insure him in accordance with his policy. He accepted the offer and paid premiums by mail from California to the company's office in Texas. Neither corporation ever had any office in California, nor any agent therein, nor had solicited or done any other business in that state. Petitioner sent proofs of her son's death to respondent, but it refused to pay the claim.
The Texas court refused to enforce the California judgment holding it void under the Fourteenth Amendment because of lack of valid service. McGee v. International Life Insurance Company, Tex.Civ.App, 288 S.W.2d 579.
In reversing the Texas Court, the United States Supreme Court wrote:
Under the above and more recent doctrines, we are clear to the conclusion that the activities of The New York Times, as heretofore set out, are amply sufficient to more than meet the minimal standards required for service upon its representative McKee.
The adjective "string" in McKee's designation is redundant, and in no wise lessens his status as a correspondent and agent of The New York Times in Alabama. Justice demands that Alabama be permitted to protect its citizens from tortious libels, the effects of such libels certainly occurring to a substantial degree in this State.
By Act No. 282, approved 5 August 1953 (Acts of Alabama, Reg.Sess.1953, page 347) amending a prior Act of 1949, it was provided that any non-resident person, firm, partnership or corporation, not qualified to do business in this State, who shall do any business or perform any character of work or service in this State shall by so doing, be deemed to have appointed the Secretary of State to be his lawful attorney or agent of such non-resident, upon whom process may be served in any action accruing from the acts in this State, or incident thereto, by any non-resident, or his or its agent, servant or employee.
The act further provides that service of process may be made by service of three copies of the process on the Secretary of State, and such service shall be sufficient service upon the non-resident, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the Secretary of State to the defendant, at his last known address, which shall be stated in the affidavit of the plaintiff, said matter so mailed shall be marked "Deliver to Addressee Only" and "Return Receipt Requested," and provided further that snch return receipt shall be received by the Secretary of State purporting to have been signed by the said non-resident.
It is further provided in the Act that any party desiring to obtain service under the Act shall make and file in the cause an affidavit stating facts showing that this Act is applicable.
A mere reading of the above Act demonstrates the sufficiency of the provisions for notice to the non-resident defendant, and that service under the provisions of the Act fully meet the requirements of due process.
Counsel for appellant argues however that the service attempted under Act 282, supra, is defective in two aspects. First, that the affidavit accompanying the complaint is conclusionary and does not show facts bringing the Act into operation, and second, that the Act complained of did not accrue from acts done in Alabama.
The affidavit filed by the plaintiff avers that the defendant "* * * has actually done and is doing business or performing work or services in the State of Alabama; that this cause of action has arisen out of the doing of such business or as an incident *34 thereof by said defendant in the State of Alabama."
The affidavit does state facts essential to the invocation of Act 282, supra. We do not think the legislative purpose in requiring the affidavit was to require a detailed quo modo of the business done, but rather was to furnish the Secretary of State with information sufficient upon which to perform the duties imposed upon that official. The ultimate determination of whether the non-resident has done business or performed work or services in this State, and whether the cause of action accrues from such acts, is judicial, and not ministerial, as demonstrated by appellant's motion to quash.
As to appellant's second contention that the cause did not accrue from any acts of The Times in Alabama, it is our conclusion that this contention is without merit.
Equally applicable to newspaper publishing are the observations made in Consolidated Cosmetics v. D-A Pub. Co., Inc., et al., 7 Cir., 186 F.2d 906 at 908, relative to the functions of a magazine publishing company:
It is clear under our decisions that when a non-resident prints a libel beyond the boundaries of the State, and distributes and publishes the libel in Alabama, a cause of action arises in Alabama, as well as in the State of the printing or publishing of the libel. Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441; Weir v. Brotherhood of Railroad Trainmen, 221 Ala. 494, 129 So. 267; Bridwell v. Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 338; Collins v. Brotherhood of Railroad Trainmen, 226 Ala. 659, 148 So. 133.
The scope of substituted service is as broad as the permissible limits of due process. Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So. 2d 559; Ex parte Emerson, 270 Ala. 697, 121 So. 2d 914.
The evidence shows that The Times sent its papers into Alabama, with its carrier as its agent, freight prepaid, with title passing on delivery to the consignee. See Tit. 57, Sec. 25, Code of Alabama 1940; 2 Williston on Sales, Sec. 279(b), p. 90. Thence the issue went to newsstands for sale to the public in Alabama, in accordance with a long standing business practice.
The Times or its wholly owned advertising subsidiary, on several occasions, had agents in Alabama for substantial periods of time soliciting, and procuring in substantial amounts advertising to appear in The Times.
Furthermore, upon the receipt of the letter from the plaintiff demanding a retraction of the matter appearing in the advertisement, The Times had its string correspondent in Montgomery, Mr. McKee, investigate the truthfulness of the assertions in the advertisement. The fact that McKee was not devoting his full time to the service of The Times is "without constitutional significance." Scripto Inc. v. Carson, Sheriff, et al.; 362 U.S. 207, 80 S. Ct. 619, 4 L. Ed. 2d 660.
In WSAZ, Inc. v. Lyons, 254 F.2d 242 (6 Cir.), the defendant television corporation was located in West Virginia. Its broadcasts covered several counties in Kentucky, and the defendant contracted for advertising in the Kentucky counties, all contracts for such advertising being sent to the *35 corporation in West Virginia for acceptance.
The alleged libel sued upon occurred during a news broadcast.
Service was obtained by serving the Kentucky Secretary of State under the provisions of a Kentucky statute providing for such service upon a foreign corporation doing business in Kentucky where the action arose out of or was "connected" with the business done by such corporation in Kentucky.
In sustaining the judgment awarded the plaintiff, the court wrote in connection with the validity of the service to support the judgment:
In the present case the evidence shows that the publishing of advertisements was a substantial part of the business of The Times, and its newspapers were regularly sent into Alabama. Advertising was solicited in Alabama. Its correspondent McKee was called upon by The Times to investigate the truthfulness or falsity of the matters contained in the advertisement after the letter from the plaintiff. The acts therefore disclose not only certain general conditions with reference to newspaper publishing, but also specific acts directly connected with, and directly incident to the business of The Times done in Alabama.
The service acquired under the provisions of Act No. 282, supra, was valid.
The trial court also found that The Times, by including as a ground of the prayer in its motion to quash, the following, "* * * that this court dismiss this action as to The New York Times Company, A Corporation, for lack of jurisdiction of the subject matter of said action * * *" did thereby go beyond the question of jurisdiction over the corporate person of The Times, and made a general appearance, thereby waiving any defects in service of process, and thus submitted its corporate person to the jurisdiction of the court.
The conclusions of the trial court in this aspect are in accord with the doctrines of a majority of our sister states, and the doctrines of our own decisions.
Pleadings based upon lack of jurisdiction of the person are in their nature pleas in abatement, and find no special favor in the law. They are purely dilatory and amount to no more than a declaration by a defendant that he is in court in a proper action, after actual notice, but because of a defect in service, he is not legally before the court. See Olcese v. Justice's Court, 156 Cal. 82, 103 P. 317.
In Roberts v. Superior Court, 30 Cal. App. 714, 159 P. 465, the court observed:
The reason dictating such conclusion is stated by the Supreme Court of North Carolina, in Dailey Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175, to be:
We will not excerpt further from the decisions from other jurisdictions in accord with the doctrine of the above cases, but point out that innumerable authorities from a large number of states may be found set forth in an annotation to be found in 25 A.L.R.2d, pages 838 through 842.
In Thompson v. Wilson, 224 Ala. 299, 140 So. 439, this court stated:
Again, in Blankenship v. Blankenship, 263 Ala. 297, 82 So. 2d 335, the court reiterated the above doctrine.
Thus the doctrine of our cases is in accord with that of a majority of our sister states that despite an allegation in a special appearance that it is for the sole purpose of questioning the jurisdiction of the court, if matters going beyond the question of jurisdiction of the person are set forth, then the appearance is deemed general, and defects in the service are to be deemed waived.
We deem the lower court's conclusions correct, that The Times, by questioning the jurisdiction of the lower court over the subject matter of this suit, made a general appearance, and thereby submitted itself to the jurisdiction of the lower court.
*37 Appellant's assignment No. 9 is to the effect that the lower court erred in overruling defendant's demurrers as last amended to plaintiff's complaint.
The defendant's demurrers contain a large number of grounds, and the argument of the appellant is directed toward the propositions that:
Both counts of the complaint aver among other things that "* * * defendants falsely and maliciously published in the City of New York, State of New York, and in the City of Montgomery, Alabama, and throughout the State of Alabama, of and concerning the plaintiff, in a paper entitled The New York Times, in the issue of March 29, 1960, on page 25, in an advertisement entitled `Heed Their Rising Voices' (a copy of said advertisement being attached hereto and made a part hereof as Exhibit `A'), false and defamatory matter or charges reflecting upon the conduct of the plaintiff as a member of the Board of Commissioners of the City of Montgomery, Alabama, and imputing improper conduct to him, and subjecting him to public contempt, ridicule and shame, and prejudicing the plaintiff in his office, profession, trade or business, with an intent to defame the plaintiff, and particularly the following false and defamatory matter contained therein:
Where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt are libelous per se. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649; Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332.
Further, "the publication is not to be measured by its effects when subjected to the critical analysis of a trained legal mind, but must be construed and determined by its natural and probable effect upon the mind of the average lay reader." White v. Birmingham Post Co., supra.
We hold that the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff.
In "Dangerous WordsA Guide to the Law of Libel," by Philip Wittenberg, we find the following observations, at pages 227 and 228:
The same principle is aptly stated in Gross v. Cantor, 270 N.Y. 93, 200 N.E. 592, as follows:
And in Wofford v. Meeks, 129 Ala. 349, 30 So. 625, we find this court saying:
We judicially know that the City of Montgomery operates under a commission form of government. (See Act 20, Gen.Acts of Alabama 1931, page 30.) We further judicially know that under the provisions of Sec. 51, Tit. 37, Code of Alabama 1940, that under this form of municipal government the executive and administrative powers are distributed into departments of (1) public health and public safety, (2) streets, parks and public property and improvements, and, (3) accounts, finances, and public affairs; and that the assignments of the commissioners may be changed at any time by a majority of the board.
The appellant contends that the word "police" encompasses too broad a group to permit the conclusion that the statement in the advertisement was of and concerning the plaintiff since he was not mentioned by name.
*39 We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body. Such common knowledge and belief has its origin in established legal patterns as illustrated by Sec. 51, supra.
In De Hoyos v. Thornton, 259 App.Div. 1, 18 N.Y.S.2d 121, a resident of Monticello, New York, a town of 4000 population, had published in a local newspaper an article in which she stated that a proposed acquisition of certain property by the municipality was "another scheme to bleed the taxpayers and force more families to lose their homes. * * * It seems to me it might be better to relieve the tension on the taxpayers right now and get ready for the golden age * * * and not be dictated to by gangsters and Chambers of Commerce."
The mayor and the three trustees of Monticello brought libel actions. The court originally considering the complaint dismissed the actions on the grounds that the plaintiffs were not mentioned in the article, and their connection with the municipality was not stated in the complaint. In reversing this decision the Appellate Division of the Supreme Court wrote: "There is no room for doubt as to who were the objects of her attack. Their identity is as clear to local readers from the article itself as if they were mentioned by name."
The court did not err in overruling the demurrer in the aspect that the libelous matter was not of and concerning the plaintiffs.
The advertisement being libelous per se, it was not necessary to allege special damages in the complaint. Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332.
Where, as in this case, the matter published is libelous per se, then the complaint may be very simple and brief (Penry v. Dozier, 161 Ala. 292, 49 So. 909), and there is no need to set forth innuendo. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649. Further, a complaint in all respects similar to the present was considered sufficient in our recent case of Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441.
The Johnson case, supra, is also to the effect that where a newspaper publishes a libel in New York, and by distribution of the paper further publishes the libel in Alabama, a cause of action arises in Alabama, as well as in New York, and that the doctrine of Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A.L.R. 898, concerned venue, and venue statutes do not apply to a foreign corporation not qualified to do business in Alabama.
In view of the principles above set forth, we hold that the lower court did not err in overruling the demurrer to the complaint in the aspects contended for and argued in appellant's brief.
Assignments of error Nos. 14, 15, 16 and 17, relate to the court's refusal to permit certain questions to be put to the venire, in qualifying the jurors.
The appellant contends that The Times was unlawfully deprived of its right to question the jury venire to ascertain the existence of bias or prejudice. The trial court refused to allow four questions which were in effect, (1) Do you have any conviction, opinion or pre-disposition which would compel you to render a verdict against The Times? (2) Have any of you been plaintiffs in litigation in this court? (3) If there is no evidence of malice, would you refuse to punish The Times? (4) Is there any reason which would cause you to hesitate to return a verdict in favor of The Times?
The prospective jurors had already indicated that they were unacquainted with *40 any of the facts in the case, that they had not discussed the case with anyone nor had it been discussed in their presence nor were they familiar in any manner with the contentions of the parties. Appellant was permitted to propound at some length other questions designed to determine whether there was any opinion or pre-disposition which would influence the juror's judgment. The jurors indicated that there was no reason whatsoever which would cause them to hesitate to return a verdict for The Times.
Sec. 52, Tit. 30, Code of Alabama 1940, gives the parties a broad right to interrogate jurors as to interest or bias. This right is limited by propriety and pertinence. It is exercised within the sound discretion of the trial court. We cannot say that this discretion has been abused where similar questions have already been answered by the prospective jurors. Dyer v. State, 241 Ala. 679, 4 So. 2d 311.
Only the second question could have conceivably revealed anything which was not already brought out by appellant's interrogation of the prospective jurors. Considering the completeness of the qualification and the remoteness of the second question, the exclusion of that inquiry by the trial court will not be regarded as an abuse of discretion. Noah v. State, 38 Ala. App. 531, 89 So. 2d 231.
Appellant contends that without the right to adequately question the prospective jurors, a defendant cannot adequately ensure that his case is being tried before a jury which meets the federal constitutional standards laid down in such decisions as Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 751. It is sufficient to say that the jurors who tried this case were asked repeatedly, and in various forms, by counsel for The Times about their impartiality in every reasonable manner.
Appellant's assignment of error 306 pertains to the refusal of requested charge T. 22, which was affirmative in nature.
It is appellant's contention that refusal of said charge contravenes Amendment One of the United States Constitution and results in an improper restraint of freedom of the press, and further, that refusal of said charge is violative of the Fourteenth Amendment of the federal constitution.
In argument in support of this assignment, counsel for appellant asserts that the advertisement was only an appeal for support of King and "thousands of Southern Negro students" said to be "engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U. S. Constitution and the Bill of Rights."
The fallacy of such argument is that it overlooks the libelous portions of the advertisement which are the very crux of this suit.
The First Amendment of the U. S. Constitution does not protect libelous publications. Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357; Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105; Times Film Corporation v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031; Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919.
The Fourteenth Amendment is directed against State action and not private action. Collins v. Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L. Ed. 1253.
Assignment of error No. 306 is without merit.
Appellant's assignment of error No. 94 also pertains to the court's refusal of its requested charge T. 22.
Appellant's argument under this assignment asserts it was entitled to have charge T. 22 given because of the plaintiff's failure to plead or prove special damages.
*41 In libel action, where the words are actionable per se, the complaint need not specify damages (Johnson v. Robertson, 8 Port. 486), nor is proof of pecuniary injury required, such injury being implied. Johnson Publishing Co. v. Davis, supra.
Assignments 18, 19, 21, 23, 25, 27, 30, and 32, relate to the action of the court in overruling defendant's objections to questions propounded to six witnesses presented by the plaintiff as to whether they associated the statements in the advertisement with the plaintiff. All of the witnesses answered such questions in such manner as to indicate that they did so associate the advertisement.
Without such evidence the plaintiff's cause would of necessity fall, for that the libel was of or concerning the plaintiff is the essence of plaintiff's claim.
Section 910 of Title 7, Code of Alabama 1940, pertaining to libel, among other things, provides that "* * * and if the allegation be denied, the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him." This statute would seem to require the proof here admitted. And in Wofford v. Meeks, 129 Ala. 349, 30 So. 625, 55 L.R.A. 214, the court stated that where the libel is against a group, any one of that group may maintain an action "upon showing that the words apply specially to him," and in Chandler v. Birmingham News Co., 209 Ala. 208, 95 So. 886, this court said, "Any evidence which tended to show it was not intended `of and concerning him' was material and relevant to the issue."
In Hope v. Hearst Consolidated Publications, (2 Cir.1961), 294 F.2d 681, the court said as to the admissibility of testimony that a witness believed the defamatory matter referred to the plaintiff:
In accord with the doctrine that the instant evidence was admissible may be cited, among other authorities Marr v. Putnam Oil Co., 196 Or. 1, 246 P.2d 509; Red River Valley Pub. Co., Inc. v. Bridges, (Tex. Civ.App.) 254 S.W.2d 854; Colbert v. Journal Pub. Co., 19 N.M. 156, 142 P. 146; Prosser v. Callis et al., 117 Ind. 105, 19 N.E. 735; Martin County Bank v. Day, 73 Minn. 195, 75 N.W. 1115; Ball v. Evening American Pub. Co., 237 Ill. 592, 86 N.E. 1097; Children v. Shinn, 168 Iowa 531, 150 N.W. 864.
Appellant's assignments of error 22, 26, 28, 31, 33, and 34, relate to the action of the court in overruling objections to certain questions propounded to plaintiff's witnesses Blackwell, Kaminsky, Price, Parker, and White, which questions were to the effect that if the witnesses believed the matter contained in the advertisement, would they have thought less of the plaintiff.
Counsel for appellant argues that the questions "* * * inescapably carried the implication that the witness thought the ad was published of and concerning the plaintiff." Each and every one of the above named witnesses had testified previous to the instant questions, that they had associated the City Commissioners, or the plaintiff, with the advertisement upon reading it. The questions were therefore based upon the witnesses' testimony that they *42 associated the advertisement with the plaintiff, and not merely an implication that might be read into the question.
Counsel further argues that the question is hypothetical in that none of the witnesses testified they believed the advertisement, or that they thought less of the plaintiff.
While we think such evidence of small probative value, yet it would have relevancy not only as to its effect upon the recipient, but also as to the effect such publication may reasonably have had upon other recipients. See "Defamation," 69 Harv.L.R., 877, at 884.
This aside, we cannot see that the answers elicited were probably injurious to the substantial rights of the appellant. Sup. Court Rule 45. Proof of common knowledge is without injury, though it be unnecessary to offer such proof.
Clearly we think it common knowledge that publication of matter libelous per se would, if believed, lessen the person concerned in the eyes of any recipient of the libel. See Tidmore v. Mills, 33 Ala. App. 243, 32 So. 2d 769, and cases cited therein.
Assignment of error No. 63 asserts error arising out of the following instance during the cross-examination of Gershon Aronson, a witness for The Times, which matter, as shown by the record, had been preceded by numerous objections, and considerable colloquy between counsel and court:
We do not think it can be fairly said that the record discloses a ruling by the trial court on counsel's objection to the use of the term "very high official." The ruling made by the court is palpably to the question to which the objection was interposed. Counsel interrupted the court to object to the term "very high official," and second counsel added, "He is just a man that has a routine job there, Your Honor." Apparently this explanation satisfied counsel, as the court's use of the term was not pursued to the extent of obtaining a ruling upon this aspect, and the court's ruling was upon the first, and main objection.
Mr. Aronson testified that he had been with The Times for twenty-five years, and was Assistant Manager of the Advertising Acceptability Department of The Times, and was familiar with the company's policies regarding advertising in all its aspects, that is, sales, acceptability, etc, and that advertisements of organizations and committees that express a point of view comes within the witness's particular duties.
In view of the above background of Mr. Aronson, and the state of the record immediately above referred to, we are unwilling to cast error upon the lower court in the instance brought forth under assignment No. 63.
Assignment of error No. 81 is to the effect that the lower court erred in denying appellant's motion for a new trial. Such an *43 assignment is an indirect assignment of all of the grounds of the motion for a new trial which appellant sees fit to bring forward and specify as error in his brief.
The appellant under this assignment has sought to argue several grounds of its motion for a new trial.
Counsel, in this connection, seeks to cast error on the lower court because of an alleged prejudicial statement made by counsel for the appellee in his argument to the jury.
The record fails to show any objections were interposed to any argument by counsel for any of the litigants during the trial. There is therefore nothing presented to us for review in this regard. Woodward Iron Co. v. Earley, 247 Ala. 556, 25 So. 2d 267, and cases therein cited.
Counsel also argues two additional grounds contained in the motion for a new trial, (1) that the appellant was deprived of due process in the trial below because of hostile articles in Montgomery newspapers, and (2) because of the presence, of photographers in the courtroom and the publication of the names and pictures of the jury prior to the rendition of the verdict.
As to the first point, the appellant sought to introduce in the hearing on the motion for a new trial newspaper articles dated prior to, and during, the trial. The court refused to admit these articles.
At no time during the course of the trial below did the appellant suggest a continuance, or a change of venue, or that it did not have knowledge of said articles.
Likewise, at no time was any objection interposed to the presence of photographers in the courtroom.
Newly discovered evidence was not the basis of the motion for a new trial. This being so, the court was confined upon the hearing on the motion to matters contained in the record of the trial. Thomason v. Silvey, 123 Ala. 694,26 So. 644; Alabama Gas Co. v. Jones, 244 Ala. 413, 13 So. 2d 873.
Assignment of error 78 pertains to an alleged error occurring in the court's oral charge.
In this connection the record shows the following:
Preceding the above exception the court had instructed the jury as follows:
In addition the court gave some eleven written charges at defendant's request, instructing the jury in substance that the burden was upon the plaintiff to establish to the reasonable satisfaction of the jury that the advertisement in question was of and concerning the plaintiff, and that without such proof the plaintiff could not recover.
It is to be noted that in the portion of the complained of instructions excerpted above, the court first cautioned the jury they were to consider the evidence in connection with the rules of law stated to them. The court had previously made it crystal clear that the jury were to determine to their reasonable satisfaction from the evidence that the words were spoken of and concerning the plaintiff.
Counsel for appellant contend that because of the words "and aimed at the plaintiff in this case," the instruction would be taken by the jury as a charge that the advertisement was of and concerning the plaintiff, and hence the instruction was invasive of the province of the jury.
Removed from the full context of the court's instructions the charge complained of, because of its inept mode of expression, might be criticized as confused and misleading.
However, it is basic that a court's oral charge must be considered as a whole and the part excepted to should be considered in the light of the entire instruction. If as a whole the instructions state the law correctly, there is no reversible error even though a part of the instructions, if considered alone, might be erroneous.
Innumerable authorities enunciating the above doctrines may be found.
Specifically, in reference to portions of oral instructions that might be criticized because tending to be invasive of the province of the jury, we find the following stated in 89 C.J.S. Trial § 438, the text being amply supported by citations:
To this same effect, see Abercrombie v. Martin and Hoyt Co., 227 Ala. 510, 150 So. 497; Choctaw Coal and Mining Co. v. Dodd, 201 Ala. 622, 79 So. 54.
We have carefully read the court's entire oral instruction to the jury. It is a fair, accurate, and clear expression of the governing legal principles. In light of the entire charge we consider that the portion of the charge complained of to be inconsequential, and unlikely to have affected the jury's conclusions. We do not consider it probable that this appellant was injured in any substantial right by this alleged misleading instruction in view of the court's repeated and clear exposition of the principles involved, and the numerous written charges given at defendant's request further correctly instructing the jury in the premises.
*45 The individual appellants, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery have also filed briefs and arguments in their respective appeals. Many of the assignments of error in these individual appeals are governed by our discussion of the principles relating to the appeal of The Times. We therefore will now confine our review in the individual appeals to those assignments that may present questions not already covered.
In their assignment of error No. 41, the individual appellants assert that the lower court erred in it oral instructions as to ratification of the use of their names in the publication of the advertisement. The instructions of the court in this regard run for a half a page or better. The record shows that an exception was attempted in the following language:
The above attempted exception was descriptive of the subject matter only, and is too indefinite to invite our review. Birmingham Ry. Light and Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; Conway v. Robinson, 216 Ala. 495, 113 So. 531; Birmingham Ry. Light and Power Co. v. Jackson, 198 Ala. 378, 73 So. 627.
The refusal of a large number of charges applicable only to the individual appellants are also made the bases of numerous assignments of error. We have read all such refused charges, and each and every one is faulty.
Several of the charges instruct the jury that if the jury "find" etc., while others use the term "find from the evidence." These charges were refused without error in that the predicate for the jury's determination in a civil suit is "reasonably satisfied from the evidence." A court cannot be reversed for its refusal of charges which are not expressed in the exact and appropriate terms of the law. W. P. Brown and Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526.
Others of the refused charges, not affirmative in nature, are posited on "belief," or "belief from the evidence." A judgment will not be reversed or affirmed because of the refusal, or giving, of "belief" charges. Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616; Casino Restaurant v. McWhorter, 35 Ala.App. 332, 46 So. 2d 582.
Specification of error number 6 asserts error in the court's action in refusing to sustain the individual defendants' objection to the way one of the plaintiff's counsel pronounced the word "negro." When this objection was interposed, the court instructed plaintiff's counsel to "read it just like it is," and counsel replied, "I have been pronouncing it that way all my life." The court then instructed counsel to proceed. No further objections were interposed, nor exceptions reserved.
We consider this assignment mere quibbling, and certainly nothing is presented for our review in the state of the record.
Counsel have also argued assignments to the effect that error infects this record because, (1) the courtroom was segregated during the trial below, and (2) the trial judge was not duly and legally elected because of alleged deprivation of voting rights to negroes.
Neither of the above matters were presented in the trial below, and cannot now be presented for review.
Counsel further argues that the appellants were deprived of a fair trial in that the trial judge was, by virtue of Local Act No. 118, 1939 Local Acts of Alabama, p. 66, a member of the jury commission of *46 Montgomery County. This act is constitutional. Reeves v. State, 260 Ala. 66, 68 So. 2d 14.
Without intimating that any merit attaches to this contention, it is sufficient to point out that this point was not raised in the trial below, and must be considered as having been waived. De Moville v. Merchants & Farmers Bank of Greene County, 237 Ala. 347, 186 So. 704.
Assignments 42, 121, 122, assert error in the court's refusal to hear the individual appellants' motions for new trials, and reference in brief is made to pages 2058-2105 of the record in this connection.
These pages of the record merely show that the individual appellants filed and presented to the court their respective motions for a new trial on 2 December 1960, and the same were continued until 16 December 1960. On 16 December 1960, the respective motions were continued to 14 January 1961. No further orders in reference to the motions of the individual appellants appear in the record, and no judgment on any of the motions of the individual appellants appears in the record.
The motions of the individual appellants therefore became discontinued after 14 January 1961.
There being no judgments on the motion for a new trial of the individual appellants, and they having become discontinued, those assignments by the individual appellants attempting to raise questions as to the weight of the evidence, and the excessiveness of the damages are ineffective and present nothing for review. Such matters can be presented only by a motion for a new trial.
Other matters are argued in the briefs of the individual appellants. We conclude they are without merit and do not invite discussion, though we observe that some of the matters attempted to be brought forward are insufficiently presented to warrant review.
The plaintiff first introduced the depositional testimony of Harding Bancroft, secretary of The Times.
Mr. Bancroft thus testified that one John Murray brought the original of the advertisement to The Times where it was delivered to Gershon Aronson, an employee of The Times. A Thermo-fax copy of the advertisement was turned over to Vincent Redding, manager of the advertising department, and Redding approved it for insertion in The Times. The actual insertion was done pursuant to an advertising insertion order issued by the Union Advertising Service of New York City.
Redding determined that the advertisement was endorsed by a large number of people whose reputation for truth he considered good.
Numerous news stories from its correspondents, published in The Times, relating to certain events which formed the basis of the advertisement and which had been published from time to time in The Times were identified. These news stories were later introduced in evidence as exhibits.
Also introduced through this witness was a letter from A. Philip Randolph certifying that the four individual defendants had all given permission to use their names in furthering the work of the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South."
Mr. Bancroft further testified that The Times received a letter from the plaintiff dated 7 April 1960, demanding a retraction of the advertisement. They replied by letter dated 15 April 1960, in which they asked Mr. Sullivan what statements in the advertisement reflected on him.
After the receipt of the letter from the plaintiff, The Times had McKee. its "string" *47 correspondent in Montgomery, and Sitton, its staff correspondent in Atlanta, investigate the truthfulness of the allegations in the advertisement. Their lengthy telegraphic reports, introduced in evidence showed that the Alabama College officials had informed them that the statement that the dining room at the College had been padlocked to starve the students into submission was absolutely false; that all but 28 of the 1900 students had re-registered and meal service was furnished all students on the campus and was available even to those who had not registered, upon payment for the meals; that the Montgomery police entered the campus upon request of the College officials, and then only after a mob of rowdy students had threatened the negro college custodian, and after a college policeman had fired his pistol in the air several times in an effort to control the mob. The city police had merely tried to see that the orders of the Alabama College officials were not violated.
Sitton's report contained the following pertinent statements:
These reports further show that King had been arrested only twice by the Montgomery police. Once for speeding on which charge he was convicted and paid a $10.00 fine, and once for "loitering" on which charge he was convicted and fined $14.00, this fine being paid by the then police commissioner whom the plaintiff succeeded in office.
Mr. Bancroft further testified that upon receipt of a letter from John Patterson, Governor of Alabama, The Times retracted the advertisement as to Patterson, although in The Times' judgment no statement in the advertisement referred to John Patterson either personally or as Governor of Alabama. However, The Times felt that since Patterson held the high office of Governor of Alabama and believed that he had been libeled, they should apologize.
Grover C. Hall, Jr., Arnold D. Blackwell, William H. MacDonald, Harry W. Kaminsky, H. M. Price, Sr., William M. Parker, Jr., and Horace W. White, all residents of the city of Montgomery, as well as the plaintiff, testified over the defendant's objections that upon reading the advertisement they associated it with the plaintiff, who was Police Commissioner.
E. Y. Lacy, Lieutenant of detectives for the city of Montgomery, testified that he had investigated the bombings of King's home in 1955. This was before the plaintiff assumed office as Commissioner of Police. One bomb failed to explode, and was dismantled by Lacy. In attempting to apprehend the bombers, "The Police Department did extensive research work with overtime and extra personnel and we did everything that we knew including inviting and working with other departments throughout the country."
*48 O. M. Strickland, a police officer of the city of Montgomery, testified that he had arrested King on the loitering charge after King had attempted to force his way into an already overcrowded courtroom, Strickland having been instructed not to admit any additional persons to the courtroom unless they had been subpoenaed as a witness. At no time did he nor anyone else assault King in any manner, and King was permitted to make his own bond and was released.
In his own behalf the plaintiff, Sullivan, testified that he first read the advertisement in the Mayor's office in Montgomery. He testified that he took office as a Commissioner of the City of Montgomery in October 1959, and had occupied that position since. Mr. Sullivan testified that upon reading the advertisement he associated it with himself, and in response to a question on cross-examination, stated that he felt that he had been greatly injured by it.
Mr. Sullivan gave further testimony as to the falsity of the assertions contained in the advertisement.
For the defense, Gershon Aronson, testified that the advertisement was brought to him by John Murray and he only scanned it hurriedly before the advertisement was sent to the Advertising Acceptability Department of The New York Times. As to whether the word "they" as used in the paragraph of the advertisement charging that "Southern violators" had bombed King's home, assaulted his person, arrested him seven times, etc., referred to the same people as "they" in the paragraph wherein it was alleged that the Alabama College students were padlocked out of their dining room in an attempt to starve them into submission and that the campus was ringed with police, armed with shotguns, tear gas, etc., Aronson first stated, "Well, it may have referred to the same people. It is rather difficult to tell" and a short while later Aronson stated, "Well, I think now it probably refers to the same people."
The Times was paid in the vicinity of $4,800 for publishing the advertisement.
D. Vincent Redding, assistant to the manager of the Advertising Acceptability Department of The Times, testified that he examined the advertisement and approved it, seeing nothing in it to cause him to believe it was false, and further he placed reliance upon the endorsers "whose reputations I had no reason to question." On cross-examination Mr. Redding testified he had not checked with any of the endorsers as to their familiarity with the events in Montgomery to determine the accuracy of their statements, nor could he say whether he had read any news accounts concerning such events which had been published in The Times. The following is an excerpt from Mr. Redding's cross-examination:
Mr. Harding Bancroft, Secretary of The Times, whose testimony taken by deposition had been introduced by the plaintiff, testified in the trial below as a witness for the defendants. His testimony is substantially in accord with that given in his deposition and we see no purpose in an additional delineation of it.
As a witness for the defense, John Murray testified that he was a writer living in New York City. He was a volunteer worker for the "Committee to Defend Martin Luther King," etc, and as such was called upon, together with two other writers, to draft the advertisement in question.
These three were given material by Bayard Rustin, the Executive Director of the Committee, as a basis for composing the advertisement. Murray stated that Rustin is a professional organizer, he guessed along the line of raising funds. Murray knew that Rustin had been affiliated with the War Resisters League, among others.
*49 After the first proof of the advertisement was ready, Rustin called him to his office and stated he was dissatisfied with it as it did not have the kind of appeal it should have if it was to get the response in funds the Committee needed.
Rustin then stated they could add the names of the individual defendants since by virtue of their membership in the Southern Christian Leadership Conference, which supported the work of the Committee, he felt they need not consult them.
The individual defendants' names were then placed on the advertisement under the legend "We in the South who are struggling daily for dignity and freedom warmly endorse this appeal."
Murray further testified that he and Rustin rewrote the advertisement "to get money" and "to project the ad in the most appealing form from the material we were getting."
As to the accuracy of the advertisement, Murray testified:
The individual defendants all testified to the effect that they had not authorized The New York Times, Philip Randolph, the "Committee to Defend Martin Luther King," etc, nor any other person to place their names on the advertisement, and in fact did not see the contents of the advertisement until receipt of the letter from the plaintiff.
They all testified that after receiving the letter demanding a retraction of the advertisement they had not replied thereto, nor had they contacted any person or group concerning the advertisement or its retraction.
Under assignment of error No. 81, The Times argues those grounds of its motion for a new trial asserting that the damages awarded the plaintiff are excessive, and the result of bias, passion, and prejudice.
In Johnson Publishing Co. v. Davis, supra, Justice Stakely in a rather definitive discussion of a court's approach to the question of the amount of damages awarded in libel actions made the following observations:
In the present case the evidence shows that the advertisement in question was first written by a professional organizer of drives, and rewritten, or "revved up" to make it more "appealing." The Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement. Upon demand by the Governor of Alabama, The Times published a retraction of the advertisement insofar as the Governor of Alabama was concerned. Upon receipt of the letter from the plaintiff demanding a retraction of the allegations in the advertisement, The Times had investigations made by a staff correspondent, and by its "string" correspondent. Both *51 made a report demonstrating the falsity of the allegations. Even in the face of these reports, The Times adamantly refused to right the wrong it knew it had done the plaintiff. In the trial below none of the defendants questioned the falsity of the allegations in the advertisement.
On the other hand, during his testimony it was the contention of the Secretary of The Times that the advertisement was "substantially correct." In the face of this cavalier ignoring of the falsity of the advertisement, the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom.
While in the Johnson Publishing Co. case, supra, the damages were reduced by way of requiring a remittitur, such reduction was on the basis that there was some element of truth in part of the alleged libelous statement. No such reason to mitigate the damages is present in this case.
It is common knowledge that as of today the dollar is worth only 50 cents or less of its former value.
The Times retracted the advertisement as to Governor Patterson, but ignored this plaintiff's demand for retraction. The matter contained in the advertisement was equally false as to both parties.
The Times could not justify its nonretraction as to this plaintiff by fallaciously asserting that the advertisement was substantially true, and further, that the advertisement as presented to The Times bore the names of endorsers whose reputation for truth it considered good.
The irresponsibility of these endorsers in attaching their names to this false and malicious advertisement cannot shield The Times from its irresponsibility in printing the advertisement and scattering it to the four winds.
All in all we do not feel justified in mitigating the damages awarded by the jury, and approved by the trial judge below, by its judgment on the motion for a new trial, with the favorable presumption which attends the correctness of the verdict of the jury where the trial judge refuses to grant a new trial. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594.
In our considerations we have examined the case of New York Times Company v. Conner, (5CCA) 291 F.2d 492 (1961), wherein the Circuit Court of Appeals for the Fifth Circuit, relying exclusively upon Age Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A.L.R. 898, held that no cause of action for libel arose in Alabama where the alleged libel appeared in a newspaper primarily published in New York.
This case overlooks, or ignores, the decision of this court in Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441, wherein this court rejected the argument that the whole process of writing, editing, printing, transportation and distribution of a magazine should be regarded as one libel, and the locus of such libel was the place of primary publication. This court further, with crystal clarity, held that Age Herald Publishing Co. v. Huddleston, supra, concerned a venue statute, and that venue statutes do not apply to foreign corporations not qualified to do business in Alabama.
The statement of Alabama law in the Conner case, supra, is erroneous in light of our enunciation of what is the law of Alabama as set forth in the Johnson Publishing Company case, supra. This erroneous premise, as we interpret the Conner case, renders the opinion faulty, and of no persuasive authority in our present consideration.
It is our conclusion that the judgment below is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | August 30, 1962 |
e6927b4c-c861-4ba5-ad9f-6948829641a4 | Buchanan v. State | 150 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 150 So. 2d 200 (1962)
R. W. BUCHANAN
v.
STATE of Alabama.
3 Div. 971.
Supreme Court of Alabama.
October 18, 1962.
Rehearing Denied February 28, 1963.
*201 Reeves & Stewart, Selma, Steiner, Crum & Baker, Montgomery, and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Jas. R. Payne, Asst. Atty. Gen., for appellee.
SIMPSON, Justice.
This case was originally assigned to another Justice and transferred to writer on September 9, 1962 for study and preparation of the opinion.
R. W. Buchanan (appellant) filed an appeal in the court below under § 140, Title 51, of the Code of Alabama of 1940, from a final assessment of additional income tax in the amount of $2,557.79. The assessment arose from the Revenue Department's having added as taxable income to the 1959 income of appellant R. W. Buchanan the sum of $51,773.17, received by appellant on March 31, 1959 as a liquidating dividend of a domestic corporation, Yellow Pine Lumber Company, Inc.
The portion of the liquidating dividend which was made the basis of the final assessment, namely $51,773.17, was paid in kind in assets acquired by the corporation solely from earnings and income of the corporation on which the corporation has paid all income taxes due the State of Alabama. The sum of $51,773.17 is the amount of appreciation in value of the assets distributed to appellant between the time they were acquired by the corporation and the time they were distributed to appellant as a liquidating dividend.
It is undisputed that the appreciation in value of the assets was not taxable income to the corporation, and that no Alabama income tax was due or payable thereon by the corporation.
Appellant contends that the entire liquidating dividend received by him was exempt from Alabama income tax under Title 51, § 388, of the Code of Alabama of 1940, as amended, for the reason that it was a liquidating dividend accumulated solely from the income of a domestic corporation on which the corporation has paid all income taxes due the State of Alabama in the current and prior years. Appellee contends *202 that such portion of the liquidating dividend represented by appreciation in value of assets was not exempt under said § 388.
The case was heard before the trial judge on oral testimony of two witnesses and written exhibits introduced by both parties, and there is no dispute in the evidence. The trial judge rendered decree denying relief to appellant and affirming the assessment. From this decree appellant brings this appeal.
R. W. Buchanan (appellant) is a resident of Selma in Dallas County, Alabama. Yellow Pine Lumber Co., Inc., was a domestic corporation incorporated in Dallas County, Alabama on January 28, 1942 with an original paid in capital of $25,000.00. All assets of the corporation, other than this original capital, were acquired by the corporation from its earnings and income, and the corporation properly reported to the State of Alabama all of its income and paid to the State of Alabama all income taxes due by the corporation on all of its income for the year 1959, and all prior years.
Yellow Pine Lumber Company, Inc., was dissolved on March 31, 1959 and all of its assets were distributed in cash and kind to the stockholders as liquidating dividends in proportion to their ownership of stock. R. W. Buchanan was the owner of 25% of the stock of the corporation, and he was paid as a liquidating dividend 25% of the total assets of the corporation at the time of dissolution.
Regulation 388.1, State of Alabama Income Tax Regulations (1952), was introduced in evidence, and is as follows:
These regulations were promulgated on December 18, 1952, and constituted the regulations in the State Department of Revenue in effect during the tax year involved in this case, i. e., 1959. The evidence is undisputed that the State Department of Revenue and tax practitioners generally, in the State of Alabama, had uniformly, up to the time of the dissolution of this corporation, construed and treated as exempt all liquidating dividends received by Alabama residents from domestic corporations which had paid all Alabama income taxes due including distribution of assets which reflect appreciation in value between the time of acquisition by the corporation and the time of distribution as a liquidating dividend.
The sole question in this case is whether R. W. Buchanan (appellant) shall be denied the exemption provided by Title 51, § 388, of the Code on that portion of the liquidating dividend paid to him in kind, consisting of assets acquired by the domestic corporation solely from income on which the corporation has paid all income taxes due the State of Alabama, merely because there was no Alabama income tax due or payable by the corporation on the appreciation in value of the assets distributed. We quote the pertinent provisions of § 388, Title 51, as amended, 1955 Cumulative Pocket Part, as follows:
The State, in arriving at its conclusion that appellant is due the amount of income tax claimed and approved by the court *203 below, takes an amount representing that portion of the liquidating dividend distributed to the stockholders upon which the corporation had paid all income taxes due the State for the current and prior years. It then determines the taxpayer's proportionate part of this amount, and deducts it from the total amount received by the taxpayer upon dissolution and distribution of all assets. From this remainder there is subtracted the amount paid by the taxpayer for his stock. This balance of the liquidating dividend received by the taxpayer, it is argued, "represents that portion of the liquidating dividend received upon which the corporation distributing it had not paid income taxes to the State of Alabama for the current or prior years". This argument is ingenious but not convincing. This portion of the dividend consists of the appreciation in value of the corporate assets accumulated solely from income, and as we have said above was not taxable in the hands of the corporation. Had the corporation sold its assets, there would have arisen a question of tax due by it for profits realized. But it did not sell its assets; instead it distributed its assets in kind to its stockholders. The effort of the State is clearly one to charge the taxpayer upon the gain he realized over the price he paid for his stock, just as if he had sold his stock. But he did not sell his stock. What he did was receive assets in kind which, it is agreed, had appreciated in value. What profit he has derived, so far as appears, is an unrealized profit. In finality, the question of liability depends upon a construction of the statute, Code, Title 51, § 388 as we have copied it above.
Several of our cases have been cited to us to sustain the State's position. None deals in anywise with the exemption set up in § 388, supra. At most they state rules of statutory construction. That rule most pertinent is that exemption statutes are to be strictly construed in favor of the taxing authority. State v. Calumet & Hecla C. C. Co., 259 Ala. 225, 66 So. 2d 726, among many other cases. We fully recognize this rule and have consistently reiterated it. But we have as consistently added that this court will indulge no strained construction to give effect to such rule where a fair interpretation of legislative intent may lead to a contrary interpretation. In these and other cases we have said that arbitrary rules of construction are of little value when the real intent of the legislature can be gathered from the act itself. State v. Dawson, 264 Ala. 647, 89 So. 2d 103; State v. Taylor, 262 Ala. 639, 80 So. 2d 618; Hattemer v. State Tax Commission, 235 Ala. 44, 177 So. 156; Holt v. Long, 234 Ala. 369, 174 So. 759; State v. Calumet & Hecla C. C. Co., supra; Crow v. General Cable Corp., 223 Ala. 611, 137 So. 657.
We perceive no ambiguity in the statute. The only problem then is applying the law to the facts. The corporation was a domestic corporation. It had paid for current and prior years all income taxes due by it to the State. A part of its income went to acquisition of assets, lumber or whatever was its stock in trade and other assets incidental to its business. Increase in quantity and value we may assume took place not in one year but over the years of its corporate activity. It is not suggested that it was taxable per year or when it liquidated upon the enhancement of its assets. Thus it cannot be said that it did not pay all income taxes due the State. If it paid all income taxes due, dividends received by the stockholder were exempt to him. Since the assets distributed in kind to the stockholder were acquired solely from corporate income, such dividends were "paid from income", within the meaning of the words of the statute.
This exemption statute as it pertains to liquidating dividends, has not heretofore been before us. The most nearly analogous case from another jurisdiction coming to our attention is that of District of Columbia v. Oppenheimer, 112 U.S.App.D.C. 329, 301 F.2d 563, recently decided by the United States Court of Appeals for the District of Columbia. In that case the corporation *204 owned improved real estate which it held for income and not for sale. Oppenheimer was one of its stockholders. The District of Columbia assessed a deficiency in the stockholder's income tax, based on the difference between the amount she invested in the corporation and the value of the property it distributed to her when it was dissolved. The court there held that since the corporation never realized the appreciation by sale or otherwise, it was never a part of the corporation's income or earnings; in other words, did not realize a taxable gain. Unrealized appreciation in corporate assets, it was held, may not be reckoned in earnings or profits. The court draws an obvious distinction between unrealized appreciation and profits realized by a sale of the property before distribution to its stockholders.
While we have based our decision upon our own interpretation of the statute, we observed hereinabove that prior to the situation giving rise to this case the Department of Revenue had promulgated and followed a regulation allowing the exemption as claimed by appellant. Whatever else may be said of the force and effect of the prior regulation, it is a generally recognized rule that contemporaneous administrative construction placed on a statute by officials administering the law is to be given consideration in interpretation of statutes. Glencoe Paving Co. v. Graves, 266 Ala. 154, 94 So. 2d 872; State v. Helburn Co., 269 Ala. 164, 111 So. 2d 912. Considering both the original and subsequent regulations of the Department, we are persuaded that the former is correct.
It results as our judgment that the decree appealed from is in error and must be reversed. A decree will be here rendered setting aside the assessment and granting to appellant the relief prayed.
Reversed and rendered.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | October 18, 1962 |
b3f72973-d76e-4b35-86ab-945e49b0656e | United States Fidelity & G. Co. v. Mason & Dulion Co. | 145 So. 2d 711 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 711 (1962)
UNITED STATES FIDELITY AND GUARANTY COMPANY
v.
MASON AND DULION COMPANY, Inc.
6 Div. 417.
Supreme Court of Alabama.
July 26, 1962.
Rehearing Denied October 25, 1962.
Ralph B. Tate, S. R. Starnes and Spain, Gillon & Young, Birmingham, for appellant.
Jas. E. Clark and London, Yancey, Clark & Allen, Birmingham, for appellee.
COLEMAN, Justice.
This is an appeal by complainant from a declaratory decree.
The appellant is the liability insurer of a contractor, Daniel Construction Company, Inc., which will be herein sometimes referred to as Daniel, or as the contractor or indemnitee. Appellant, by subrogation, stands in the shoes of Daniel, and appellant has all the rights Daniel had, but no more, so far as this case is concerned.
Daniel, the contractor, was building a plant for American Brake Shoe Company, the owner. Daniel made a subcontract whereby appellee undertook to do a part of the work. Appellee will sometimes be referred to as subcontractor or indemnitor.
The agreement between contractor and subcontractor contains the following provision:
It is alleged in the bill and admitted in the answer that Dallas J. Faulkner was *712 an employee of the subcontractor, that Faulkner fell from a scaffold and was injured on the job while working for the subcontractor, that Faulkner filed an action against the contractor charging that Faulkner was injured through the negligence of the contractor, that Faulkner recovered judgment against the contractor, that appellant has paid the judgment and is entitled, as subrogee of Daniel, to all the rights of Daniel. Appellant claims a right to be reimbursed by the subcontractor because, appellant contends, the Indemnity Agreement quoted above requires the subcontractor to indemnify the contractor for contractor's liability for the injury to Faulkner.
The record is bare of further facts to show the circumstances of the injury. The parties appear to concede, however, that Faulkner's injury did arise out of the work and was the result of the negligence of the contractor, and that the subcontractor was not negligent. We will so consider the case.
The decree appealed from declared that appellant is subrogated to the rights of Daniel, but that the subcontractor did not agree to indemnify Daniel for loss occasioned by Daniel's negligence, and that appellant is not entitled to recover from appellee the amount paid to Faulkner.
Appellant says that the contractor is entitled to indemnity because the contract provides for indemnity, although the liability of contractor resulted from the negligence of the contractor, the indemnitee.
Appellee says the contractor is not entitled to indemnity for two reasons. First, appellee says the Indemnity Agreement does not contain language sufficient to entitle indemnitee to indemnity for a loss occasioned by its own negligence. Second, appellee says that the contract has other provisions besides the Indemnity Agreement quoted above and that when the entire contract is considered, the contractor is not entitled to be indemnified for a loss which resulted from contractor's own negligence.
Appellant contends that Eureka Coal Co. v. Louisville & N. R. Co., 219 Ala. 286, 122 So. 169, holds that the Indemnity Agreement in the instant case entitles the contractor to indemnity for its own negligence. We do not think that Eureka is decisive of the instant case. There the indemnitor was guilty of primary negligence causing the injury. Here the only causative negligence appears to be that of the indemnitee. We are of opinion that Eureka does not require us to hold that Daniel is entitled to be indemnified for its own negligence.
Appellant insists further, however, that the plain language of the agreement entitles the contractor to indemnity, and cites many cases from other states in support of the contractor's right to indemnity. Among them are: Payne v. National Transit Co., 3 Cir., 300 F. 411; National Transit Co. v. Davis, 3 Cir., 6 F.2d 729; Buckeye Cotton Oil Co. v. Louisville & N. R. Co., 6 Cir., 24 F.2d 347; Baltimore & O. R. Co. v. Youngstown Boiler & Tank Co., 6 Cir., 64 F.2d 638; Cavanaugh v. C. P. Boland Co., 149 Misc. 576, 268 N.Y.S. 390; Southern Pac. Co. v. Fellows, 22 Cal. App. 2d 87, 71 P.2d 75; Kokusai Kisen Kabushiki Kaisha v. Columbia Stevedoring Co., D.C., 23 F. Supp. 403; Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 288 N.W. 226; Smoke v. Turner Const. Co., D.C., 54 F. Supp. 369; Griffiths v. Henry Broderick, Inc., 27 Wash. 2d 901, 182 P.2d 18; Buffa v. General Motors Corp., D.C., 131 F. Supp. 478; James Stewart & Co. v. Mobley, Tex. Civ.App., 282 S.W.2d 290; Turner Const. Co. v. Belmont Iron Works, D.C., 158 F. Supp. 309. Appellee, on the other hand, relies heavily on Batson-Cook Company v. Industrial Steel Erectors, 5 Cir., 257 F.2d 410, where the court held that the indemnity agreement did not require indemnitor to indemnify the indemnitee for a loss occasioned by indemnitee's negligence. Batson-Cook probably represents *713 the weight of authority but, appellee says that the instant case "* * * is a case of first impression in the appellate courts of Alabama." In that situation our duty is to ascertain and apply the law of this state.
The so-called majority rule of strict construction appears to be that the parties are presumed to intend that the indemnitee shall not be indemnified for a loss caused by his own negligence unless the language of the contract affirmatively expresses an intent to indemnify for such loss. See Batson-Cook Company v. Industrial Steel Erectors, supra; and Mostyn v. Delaware, L. & W. R. Co., 2 Cir., 160 F.2d 15. Reference to 175 A.L.R. 8, 143 A.L.R. 312, and related annotations will disclose cases in point. One annotator has said:
This court has said:
We do not decide that the contractor is not entitled to recover for that the contract fails to contain
We do decide that the contract is ambiguous and must be construed against the contractor who wrote it. So construed, the contract does not disclose a right in the contractor to recover for a loss occasioned by contractor's negligence.
The contract contains provisions other than and in addition to the Indemnity Agreement quoted above. This court has said:
Appellant relies on the rule that an indemnity contract when ambiguous is to be resolved in favor of the party intended to be indemnified, and in support of the rule cites Eureka Coal Co. v. Louisville & N. R. Co., 219 Ala. 286, 122 So. 169, and Louisville & N. R. Co. v. Cullman Warehouse, 226 Ala. 493, 147 So. 421. The cited cases do state the rule as contended for by appellant. Both cases cite as authority Alabama Fidelity & Casualty Co. v. Alabama Penny Sav. Bank, 200 Ala. 337, 76 So. 103, where this court said:
In Bank v. Fidelity Co., supra, the court quoted from American Surety Co. v. Pauly, supra, as follows:
Thus it appears that one sound reason for the rule contended for by appellant is the general rule that an ambiguous contract is to be construed against the party whose language is construed. If the reason for the rule, that ambiguities in contracts of indemnity are construed against the indemnitor, does not exist in the case at bar, then the rule resting on that reason does not apply.
The instant contract is primarily one for accomplishing the work undertaken by the subcontractor. The contract is not one whose principal objective is indemnity. The indemnity provision is incidental to the principal objective. We are of opinion that the instant contract, if ambiguous, must be construed against the party whose language the contract is.
The record leads us to conclude that the contract, or subcontract, entered into by contractor and subcontractor was prepared by the contractor, the indemnitee, in whose shoes the appellant now stands. Respondent's Exhibit "A" purports to set out the "Uniform Subcontract," which contains the "Indemnity Agreement" copied hereinabove and on which appellant bases its claim for indemnity. Exhibit "A" commences with Purchase Order No. M 2315 which appears to have been issued by and on behalf of Daniel, the contractor. The Purchase Order recites in pertinent part as follows:
We conclude that the language of the instant contract is the language of the contractor, and, if ambiguous, is to be construed against the contractor.
The "Uniform Subcontract" executed by contractor and subcontractor recites in pertinent part as follows:
Respondent's Exhibit "B" purports to be:
The record indicates that, because the Fifth Edition was not available, the parties stipulated that the Sixth Edition would be used in lieu of the Fifth Edition, subject to correction of any discrepancies that might appear. The record does not indicate that any discrepancies were found and we take it that the Exhibits, which are the Sixth Edition, are to be regarded as correctly setting out the contents of the Fifth Edition.
Section 5 of the Standard Form of Subcontract recites in pertinent part as follows:
Respondent's Exhibit "C" purports to be:
Appellant insists that Exhibit "C" was not properly in evidence and is not to be considered. We do not agree. Appellant admits that the parties executed Exhibit "A," the Uniform Subcontract. Section 4 of Exhibit "A" states that the conditions apply to this agreement as are set forth in Section 5 of the Standard Form of Subcontract, which is Exhibit "B," except that where *716 the General Conditions of the contract actually executed are not according to the Standard Form, the reference made by number in said Section 5 do not necessarily apply to the articles or sections designated by said numbers. Section 5 of the Standard Form, Exhibit "B," recites that the parties agree to be bound, among other things, by the "General Conditions * * * as far as applicable to this subcontract * * *." We think that refers to Exhibit "C," which is "The General Conditions" of the Standard Form, or so we understand it.
Here appears ambiguity. Article 31 of the General Conditions, Exhibit "C," recites in pertinent part:
If the Indemnity Agreement is to be given the meaning which appellant says it must have, and the entire contract is to have that effect, then the subcontractor must reimburse the contractor for a loss caused by the negligence of the contractor.
On the other hand, if Article 31 of the General Conditions governs the entire contract, the contractor must indemnify the subcontractor for damage suffered "in any manner because of any wrongful act or neglect of the" contractor.
Under one provision, the contractor would be indemnified by the subcontractor for loss occasioned by the contractor's negligence. Under the other provision, the subcontractor would be indemnified by the contractor for loss occasioned by the contractor's negligence. It is difficult to see how both provisions can stand. One of them must fall, and that one is the one favorable to the contractor who prepared the agreement.
Appellant argues further that:
We do not agree with appellant's conclusion as to the purpose of the Indemnity Agreement. The effect of Section 5 of the Standard Form of Subcontract, Exhibit "B," quoted above, is to place the subcontractor in the same relation to the contractor, which the contractor occupied in relation to the owner. Admittedly the relation of contractor to owner required the contractor to reimburse the owner for loss occasioned by the contractor's negligence, but did not require the contractor to reimburse the owner for loss occasioned by the owner's negligence. So, the subcontractor is required to reimburse the contractor for loss occasioned by the subcontractor's negligence, but the subcontractor is not required to reimburse the contractor for loss occasioned by the contractor's negligence.
Considered in its entirety, the contract between contractor and subcontractor, as to the point here in question, is not specific or precise. It does not clearly indicate to us just what the parties did intend with respect to indemnity for a loss caused by the contractor's negligence. We are of opinion that the contract can be fairly and reasonably construed to support the contentions of appellee equally as well as it can be construed to support the contentions of appellant. The contract is one which illustrates the soundness of the rule which requires an ambiguous contract to be construed against the party who prepared it. The party preparing the contract had opportunity to choose appropriate language to protect his interest and we must presume that he did so to the fullest extent he deemed necessary. The instant contract was prepared by the contractor and, as to the ambiguity now at hand, is to be construed against the contractor.
The decree appealed from is in accord with this result and is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | July 26, 1962 |
b8ec4659-ab53-46f2-a8e1-f60d12756aa1 | Ex parte Alabama High School Athletic Assn. | N/A | 1160121, 1160125 | Alabama | Alabama Supreme Court | Rel: 02/24/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1160121
____________________
Ex parte Alabama High School Athletic Association and Steven
P. Savarese, its executive director
PETITION FOR WRIT OF MANDAMUS
(In re: Geneva County Board of Education and Elba City Board
of Education
v.
Alabama High School Athletic Association)
(Geneva Circuit Court, CV-16-900087)
____________________
1160125
____________________
Ex parte Alabama High School Athletic Association and Steven
P. Savarese, its executive director
PETITION FOR WRIT OF MANDAMUS
(In re: Erica L. Pogue, individually and as mother and next
friend of A.J.K., et al.
v.
Alabama High School Athletic Association and Steven P.
Savarese)
(Washington Circuit Court, CV-16-900064)
PER CURIAM.
On November 10, 2016, the Alabama High School Athletic
Association ("the Association") and its executive director,
Steven P. Savarese, filed petitions for a writ of mandamus
challenging certain conflicting orders issued by the Geneva
Circuit Court and the Washington Circuit Court. On November
14, 2016, this Court issued an order granting the petitions
and issuing the writs. In that order, this Court upheld a
decision of the Association and declared the orders of the two
circuit courts to be void. That order also stated that an
opinion of this Court would follow at a later date.
A.J.K. is a student at Washington County High School,
located in Washington County, and he played high-school
2
1160121, 1160125
football for the school during the 2016-2017 school year.
During the high-school football playoffs, the Association
determined that A.J.K. was ineligible to participate on the
football team, and, because A.J.K. had participated for the
school as an ineligible player, the Association removed the
school from the playoffs. At the request of interested
persons and entities, the Association's decision was reviewed
in both the Geneva Circuit Court and the Washington Circuit
Court.1 The Geneva Circuit Court issued an order directing
that the Association's decision be enforced, but the
Washington Circuit Court issued an order reversing the
Association's decision and prohibiting the Association from
removing Washington County High School from the playoffs. The
Association and Savarese then filed petitions for writs of
mandamus in this Court, arguing that both the Geneva Circuit
Court and the Washington Circuit Court had
improperly asserted
jurisdiction and asking this Court to declare void the orders
of those courts.
1The Geneva County Board of Education and the Elba City
Board of Education sought a temporary restraining order
requiring
the
Association
to
enforce
its
rules
and
regulations. Erica L. Pogue and the Washington County Board
of Education sought to overturn the Association's decision.
3
1160121, 1160125
In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So. 2d
652, 655 (1970), this Court stated:
"If officials of a school desire to associate
with other schools and prescribe conditions of
eligibility for students who are to become members
of the school's athletic teams, and the member
schools vest final enforcement of the association's
rules in boards of control, then a court should not
interfere in such internal operation of the affairs
of the association. ...
"Of course, if the acts of an association are
the
result
of
fraud,
lack
of
jurisdiction,
collusion,
or
arbitrariness,
the
courts
will
intervene to protect an injured part[y's] rights."
In Alabama High School Athletic Ass'n v. Rose, 446 So. 2d
1, 5 (Ala. 1984), this Court further stated:
"[A]s Kilpatrick and Kubiszyn [v. Alabama High
School Athletic Ass'n, 374 So. 2d 256 (Ala. 1979),]
indicate, the burden on the challenger to overcome
the presumption favoring the Association's absolute
authority in the conduct of its own affairs is a
heavy one. We reaffirm the Kilpatrick test to the
effect that the Court's jurisdiction in such matters
is invoked when, and only when, the averments of
fraud, collusion, or arbitrariness are supported by
clear and convincing evidence; and the trial court's
acceptance of jurisdiction will be affirmed only
where its order makes an unequivocal factual finding
of one or more of those narrow, restrictive grounds,
founded upon clear and convincing evidence."
In this case, the requirements needed for the Geneva
Circuit Court and the Washington Circuit Court to properly
exercise jurisdiction simply were not present. Because of the
4
1160121, 1160125
nature of the relief sought and the impending high-school
football playoffs, this Court on November 14, 2016, issued an
order declaring the orders of both circuit courts void and
upholding the Association's decision removing Washington
County High School from the playoffs, and the playoffs
proceeded accordingly.
1160121 –– PETITION GRANTED AND WRIT ISSUED BY ORDER
DATED NOVEMBER 14, 2016.
1160125 –– PETITION GRANTED AND WRIT ISSUED BY ORDER
DATED NOVEMBER 14, 2016.
Stuart and Wise, JJ., concur.
Parker, J., concurs in part and concurs in the result in
part.
Shaw, Main, and Bryan, JJ., concur in the result.
Bolin and Murdock, JJ., dissent.
5
1160121, 1160125
SHAW, Justice (concurring in the result).
I voted to concur in the result of this Court's November
14, 2016, order declaring the circuit courts' decisions to be
"null and void." I believe that, under substantive law
discussed in Alabama High School Athletic Ass'n v. Rose, 446
So. 2d 1 (Ala. 1984), and Scott v. Kilpatrick, 286 Ala. 129,
237 So. 2d 652 (1970), the circuit courts' decisions were due
to be set aside. I have some concerns with the concept that,
when a trial court rules contrary to that substantive law, it
lacked jurisdiction instead of simply committed reversible
error. However, that issue is not briefed in the materials
before us; therefore, I see no need to resolve it at this
time.
6
1160121, 1160125
BRYAN, Justice (concurring in the result).
I agree that the decision of the Alabama High School
Athletic Association ("the Association") should stand, given
the prevailing law and the facts presented here. I write
specially to argue that this Court gives too much deference to
the decisions of the Association.
In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So. 2d
652, 655 (1970), this Court first articulated its general rule
of judicial noninterference with the Association's decisions:
"If officials of a school desire to associate
with other schools and prescribe conditions of
eligibility for students who are to become members
of the school's athletic teams, and the member
schools vest final enforcement of the association's
rules in boards of control, then a court should not
interfere in such internal operation of the affairs
of the association. ...
"Of course, if the acts of an association are
the
result
of
fraud,
lack
of
jurisdiction,
collusion,
or
arbitrariness,
the
courts
will
intervene to protect an injured part[y's] rights."
Fourteen years after Kilpatrick, in Alabama High School
Athletic Ass'n v. Rose, 446 So. 2d 1 (Ala. 1984), this Court
added a requirement that one or more of the narrow
jurisdictional grounds be supported by clear and convincing
evidence. Further, this Court required that the trial court
7
1160121, 1160125
make an unequivocal finding of a jurisdictional ground
supported by clear and convincing evidence:
"We reaffirm the Kilpatrick test to the effect that
the Court's jurisdiction in such matters is invoked
when, and only when, the averments of fraud,
collusion, or arbitrariness are supported by clear
and convincing evidence; and the trial court's
acceptance of jurisdiction will be affirmed only
where its order makes an unequivocal factual finding
of one or more of those narrow, restrictive grounds,
founded upon clear and convincing evidence."
446 So. 2d at 5.
This creates a high jurisdictional bar for a party to
clear to get a dispute with the Association decided by a
court. There is a presumption favoring the Association's
"absolute authority in the conduct of its own affairs," and
the burden to overcome this presumption is a "heavy one."
Rose, 446 So. 2d at 5. Quite simply, "normally a court in
this state has no jurisdiction to resolve disputes regarding
eligibility under the rules of the [Association]." Alabama
High School Athletic Ass'n v. Medders, 456 So. 2d 284, 286
(Ala. 1984) (emphasis added). This Court gives tremendous
deference to the Association, seemingly more so than the
deference given to some other voluntary associations. Some
other cases involving voluntary associations do not contain
8
1160121, 1160125
the
clear-and-convincing-evidence
requirements
first
announced
in Rose. See, e.g., Dixon v. The Club, Inc., 408 So. 2d 76
(Ala. 1981); and Wells v. Mobile Cty. Bd. of Realtors, 387 So.
2d 140 (Ala. 1980); but see Talladega Little League, Inc. v.
Anderson, 577 So. 2d 1293 (Ala. 1991) (quoting Rose and
concluding that that case, which involved a decision by a
little-league-baseball association, was no different from
cases involving the Association). Although we have not been
asked to review our rule of judicial noninterference, I would,
if asked, argue that the deference afforded the Association be
scaled back. I would remove the general rule of judicial
noninterference and replace it with the familiar standard of
review for the decisions of administrative agencies.
I find instructive an opinion issued by the Supreme Court
of Oklahoma in 2013, Scott v. Oklahoma Secondary School
Activities Ass'n, 313 P.3d 891 (Okla. 2013). Before Scott,
Oklahoma, like Alabama, had a general standard of judicial
noninterference regarding decisions of its interscholastic
association,
the
Oklahoma
Secondary
School
Activities
Association ("OSSAA"). Similar to the caselaw in Alabama,
pre-Scott caselaw in Oklahoma provided that "courts should not
9
1160121, 1160125
intervene except to ascertain whether association proceedings
are conducted pursuant to the rules and laws of the
organization, in good faith and lawfully. Absent fraudulent,
collusive, unreasonable, arbitrary or capricious behavior,
[the Supreme Court of Oklahoma] may not overturn a voluntary
association's enforcement of its rules." Brown v. Oklahoma
Secondary Sch. Activities Ass'n, 125 P.3d 1219, 1224 (Okla.
2005). When this Court adopted its rule of judicial
noninterference in Kilpatrick, it cited, among other cases, an
Oklahoma case, Morrison v. Roberts, 183 Okla. 359, 82 P.2d
1023 (1938), in support of the rule. Although Oklahoma had a
long history of judicial nonintervention in high-school
athletics, the Oklahoma Supreme Court moved away from that
position in Scott.
The court in Scott determined that, because the OSSAA
plays a role that "goes above and beyond that of a traditional
voluntary association, closer scrutiny when reviewing its
actions is a necessity." 82 P.3d at 902. Although there are
some differences between the OSSAA and the Association, there
are some key similarities that make Scott informative. The
court in Scott observed that its doctrine of judicial non-
10
1160121, 1160125
intervention was based on the notion that the OSSAA is a truly
voluntary association. However, the court then determined
that the OSSAA is not a truly voluntary association. The
court stated that, for a decision to join an association to be
a voluntary one, "it must be done unconstrained by outside
interference and done without valuable consideration or legal
obligation." 313 P.3d at 897. The court then noted that a
school must join the OSSAA to compete with other OSSAA schools
and that most public and private schools in the state are
members of the OSSAA. Thus, "[s]hould the school desire the
value and enrichment its families and students receive from
interscholastic competition, it effectively has no choice but
to join the OSSAA." 313 P.3d at 898. The court in Scott also
noted that a school that joins the OSSAA receives the valuable
consideration of the ability of its students to compete in
interscholastic athletics with other students in the state.
In sum, the court concluded that, "[f]unctionally, membership
in the OSSAA is not a choice but a requirement." Id.
Similarly, I do not view the Association as a traditional
voluntary association. Under the Association's bylaws, a
school must join the Association to compete with other member
11
1160121, 1160125
schools in the Association. The Association has over 400
public and private schools as members. Private schools in
Alabama may have the option of joining other athletic
associations, like the Alabama Independent School Association
or the Alabama Christian Athletic Association. However, it
appears that public schools that desire to participate in
interscholastic athletics must, as a practical matter, join
the Association. Like the OSSAA's member schools, the schools
that choose to join the Association receive the valuable
consideration of being able to compete athletically with other
schools in the Association. As is true of the OSSAA in
Oklahoma, the Association is in almost complete control of the
high-school athletic competition among public-school students
in Alabama.
The court in Scott also concluded that the idea that the
OSSAA might not fit within the definition of a voluntary
association was reinforced in a different context by the Court
of Appeals for the Tenth Circuit in Christian Heritage Academy
v. Oklahoma Secondary School Activities Ass'n, 483 F.3d 1025
(10th Cir. 2007). In that case, the court determined that the
OSSAA was a state actor for purposes of the Fourteenth
12
1160121, 1160125
Amendment. The court based that conclusion on the
"'persuasive entwinement of public institutions and public
officials in its composition and workings.'" 483 F.3d at 1030
(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 298 (2001)). Similarly, in 1968, a
federal district court concluded that the Association was a
state actor under the Fourteenth Amendment in Lee v. Macon
County Board of Education, 283 F. Supp. 194 (M.D. Ala. 1968).
I do not address whether this Court should consider the
current version of the Association a state actor for purposes
of the Fourteenth Amendment. I merely note that Lee offers
some support for the idea that the Association is something
other than a traditional voluntary association.
The court in Scott also observed that, "[i]n many
respects, the OSSAA already behaves like a state agency and
adheres to requirements provided by statute." 313 P.3d at
900. In this area, admittedly, there are some distinctions
between the OSSAA and the Association. For example, Oklahoma
statutes give the OSSAA specific authority over eligibility in
certain circumstances and subject the OSSAA's meetings to
open-meeting requirements; there
appear
to
be
no
corresponding
13
1160121, 1160125
statutes in Alabama. However, it is still true that the
Association, like the OSSAA, is a pervasive and dominant force
in interscholastic athletics –– especially among public
schools –– in Alabama. As the court in Scott noted: "'The
necessity of court action is apparent where the position of a
voluntary association is so dominant in its field that
membership in a practical sense is not voluntary but
economically necessary.'" 313 P.3d at 901 (quoting Board of
Regents of Univ. of Oklahoma v. National Collegiate Athletic
Ass'n, 561 P.2d 499, 504 (Okla. 1977) (finding judicial
scrutiny of the NCAA appropriate)).
The court in Scott also noted that member schools pay
fees to be members of the OSSAA. The same is true of the
Association's member schools. With respect to the use of
public-school funds by the Association, I find the court's
observation about the OSSAA to be apt:
"Because the source of funding of public schools is
from Oklahoma taxpayers, the State of Oklahoma has
an interest in ensuring that tax dollars are used by
the OSSAA in a manner that is not arbitrary and
capricious, but one that is fair and impartial.
Meaningful review of the OSSAA's actions is
necessary to ensure this."
14
1160121, 1160125
313 P.3d at 902. Further, the Association controls a field in
which the people of this State have a substantial interest.
The court in Scott concluded that the OSSAA should be
treated more like an administrative agency than a traditional
voluntary association. The court concluded:
"The standard of review from Morgan[ v. Secondary
Sch. Activities Ass'n, 207 P.3d 362 (Okla. 2009)],
relied upon by the district court in making its
ruling cannot properly be applied to a nominally
voluntary association that is not truly voluntary.
While the OSSAA is not a state agency subject to the
provisions of [Oklahoma's Administrative Procedures
Act], it is similar enough in character and in reach
that courts should apply the standard of review
provided by the [Administrative Procedures Act] in
75 O.S. 2011 § 322 for agency decisions."
313 P.3d at 902. Similarly, although the Association is not
a State agency, "it is similar enough in character and in
reach" that a court should apply the same standard of review
applicable to agency decisions found in the Alabama
Administrative Procedure Act, § 41-22-1 et seq., Ala. Code
1975 ("the AAPA"). See § 41-22-20(k), Ala. Code 1975.
Because the Association plays a role that "goes above and
beyond that of a traditional voluntary association," greater
scrutiny is required. 313 P.3d at 902.
15
1160121, 1160125
Under the current standard, a court may exercise
jurisdiction over a decision of the Association if the
decision is the result of fraud, lack of jurisdiction,
collusion, or arbitrariness. Thus, a court must essentially
evaluate, to some degree, the merits of the case to determine
whether the court should even exercise jurisdiction over the
Association's decision. It would be more straightforward ––
and, as argued above, more appropriate –– for a court simply
to exercise jurisdiction over a dispute and apply a familiar
and well settled standard of review. To be sure, the AAPA
creates a deferential standard of review, but it is not as
deferential as the current standard applicable to the
Association. In relevant part, the AAPA provides:
"[T]he agency order shall be taken as prima facie
just and reasonable and the court shall not
substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact,
except where otherwise authorized by statute. ...
The court may reverse or modify the decision or
grant other appropriate relief from the agency
action ... if the court finds that the agency action
is due to be set aside or modified under standards
set forth in appeal or review statutes applicable to
that agency or if substantial rights of the
petitioner have been prejudiced because the agency
action is any one or more of the following:
"(1) In violation of constitutional or
statutory provisions;
16
1160121, 1160125
"(2) In excess of the statutory authority
of the agency;
"(3) In violation of any pertinent agency
rule;
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the
reliable, probative, and substantial evidence
of the whole record; or
"(7)
Unreasonable,
arbitrary,
or
capricious, or characterized by an abuse of
discretion or a clearly unwarranted exercise of
discretion."
§ 41-22-20(k). This familiar standard would be easy for
courts to apply and would provide sufficient judicial
supervision of the Association, which plays a pervasive and
dominant role in high-school athletics in Alabama.
17
1160121, 1160125
BOLIN, Justice (dissenting).
This Court, by order dated November 14, 2016, upheld a
decision of the Alabama High School Athletic Association ("the
Association") and declared void the conflicting orders of the
Washington Circuit Court and the Geneva Circuit Court. The
order indicated that "[a] formal opinion of this Court will
follow at a later date." The Court is today issuing that
opinion, and the judgment lines read: "Petition Granted and
Writ Issued by Order Dated November 14, 2016." I dissented
from the issuance of the order; therefore, I must dissent from
the opinion issued today, although if I were voting on a blank
slate, I would concur.
As noted in Alabama High School Athletic Ass'n v. Rose,
446 So. 2d 1, 5 (1984), "[a]thletics and athletes belong in
their own arena. A courtroom is not the proper field of
competition. ... In other words, it's their show; let them run
it." Recently, this Court has had several matters involving
the Association come before it. Many, if not most of these
matters, including the present one, have dealt with the
eligibility of a student athlete to participate during a state
playoff game--specifically, the subsequent disqualification
18
1160121, 1160125
through litigation of that student athlete's team from
advancing in the playoffs. Each time, the litigation occurs
despite this Court's precedent in Scott v. Kilpatrick, 286
Ala. 129, 237 So. 2d 652 (1970)--that a court has no
jurisdiction to interfere in the affairs of the Association
unless there exists clear and convincing evidence of fraud,
collusion, or arbitrariness on the part of the Association.
In this case, after two circuit courts issued conflicting
orders concerning the Association's removal of Washington
County High School from the initial playoff game, the
Association postponed a scheduled playoff game pending
emergency relief from this Court. This Court, in turn, was
forced to issue an important decision in an abbreviated time
frame, with little or no time for adequate briefing and
argument by the parties. Moreover, any delay by this Court in
issuing a decision could have caused a domino-effect
postponement of many subsequent playoff games. This scenario
is terribly unfair to all involved–-the student athletes, the
coaches, the student bodies, the schools, and the affected
citizenry who love their local high-school sports. Although
the judicial system will always be open to aggrieved parties
19
1160121, 1160125
and the business of the court system is the resolution of
disputes, resort to the court system may not always be the
best option. For this reason, I write specially to point
that surely the adults involved here, i.e., members of the
Association, acting in concert with school administrators,
coaches, teachers, as well as the parents of the players
affected, should be able to devise an agreed-upon set of rules
for a quicker, and arguably fairer, adjudication of such time-
sensitive disputes, without the schools having to resort to
injunctive relief in one or more circuit courts, from which an
appeal to this Court will surely follow. The Association,
being in charge of the process--and not the courts--should
commit, out of fairness, to doing no less for this State's
student athletes who have spent months of out-of-class time
practicing and sacrificing to make themselves the
best players
they can be in order to make their team successful.
20
1160121, 1160125
MURDOCK, Justice (dissenting).
I respectfully dissent for at least two reasons. First,
I believe that a circuit court, as the court of general
jurisdiction in this state, has jurisdiction to consider
challenges to actions of the Alabama High School Athletic
Association ("the Association"). Indeed, as noted in the
excerpts from Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237
So. 2d 652, 655 (1970), and Alabama High School Athletic Ass'n
v. Rose, 446 So. 2d 1, 5 (Ala. 1984), quoted in the main
opinion, the circuit court properly may overturn decisions of
the Association in cases where there is a showing by clear and
convincing evidence of fraud, collusion, lack of jurisdiction
by the Association, or arbitrariness.2
Second, at the time this Court issued its November 14,
2016, order, I concluded that the trial courts erred as a
matter of law under the unique facts of this case in not
2I believe that the Court in Alabama High School Athletic
Ass'n v. Medders, 456 So. 2d 284, 286 (Ala. 1984), necessarily
spoke too "loosely" in referring to a court's lack of
"jurisdiction to resolve disputes regarding eligibility under
the rules of the [Association]."
21
1160121, 1160125
finding the decision of the Alabama High School Athletic
Association to be arbitrary. I remain of that view.
Finally, with the exception of any implied acceptance of
the notion that the "jurisdiction" terminology in Alabama High
School Athletic Ass'n v. Medders, 456 So. 2d 284 (Ala. 1984),
accurately reflects current law, I am sympathetic to the views
expressed by Justice Bryan in his special writing.
22 | February 24, 2017 |
8333d966-2ea1-43cc-94a0-7668d7f3f7cb | State v. Simonetti, Inc. | 143 So. 2d 444 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 444 (1962)
STATE of Alabama
v.
SIMONETTI, INC.
6 Div. 806.
Supreme Court of Alabama.
July 12, 1962.
MacDonald Gallion, Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellant.
Smith & Moore, Montgomery, for Alabama Wholesale Tobacco Ass'n, amicus curiae in support of appellant.
W. S. Pritchard, Jr., Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee.
HARWOOD, Justice.
This appeal was taken from a decree dissolving a temporary injunction. Appellant filed a suit charging appellee with repeated and wilful violations of the Alabama Unfair Cigarette Sales Act, Pocket Part 1940 Code, Tit. 57, § 83(1) et seq. A temporary writ of injunction was issued ex parte on July 26, 1961. A motion to dissolve was filed and after a hearing, a decree was entered dissolving the temporary injunction, and the State appealed.
The bill of complaint, as amended, charged that appellee, as a wholesale dealer, was selling cigarettes below cost with intent to injure its competitors and destroy or substantially lessen competition; that this conduct was causing irreparable damage and injury to the wholesalers and jobbers of cigarettes in Jefferson County and the Birmingham *445 trade area who were complying with the Act; that "cigarettes cannot be sold without violating the provisions of said Act, and particularly section 83(4) (k), pars. 1 and 2 thereof, for less than the following amounts per carton:
and that respondent was selling cigarettes for 9¢ and 10¢ per carton less than the stated prices and that this constituted a violation of the Act.
On August 9, appellee filed a sworn answer raising the constitutionality of some of the sections and provisions of the Act, denying the material allegations, other than those of jurisdiction, and particularly denying that it was selling cigarettes below its cost as a wholesale dealer or with intent to injure its competitors or substantially lessen competition.
The motion to dissolve was also filed on August 9 and the hearing was set for August 29, 1961. The motion was heard on oral testimony and affidavits and the decree dissolving the temporary injunction was entered on October 6, 1961.
This court had previously upheld the constitutionality of the Act in general, and held that the demurrer to the bill was properly overruled because the bill of complaint sufficiently charged a violation of the Act. Simonetti, Inc. v. State, 272 Ala. 398, 132 So. 2d 252. But we also said that:
Appellee argued the unconstitutionality of certain sections of the Act in the court below and in brief here, and an oral argument urged that the cause be considered on its merits rather than upon the limited appeal from the decree dissolving the temporary injunction. We cannot accede to this request.
The constitutionality of a law will not be considered on appeal unless essential to the decision of the actual case before the court. Moses v. Tarwater, 257 Ala. 361, 58 So. 2d 757; Smith v. McQueen, 232 Ala. 90, 166 So. 788; Smith v. Speed, 50 Ala. 276. The decision in this case can be reached without deciding the constitutionality of particular sections of the Act, and those questions are laid aside.
We quote in part from the opinion of the trial court:
It is well settled in Alabama that, in considering the dissolution of a temporary injunction on the bill and answer and supporting affidavits, the court is vested with a wide discretion, and will weigh the relative degrees of injury and benefit to the respective parties which may ensue from the maintenance of the injunction on the one hand, or its dissolution on the other. Lindsey v. Viking Refrigerators, 241 Ala. 425, 3 So. 2d 65; Fleming v. Bryars, 227 Ala. 660, 151 So. 846; Davis v. Ross, 255 Ala. 668, 53 So. 2d 544.
We deem it necessary to mention only such evidence as would show that the decree of the trial court is supported.
Wholesale dealers price cigarettes by the carton. They are priced by three categories: regular, king size and filter. The manufacturer's prices of cigarettes have remained constant since 1957. That price to appellee for a carton of king size filter cigarettes is $1.80. Added is the State tax of 60¢ per carton, and the Jefferson County tax of 20¢ per carton, making the total cost $2.60 per carton. The gross profit consisted of the 2% discount on the list price, 3.64¢, plus 7½% discount on the State tobacco stamps, 4.5¢ plus 10% discount on county tobacco tax, 2¢, totaling 10.14¢, because the cost had been reduced to $2.49 per carton. Other costs chargeable to appellee's tobacco department raised the costs to slightly in excess of $2.54 per carton, making the net profit 6¢ per carton when the carton is sold to a retailer for $2.60. The method employed in analyzing and breaking down the costs was the general acceptable accounting procedure. This was the testimony of the accountant referred to in the opinion of the trial court, and this evidence supports the finding of the trial court that appellee was not selling cigarettes below his actual cost.
Other items of evidence supporting the finding were that the per cent of tobacco sales to appellee's total sales dropped from 46.88% in 1957 to 35.43% in 1960. The percentage of the tobacco market in Alabama, attributable to appellee, dropped from 2.31% in 1958 to 1.87% in 1960. Appellee used fewer salesmen than other competitors, and its business is predominately cash and carry, eliminating much delivery expense.
The evidence also shows that two large wholesalers of tobacco products in Birmingham, R. D. Burnett Cigar Co., Inc., and Merchants Cigar & Candy Company, sold cigarettes cheaper than appellee. These wholesalers are among those complaining about the prices charged by appellee. A table shows the difference in prices each charged:
*447 These prices by Burnett and Merchants were to chain stores, but they show conclusively that these firms were selling cigarettes cheaper than appellee sold them.
Much of the testimony was taken ore tenus before the court. When so, every presumption will be indulged in favor of the trial court, and its finding and decree will not be disturbed unless plainly wrong. Parkman v. Ludlum, 260 Ala. 235, 69 So. 2d 434. And this presumption is applied where the question is the dissolving of a temporary injunction even when improper testimony has been heard by the court, Nelson v. Hammonds, 173 Ala. 14, 55 So. 301. See also, Morris v. Sartain, 224 Ala. 318, 140 So. 373.
Under the authorities cited in this opinion, we cannot say that the decree of the trial court should be reversed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 12, 1962 |
ee1caff7-bcda-4e2b-955b-c48065d4c831 | Inland Mutual Insurance Company v. Hightower | 145 So. 2d 422 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 422 (1962)
INLAND MUTUAL INSURANCE COMPANY
v.
J. M. HIGHTOWER, Jr., et al.
6 Div. 411.
Supreme Court of Alabama.
June 21, 1962.
Rehearing Granted October 4, 1962.
*423 Wiggins & Wiggins, Jasper, Young & Young, Vernon, Rushton, Stakely & Johnston, Montgomery, for appellant.
Fite & Fite, Hamilton, Tweedy & Beech, Jasper, for appellees.
COLEMAN, Justice.
This is an appeal by an insurer from a declaratory decree whereby the insurer was held liable, under an automobile liability policy, to defend and protect its insured against the claims of a third party who had been injured in a motor vehicle accident.
This suit for declaratory relief was commenced by the insured against the insurer and the injured third party as respondents. *424 The appellant is the insurer. The appellees are the insured and the injured party.
The insured owned a tractor which was towing a trailer, also owned by insured, at the time of collision. Tractor and trailer were then being operated by insured's employee who was acting within the line and scope of his employment. The tractor collided with an automobile then being operated by the injured third party, who will sometimes be referred to as the plaintiff.
By the policy, insurer agreed, "subject to the limits of liability, exclusions, conditions and other terms of this policy:" under Coverage A, to pay on behalf of insured all sums the insured shall become obligated to pay as damages for bodily injury; and, under Coverage B, to pay such sums for injury to property; caused by accident and arising out of use of the automobile described in the policy.
The automobile is described as follows:
The policy contains the following endorsements:
"This policy does not apply:
The insured "had six trailers." He owned an additional Dorsey trailer like the one described in the policy. The insurer contends that the trailer, which was being towed by the tractor at the time of the collision, was not the trailer described in the policy, was "not covered by like insurance in the company," and, therefore, that the insurer is not liable. The insurer says the court erred in holding to the contrary.
The tractor in the collision was the tractor described in the policy.
The evidence, as it seems to us, requires a finding that the trailer being towed was not the trailer described in the policy. Insurer, apparently, had issued no other policy to this insured. The insured testified that at the time of the accident he did not know which trailer was involved, but, on cross-examination, he testified as follows:
The record indicates that the trial court regarded the testimony as showing that the uninsured, and not the insured trailer, was in the accident. The record shows the following colloquy:
It is obvious that if the trailer in the accident were a trailer insured by appellant, the appellant (insurer) could not avoid liability under the uninsured trailer exclusion and that would be the end of this opinion. As we have indicated, however, we do not think that the evidence will support a finding that the trailer in the accident was insured by appellant, and we proceed, as we think the trial court proceeded, on the premise that the trailer, which the insured tractor was towing at the time of the accident, was not a trailer covered by like insurance in the appellant company.
The appellees, however, contend that the insurer cannot avoid liability under the uninsured trailer exclusion because the insurer has waived, or is estopped to assert, that provision of the policy as a defense.
The insurer insists that the uninsured trailer exclusion "is a valid limitation on coveragenot a forfeiture provision which cannot be nullified by waiver or estoppel."
We agree that said exclusion cannot be nullified by implied waiver. We think there is a distinction between implied waiver and estoppel.
"* * * Though a waiver may be in the nature of an estoppel, and maintained on similar principles, they are not convertible terms. * * * A waiver may be created by acts, conduct, or declarations insufficient to create a technical estoppel. * * *" Queen Insurance Co. v. Young, 86 Ala. 424, 430, 5 So. 116, 118. "* * * Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. * * *" Sovereign Camp, Woodmen of the World v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 A.L.R. 903, 919.
The distinction between waiver and estoppel is to be observed in the instant case. This distinction appears in Belt Automobile Indemnity Ass'n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787, in an action on an automobile liability policy. The insurer sought to defend on a plea that the liability imposed on and discharged by the insured, for which insured sought to recover from insurer, was a liability "expressly excluded from the indemnity obligation of the policy." This court said:
This court held, however, that the allegations of insured's replication were a sufficient answer to the plea setting up the policy exclusion. The court said:
We agree with appellant that the uninsured trailer exclusion of the instant policy is a provision which is not subject to implied waiver by the insurer, as distinguished from estoppel. A liability of the insured occurring while the tractor was towing an uninsured trailer was not within the coverage of the policy. The language of the policy says that it "* * * does not apply * * * (c) under coverages A and B, while the automobile is used for the towing * * *" of an uninsured trailer. We are of opinion that insured's right to succeed in the case at bar cannot rest on the doctrine of implied waiver. There is no express waiver.
Insurer insists that even if the uninsured trailer exclusion be "* * * subject to being nullified by waiver, there would be no liability for there can be no such thing as a waiver of a ground of forfeiture by an insurance company until it knows that such ground exists or until it is in possession of facts which, if pursued, would result in knowledge of the forfeiture." This proposition has been stated with approval in Southern States Fire Ins. Co. of Birmingham v. Kronenberg, 199 Ala. 164, 74 So. 63, at paragraph [8, 9].
We have already said that the uninsured trailer exclusion was not subject to nullification by implied waiver.
We think, however, that the same rule, with respect to the knowledge of the insurer, which applies to waiver applies also to estoppel in the instant case; that is to say, the insurer, by doing an act which is relied on by the insured to his prejudice, does not estop itself, the insurer, from asserting the uninsured trailer exclusion as a defense, if at the time of doing the act the insurer does not know that an uninsured trailer was being towed and does not have knowledge of facts which, if pursued, would result in knowledge that the trailer being towed was an uninsured trailer.
Conversely, if the insurer did an act which was relied on by the insured to his prejudice and at the time of doing the act the insurer did know that an uninsured trailer was being towed or had knowledge of facts which, if pursued, would result in knowledge that an uninsured trailer was being towed, then the insurer is estopped from asserting the uninsured trailer exclusion as a defense.
On the day of the accident, October 23, the insured notified the agent who wrote the policy and the agent notified Reader, an insurance adjuster, who was employed by Crawford & Company, an independent insurance adjusting firm. Reader began investigation and took statements from the plaintiff and from the driver of insured's tractor on that day.
The evidence, as we view it, justifies a finding that the adjuster in the instant case, *427 Reader, may be regarded as the general agent of insurer to the extent that Reader had authority to waive conditions of the policy, and that the court could find that the acts of Reader were acts of and were binding on the insurer. Southern States Fire Ins. Co. of Birmingham v. Kronenberg, supra.
The injured party, Simms, testified that while he was in the hospital, Reader came to the hospital and saw him, Simms, on three separate days; that the first day was the day of the accident, and the third day was "two or three days" before Simms left the hospital; that Simms was in the hospital 30 days or "a little better"; that on each occasion Reader said to Simms: "They've got the insurance, and we will take care of you" and "Don't worry"; and that the insured, Hightower, was present on two of Reader's visits to Simms in the hospital.
Hightower testified that he accompanied Reader on two of his visits to Simms in the hospital, first on the day of the accident and again approximately a week or ten days later. With reference to Reader's statements to Simms on the first day, Hightower testified:
As to Reader's statement to Simms on the second visit, Hightower testified:
The witness Gilbert, who was a patient in the hospital, testified as follows:
The plaintiff, Simms, testified as follows:
The adjuster, Reader, testified:
Reader's testimony is that he visited Simms at the hospital twice, once on October 23 and again on November 2; that on October 23, Hightower and Reader went to the hospital together; that on the Friday following the "Wednesday of the accident" (we understand this to be November 2), Reader went back to the hospital and that he and Hightower "were there together at the hospital * * *." As we understand the record, Reader denied visiting Simms on the third occasion two or three days before Simms left the hospital, and we further understand that Simms was at the hospital 30 or 31 days, so that he left on November 21 or 22.
As to Reader's knowledge that an uninsured trailer was being towed and identification of the vehicles, Reader testified with reference to the day of the accident as follows:
and also:
After the accident, the trailer was attached to another tractor and continued in use by insured in hauling articles over the highways, exactly where does not appear. Hightower testified that he did not know "* * * which trailer was which at the time of the wreck," and also:
The policy in evidence shows the name of insured as:
An endorsement recites:
Reader testified that on November 20, 1956, the trailer in the accident was pointed out to him by Hightower or his helper, and that the serial number of the trailer pointed out was not the serial number of the trailer in the policy.
Reader further testified that he had reported the accident to insurer and received in reply a letter from the insurer dated October 30, 1956. He also testified as follows:
*430 The court could find that Reader, on November 2, the day of his second visit to Simms, while Hightower was present, made the statements testified to by Simms and others, and that Reader, at the time he made such statements, had information to put him on inquiry as to the identity of the trailer involved in the accident and as to the possible lack of coverage due to the uninsured trailer exclusion clause. The knowledge that Reader admitted he had as to the coverage question, after receiving the letter of October 30, and at the time of his visit to Simms on November 2, alone was sufficient knowledge to satisfy the rule requiring knowledge on the part of the party estopped. Southern States Fire Ins. Co. of Birmingham v. Kronenberg, supra. Moreover, if Simms spoke the truth, the evidence supports a finding that on the third visit, November 19 or 20, Reader continued to make similar statements after he had actual knowledge of the identity of the trailer, which knowledge Reader admitted he acquired on November 20.
We think the evidence shows that substantial prejudice to the position of the insured, Hightower, resulted from the position assumed by the adjuster and the statements made in the presence of insured to plaintiff by the adjuster under color of right. By the adjuster's statements, the insured was induced to acquiesce in the statements made to plaintiff to the effect that plaintiff's expenses would be taken care of by Hightower's insurance company.
Being of the view that the trial court could find from the evidence, heard ore tenus, that the insurer was estopped from asserting the uninsured trailer exclusion as a defense, we are of opinion that the court was not in error in refusing to find that insurer was not liable under that exclusion.
The question of estoppel in this case is similar to the question in Hartford Accident & Indemnity Co. v. Lockard, 239 Miss. 644, 124 So. 2d 849. In that case, decided on demurrer, the insurer had issued a policy on a tractor, which had collided with a truck owned by one Fairley. The policy contained an uninsured trailer exclusion substantially the same as is in Hightower's policy, and the Hartford Company, like appellant in the instant case, contended that it was not liable under the uninsured trailer exclusion. The insured contended that Hartford had waived or was estopped to assert the exclusion.
In holding that the insurer, Hartford, was not estopped, the court said:
The court set out the basis of its holding that the insurer was not estopped as follows:
We are of opinion that the instant appellant is estopped because its conduct did result in prejudice to the insured, Hightower. The statements allegedly made by Reader to Simms, to effect that "They've [Hightower] got insurance, and we will take care of you," resulted in prejudice to Hightower. The prejudice is that Hightower was induced to stand silent and acquiesce in the statements which impliedly admit that Hightower is liable for plaintiff's injury.
The statements attributed to Reader were not, so far as this record shows, offers of compromise. They were expressions of an intention to pay, and, relying on the statements, the insured stood silent when, if he disclaimed liability, he would be expected to deny it. Alexander v. Smith, 180 Ala. 541, 555, 61 So. 68; Louisville & Nashville R. Co. v. John W. O'Neill Co., 204 Ala. 154, 85 So. 482; Chestang v. Kirk, 218 Ala. 176, 118 So. 330; Powell v. Pate, 30 Ala.App. 10, 1 So. 2d 36.
The court allowed to the insured a fee of $750.00 for services of insured's solicitor. The testimony is that a reasonable fee for insured's solicitor in the declaratory proceeding would be $500.00, and for "the work done thus far" in defending the action for damages brought by plaintiff against insured would be $250.00. Appellant insists that no fee should be allowed for services in the declaratory proceeding.
We have accepted the principle in this State that, in the absence of contract, statute, or recognized ground of equity, there is no right to have an attorney's fee paid by the opposing party. Low v. Low, 255 Ala. 536, 540, 52 So. 2d 218. We know of no statute or recognized ground of equity which authorizes payment of an attorney's fee for prosecuting a declaratory proceeding.
In the policy contract here before us, we are cited to no provision providing for a fee to be paid by insurer for insured's attorney in a declaratory action on the policy. We are of opinion that the insurer, believing that the accident was not covered by the policy, was entitled to defend the declaratory suit without rendering itself liable to insured for the attorney's fee incurred by insured in successfully prosecuting the declaratory suit. Standard Surety & Casualty Co. of New York v. Perrin, La.App., 19 So. 2d 783; Milwaukee Mechanics Ins. Co. v. Davis, 5 Cir., 198 F.2d 441.
The decree will be modified to allow a fee of $250.00 instead of $750.00.
Appellant argues that the decree must be reversed because the court permitted the *432 insured to introduce as an exhibit, a certified copy of a form, SR-21, allegedly filed in behalf of insured, by the insurer, with the Department of Public Safety in connection with the accident with which we are concerned. Appellant's insistence is that the court erred in admitting the exhibit in evidence after the cause was submitted for decree. In connection with offering additional evidence after submission, see Ex parte State ex rel. Brittain, 237 Ala. 164, 186 So. 148.
We have not given any weight to this exhibit which was not necessary to prove complainant's right to relief. If it were not in the record before us, the result would be the same. The inclusion of this exhibit in the evidence has not injuriously affected substantial rights of the parties and, under Supreme Court Rule 45 we do not think it cause for reversal.
Appellant insists that the court erred in hearing the testimony and proceeding to judgment without the presence of another insurer, Continental Union Insurance Company, who allegedly had insured the trailer involved in the accident.
The adjuster, Reader, testified that in December, 1956, he took a statement from Hightower. A statement, purportedly signed by Hightower and attested by Reader, appears in evidence and is dated December 18, 1956. Reader testified that the occasion of taking this statement was the first time that he, Reader, found out from Hightower that Continental Union Insurance Company had insurance on his other equipment. Thus it appears that appellant's agent, Reader, acting within the scope of his agency, in December, 1956, acquired knowledge of the existence of other insurance some twenty months prior to the hearing on October 9, 1958. We think appellant is chargeable with this knowledge.
On July 11, 1958, appellant filed its answer alleging that at the time of the accident, the trailer being towed was insured by Continental Union Insurance Company. The filing of the answer was two days short of three months before the hearing on October 9, 1958.
On September 12, 1958, the court set the hearing for September 23, 1958. It appears that the hearing was continued to October 9, 1958.
Appellant's cross-bill making Continental a respondent thereto was filed October 4, 1958. Although appellant had knowledge of Continental twenty months earlier as aforesaid, appellant made no effort to bring in Continental until the last mentioned date, five days before the hearing, so far as we find from the record.
This court has said:
We are therefore of opinion that the court was not in error in proceeding without Continental unless Continental was an indispensable party. We have not been cited to nor have we found any case squarely on all fours with the instant case as to whether or not Continental was an indispensable party.
Continental was at least a proper party. Maryland Casualty Co. v. Hubbard, D.C., 22 F. Supp. 697.
As to parties in declaratory proceedings, this court has said concerning § 166, Title *433 7, Code 1940, formerly referred to as § 7881(11), Michie's Code, that:
The court has also said, however, that § 166, Title 7,
We hold that Continental was not an indispensable party and that, in view of appellant's delay in making Continental a party, the court did not abuse its discretion in rendering a declaratory decree with Continental absent.
Continental, as we view it, was not an indispensable party to the controversy between appellant and appellees. The issue in this proceeding is appellant's liability vel non to defend and indemnify its insured. There can be a complete adjudication of the rights of the parties to the instant case, as between insurer and insured, without making Continental a party. Any decision reached in this proceeding will not prejudice the rights of Continental. § 166, Title 7, Code 1940.
The decree will be modified as aforesaid, and, as modified, is affirmed.
Modified and affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON and GOODWYN, JJ., concur.
PER CURIAM.
On a restudy of the case and the pertinent authorities, the court believes we reached the wrong conclusion with respect to the doctrine of estoppel on original deliverance.
The case involved, inter alia, the question of estoppel. The latest decision involving this doctrine was the case of Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So. 2d 915. Both the case at bar and Mooradian involved exclusions from coverage in automobile liability insurance policies. In Mooradian the policy provided that it did not apply to injury or death to passengers. In the instant case the policy provided that coverage did not apply while the insured automobile was used for the towing of a trailer not covered by like insurance in the company. Mooradian held, in line with the practically universal concept, that coverage under the policy could not be enlarged by either waiver or estoppel, since such doctrine can only have a field of operation when the subject matter is within the terms of the contract, such as conditions or forfeiture provisions expressed in the contract.
Since Mooradian is the last of our cases which enunciates the doctrine, for convenience we will quote from that case:
As stated so many times by our court, one cannot create a primary liability and extend the coverage of a policy by either waiver or estoppel. To create such a primary liability all the elements of a binding contract are essential, including a new consideration. Some of our cases holding to this effect and supporting Mooradian are: Home Insurance Company of New York v. Campbell Motor Company, 227 Ala. 499, 150 So. 486; Protective Life Insurance Co. v. Cole, 239 Ala. 450, 161 So. 818; Equitable Life Assurance Society v. Langford, 234 Ala. 681, 176 Ala. 609; Fidelity-Phenix Fire Insurance Co. v. Raper, 242 Ala. 440, 6 So. 2d 513; Jones v. Liberty National Life Insurance Co., 35 Ala.App. 52, 58, 47 So. 2d 222; Union Marine & General Insurance Co. v. Holmes, 249 Ala. 294, 31 So. 2d 303; Hanover Fire Insurance Co. of N. Y. v. Salter, 254 Ala. 500, 49 So. 2d 193; Mutual Savings Life Insurance Co. v. Hall, 254 Ala. 668, 671, 49 So. 2d 298; Jersey Insurance Co. v. Roddam, 256 Ala. 634, 56 So. 2d 631; Patterson v. Woodmen of the World Life Insurance Society, 38 Ala.App. 328, 84 So. 2d 127, cert. denied, 263 Ala. 700, 84 So. 2d 130.
The authorities generally are the same, as shown by the text in 113 A.L.R. 858.
See the original opinion by COLEMAN, J., for a better understanding of the facts.
This court in pointing out that estoppel could not change or enlarge the coverage of an insurance policy, quoted from Home Insurance Co. v. Campbell in the Mooradian case, supra, to illustrate the principle, stating that no one, we assume, would argue that a policy of insurance, which protected one against loss by fire, could be extended or broadened by the application of the principle of waiver or estoppel, to cover loss by cyclone. The effect of such a case would be to create a new contract without a new consideration.
We hold, therefore, that under facts stated, the plaintiff was not entitled to recover and that the judgment must be reversed and the cause remanded.
Application for rehearing granted. Judgment of affirmance set aside. Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.
COLEMAN, J., dissented, adhering to his original opinion. | October 4, 1962 |
7f05fea9-470f-4b19-b012-74f1631bfca0 | Cottles v. Norfolk Southern Railway Co. | N/A | 1140632 | Alabama | Alabama Supreme Court | REL: 03/17/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1140632
____________________
Jeff Cottles
v.
Norfolk Southern Railway Company
Appeal from Morgan Circuit Court
(CV-12-215)
On Application for Rehearing
MURDOCK, Justice.
Norfolk Southern Railway
Company
("Norfolk Southern") has
applied for a rehearing of our decision in Cottles v. Norfolk
Southern Ry., [Ms. 1140632, Aug. 26, 2016] ___ So. 3d ___
1140632
(Ala. 2016), which reversed the Morgan Circuit Court's summary
judgment in favor of Norfolk Southern in Jeff Cottles's action
under the Federal Employers' Liability Act ("FELA"), 45
U.S.C.
§ 51 et seq., for injuries he sustained on April 9, 2012,
while working as a track switchman for Norfolk Southern. In
its application for rehearing, Norfolk Southern presents
several
arguments
regarding the
issue
whether
Federal
Railroad
Administration ("FRA") regulations precluded Cottles's claim
under FELA.
First, Norfolk Southern asserts that we "improperly
reversed the trial court [by] employing a rationale that had
never been argued by the plaintiff, had not been briefed, and
is based on a United States Supreme Court case which has
nothing to do with railroads, the FRSA [Federal Railroad
Safety Act], FRA regulations, or the FELA." In concluding on
original submission that FRA regulations did not preclude
Cottles's FELA claim, we noted the United States Supreme
Court's discussion in POM Wonderful LLC v. Coca-Cola Co., 573
U.S. ___, 134 S. Ct. 2228 (2014), of the differences between
federal preemption of state laws by a federal statute and
preclusion of claims based on one federal statute as a result
2
1140632
of the subsequent enactment of another federal statute. We
also quoted from several lower court opinions issued after POM
Wonderful in which courts concluded that the principles
discussed in POM Wonderful dictated that FRA regulations do
not preclude FELA-based claims. See, e.g., Henderson v.
National R.R. Passenger Corp., 87 F. Supp. 3d 610 (S.D. N.Y.
2015); Noice v. BNSF Ry., 348 P.3d 1043, 1048 (N.M. Ct. App.
2015); Infermo v. New Jersey Transit Rail Operations, Inc.
(No. 10–2498(SRC), Jan. 24, 2012) (D. N.J. 2012) (not selected
for publication in F. Supp.); and Fair v. BNSF Ry., 238 Cal.
App. 4th 269, 189 Cal. Rptr. 3d 150 (2015).
Norfolk Southern's assertion that we made Cottles’s
argument for him on original submission is incorrect. It is
true that Cottles's brief on original submission did not
discuss federal statutory preclusion, or POM Wonderful, but
Cottles was not required to do so. The federal-preclusion
issue was first raised by Norfolk Southern in its appellee
brief on original submission seeking to preserve the trial
court's judgment in its favor. As we noted in our opinion on
original submission: "Norfolk Southern cites several federal
cases, including Waymire v. Norfolk & Western R.R., 218 F.3d
3
1140632
773 (7th Cir. 2000), in support of its position" that the
Federal Railroad Safety Act ("the FRSA") and FRA regulations
establish a different standard for railroad track safety that
supplants the standard established by FELA. Cottles, ___ So.
3d at ___. But Norfolk Southern never raised this argument in
its submissions to the trial court seeking a summary judgment,
and the trial court never mentioned the statutory-preclusion
issue in its judgment below. As the prevailing party in the
trial court and the appellee in this Court, Norfolk Southern
was, subject to due-process constraints, permitted to raise
new arguments on appeal in support of affirming the trial
court's judgment. Having done so, it cannot then on rehearing
complain when this Court chooses to address the new argument
it raised.1
Likewise, Norfolk Southern cannot plausibly claim -- as
it purports to do in its rehearing brief -- that this Court
reversed the judgment of the trial court on a ground raised
1See, e.g., Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380
(Ala. 2006) (noting that "this Court will affirm a judgment
for any reason supported by the record that satisfies the
requirements of due process"). In his brief on rehearing,
Cottles does not contend that Norfolk Southern's raising of
this new argument on appeal implicates the aforesaid due-
process constraint but instead confronts the issue on its
merits. We choose to do the same.
4
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for the first time on appeal. Our opinion on original
submission is abundantly clear that the trial
court's judgment
was reversed because "a conflict of evidence exists as to
whether Norfolk Southern should have conducted inspections in
a manner that would have revealed the defect that caused
Cottles's injury," Cottles, ___ So. 3d at ___, and therefore
"Cottles presented substantial evidence creating a genuine
issue of material fact as to whether Norfolk Southern
negligently failed to provide him with a reasonably safe
workplace" under FELA. Cottles, ___ So. 3d at ___. We did
not reverse the trial court's judgment because the trial court
misapplied the doctrine of statutory preclusion; the trial
court never discussed that issue. We reversed the trial
court's judgment because it erred by improperly discounting or
misunderstanding Joe Lydick's testimony concerning the
defective switch and in then concluding that Cottles had not
presented
substantial
evidence
of
Norfolk
Southern's
negligence. We addressed the preclusion issue only because
Norfolk Southern presented it to this Court on appeal as an
alternative ground for this Court to uphold the result reached
by the trial court.
5
1140632
Norfolk Southern's insinuation that this Court was off
base in relying on the United States Supreme Court's analysis
in POM Wonderful because, it says, that case "has nothing to
do with railroads, the FRSA, FRA regulations, or the FELA" is
misguided. It is true that POM Wonderful addressed the
interplay of different federal statutes: namely, the Lanham
Act (15 U.S.C. § 1125) and the Federal Food, Drug and Cosmetic
Act ("the FDCA") (12 U.S.C. §§ 331 and 343). It is also
clear, however, that the argument presented by Coca-Cola (the
defendant) in POM Wonderful exactly parallels Norfolk
Southern's preclusion argument in the present case: namely,
that the plaintiff's claim under one federal statute (the
Lanham Act) that Coca-Cola had deceptively labeled a product
was precluded because food labels are regulated by the Food
and Drug Administration pursuant to a different federal
statute (the FDCA). The United States Supreme Court rejected
Coca-Cola's preclusion argument and, in doing so, provided
guideposts for determining when one federal statute precludes
a claim under another federal statute. Specifically, the POM
Wonderful Court concluded that
"(1) there was no statutory text or established
interpretive
principle
to
support
preclusion,
6
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(2) nothing relating to either statute showed a
congressional purpose or design to forbid such
suits, and (3) to the contrary, the statutes
complemented each other in the federal regulation of
misleading
food
and
beverage
labels.
(POM
Wonderful, supra, 134 S.Ct. at p. 2233.)."
Fair, 238 Cal. App. 4th at 284, 189 Cal. Rptr. 3d at 161.
As we noted in our opinion on original submission, since
POM Wonderful was decided, courts that have addressed the
issue whether FELA claims are precluded by the FRSA have
relied upon POM Wonderful's analysis and have concluded that
FELA claims are not precluded. We quoted and cited that
opinion on original submission. See also, e.g., Madden v.
Anton Antonov & AV Transp., Inc., 156 F. Supp. 3d 1011
(D. Neb. 2015); Hananburgh v. Metro-N. Commuter R.R., No.
13-CV-2799 (JMF) (S.D. N.Y. March 18, 2015) (not selected for
publication in F. Supp.); and Noice v. BNSF Ry., 383 P.3d 761
(N.M. 2016). See also Powell v. Union Pac. R.R., No. CIV.
2:09-01857 WBS CKD (E.D. Cal. May 2, 2013) (not selected for
publication in F. Supp.). In contrast, Norfolk Southern has
cited a single trial court order from a Minnesota district
court, Schendel v. Duluth, No. 69DUCV132319 (Minn. Dist. Ct.
Sept. 29, 2014), which it says "appl[ied] FRSA preclusion in
a FELA case after the POM Wonderful decision." Both the
7
1140632
weight of authority and logic favor the conclusion that
Cottles's FELA claim is not precluded.
Norfolk Southern tries to distinguish the analysis in POM
Wonderful by noting differences between the statutory schemes
at issue in that case and those in this case. But the
criteria
highlighted
in
POM
Wonderful,
as
succinctly
summarized in the passage from Fair quoted above, hold true in
the interaction between FELA and the FRSA.
First, and most importantly, as noted in Hananburgh:
"The
FRSA
contains
no
'clearly
expressed
congressional intention' to preclude FELA claims. As
noted,
the
statute
does
contain
an
express
preemption clause, but that clause does not suffice,
because '[f]or purposes of deciding whether [a
federal statute with an express pre-emption clause]
displaces a regulatory or liability scheme in
another statute, it makes a substantial difference
whether that other statute is state or federal.'
POM Wonderful LLC v. Coca–Cola Co., 134 S.Ct. 2228,
2238 (2014). In fact, '[b]y taking care to mandate
express pre-emption of some state laws, Congress if
anything indicated it did not intend [the FRSA] to
preclude requirements arising from other sources,'
such as other federal statutes. Id."
Norfolk Southern attempts, as it did on original
submission, to overcome the FRSA's lack of any statement or
intention to preclude other federal statutes by
observing that
the FRSA states that "[l]aws, regulations, and orders related
8
1140632
to railroad safety ... shall be nationally uniform to the
extent practicable." 49 U.S.C. § 20106(a)(1) (emphasis
added). It faults this Court for "fail[ing] to cite or take
into account Congress's statutory provision that regulations
issued by the Secretary [of Transportation] (including the
Track Safety Standards) establish 'the federal standard of
care' under which railroads are required to conduct their
operations. 49 U.S.C. 20106(b)(1)(A) (emphasis added)."
Both of the above-quoted statements from the FRSA come
from the section that expressly concerns preemption of state
laws. As the United States Supreme Court noted in POM
Wonderful, however, "[p]re-emption of some state requirements
does not suggest an intent to preclude federal claims." POM
Wonderful, 573 U.S. at ___, 134 S. Ct. at 2238. What was true
in that case is also true here: "[T]he pre-emption provision
by its plain terms applies only to certain state-law
requirements, not to federal law." 573 U.S. at ___, 134
S. Ct. at 2239. Moreover, focusing on the FRSA's preemption
provision misses the primary purpose of the statute. "[T]he
principal purpose of the FRSA is to promote railroad safety,
not to achieve nationally uniform railroad safety laws."
9
1140632
Henderson, 87 F. Supp. 3d at 617. Viewed in this light, a
finding against preclusion actually enhances the FRSA's
purpose.
"FRSA was not created to provide uniformity for
the sake of uniformity. The statute's stated purpose
is to enhance railroad safety and reduce accidents.
49 U.S.C. § 20101. And allowing safety related suits
under FELA will enhance, rather than impede, that
purpose. FRSA regulations provide comprehensive
minimum safety standards that apply to a broad range
of situations. However, a railroad's conduct may
comply with those standards, yet still fall below
the level of ordinary care expected of any
reasonable person. And at least as to railroad
employees, FELA suits serve to ferret out such
situations that might otherwise evade the attention
of regulators or that are less amenable to uniform,
regulatory solutions. This enhances safety by
providing additional incentives for railroads to
conduct their operations safely."
Madden, 156 F. Supp. 3d at 1020–21.2
2See also Noice v. BNSF Ry., 383 P.3d 761, 771 (N.M.
2016):
"Rather than being in irreconcilable conflict,
we conclude that FRSA and FELA are complementary in
purpose and effect. Both statutes further railroad
safety
in
meaningfully
distinct
ways.
See
Henderson, 87 F. Supp. 3d at 621 ('[T]he FELA and
the FRSA complement each other in significant
respects, in that each statute is designed to
accomplish the same goal of enhancing railroad
safety through different means.'). FRSA seeks to
enhance safety in every area of railroad operation,
and to protect the public as well as railroad
workers. See 49 U.S.C. § 20101. It does so with
national, comprehensive regulatory standards which
10
1140632
are enforced by government entities. FELA, by
comparison, focuses solely on the safety of railroad
workers, and does so by providing railroad employees
a private right of action. Cf. POM Wonderful, [573]
U.S. [at] ___, 134 S.Ct. at 2236-38 (concluding that
specific
regulations
regarding
juice
labeling
promulgated under the Federal Food, Drug, and
Cosmetic Act did not preclude the plaintiff's Lanham
Act claim which asserted that the plaintiff's market
competitor
mislabeled
its
juice
product
and
emphasizing the two statutes different enforcement
mechanisms as one of the grounds for denying
preclusion).
"Permitting FELA claims like the Estate's to
proceed is likely to enhance the overall safety of
railroad operation. Fair v. BNSF Ry. Co., 238 Cal.
App. 4th 269, 189 Cal. Rptr. 3d 150, 160-61 (2015),
cert. denied, ___ U.S. ___, 136 S.Ct. 1378, 194
L.Ed.2d 361 (2016) ('Allowing safety-related suits
under FELA will enhance FRSA's stated purpose of
promoting railroad safety and reducing accidents.').
In addition, FELA claims may shed light upon
potentially dangerous circumstances that regulators
might otherwise not identify or that are less
amenable to uniform, regulatory solutions. See
Jerry J. Phillips, An Evaluation of the Federal
Employers' Liability Act, 25 San Diego L. Rev. 49,
54 (1988) ('The fault-based FELA system, with its
compensation
exceeding
the
typical
workers'
compensation award (particularly for the more
serious injuries), is designed to serve as a real
and present safety incentive.'). In sum, we
conclude that what the Supreme Court said in POM
Wonderful is directly applicable here: allowing
FELA suits like the Estate's to proceed 'takes
advantage of synergies among multiple methods of
regulation'
and
is
'consistent
with
the
congressional
design
to
enact
two
different
statutes, each with its own mechanisms to enhance'
railroad safety. [573] U.S. [at] ___, 134 S.Ct. at
11
1140632
Finally, Norfolk Southern faults this Court for failing
to follow -- or even to cite -- its decision in Norfolk
Southern Ry. v. Denson, 774 So. 2d 549, 551 (Ala. 2000).
Denson concerned a railway accident in which a Norfolk
Southern locomotive operated by engineer James Martin and
conductor Vernon Denson collided with a tractor-trailer truck
that had attempted to cross the railroad tracks in front of
the locomotive. The collision produced extensive fire, which
entered the cab of the locomotive, and Martin and Denson were
severely burned. The plaintiffs' theory was that because the
locomotive was not air conditioned, they had the windows down,
and, because the windows were down, the flames from the
collision burned the plaintiffs. Martin and Denson asserted
a claim under FELA alleging that Norfolk Southern had failed
to provide them with a safe place to work because the
locomotive they operated was not air conditioned.
The trial court denied Norfolk Southern's motion for a
judgment as a matter of law concerning this claim, and the
jury returned substantial verdicts in favor of Martin and
Denson. Norfolk Southern argued to this Court that the
2239."
12
1140632
plaintiffs' FELA claim could not be sustained because FRA
regulations did not require air conditioning in the cabs of
locomotives. This Court agreed with Norfolk Southern:
"It would be inconsistent with the sense of the FRA
as to its jurisdiction to hold that the judiciary
could supersede the FRA's regulations by requiring
common carriers to equip their locomotives with air
conditioning. Whether the impetus for change comes
through another federal agency, such as OSHA, or
through the judiciary's construing the FELA, the
impetus constitutes an intrusion into the FRA's
regulatory authority.
"Moreover, the plaintiffs have cited no cases
holding that the FELA requires railroads to equip
their locomotives with air conditioning and we are
not convinced that such a requirement would be
adopted
by
jurisdictions
universally,
and
we
question whether it would be the proper role of the
judiciary to adopt or impose such a requirement."
Denson, 774 So. 2d at 556.
Norfolk Southern contends that Denson controls the
outcome in this case. There are at least two problems with
that contention. First, Denson was decided well before POM
Wonderful and the cases that have been decided in its wake
that have concluded that FELA claims are not precluded by the
FRSA. Second, Denson did not consider the differences between
the preemption doctrine and preclusion that the POM Wonderful
13
1140632
Court addressed in detail. For example, the Denson opinion
stated:
"It is essentially undisputed that if these
claims were based on state law, they would be
preempted by the [Federal Locomotive Inspection Act]
and the FRSA. The plaintiffs remind us that this is
an action based on federal -- not state -- law.
Thus, they contend, the doctrine of preemption is
inapposite. We disagree with that contention. The
practical effect of such a rule would be identical
whether the rule is based on a state statute or on
this Court's interpretation of federal law. Indeed,
the need for uniformity, which is one of the bases
of preemption, has been addressed by the Federal
Railroad Administrator ('the Administrator') in a
context analogous to the one before us."
774 So. 2d at 555. As already noted, the POM Wonderful Court
made it clear that "[p]re-emption of some state requirements
does not suggest an intent to preclude federal claims." 573
U.S. at ___, 134 S. Ct. at 2238. That Court further rejected
the idea that a federal statutory scheme which states that it
seeks
to
achieve
uniformity
automatically
precludes
regulation
from other sources of federal law and held that a finding of
preclusion is particularly unwarranted if there is no hint of
a congressional intent to have one federal statute preclude
claims authorized by another federal statute. In short, the
Denson Court's analysis simply does not address the
14
1140632
differences between preemption and preclusion articulated by
the United States Supreme Court in POM Wonderful.
Conclusion
On original submission, we held that Cottles presented
substantial evidence of Norfolk Southern's negligence through
the testimony of his expert, Joe Lydick, concerning what
Norfolk Southern should have done to inspect the defective
switch. Norfolk Southern fails to offer any direct attack on
this conclusion. Instead, it relies upon the idea that
Lydick's testimony is irrelevant because FRA regulations do
not
require
Norfolk
Southern
to
perform
track-switch
inspections the way Lydick stated it should have in this
instance. In essence, Norfolk Southern's application for
rehearing turns on whether the FRSA precludes claims arising
under FELA. Because Norfolk Southern's arguments concerning
preclusion are not well founded, its application for
rehearing
is overruled.
APPLICATION OVERRULED.
Parker and Main, JJ., concur.
Bolin and Bryan, JJ., concur in the result.
Wise, J., recuses herself.
15
1140632
BOLIN, Justice (concurring in the result).
The main opinion addresses additional arguments raised by
Norfolk Southern Railway Company in its application for
rehearing. I concur only in overruling the application for
rehearing.
Bryan, J., concurs.
16 | March 17, 2017 |
8afc30da-464b-4fb5-8c15-fc796c18edb9 | Mitchell v. McCall | 143 So. 2d 629 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 629 (1962)
Lasco MITCHELL
v.
Dan T. McCALL et al., Members of Board of School Commissioners of Mobile County, et al.
1 Div. 884.
Supreme Court of Alabama.
July 26, 1962.
Jos. M. Powers, Mobile, for appellant.
Pillans, Reams, Tappan, Wood & Roberts and Fred W. Killion, Jr., Mobile, for appellees.
*630 LIVINGSTON, Chief Justice.
The appellant, petitioner below, commenced this action by a petition seeking an alternative writ of mandamus from the Circuit Court of Mobile County, directed to Mobile County School Board, the Superintendent of Education, and the Principal of Vigor High School, in the City of Prichard, Alabama, ordering them to readmit the minor child, Eulene, of the petitioner, one Lasco Mitchell, to Vigor High School, a public school in the City of Prichard, Mobile County, State of Alabama, or to appear before the Circuit Court of Mobile County to show cause why they should not so readmit said minor.
Respondents filed an answer to the petition.
The court denied the petition for writ of mandamus, and it is from this order that this appeal is taken.
Appellant's daughter, Eulene, was suspended from Vigor High School, a public school in Mobile County, for refusing to participate in the physical education program lawfully prescribed for that school. This refusal was originally based upon the three objections which follow:
The school authorities offered to allow appellant's daughter to wear clothing which appellant would consider modest and suitable, and further agreed that she would not have to perform any exercises that seemed to her or her parents immodest for a girl to perform when clad in ordinary feminine clothing.
The court below incorporated these concessions in its decree and ordered the school authorities to readmit the girl on the further condition that she would attend the physical education course and participate therein subject to the concessions. Since these concessions were made by the school board and adopted by the lower court, and since no complaint is made of them here, this Court is not concerned with the concessions and expresses no opinion on their legality or illegality.
Appellant appeals from the decree of the lower court on the theory that the requirement that his daughter attend and participate in the course in the presence of the other girls and the instructress violates her freedom of religious belief secured to her by Art. 1, Sec. 3 of the Constitution of Alabama 1901, and the First and Fourteenth Amendments of the Constitution of the United States.
Appellant vigorously argues what he describes as his constitutional right to have his children educated in the public schools of the state. In this connection, it should be observed that the State of Alabama is under no constitutional obligation to provide public schools. Sec. 256 of the Alabama Constitution of 1901, as amended.
Clearly, appellant's daughter does have a right to make use of such facilities if they are in fact provided by the state. However, appellant's daughter is free to refrain from attending the public schools since Alabama does not require public school attendance. Act No. 367, Reg.Sess.1957, p. 482, amending Act No. 201 of the Acts of Alabama, Reg.Sess.1955, and which became law on Aug. 26, 1957, pursuant to Sec. 125 of the Constitution. Her attendance in a public school is therefore voluntary. See also. *631 Act No. 117, Special Session of the Legislature 1956, p. 446.
Sec. 555 of Title 52, Code of Alabama 1940, provides as follows:
The action of the appellees, of which appellant complains, was taken pursuant to the authority delegated to the department of education by this statute. Thus, the program of education prescribed under this delegated authority is legislative in nature and has the coercive effect of law.
Appellant maintains that this legislation, as applied to his daughter, violates Art. 1, Sec. 3 of the Constitution of Alabama 1901.
In Desribes v. Wilmer, 69 Ala. 25, at page 26, Justice Stone stated the following:
The legislation involved in the case at bar is unquestionably reasonable, and it touches only matters which are the legitimate concern and responsibility of the state and its agencies.
This is not the first instance of exacting obedience to general laws that have offended deep religious scruples. Compulsory vaccination, see Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann.Cas. 765; food inspection regulations, see Shapiro v. Lyle (D.C.) 30 F.2d 971; the obligation to bear arms, see Hamilton v. Regents of University of California, 293 U.S. 245, 267, 55 S. Ct. 197, 79 L. Ed. 343, 355; testimonial duties, see Stansbury v. Marks, 2 Dall. 213, 1 L. Ed. 353; compulsory medical treatment, see People v. Vogelgesang, 221 N.Y. 290, 116 N.E. 977these are but illustrations of conduct that has often been compelled in the enforcement of legislation of general applicability even though the religious consciences of particular individuals rebelled at the exaction.
Every precaution has been taken to insure that the course is conducted in a manner consistent with modesty and good taste. The classes which Eulene Mitchell, appellant's daughter, is required to attend are composed entirely of girls and the teacher is also a female. When the class is conducted in the gymnasium, the girls are completely excluded from male eyes, and when conducted outdoors, there is a school building between the girls and the boys. In spite of these facts, reasonable concession has been made to appellant's religious beliefs, and this Court therefore holds that the legislative policy overrides appellant's objections, and Art. 1, Sec. 3 of the Constitution of Alabama 1901 has not been violated.
It is the opinion of this Court that appellant's rights under the First and Fourteenth Amendments of the United States Constitution have not been infringed. In Hamilton v. Regents of University of California, 293 U.S. 245, 55 S. Ct. 197, 79 L. Ed. 343, supra, the Supreme Court of the United States unanimously held that a student attending a state-maintained university cannot refuse to attend required courses in military training on the ground that such courses offend his religious beliefs. Later, the Supreme Court of the United States held that the First and Fourteenth Amendments were violated by a West Virginia Statute which required all public school pupils to salute the flag of the United States and recite a pledge of allegiance. This requirement was held to violate the *632 freedom of pupils who considered such conduct to be contrary to their religious beliefs. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628. However, the Hamilton case, supra, was specifically distinguished on the basis that attendance at the state institution in question in that case was voluntary, and therefore a pupil could not refuse to comply with the reasonable conditions lawfully required and still demand admission. The Hamilton decision is therefore authority for the proposition that the State of Alabama can place reasonable, nondiscriminatory conditions on the privilege of attending public schools since such attendance is voluntary.
Moreover, even if this is not the case, West Virginia State Bd. of Education v. Barnette, supra, is clearly distinguishable on its facts. The statute involved in that case, as construed by the court, was invalid because it called for a compulsory statement of belief. There is nothing analogous to that in the case at bar. Indeed, the Barnette case, supra, would only be analogous if the complaining pupils in that case had further alleged that it was unconstitutional to require them to be present when other students professed their allegiance. The Alabama Constitution and the United States Constitution do not require such a result. Indeed, a decision supporting such an allegation would place an intolerable burden on the state and federal governments in the discharge of their responsibilities to the people of the state and the nation. Such a decision would give every citizen the power to nullify all state and federal legislation by simply asserting in a court of law that the behavior required is contrary to his religious beliefs. A power of nullification of such extreme scope would undermine the very foundation of our "democratic" institutions and undercut the very concept of ordered liberty protected by our state and federal constitutions.
Every reasonable concession has been made to the appellant in this case. This Court cannot go further and hold that appellant's religious belief that his daughter should not be placed in the presence of others whose dress and behavior is contrary to his scruples imposes upon the school the legal obligation to conduct a separate class in conformity with appellant's belief.
Appellant further complains that unless the school is required to conduct a separate class composed of those who share his and his daughter's belief that she will be made to appear a "speckled bird," and will be subject to the contumely of her fellow students.
All citizens in so far as they hold views different from the majority of their fellows are subject to such inconveniences. And this is especially true of those who hold religious or moral beliefs which are looked upon with disdain by the majority. It is precisely every citizen's right to be a "speckled bird" that our constitutions, state and federal, seek to insure. And solace for the embarrassment that is attendant upon holding such beliefs must be found by the individual citizen in his own moral courage and strength of conviction, and not in a court of law.
Our conclusion is, that in the posture of this case, the appellant's daughter is not required to participate in the exercises which would be immodest in ordinary apparel, nor is she required to wear the prescribed outfit. However, subject to these concessions previously made, she is obligated to attend the course in physical education. Authorities, supra. See also McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393.
The decision of the lower court is affirmed.
Affirmed.
LAWSON, Justice (concurring specially).
All other questions aside, I concur in the result on the theory that the requirement *633 of which appellant complains is reasonable, and in my opinion does not violate either the First or Fourteenth Amendment to the Constitution of the United States. The school has not required appellant's daughter to recognize any form of religious belief. Physical education programs have long been conducted throughout the public educational systems of this country and should not be abandoned because an individual or a group of individuals takes offense at the manner in which the program is conducted although it is in accord with the current community standards of morality and decency.
GOODWYN, J., concurs in the result for the reasons stated by LAWSON, J.
COLEMAN, J., concurs in the result. | July 26, 1962 |
bfca5b19-5804-41b4-be63-6f2bf2106aa4 | State Ex Rel. Gallion v. Graham | 143 So. 2d 810 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 810 (1962)
STATE of Alabama ex rel. MacDonald GALLION, Attorney General, et al.
v.
John C. GRAHAM.
1 Div. 996.
Supreme Court of Alabama.
July 12, 1962.
Rehearing Denied August 30, 1962.
MacDonald Gallion, Atty. Gen., Wm. G. O'Rear and John D. Bonham, Asst. Attys. Gen., for the State.
Wilters & Brantley, Bay Minette, for A. B. Case.
Jas. R. Owen, Bay Minette, for appellee.
SIMPSON, Justice.
This case involves a three-way dispute between the Division of Forestry of the Alabama State Department of Conservation, the complainant below, appellant here, and A. B. Case, respondent below and also appellant here, and John C. Graham, intervenor below, appellee here, over title to forty acres of land.
The State instituted the cause by filing its bill in equity to quiet title to forty acres of land in Baldwin County against respondent, A. B. Case, alleging that the State of Alabama, Department of Conservation, Division of Forestry, was the owner thereof. *811 Respondent Case filed answer setting forth his claim of title to the disputed land. The court granted appellee John C. Graham's petition to intervene in which he alleged that he was the owner of the lands in dispute and asked the court to make and enter an order or decree settling title to the property and to clear up all disputes concerning the same.
From a decree dismissing the bill filed by the State and finding that the title to the property was vested in John C. Graham, the intervenor, this appeal followed.
All parties to the suit agreed that title to the disputed property came out of the United States Government and through mesne conveyances into one Retta Chatham and was vested in her in 1925. Case rests his claim to the land on the following: On August 15, 1925, Retta Chatham and husband conveyed the land to J. H. Champion and Son, which deed was duly recorded in the Probate Court of Baldwin County. On August 5, 1957, Herbert J. Champion, individually and as surviving partner of J. H. Champion and Son, conveyed the land to A. B. Case, reserving unto himself an undivided one-half of one-eighth royalty interest in and to all oil, gas, and minerals. Further, Case claims to have redeemed said land under certificate of redemption issued by the Judge of Probate in Baldwin County, dated the 6th day of February, 1958.
The State claims title to the land by virtue of a tax deed dated October 20, 1937, from the State Land Commissioner to the Alabama State Commission of Forestry conveying title to the disputed land "pursuant to Sections 284, 285, and 286 of House Bill 324, approved July 10, 1935. (Act #194, Gen.Acts 1935Now Code 1940, Title 51, § 320 et seq.) This deed was duly recorded and contains the following language:
The intervenor, John C. Graham, offered the following documentary evidence, upon which his claim to the disputed land exists: Quit-claim deed to himself to the land in controversy from Ruby C. Graham and husband, Carl C. Shirley and husband, dated the 3rd day of August, 1960; and quit-claim deed to John C. Graham from H. J. Champion and wife, dated August 4, 1960. The intervenor testified that H. J. Champion and Son was a partnership composed of H. J. Champion and his son, Herbert J. Champion, and that H. J. Champion died in 1935 and that his widow was dead, and the children were Herbert J. Champion, Carl Champion and Ruby Champion, and that he was the son of Ruby Champion. (These were all the heirs of H. J. Champion.)
The trial court found that the State failed to prove title to the property involved in this suit or any other facts which entitled it to recover in the action. We are compelled to agree with this conclusion. *812 The record does not reveal any evidence of compliance with the statutes with regard to giving notice of the tax sale to the Champions, nor was the tax sale made in the name of the owner of the land.
It is long settled that a tax sale is void in the absence of evidence that the requirements of the statutes (Title 51, § 249 et seq.) have been complied with.Landrum v. Davidson, 252 Ala. 125, 39 So. 2d 662; Messer v. Birmingham, 243 Ala. 520, 10 So. 2d 760. One claiming under a tax title bears the burden of proving compliance with each and every requirement as to assessment, failure to pay taxes, giving of notice, holding of sale and execution of the tax deed.Union Central Life Insurance Co. v. State ex rel. Whetstone, 226 Ala. 420, 147 So. 187; Gunter v. Townsend, 202 Ala. 160, 79 So. 644. The tax deed under which the State claims title is void. It shows that the assessment under which the property was sold was made to another than the owner. In this situation, the tax sale is void.Singley v. Dempsey, 252 Ala. 677, 42 So. 2d 609; Lewis v. Burch, 215 Ala. 20, 108 So. 854; Singleton v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949; Crook v. Anniston City Land Co., 93 Ala. 4, 9 So. 425.
It is axiomatic that the question of acquisition of title by adverse possession is a question of fact to be determined in each particular case. Here the trial court saw the witnesses and heard the testimony. His finding of fact will not be changed here unless palpably erroneous, which we can not say on a careful study of the record. We hold that the State has failed to show title or right to the suit property.
We come next to the claim asserted by appellant Case. He rests his claim on (1) a deed from Retta Chatham to H. J. Champion and Son to the disputed land, dated August 15, 1925, and (2) deed from Herbert J. Champion (son of J. H. Champion), individually and as surviving partner of H. J. Champion and Son, to A. B. Case, dated August 5, 1957, and recorded August 6, 1957. This was the only evidence introduced by Case. He offered no oral testimony by himself or any witnesses.
The final decree of the trial court states that, "there is no legal evidence before the court that the respondent, A. B. Case, owns any title to, interest in, or lien or encumbrance on the property involved in this suit".
An examination of the deed under which Mr. Case claims reveals that it is not acknowledged or proved in accordance with Title 47, § 22 et seq. We have long been committed to the proposition that conveyances are not self proving by reason of recordation unless acknowledged or proved according to law. Such is the dictate of our statute.Title 47, § 104, Code 1940. The deed in question was witnessed by two persons. Although this is sufficient compliance with § 22, Title 47, it is not self proving. Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115; Niehuss v. Ford, 251 Ala. 529, 38 So. 2d 484.
Inasmuch as this is the only evidence adduced in behalf of appellant Case, we must agree with the trial court's finding that there was no legal evidence to support his claim.See also Hines v. Chancey, 47 Ala. 637.
As stated, John C. Graham intervened in the proceeding wherein the State filed the bill to quiet title. This pleading was sufficient to authorize the court to settle the title between the parties and quiet it in Graham.Myers et al. v. Moorer et al., Ala., 134 So. 2d 168.
Intervenor Graham introduced deeds from all the heirs of H. J. Champion. He was able to show perfect record title to the property in question. The trial court heard the evidence and concluded that the two appellants failed to show any actual possession of the property. If there is no actual possession in them, or either of them, then possession is regarded as constructive and follows the title of the record owner. Bobo v. Edward Realty Co., 250 Ala. 344, *813 34 So. 2d 165. This is particularly apt in cases involving wild, unimproved land. "When the land has never been occupied in a true sense, the possession is constructive and follows the title, since no one is in the actual possession."Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So. 2d 411. We can not say that the decree of the court quieting the title in intervenor was against the evidence or palpably wrong, and hence must sustain it.
Appellants have failed to show error warranting a reversal of the case.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | July 12, 1962 |
5efbef8d-99fb-4b91-9d57-6dc577fe9080 | State v. Mudd | 143 So. 2d 171 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 171 (1962)
STATE of Alabama et al.
v.
Joseph P. MUDD.
6 Div. 750.
Supreme Court of Alabama.
June 14, 1962.
Rehearing Denied July 12, 1962.
*172 MacDonald Gallion, Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for the State.
John S. Foster, Birmingham, for Jefferson County.
J. M. Breckenridge, Birmingham, for City of Birmingham.
Sirote, Permutt, Friend & Friedman and S. A. Baker, Birmingham, for appellee.
MERRILL, Justice.
This appeal is from a decree sustaining appellee's demurrer to a bill of complaint filed jointly by State of Alabama, Jefferson County and the City of Birmingham, and dismissing the bill.
The bill of complaint alleges that certain lands assessed to appellee were sold for the nonpayment of ad valorem taxes levied in 1932, payable on October 1, 1932, and which became in default on January 1, 1933. The bill alleges that the customary procedure was taken and the lands were advertised and sold. The State purchased the lands for $1,737.24 on November 20, 1933, and the certificate was delivered by the probate judge to the tax collector, who, in turn, delivered it to the State Auditor.
It is alleged that at various times since then, the State has undertaken to sell one or more parcels of the land and that appellee, upon learning of the identity of the prospective purchasers, has threatened the purchasers with harassment, damage suits and other litigation if they acquired the land by purchase from the State. It is alleged that appellee has continued to collect rent from the lands while paying no taxes thereon since the sale in 1933.
The bill alleges that on September 24, 1954, the tax collector of Jefferson County certified that taxes on the lands were delinquent and the judge of probate made a decree ordering appellee to appear and show cause why a decree of sale of the land for the nonpayment of 1932 taxes should not be entered. Appellee objected to the sale on the ground that the lands had already been sold to the State in 1933, and that the sale had never been cancelled or set aside. The probate court considered the objection well taken and denied the petition to sell the land for 1932 taxes.
The bill also alleges that appellee contends that the tax sale conducted in 1933 was invalid and void and charges that appellee is judicially estopped to deny the validity of the tax sale in 1933 because he had used that tax sale as a means of stopping the sale in 1954.
The bill alleges that there is subsisting an actual controversy between the parties on *173 which substantial property rights are dependent. It is alleged that three parcels of the lands involved have been redeemed by persons other than the appellee.
The bill prays for a declaratory judgment, stating that appellee is judicially estopped to deny the validity of the tax sale of November 20, 1933, and that complainants have a good tax title to the lands, other than those redeemed, clear of any claim or interest in or to the appellee, except for appellee's right to redeem.
Among appellee's grounds of demurrer were (1) no equity in the bill, (2) it affirmatively appears on the face of the bill that the alleged tax sale in 1933 was void, and (3) the appellants are barred by the rule of prescription from asserting any rights.
The circuit court rendered a decree which sustained appellee's demurrer to the bill of complaint as to the county, city and state and dismissed as to them, subject to modification if the state amended the bill in such a manner as to negative the defense of prescription.
The foregoing is a very concise condensation of the bill, which with the exhibits comprise 47 transcript pages, and the opinion and decree of the trial court fill 30 transcript pages.
The decree treats of many questions, but the court held that the demurrer should be sustained to the bill as a whole on the ground that the bill showed on its face that the purported tax sale was void and the action was barred by the prescriptive period of twenty years, and dismissed as to all three complainants, but dismissed as to the State subject to modification upon the filing by the State of an amendment "sufficient to negative the defense of prescription."
In view of the fact that we concur in the action of the trial court, it is necessary to discuss only the ground upon which the demurrer was sustained, because a demurrer is an entity and should be sustained if any ground shows a good reason for doing so; and if any ground is well taken, the action of the trial court in sustaining the demurrer will be upheld. Prather v. Ray, 258 Ala. 106, 61 So. 2d 46; Hammons v. Hammons, 228 Ala. 264, 153 So. 210.
We dispose of the question of deciding a bill for declaratory judgment on demurrer by saying that on oral argument it was agreed by the parties that there was no objection to this action by the trial court. Darling Shop of Birmingham v. Nelson Realty Co., 255 Ala. 586, 52 So. 2d 211.
The respondent argued many grounds of demurrer that the bill and the exhibits thereto showed that the purported tax sale in 1933 was void. We discuss the one deemed most important by the trial court. Actually, the State's brief only claims that "there was a substantial compliance" with the statutory requirements attending the sale of land for taxes. More than this is required. In Craig v. Swader, 225 Ala. 366, 143 So. 553, this court, in applying the same 1919 Act under which the lands in the instant case were sold, said:
Although the bill alleges that "the said tax collector reported to the said Probate Judge his inability to collect said taxes from said taxpayer without a sale of said real estate or taxpayer's interest therein," the exhibits attached to the bill do not so show. The allegation would have been sufficient; but attaching contradictory *174 exhibits destroys the sufficiency. The verity of exhibits to a bill is taken as true on demurrer. When the averments of a bill are contradictory of the exhibits thereto, recitals in the exhibits control. Orso v. Cater, 268 Ala. 130, 105 So. 2d 108; Pacific National Fire Insurance Co. v. Watts, 266 Ala. 606, 97 So. 2d 797, and cases there cited. We agree with the trial court that from the bill and the exhibits, the jurisdiction of the Probate Court to sell the lands for taxes does not affirmatively appear, and that the tax sale was void.
That brings us to the question of prescription. The bill shows on its face that the taxes for 1932 were not paid, that the appellee's interest in the lands was sold to the State in 1933, and that no steps of any kind were taken to collect those taxes until 1954, twenty-one years later.
There is no question but that the prescriptive period applies to municipal corporations. In Mott v. Helmes, 246 Ala. 331, 20 So. 2d 461, the suit sought to enforce, in equity, liens securing sewerage assessment bonds issued by the Town of Luverne. The appeal was from a decree sustaining the demurrer to the bill. This court said:
We note that the court held that the doctrine of prescription invoked by demurrer prevented recovery even though the statute under which the Luverne bonds were issued provided that the liens and assessments thereunder "shall stand as security for such bonds and coupons until they are paid." [Emphasis supplied].
As early as Miller v. State, 38 Ala. 600, we said that the principle, nullum tempus occurrit reipublicae (time does not run against the commonwealth or state), does not apply to the political subdivisions of the State.
In Perry County v. Selma, Marion & Memphis R. Co., 58 Ala. 546, 569, it was said:
The City of Birmingham argues that Sec. 100 of the Constitution prohibits a holding that the 1932 taxes are lost on this property. Sec. 100 provides:
We cannot agree. In Covington County v. O'Neal, 239 Ala. 322, 195 So. 234, a case decided on the pleadings, the county contended that our statute of non-claim, Sec. 5815, Code 1923 (Tit. 61, § 211, Code 1940) was ineffective because in conflict with Sec. 100 of the Constitution. This court held that Sec. 100 "does not affect the power of the Legislature to provide for limitations in the interest of repose. This power may be applied against the state and its agencies notwithstanding § 100 of the Constitution."
Our cases hold that if parties allow twenty years to elapse without taking any steps to compel a settlement, or to assert rights to property, the presumption of payment, or settlement of the disputed title arises. And this presumption is conclusive, and is not affected by the circumstances of the situation, as is considered in the case of laches. Case v. Conservation & Land Co., 256 Ala. 46, 53 So. 2d 562; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Snodgrass v. Snodgrass, 176 Ala. 276, 58 So. 201; Roach v. Cox, 160 Ala. 425, 49 So. 578; Philippi v. Philippi, 61 Ala. 41.
The county and the city were barred by the prescriptive period of twenty years from attempting to collect the 1932 taxes.
The other joint complainant, the State, has a right to "sue in the circuit court in equity matters, and the suit is governed by the same rules as suits between individuals." Tit. 7, § 292, Code 1940. Here, all three complainants are bound by the allegations and exhibits of the bill. In paragraph 6 of the bill, it is alleged that the respondent Mudd, "upon being advised of the identity of the prospective purchaser or purchasers, has on diverse occasions threatened the said prospective purchasers with harassment, damage suits and other litigation if the said purchasers acquired the said lands or the respective interests therein by purchase from the State of Alabama, and the said Mudd has thereby prevented the State of Alabama from selling the said lands or interests therein and has thereby prevented the State of Alabama, Jefferson County, the City of Birmingham, and the public schools from receiving revenue from the sale of the said lands or interests therein as they have the right to do under the law of the State of Alabama; and the said Mudd, while threatening and intimidating prospective purchasers as aforesaid, has continued to collect rents from the lands, while paying no taxes upon the said lands or any interest therein, following the sale of the lands or interest therein as aforesaid during November, 1933, all contrary to equity, good conscience and the public interest."
Construing the pleading more strongly against the pleader, these allegations *176 show notice to all complainants of appellee's claims, acts of possession, and failure or refusal to pay any taxes on the property since 1932, and for aught appearing, the complainants have had knowledge of these adverse claims and behavior since 1933. Therefore, under this pleading and the present posture of the case, we are constrained to hold that the State also is barred by the doctrine of prescription. We are not to be understood as holding that the prescriptive period of twenty years applies in all cases against the State, but under the bill of complaint signed by the State in this cause, the demurrer was properly sustained.
We have already noted that the trial court modified the dismissal as to the State if it should file an amendment "sufficient to negative the defense of prescription."
This opinion is not to be construed as deciding the number of years prior to the present that the State, county and city have a lien for back taxes other than the lien cannot extend past the prescriptive period. The lower court did not try to pass upon that question nor do we. We merely hold that the failure to try to collect the 1932 taxes until 1954, and 1957, when the present bill was filed, was, under the allegations of this bill before us, subject to demurrer on the ground that it showed on its face that the claim for 1932 taxes was barred by the prescriptive period, and the bill was properly dismissed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.
On Application for Rehearing.
MERRILL, Justice.
Appellants insist that even though the sale in 1933 for 1932 taxes was void, and although the collection of the 1932 taxes is now barred by prescription, it still was error to dismiss the bill. It is contended that appellants are left without a remedy and they are out of court, because "Being out of court, it (City of Birmingham) cannot enforce its lien for any of the years set out in the Bill of Complaint even as to those years which do not extend back past the prescription period. Should the City file another and new bill in this matter it would be met with a plea of res judicata since a lien for each of said years was claimed in this case and the complaint was dismissed."
While we can understand appellants' concern, and consequently are extending the opinion, we cannot agree that the enforcement of a lien for taxes was an issue in this case. It is true that the prayer does ask for certain relief, but the mere asking for impossible relief neither gives a bill equity nor makes an issue of the relief requested.
Paragraph B and part of paragraph C of the prayer read:
These parts of the prayer clearly seek something other than judicial relief. The circuit and appellate courts are not authorized by any lawcommon or statutory, to assess property for taxation or to declare a lien *177 for taxes when no amount is claimed. Their function in this field is merely that of judicial review.
Here, the whole contention of appellants was that the 1933 sale was not void, and that title to the property had been in the State since that time. We held that the bill and exhibits thereto showed that the appellants had known that appellee was claiming the lands, was claiming that the 1933 sale was void, was exercising ownership and acts of possession and was failing to pay taxes on the property, but knowing all these things, they took no steps to rectify the situation for over twenty years and were barred from attempting to collect the 1932 taxes by the doctrine of prescription.
The prayer for general relief in the bill was not sufficient to invoke action because there has been no assessment of the property since 1932, and there is no valid assessment of it which is subject to review, either in the circuit or this court.
The attempt to make the amount of the tax lien an issue in the case, or to get the court to determine the amount of taxes due over any period of time, failed because those matters are not determined in the circuit or the appellate courts, and the public officials having the exclusive control over those matters are not parties to this suit.
To lay at rest the question of res judicata in the event future proceedings may be instituted to collect back taxes, we hold that the matter of the lien for taxes or the determination by the court of taxes due prior to their assessment by the proper authorities were not issues in this case and were not matters which could have been litigated in this suit, and the dismissal of the instant suit is not res judicata if proper action is taken to assess and collect such taxes as may be due.
Application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
2b82ec42-3d9d-4ced-a033-2a26fc4eba4e | United States v. Costas | 142 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 699 (1962)
UNITED STATES of America, Intervenor,
v.
Mary F. COSTAS et al.
6 Div. 739.
Supreme Court of Alabama.
June 14, 1962.
*700 W. L. Longshore, U. S. Atty., and R. Macy Taylor, Asst. U. S. Atty., for appellant.
Bland & Bland, Cullman, for appellee Home Improvement Co.
SIMPSON, Justice.
Mary F. Costas and A. Costas were tenants in common of the suit property, a house and lot in Cullman, Alabama. Mary F. Costas filed a bill in equity against A. Costas for a sale of the property for division, which contained the usual prayer that her solicitor be allowed a reasonable solicitor's fee from the proceeds of the sale.
The bill was later amended alleging that certain firms and individuals claimed liens for labor and materials in connection with improvements on the property, listing the names of these firms and individuals, and the amounts claimed and making them parties respondent. The bill was later amended to make the United States and the State of Alabama Parties, alleging that these last two parties claimed liens for unpaid income taxes. The bill as amended also alleged that Home Improvement Co. had a conditional sales contract on certain equipment installed in the house and that there was a prior lien for taxes in favor of the City of Cullman and Cullman County, Alabama.
The United States intervened and alleged in its petition that it had a lien already assessed and final through the Internal Revenue Service and that this lien was superior to all other liens. The State of Alabama also intervened asserting its lien.
The property was sold at private sale but did not bring enough to pay all claims. After the coming in of the register's report the trial court ordered to be first paid: A solicitor's fee to the complainant's solicitor, the other court costs, the claim of Home Improvement Co., the tax liens of the City of Cullman and Cullman County, recognizing these claims as prior to all other liens.
The decree of the court further ordered that all other liens or claims, including that *701 of the United States, be paid pro rata from the balance of the proceeds of the sale.
The United States brings the appeal. The other respondents were served with notice of the appeal through their attorneys of record but no briefs have been filed to support the action of the trial court in ordering proration. The deduction and payment from the sale price of the property of the actual court costs, the claim of Home Improvement Co., and the claims of the City of Cullman and the County of Cullman for prior tax liens is not controverted by appellant on this appeal. Appellant does, however, contest the proration of the balance of the money among the various mechanics and materialmen, the awarding of a solicitor's fee to complainant's solicitor and allowing any proration to the State of Alabama.
The contention of appellant is that since no judgments were rendered in favor of the mechanics and materialmen and because the State's income tax assessment was made final after the date of the jeopardy assessment of the United States became final, the lien of the United States is prior to these claims. We are in accord with this insistence, but think the contest of the payment of the solicitor's fee is untenable.
Appellant in brief states the two questions to be decided:
Inasmuch as the first question is answered in the affirmative, consideration of the second question will be pretermitted.
None of the mechanics' or materialmen's liens were ever reduced to judgment when the jeopardy assessment for income taxes due the United States was made. A lien for taxes due the United States is perfected on the date the taxes are assessed. Title 26, § 6321, U.S.C.; Title 26, § 6322, U.S. C.; Title 26, § 6323(a), U.S.C.; United States v. City of New Britain, 347 U.S. 81, 74 S. Ct. 367, 98 L. Ed. 520.
The effect of a State statutory lien in relation to a Federal tax lien is a Federal question and the determination of this relationship is controlled by the United States Code and applicable decisions of the Federal courts. United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 95 L. Ed. 53.
A lien for labor or material furnished, under Alabama law, is not perfected until every requirement of the statutes creating such lien has been complied with. Title 33 § 37 et seq., Code of Alabama, 1940; Brewton et al. v. L. F. Sessions, 264 Ala. 123, 84 So. 2d 763; Gray v. McKinley, 34 Ala.App. 630, 43 So. 2d 421, cert. den. 253 Ala. 199, 43 So. 2d 424; Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So. 2d 492; Taylor v. Shaw, 256 Ala. 467, 55 So. 2d 502; Sorsby, et al. v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68; Emanuel et al. v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So. 2d 151; Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560.
A materialman's or mechanic's lien created by Title 33, § 37 et seq., Code of Ala. 1940, remains inchoate and loses all force and vitality unless suit is brought and prosecuted to final judgment. Young & Co. v. Stoutz & Co., 74 Ala. 574; Eggleston v. Birmingham Purchasing Co., 5 Cir., 15 F.2d 529.
Such statutory lien created by Title 33, § 37 et seq., Code of Alabama, 1940, is inchoate and unperfected while it is contingent upon taking subsequent steps for enforcing it, and this inchoate state lien cannot take priority over the subsequent Federal tax lien. United States v. Security *702 Trust & Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 95 L. Ed. 53; United States v. Acri, 348 U.S. 211, 75 S. Ct. 239, 99 L. Ed. 264; United States v. Liverpool & London Insurance Co., 348 U.S. 215, 75 S. Ct. 247, 99 L. Ed. 268; United States v. Scovil, 348 U.S. 218, 75 S. Ct. 244, 99 L. Ed. 271; United States v. R. F. Ball Construction Co., 355 U.S. 587, 78 S. Ct. 442, 2 L. Ed. 2d 510; United States v. Colotta, 350 U.S. 808, 76 S. Ct. 82, 100 L. Ed. 725, reversing 224 Miss. 33, 79 So. 2d 474, 86 So. 2d 19; United States v. White Bear Brewing Co., 350 U.S. 1010, 76 S. Ct. 646, 100 L. Ed. 871, reversing 7 Cir., 227 F.2d 359; United States v. W. H. Vorreiter, 355 U.S. 15, 78 S. Ct. 19, 2 L. Ed. 2d 23, reversing 134 Colo. 543, 307 P.2d 475; United States v. Hulley, 358 U.S. 66, 79 S. Ct. 117, 3 L. Ed. 2d 106, reversing Fla., 102 So. 2d 599.
And of course, the State's tax assessment, having become final after that of the United States, its lien is subordinate to that of the latter.
The argument that the decree was in error in allowing a solicitor's fee for the complainant to be taxed as a part of the costs of the proceeding is clearly without merit. Appellant cites in support of its contention United States v. Liverpool & London Insurance Co., supra, construing a Texas statute which provided for the allowance of attorney's fee in certain garnishment proceedings where the United States Supreme Court disallowed such fee. The situation here is quite different. Solicitor's fees in partition proceedings in Alabama are provided for by Code of Ala. 1940, Title 46, § 63, and are taxed as a part of the cost of the proceeding, the theory being that, since the services of the solicitor are for the common benefit of all parties, the trust fund created by the sale of the property must bear this expense. Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 82 So. 2d 618, and authorities therein cited.
It results from the foregoing that the decree of the lower court must be reversed, and it is here ordered that the trial court decree the United States of America to be a prior and superior lien-holder to all the parties claiming machanics' and materialmen's liens and also prior to the tax lien of the State of Alabama and to make distribution of the remainder of the trust fund accordingly.
The decree of the lower court awarding solicitor's fee to complainant's solicitor, and the other court costs, the allowance made to Home Improvement Co. under its conditional sales contract, and the City of Cullman and County of Cullman for taxes is affirmed.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | June 14, 1962 |
ff3dac11-2ba3-499e-86d8-282e313cf08e | Calhoun v. Thomas | 145 So. 2d 789 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 789 (1962)
Leila C. CALHOUN et al.
v.
S. D. THOMAS et al.
4 Div. 135.
Supreme Court of Alabama.
August 30, 1962.
Rehearing Denied October 18, 1962.
*790 Lee & McInish, Dothan, for appellant.
L. A. Farmer, Jr., Dothan, for minor appellees.
MERRILL, Justice.
Appeal from a final decree construing the will of the decedent to have devised certain real property to his son and daughter, for life, with remainder to their children. The son, daughter and widow, appellants, contended that the property was devised to the son and daughter in fee simple.
V. H. Calhoun died in Houston County on August 20, 1955. His will was duly probated on September 30, 1955, after a guardian ad litem was appointed to represent the interests of Calhoun's son and daughter, who were then minors, but who are now over twenty-five years of age. The son, Charles Arthur Calhoun, has three children and the daughter, Mary Nell Calhoun Ponder, also has three children.
The decedent's will was in his own handwriting. It provided in part that when his son, Charles Arthur Calhoun, reached the age of twenty-five years, he and Mary Nell Calhoun should become the joint owners of 1200 acres of land in Houston County and two lots in Dothan, all of which was identified and described. It was then stated in the will that "The above mentioned property shall remain jointly owned by Charles Arthur and Mary Nell Calhoun (for the period of their life and shall go to their heirs at their death). Should Charles Arthur and Mary Nell Calhoun leave no bodily heirs his or her interest in said property becomes the property of the other."
A line was drawn through the words in parentheses and V. H. Calhoun's name was written between the lines.
Appellant Charles Arthur Calhoun conveyed his interest in 600 acres to his sister, and she conveyed her interest in the other 600 acres to him. They received a quitclaim deed from their mother and they later sold one of the lots in Dothan to appellee, S. D. Thomas.
On October 6, 1961, the widow, the son and the daughter of V. H. Calhoun filed the bill of complaint, seeking a construction of the will on the ground that some doubt had arisen as to whether an absolute fee vested in the son and daughter under the will and that doubt cast a cloud on their title. The respondents were S. D. Thomas, the three minor children of Charles Arthur Calhoun, the three minor children of Mary Nell Calhoun Ponder and "all unborn children of Charles Arthur Calhoun and Mary Nell Calhoun Ponder."
The widow testified that the decedent told her when he marked through the words in parentheses that he was going to leave the property to his son and daughter to do with as they pleased, that he intended to leave it to them in fee simple and that the words in parentheses were marked through and stricken at a date later than the execution of the will.
The court below rendered a decree that V. H. Calhoun, deceased, intended to and did bequeath and devise to appellants, Charles Arthur Calhoun and Mary Nell Calhoun Ponder, jointly, a life estate in *791 and to the said 1200 acres of farm land and the lots in Dothan, and intended for the remainder of said property to go to the bodily heirs of his two said children, contingent upon their leaving such bodily heirs. The court further found that there was an alteration made in said Last Will and Testament by the said V. H. Calhoun at a time subsequent to the execution thereof, which was intended by the said V. H. Calhoun to strike and remove from said Last Will and Testament the restriction in said property to a life estate in appellants, Charles Arthur Calhoun and Mary Nell Calhoun Ponder. But the court held that this alteration must be considered a codicil, and since the codicil was not executed in accordance with the law, it was not effective. As a result, the court held that the son and daughter held a life estate in the property and their bodily heirs at the time of their death would be the owners. From this ruling, the appellants took this appeal.
Counsel for both sides agree that this is a proper case for construction of a will under the declaratory judgment act. Robinson v. Robinson, Ala., 136 So. 2d 889; Foshee v. Mitchell, 270 Ala. 533, 120 So. 2d 741; Tit. 7, § 159, Code 1940.
Appellants' main contention is that since the intention of the testator was to vest the title in fee simple in his son and daughter, and since the will was duly probated in the probate court, and there was no contest or appeal within the time prescribed by law, the circuit court "could not go beyond the instrument itself", and that the decree of the circuit court is improperly founded upon matters predating the probate of the will. We cannot agree.
It is no part of the duty of the probate court to construe a will propounded for probate, or to pass upon the effect of its provisions. If the paper is in form of a will, is executed according to law, and the testator is shown to possess the requisite capacity, and no undue influence be shown, it is the duty of the court to admit it to probate. Tankersley v. Tankersley, 270 Ala. 571, 120 So. 2d 744; Conoway v. Fulmer, 172 Ala. 283, 54 So. 624; 34 L.R.A.,N.S., 963. The will before us met all the requirements and was entitled to be probated irrespective of the marking through certain words and enclosing them in parentheses.
The declaratory judgment statute, Tit. 7, § 157, gives a person interested under a will the right to "have determined any question of construction or validity arising under the instrument." The real question presented was the validity of the act of the testator in marking through certain words, placing them in parentheses and signing his name.
This question is decided adversely to appellants' contentions in Law v. Law, 83 Ala. 432, 3 So. 752, where the court said:
The opinion in the Law case cited Eschbach v. Collins, 61 Md. 478, with approval. There, the "testator erased or obliterated the names of two of his sons, wherever they occurred in his will, by drawing a line through them with a pen, but leaving the names legiblesuch erasures operating to confer estates in fee simple on all the sons by destroying the life-estates created. It was held, that while, under the express words of the statute, it was permissible for a testator to revoke his will pro tanto, by obliterating one or more clauses, where the effect of such erasure was simply to expunge a legacy or devise, without making a different disposition of the estate, yet that any alterations in a will by interlineation or obliteration, whereby it was sought to make such different disposition of devised property, by creating new rights and interests in *792 others, would be void, unless authenticated, as a new will or codicil, in the manner prescribed by statute. The attempted obliterations being inoperative, the will, it was said, must be read as it was originally written and executed."
There is no contention here that the testator intended to revoke the will in toto, but if a will is altered other than by a new will, it must be by "some other writing subscribed by the testator, and attested as prescribed in the first section of this article." Tit. 61, § 26, Code 1940. Since the attempted codicil was not properly attested it was not effective, and the will must be read as originally written and executed.
In Barnewall v. Murrell, 108 Ala. 366, 18 So. 831, we held that if there are alterations or additions to a will, they do not vitiate the instrument. If not made as the statute requires, they are mere nullities, and the will as it existed at the time of execution is unaffected in validity. Regardless of the thoughts or contemplation of the testator, until there is a change, or alteration, or revocation in the mode required by statute, the legal presumption is that the result of all thought and contemplation was a determination to adhere to the will as executed.
The trial court correctly held that the alteration in the will must be treated as a codicil and since the codicil was not executed according to the statute, Tit. 61, § 24, Code 1940, it was not effective.
Appellee makes application for attorney's fee on this appeal, and submits an affidavit in support of the claim. In view of the amount allowed by the trial court, we allow an attorney's fee of $100 for the representation of the minors and any unborn children on this appeal.
Affirmed, and attorney's fee awarded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.
MERRILL, Justice.
Appellants insist that our opinion in this case is "in conflict with and contrary to the law of Alabama" and the opinion cannot "be reconciled with" Caverno v. Webb, 239 Ala. 671, 196 So. 723; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885, and Hall's Heirs v. Hall, 47 Ala. 290. Those cases hold the probate of a will is a proceeding in rem, fixes the status of the res, and is binding on all the world until revoked or vacated in a direct proceeding to that end, and, until then, a will as probated becomes a muniment of title in all actions between the parties wherein title is involved. The probate of a will is conclusive and binding and the court as well as all the world is conclusively bound by the fact of probate in an action for the construction of will.
There is nothing in our opinion which conflicts with that proposition of law. The will was properly probated, and it is not questioned here that it is binding on all the parties. The question before us and before the trial court was the construction of the will.
Both courts construed the will as it was originally written since the attempted alteration by eliminating the words enclosed in parentheses was not effective under the statute.
This case is similar to Brizendine v. American Trust & Savings Bank, 211 Ala. 694, 101 So. 618. There, the will had been probated in the Probate Court of Jefferson County, but the circuit court was asked to construe the will. The testatrix had included a void condition precedent to the devise, and the court held the devise good even though the clear intention of the testatrix was that the son not inherit the property unless he complied with the void condition. The will in that case was probated with the void condition in the face of the will, but the proper construction of *793 the will treated it as if the void condition had not been written into it.
We think the provisions in the will in the instant case are of such doubtful construction or of disputable solution as to which rational minds may well differ and required a construction, Kaplan v. Coleman, 180 Ala. 267, 60 So. 885. Here, the appellants correctly filed the bill seeking a construction. The fact that the court's construction was not the one sought by appellants neither augments or diminishes the existence of a probated will. The question was not over the validity of the will or its probate, but the construction and application of its terms and provisions.
The Application for Rehearing is Denied.
LIVINGSTON, C. J., SIMPSON and HARWOOD, JJ., concur. | August 30, 1962 |
4b270502-5d85-486b-ad2a-49589217f6a8 | Mize v. Mize | 141 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 200 (1962)
Harvey MIZE
v.
Fannie MIZE et al.
5 Div. 748.
Supreme Court of Alabama.
May 10, 1962.
*201 Hooton & Hooton, Roanoke, for appellant.
Joe T. Burns, Wedowee, for appellees.
GOODWYN, Justice.
The respondent below brings this appeal from a final decree of the circuit court of Randolph County, in equity, setting aside a deed to him because of the grantor's incompetency and respondent's undue influence on the grantor.
Respondent also seeks to appeal from the decree overruling his application for rehearing. But that decree is not appealable for the reason that it did not modify the final decree. Equity Rule 62, Code 1940, Tit. 7, Appendix. Nor is such a decree subject to review on assignments of error on appeal from the final decree. Long v. O'Mary, 270 Ala. 99, 102, 116 So. 2d 563; Whitman v. Whitman, 253 Ala. 643, 645, 46 So. 2d 422.
Appellees insist that the assignments of error should be given consideration under the rule of review applicable when unrelated assignments of error are argued in bulk. We see no escape from so treating them. It has been held that "where several assignments of error are grouped and argued together in brief, and one is found to be without merit, the court will not consider the others." Thompson v. State, 267 Ala. 22, 99 So. 2d 198; Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548; First National Bank of Birmingham v. Lowery, 263 Ala. 36, 41, 81 So. 2d 284; Gulf M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So. 2d 305; Sovereign Camp W. O. W. v. Davis, 242 Ala. 235, 5 So. 2d 480; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480. The rule permitting several assignments of error raising kindred questions to be presented under the same argument (Moseley v. Alabama Power Co., supra) is not applicable to this case.
One of the assignments of error goes to the sufficiency of the evidence to support the findings of incompetency and undue influence. Upon consideration of appellant's brief we gather that these are the real issues relied on for reversal.
We have examined the evidence and find that there is ample support for the trial court's conclusion on the issue of the grantor's incompetency. Since the evidence was heard orally by the trial judge, his conclusions therefrom have the effect of a jury's verdict, and his findings should not be disturbed unless plainly erroneous or manifestly wrong. Maxwell v. City of Birmingham, 271 Ala. 570, 574, 126 So. 2d 209, 211; Board of Zoning Adjustment for City of Lanett v. Boykin, 265 Ala. 504, 508, 92 So. 2d 906. We cannot say that *202 the trial court's finding on the issue of incompetency was plainly erroneous or manifestly wrong.
We pretermit an expression of opinion as to the sufficiency of the evidence on the issue of undue influence, as being unnecessary to a decision.
On the question of incompetency, appellant takes the position that there is no evidence showing the grantor's incompetency at the exact time when the deed was executed. This question was dealt with and disposed of contrary to appellant's insistence in Foster v. Shepherd, 269 Ala. 94, 96, 110 So. 2d 894, 896. What was there said is also appropriate here, viz.:
It follows, from what has been said, that the decree is due to be affirmed.
Affirmed.
SIMPSON, MERRILL and COLEMAN, JJ., concur. | May 10, 1962 |
bf677e1a-e622-4819-9535-4340472e9697 | Blount Brothers Construction Company v. Rose | 149 So. 2d 821 | N/A | Alabama | Alabama Supreme Court | 149 So. 2d 821 (1962)
BLOUNT BROTHERS CONSTRUCTION COMPANY
v.
Daisy J. ROSE et al.
8 Div. 12.
Supreme Court of Alabama.
November 29, 1962.
Rehearing Denied February 7, 1963.
*824 Eyster & Eyster, Decatur, for appellant.
Harris & Harris, Decatur, for appellees.
PER CURIAM.
The appeal in this case arises out of a judgment for the plaintiffs in the sum of $60,000.00, in a suit filed by the widow and minor son of the deceased, William Earl Rose, who at the time of his death was employed by subcontractors of appellant to assist in the installation of plumbing and heating fixtures in a building under construction at Redstone Arsenal in Madison County.
The deceased met his death under circumstances which the plaintiffs claim were the proximate result of wanton conduct on the part of appellant (defendant in the Circuit Court). More details surrounding the death of Mr. Rose, so far as they are pertinent to the assignments of error that are argued by appellant, will later be delineated in this opinion.
This assignment charges the trial court with error in overruling appellant's demurrer to Count E of the complaint. All other counts in the complaint were eliminated by the plaintiffs at the close of the evidence. Only those grounds of demurrer adequately argued by appellant in its brief are entitled under the law to be here considered.
The Reporter will set out the complaint.
Appellant, in its brief, directs the attention of this court to twelve grounds of demurrer and omits adequate argument as to other assigned grounds. We will consider only the twelve grounds that have been argued. Linville v. Crittenden, 272 Ala. 630, 133 So.2d 381[4, 5]; Vol. 2A, Ala.Digest, Appeal and Error.
The contention of appellant in its argument is that Count E is deficient because it undertakes to allege facts which at their most constitute simple negligence and are insufficient to support the wanton allegation near the end of the complaint, citing Birmingham Ry., Light & Power Co. v. Brown, 150 Ala. 327, 43 So. 342.
*825 This court, from time to time, using different phraseology, has stated the constituent and essential elements of wanton conduct. Simon v. Goodman, 244 Ala. 422, 13 So. 2d 679; Dean v. Adams, 249 Ala. 319, 321, 30 So. 2d 903, 904; Griffin Lumber Company v. Harper, 247 Ala. 616, 25 So. 2d 505, 506; Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 28 So. 2d 193, 194; Wilhite v. Webb, 253 Ala. 606, 46 So. 2d 414. We quote briefly from Griffin Lumber Company v. Harper, supra, as follows:
The complaint alleges: (1) that the defendant owed Rose a duty; (2) that the defendant breached this duty; (3) that defendant knew and was conscious that a breach of this duty would likely cause serious injury or death to Rose or his coworkers; and that (4) notwithstanding said knowledge, and as a result of defendant's wantonness in allowing such unsafe conditions to remain uncorrected Rose fell and was killed as a proximate result of such wantonness.
The argued grounds of demurrer fail to point out or particularize wherein the complaint fails to aver the constituent or essential elements of wantonness. If the complaint is subject to demurrer on the ground that it undertakes to allege the quo modo, but is insufficient in that respect because it does not allege the defendant, its agents or servants, notwithstanding their knowledge of conditions, consciously and intentionally, with reckless indifference to the consequences, failed to correct the alleged unsafe conditions, we have to observe that no such ground was assigned in the several grounds which defendant argues on this appeal. In the absence of this assignment, we cannot consider this omission if it existed. Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556(8). The complaint is not subject to demurrer on any of the grounds assigned and argued in this appeal. Linville v. Crittenden, supra.
This assignment charges the trial court with error in refusing defendant's written charge, which, according to its text, is affirmative in purpose with hypothesis. Delineation of some of the evidence at this point is appropriate.
Appellant entered into a written contract with the United States Government to construct a shop building (No. 3) at Redstone Arsenal in Huntsville. The building as constructed is 300 or 315 feet long, north and south, and 60 or 65 feet wide. The contract included painting, and electrical, plumbing and heating installations.
Appellant subcontracted the electrical work to T. D. Little Electric Company, the plumbing and heating installations to Nichols Plumbing and Heating Company, and the painting to someone else. Mr. Rose, at the time of his death, was an employee of Nichols and was the foreman of the crew engaged in installing the heaters.
The heaters were being attached to the roof of the building with suspension rods that lowered them to about 30 feet above the concrete floor of the building. The particular heater, weighing 800 to 1000 pounds, which Mr. Rose and his coworkers were installing, was right close to the east end of the building.
The heaters were lifted from the floor to the point of suspension by a winch on a truck and they first came to rest on a scaffold that was supported by an interior *826 crane within the building. The crane was a permanent adjunct to the building.
The crane consisted of two steel girders or eye-beams extending east and west from one wall to the other. On the surface of these girders or beams was a slightly elevated track for the operation of the hoist east and west. This hoist was not being used at the time. On each side of the tracks was a flange approximately eight inches wide. These beams were separated approximately four to four and one-half feet.
A steel beam or girder, with a track on top, was permanently anchored to the west wall of the building, the same height as the beams extending east and west. A like beam was also anchored to the east wall at the same height. The east and west beams had wheels at their respective ends that operated on these north and south tracks. Thus the crane could be moved north and south from one end of the building to the other, while the hoist on the crane could be moved east and west from one wall to the other.
On the south side of the crane was a catwalk running east and west the entire length of the crane. There was no catwalk on the north or opposite side of the crane. Running the entire length of the catwalk was a shaft or rod that could be operated by a motor attached thereto or manually with a wrench to move the crane north and south, thus making the crane available for use anywhere in the building.
Appellant was importuned by the painting, electrical, and plumbing subcontractors to erect a scaffold on the crane for use of the men working for the subcontractors. Responding to this request, appellant directed its carpenters to build the scaffold which they did.
The scaffold was about four feet high above the eye-beams that ran east and west and rested thereon. Substantial uprights were used. An upright rested on the inside flange of one beam, and another on the opposite side on the other beam. They were spread in sections about 10 feet apart for the entire length of the beams. Each section was braced on the east side as well as on the north and south sides. The thickness of the braces was three-fourths of an inch and some one inch. The braces on the north and south sides were firmly nailed to the top and bottom of the posts in an "X" pattern. The braces on the east side of the uprights were firm and secure. Firmly anchored to the top of the vertical posts or uprights was a horizontal member the same dimensions as the uprights. The scaffold was sturdy.
On top of the horizontal supports were some pick boards or platforms. Appellant did not own them or put them into place. These boards served as a flooring and could be moved from one point to the other on the scaffold. They were long enough to more than cover one section of the scaffold. Each pick board (three or four in number) resembled a ladder with narrow boards nailed to the horizontal steps of the ladder. There were some cracks between some of the planks on the pick boards which, as we understand from the evidence, were covered with plyboard. The pick boards were placed on the scaffold in such a manner that the south edge was practically flush with the south side of the scaffold, while on the north side the board was not flush with the edge. There was a factual dispute between plaintiffs' evidence and defendant's witnesses, or some of them, as to the distance that the board lacked being flush with the north side of the scaffold. The defendant contended that the space was 24 inches, while plaintiffs contended the space was considerably less.
A further tendency of plaintiffs' evidence was that the end of the scaffold was practically up against the east wall, with the end of the pick boards protruding beyond the east horizontal member upon which they rested. There was agreement that the model crane used by both parties before the jury did not accurately reflect the distance the end of the crane was from the east wall nor *827 the exact position of the uprights from the end of the crane.
The evidence of the parties was in conflict as to whether or not the pick boards were fastened to the horizontal members upon which they rested.
Plaintiffs' evidence tended to show that a worker on the north side of the crane, where the decedent was when he fell, could not safely go around the east end of the crane to get to the south side, because of the close proximity of the crane to the wall and the presence of the overlapping pick boards. Proceeding this route, plaintiffs' evidence tended to show that the worker would have to walk on the end of the crane close to the wall, and in so doing, would have to stoop low to get under the end of the protruding pick boards, while at the same time would have to put each foot on a very narrow ledge of steel on the crane while straddling a gaping hole 24 inches wide. Thus, contended the plaintiffs, this passage was more dangerous than across the scaffold. Defendant offered evidence that was in conflict with the plaintiffs' evidence as to some of these physical factors and the alleged danger.
The evidence of plaintiffs further tended to show that after the heater was lifted from the floor and came to rest on the surface of the scaffold, it had to be lifted two or three inches from the surface by a "come-a-long" hoist, hand-operated, to the end that it could be put in a metal cradle fastened to bars suspended from the roof.
The cradle consisted of two iron bars, running north and south under the heater, that were fastened at each end by a nut or bolt to the suspension bars. Mr. Rose and his coworker worked from the north side to fasten the cradle bolts, while two other employees worked likewise on the south side. Plaintiffs offered evidence that the presence of two men on each side was necessary according to the instructions of the superintendent. Defendant offered testimony that there was no necessity for the deceased and his companion to operate from the north side. There was a marked conflict in this testimony. Also, there was a conflict of the testimony as to the weight of each channel.
It also appears from plaintiffs' evidence, and from some of defendant's witnesses, that Mr. Rose, at the time he fell, was attempting to get on the scaffold from his perch on the eight or ten-inch flange on the north side of the steel beam. In so doing, he put his right foot on the top brace and his left foot on the lower brace, both to the left of the center. While in this position, he reached for the pick board and either lost his grip or failed to grab the board. He fell forward over the top of the braces into the space or void between the cross braces and the pick board nearest to him. He plunged 30 feet to the concrete flooring, the impact causing his death.
Appellees' contention is that appellant, defaulting in its contractual duty, wantonly failed to provide a reasonably safe place for Mr. Rose and his coworkers to work while installing the heaters. They allege "that there was no sufficient footstep or means of access from the crane to the scaffold and no sufficient hold to use in climbing from the crane to the scaffold so that a person could climb from the crane to the scaffold with reasonable safety," and as a proximate result of the alleged wantonness in "allowing such unsafe conditions to remain uncorrected," Mr. Rose was killed as alleged.
Appellees offered in evidence a copy of defendant's contract with the United States Government for the erection of the building and the installation of some appurtenances and accessories. Also, plaintiffs were allowed to introduce in evidence a manual of safety rules which appellant, according to appellees, agreed to observe in the performance of its contract. Both were abridged in the transcript of this appeal pursuant to an approved agreement.
*828 We quote several sections or provisions which we deem pertinent to the issues in this case:
Articles II(a), III(a), and VI(a) and (b) of the subcontract provide as follows:
The manual "Safety Requirements" referred to in Section 29 above, provides as follows:
Evidence was adduced from appellees' witnesses, and from some of the others who testified, that there was no way to mount the scaffold from the south side except by a stepladder or the cross braces. The tendency of plaintiffs' evidence was that there was no safe way to mount the scaffold from the cross braces on the north side. There was a conflict of testimony between the parties as to whether or not any ladder was on the south side when Mr. Rose fell. As to when the ladder was there, if at all, was the subject of conflicting testimony. There was no evidence that there was a stepladder or other means, except the braces available on the north side, to mount the north side at the point from which Mr. Rose fell.
Mr. Berrey O. Morgan, Project Superintendent for appellant, testified as a witness for defendant that he had been through the building while the heaters were being installed. On cross-examination, he testified as follows:
"Q Had you seen how they were installing the heaters?
"Q Whom did you have designated for that purpose?
"A Yes, sir.
"Q And they did that?
"A They did that."
This witness also testified that a stepladder was provided when the scaffold was built, to be used in mounting the scaffold; that the ladder was furnished by the subcontractors; that he saw it the day the men started to work; that to the best of his knowledge it remained there all the time, and that it was still there the day of the *830 accident. This witness also testified that no one was supposed to mount the scaffold anywhere except from the south side, and that there was no means provided for mounting except on the south side. He also stated that mounting the scaffold via the stepladder was safe; also that it was locked behind the shaft on the catwalk and could not be moved.
Evidence of this witness contradicted that of appellees as to the unsafe conditions imperiling a worker going from the north side to the south side via the east end of the crane. Appellant offered other evidence, which we will not undertake to delineate, that contradicted plaintiffs' evidence in several areas of contentions between the parties.
We hold that the provisions of appellant's contract with the government, so far as they imposed upon defendant the duty to furnish safety devices for the project, were for the benefit of Mr. Rose and his fellow workers on this project, and this action will lie so far as it arises out of the breach of this contract. Plaintiffs could sue in tort for damages arising out of the alleged breach. The contract and the law imposed the duty on appellant to provide a reasonably safe place for Mr. Rose and his fellow workers to work on this project. Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459; Evans v. Patterson, 269 Ala. 250, 112 So. 2d 194. We said in Tennessee Coal, Iron & R. Co. v. Sizemore, supra:
Wantonness as charged must rest upon appellant's or its servant's or agent's actual knowledge, but such knowledge need not be shown by direct proof. It may be made to appear like any other fact, by showing circumstances, as in this case at issue, from which the fact of knowledge is a legitimate inference. Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165.
Under our decisions, wantonness of the deceased Rose is not a defense to this complaint. Nor is assumption of risk, which is in the nature of wantonness, a good defense. Foreman v. Dorsey Trailers, 256 Ala. 253, 54 So. 2d 499.
Wantonness may arise from knowledge that persons, though not seen, are likely to be in positions of danger, and with conscious disregard of known conditions of danger and in violations of law, disaster occurs. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13.
It was a jury question as to whether or not there was any necessity for Mr. Rose to work on the north side of the crane where he went to put the channel under the heater and fasten the bolts. The heater protruded about six inches on each side of the surface upon which it was *831 slightly elevated. One of the witnesses helping to install the heater testified that four could not have worked on one side at the same time; that the superintendent saw the way they were doing it and they had to do it that way. The facts in the case of Barger v. Oswalt, 239 Ala. 289, 194 So. 884, cited by appellant, did not show a necessity for the plaintiff, Barger, to take his foot and push a log into position before the saw. Barger's foot slipped and was caught in the revolving saw. The necessity of Mr. Rose and his coworker taking their position at or near the north side to fasten the channel on the north side was for the jury.
The evidence in this case and the legitimate inferences to be drawn therefrom presented issues of fact for the decision of the jury. The refusal of the affirmative charge with hypothesis requested by the defendant was not error. Southern Building & Loan Ass'n v. Bryant, 225 Ala. 527, 144 So. 367.
Assignment of Error 60.
This assignment presents for review the written charge of defendant, refused by the court, the text of which is as follows:
This charge is referred to as the "sole proximate cause" charge. It is not a defense to a wanton count. The jury under the charge would be required to consider the initial negligence of Mr. Rose, and if true, this negligence would be made a bar to a recovery for wantonness alleged in the complaint. The initial negligence of Mr. Rose, if a fact, would not preclude recovery against the defendant for affirmative or omissive wantonness. Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148; Boyette v. Bradley, 211 Ala. 370, 100 So. 647. Wantonness is no defense to wantonness. Foreman v. Dorsey Trailers, supra.
The refused charges for defendant, subjects of the above assignments, are based on negligence or wantonness on the part of the deceased Rose as a defense. They were properly refused for these reasons if for no other. Seitz v. Heep, supra; Boyette v. Bradley, supra; and Foreman v. Dorsey Trailers, supra.
Appellant contends here that the court erred in permitting witness Cramer, for the plaintiffs, to testify that he was shocked for a minute after Mr. Rose fell from the scaffold.
The reaction of the witness to the tragedy as stated before the jury was not calculated to influence the jury in its deliberations, but if so, was without injury to the defendant. Supreme Court Rule 45. The jury heard the evidence as to the nature of the injuries that Mr. Rose suffered from the fall. They had their own reaction from the evidence essentially free and independent of the statement of the witness that he was shocked.
Witness Cramer, for the plaintiffs, was allowed to testify, over the objection of defendant, that Mr. Rose was stretched out, blood was running from his ears, and his eyes were set in his head.
This evidence was permissible. Taylor v. Lewis, 206 Ala. 338, 89 So. 581. There this court held:
Plaintiffs' counsel, over objection and exception of defendant, argued to the jury:
After the close of the oral charge of the court to the jury, counsel, the author of the remarks, made known to the court that he desired to withdraw this argument, and asked the court to charge the jury "to pay no attention to this."
Thereupon, the court charged the jury as follows:
After the completion of this judicial observation to the jury, the following took place:
"Now, at the * * * TO MR. EYSTER: Do you have something?
"MR. BILL EYSTER: It was that line of argument.
A similar argument was made in the case of Daniel Construction Co. v. Pierce, 270 Ala. 522, 120 So. 2d 381. There the plaintiff observed before the jury:
The trial court there sustained the objection of the defendant. The trial judge gave adequate instructions to the jury not to consider these remarks. This court held that the argument was eradicable from the minds of the jury, and that the instructions of the court not to consider the argument were sufficient.
In the case at bar, we hold that the court's instructions were adequate to eradicate the effect of this argument. We pretermit any consideration of the contentions of appellees that the argument, although withdrawn, was in reply to argument of counsel for defendant.
After completion of the oral charge, before the jury retired, defendant excepted to an excerpt of the court's oral charge:
Any tendency of the above excerpt to mislead the jury was adequately corrected in a timely manner by the court. The instructions to correct were full and complete.
We have read all the evidence, covering 300 pages of transcript paper. The appellant and appellees have submitted elaborate and comprehensive briefs that evidence exceptional diligence and effort to present the issues and law to this court. Further delineation of the evidence would unduly prolong and extend this opinion.
The damages recoverable under this action pursuant to Title 7, § 123, Code of Alabama 1940, are strictly punitive. See also Title 26, § 312, Code of Alabama 1940, as amended. They are based on the culpability of defendant, the enormity of the wrongful act, and the necessity of deterring similar wrongs. Juries, in the assessment of damages, are given much discretion, but not an unbridled or arbitrary one. The discretion so exercised must be honest, legal and sound.
A verdict supported by competent evidence, as here, will not be set aside because the appellate court might have reached a different conclusion. Southern Ry. Co. v. Smith, 221 Ala. 273, 128 So. 228 (12). Verdicts are presumed to be correct and no ground of a new trial is more carefully scrutinized and rigidly limited, than that the verdict is against the evidence. Smith v. Smith, 254 Ala. 404, 48 So. 2d 546 (6). Where the presiding judge refused to grant a new trial, presumption in favor of the verdict is strengthened. Smith v. Smith, supra, (7).
Finding no prejudicial error in the record before us, the judgment of the trial court is affirmed.
*834 The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, while serving on the Supreme Court at the request of the Chief Justice, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL, and COLEMAN, JJ., concur.
Opinion corrected.
Application for rehearing overruled. | November 29, 1962 |
f926472a-20c6-421f-92e5-4b46bb8db80d | Ex Parte Hamilton | 142 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 868 (1962)
Ex parte Charles Clarence HAMILTON.
In re Charles Clarence HAMILTON
v.
STATE of Alabama.
6 Div. 604.
Supreme Court of Alabama.
June 21, 1962.
Orzell Billingsley, Jr., Arthur D. Shores, Peter A. Hall and Oscar W. Adams, Jr., Birmingham, and Chas. Langford, Montgomery, for petitioner.
MacDonald Gallion, Atty. Gen., for the State.
LAWSON, Justice.
Charles Clarence Hamilton was convicted in the Circuit Court of Jefferson County of the offense of breaking and entering a dwelling in the night with intent to ravish. § 85, Title 14, Code 1940. He was sentenced to death in accordance with the jury's verdict. Hamilton appealed to this court. We affirmed. Hamilton v. State, 270 Ala. 184, 116 So. 2d 906. The Supreme Court of the United States denied certiorari. 363 U.S. 852, 80 S. Ct. 1638, 4 L. Ed. 2d 1737.
Thereafter, Hamilton filed in this court a petition for leave to file an application for writ of error coram nobis in the Circuit Court of Jefferson County. That was the proper procedure in view of the fact that the judgment of the Circuit Court of Jefferson County had been affirmed by this court. Taylor v. State of Alabama, 335 U.S. 252, 68 S. Ct. 1415, 92 L. Ed. 1935; Ex parte Williams, 268 Ala. 535, 108 So. 2d 454, and cases cited. We denied the petition for leave to file an application for writ of error coram nobis in the trial court. Ex parte Hamilton, 271 Ala. 88, 122 So. 2d 602.
The Supreme Court of the United States granted certiorari to review our judgment denying leave to file the application for writ of error coram nobis (Hamilton v. Alabama, 364 U.S. 931, 81 S. Ct. 388, 5 L.Ed.2d 364) and thereafter reversed the judgment of this court and remanded the cause to this court for proceedings not inconsistent with the opinion of the Supreme Court of the United States. Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
In conformity with the opinion and judgment of the Supreme Court of the United States, Hamilton's petition for leave to file an application for writ of error coram nobis in the Circuit Court of Jefferson County is granted.
Petition granted.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | June 21, 1962 |
1c5e27b1-b571-4745-aba8-3ac6ced46e55 | St. Clair County v. Martin | 139 So. 2d 617 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 617 (1962)
ST. CLAIR COUNTY
v.
U. C. MARTIN et al.
7 Div. 445.
Supreme Court of Alabama.
March 29, 1962.
Maurice F. Bishop, Birmingham, and Starnes & Holladay, Pell City, for appellant.
John H. Martin, Pell City, for appellees.
GOODWYN, Justice.
This is a condemnation suit brought by St. Clair County to acquire a right of way for a limited access interstate highway. The right of way consists of 42.41 acres of a 431 acre tract owned by appellees. Both the county and the property owners appealed to the circuit court from the probate court award of $7,800. In the circuit court the only issue concerned the amount of damages and compensation. The jury verdict was for $9,000, on which judgment of condemnation was duly rendered. This appeal is brought by the county from that judgment and also from the order overruling the county's motion for a new trial.
The real question argued concerns a portion of the trial court's oral charge to the jury and the refusal of appellant's requested charges with respect to the loss of access to the proposed highway being an element of damages. The same question was presented in St. Clair County v. Bukacek, 272 *618 Ala. 323, 131 So. 2d 683, and decided contrary to appellant's insistence.
Three of the other four points argued concern the overruling of appellant's objections to the admission of testimony. Whether there was error in any of these rulings, we find it unnecessary to decide. After an examination of the entire cause, we are not persuaded that such rulings, if error, probably injuriously affected substantial rights of appellant so as to call for a reversal. Supreme Court Rule 45, 261 Ala. XIX, XXXVII; Code 1940, Tit. 7, 1955 Cum. Pocket Part, Appendix; Code 1940, Recompiled 1958, Tit. 7, Appendix.
The fourth point charges error in overruling two of appellant's motions for mistrial based upon alleged prejudicial argument to the jury by appellees' counsel and in overruling appellant's objection to a portion of the argument. Due consideration has been given to these rulings. We are not persuaded that they furnish a basis for reversal. Much must be left, in the matter of an attorney's argument, to the enlightened judgment of the trial court, with presumptions in favor of its rulings. To justify a reversal, we must conclude that substantial prejudice has resulted. In the light of the record as a whole, we cannot say that substantial prejudice to appellant resulted from the portions of the argument objected to. Occidental Life Insurance Company of California v. Nichols, 266 Ala. 521, 530, 97 So. 2d 879; Adams v. Queen Ins. Co. of America, 264 Ala. 572, 580, 88 So. 2d 331; Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 295, 78 So. 2d 619; Birmingham News Co. v. Payne, 230 Ala. 524, 528, 162 So. 116; Birmingham Electric Co. v. Mann, 226 Ala. 379, 381, 147 So. 165.
Affirmed.
LIVINGSTON, C. J., and COLEMAN, J., concur.
SIMPSON, J., concurs specially.
SIMPSON, Justice (concurring specially).
As stated in the opinion, the principal question argued was decided in St. Clair County v. Bukacek, 272 Ala. 323, 131 So. 2d 683, contrary to appellant's insistence. I am specially concurring in the opinion because of necessity. I must bow to the opinion of the majority. Nevertheless, I think the rule stated in my dissenting opinion in the Bukacek case is the better rule. See Ala.L.Rev., Vol. XIV, No. 1, Fall 1961, Case Note by Honorable William P. Jackson, Jr., p. 160. | March 29, 1962 |
dc1c0b02-89da-484e-ba7c-d2ca39911628 | Lightsey v. First National Bank of Birmingham | 142 So. 2d 681 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 681 (1962)
Nettie F. LIGHTSEY
v.
FIRST NATIONAL BANK OF BIRMINGHAM.
6 Div. 783.
Supreme Court of Alabama.
June 14, 1962.
*682 Jenkins & Cole, Birmingham, for appellant.
Cabaniss & Johnston, Drayton T. Scott and Maxwell Alston, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from a judgment of nonsuit caused by the sustaining of demurrers to the several counts of plaintiff's complaint. It is agreed that the court did not err in sustaining demurrers to Counts I, II and III. The argument here is that the court erred as to Counts IV, V, VI and VII.
The suit arose out of a contract dated March 2, 1949, prepared by the defendant, wherein the plaintiff agreed to sell to the defendant customer contracts representing the deferred payments for merchandise sold by the plaintiff, and this agreement was made an exhibit to the complaint. There was full recourse on the plaintiff. Plaintiff was under no obligation to submit all customer contracts to defendant, but only those of her own choosing, and defendant had the right to reject any contract. Under the original contract, the defendant would retain five per cent of the money paid plaintiff upon discount as a reserve account to cover any default in paper which might arise. This was later increased to seven per cent by an amendment. This operation continued until 1953.
*683 Plaintiff charges that the defendant failed to exercise reasonable care and diligence in making and receiving the collections on the contracts; that the defendant allowed the accounts to get in arrears and the defendant suddenly, and without notice to the plaintiff, called upon the plaintiff to repurchase all the paper that was in default, which it had a right to do under the contract. The defendant had the right to make and receive all collections and the plaintiff could not solicit or make any collections, repossessions or compromises except as instructed by the defendant, and the defendant had the right "to renew and extend the time of payment or compromise or adjust claims on contracts or merchandise covered," without affecting plaintiff's liability as endorser.
Count IV alleged that the defendant negligently allowed fifty to one hundred delinquent accounts to accumulate without notice or knowledge to the plaintiff and that, in this, the defendant breached the contract.
Count V was substantially the same as Count IV. Count VI charges the failure to use reasonable care or diligence in making collections and avers that during the months of March through June, 1953, plaintiff made inquiries of the defendant as to the status of the contracts and collections, whether they were current, etc. It further avers that the defendant informed plaintiff that the collections were current and plaintiff's assistance was not needed to effect collections. But subsequent thereto in the same month, fifty to one hundred delinquent contracts were dumped on the plaintiff and plaintiff was called upon to pay same. Plaintiff argues that an additional responsibility or duty was placed upon defendant when plaintiff asked for information.
Count VII of the complaint alleges that the original contract was amended by an oral agreement between plaintiff and defendant, whereby defendant agreed to accept and discount customers' contracts provided the customers had good credit rating and were financially responsible, and that the defendant breached the contract by refusing to purchase at discount or accept said customer contracts although they were offered contracts of customers who had good credit rating and were financially responsible.
Both appellant and appellee concede in brief that the agreement created the relationship of creditor and surety between the defendant and plaintiff.
We think our case of State ex rel. Gambill v. McElroy, 220 Ala. 452, 125 So. 903, is dispositive of the case in that it supports the ruling of the trial court on all the counts except Count VII. McElroy was the endorser of a note for $32,500 executed on June 11, 1926, and due and payable ninety days after date. At the time of the execution of the note and at the time that it became due, another endorser (who it was alleged was in truth and in fact the maker) was solvent and there was deposited as collateral security bonds sufficient in value to pay the indebtedness. The bank did not call upon the maker or seek to proceed against the collateral or notify the endorser of the default for more than two years after default. Upon his refusal to pay, the bank brought suit only against the endorser. The defendant alleged that he was only an accommodation endorser and that the bank was under a duty to exercise diligence to protect him from ultimate liability. He further alleged that the bank not only did not exercise due diligence but "negligently and in violation of its duty to the defendant, wrongfully and in frauduelnt collusion" with the maker, failed to collect the note. The endorser alleged in another paragraph that if the bank had acted with reasonable skill and promptness, it could have recovered the monies from the maker or the collateral but that the bank "neglected negligently or wilfully and fraudulently to take such steps" and thus was forced to call upon the endorser.
*684 This court held that the facts alleged did not state a good defense. We said that the bank was under no duty to the endorser to use diligence to effect collection, nor was it under any duty to notify the endorser of the status of the account at any time. The court stated that on the contrary, the endorser had his remedy by paying the debt and then proceeding on its own account to collect from the principal or on the collateral. The court further stated that there was no averment that the endorser at any time sought to adopt the remedy provided by Section 9555 of the Code (now Tit. 9, § 89, Code 1940), which allows a surety to require the creditor to sue the principal or other sureties.
Summarizing, in the McElroy case, we held that neither negligence, wilfullness nor fraud of the creditor, nor failure to notify the endorser of the default was a sufficient defense. Here, we have only the allegations of negligence and failure to notify.
A case in point is McMullan v. Community Acceptance Corp., 78 Ga.App. 616, 51 S.E.2d 575. There, McMullan sold automobiles on conditional sales contracts and immediately assigned these sales contracts to Community Acceptance Corp. at a discount. The contract between McMullan and the Acceptance Corporation provided, in substance, that McMullan would repurchase from the Acceptance Corporation any contract which proved to be in default. On the particular sale in question, no payment was ever made to the Acceptance Corporation by the conditional vendee and after nearly six months, the Acceptance Corporation demanded that McMullan repurchase the sales contract. Mc-Mullan refused to repurchase the contract and defended the suit of the Acceptance Corporation on the ground that the Acceptance Corporation violated a duty to him by not requiring payments to be made promptly each month and failing to give notice to him of the default. The trial court directed a verdict for the Acceptance Corporation and the Court of Appeals affirmed.
The court held that the contract between the parties was one of suretyship on the part of McMullan, that the failure of the Acceptance Corporation to proceed against the conditional vendee was no defense, and that there was no obligation that McMullan be notified of the default.
These authorities support the principle that the assignor of a conditional sales contract who waives statutory conditions as to liability by endorsement occupies the position of a surety and there is no duty of a creditor to its surety to make collections, or to notify the surety of the status of the collections.
Count VII, in part, adopts Count IV in setting forth the Dealer Protective Agreement and that the defendant negligently allowed delinquent and defaulting customers' contracts to be in arrears, backlog and pileup, negligently taking no action to effect collection and not requesting the plaintiff's assistance in same. It is further averred that on October 13, 1953, for a consideration, the plaintiff and defendant modified the original Dealer Protective Agreement by the amendment, and in addition, an oral agreement was made whereby defendant agreed to accept conditional sale contracts from the plaintiff where the customers had "good credit rating and were financially responsible" and further avers that the defendant failed and refused to comply with the terms and provisions by summarily refusing to consider, purchase, discount or accept financially responsible and good credit rating customers' contracts.
This count was demurrable because it failed to allege that the oral agreement was made by an agent, servant or employee of the appellee while acting within the line and scope of his employment. The allegation is only that "defendant agreed." This is not sufficient. Montgomerv v. Chemical National Bank, 209 Ala. 585, 96 So. 898.
*685 Moreover, the count is bad under the parol evidence rule. It is settled that where there exists between the parties a written contract, parol evidence cannot be received to explain, contradict, vary, add to, or subtract from its terms. Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 117 So. 2d 348, and cases there cited, And "a plea is bad which sets up a statement of facts of a contemporaneous verbal agreement which is repugnant to and contradictory to the terms of the written instrument declared upon and the express intention of the parties therein contained." Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156, and cases there cited.
The demurrers to the counts of the complaint were properly sustained.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
82155a50-1e68-4e5b-a711-bd3f9f6c8828 | Pruett v. Ralston Purina Company | 143 So. 2d 309 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 309 (1962)
Relfe S. PRUETT et al.
v.
RALSTON PURINA COMPANY.
4 Div. 136.
Supreme Court of Alabama.
July 12, 1962.
*310 Roy H. Phillips and Smith & Smith, Phenix City, for appellants.
Cornett & Perdue, Phenix City, for appellee.
MERRILL, Justice.
This is an appeal from an order denying appellants' petition for intervention and granting appellee's motion to strike the petition. There seems to be no question that a judgment or decree denying the right of intervention is appealable. Rollins v. Deason, 263 Ala. 358, 82 So. 2d 546, and cases there cited.
Appellee sued appellants A. W. Pitts, Sr. and Annie Pitts on an account in August, 1960. Pleas of the general issue and recoupment were filed, various other pleadings were had, and the cause was set for trial on April 9, 1962. On Friday, April 6, appellants A. W. Pitts, Jr. and Relfe S. Pruett filed their petition to intervene, alleging that they, together with the original defendants, were a partnership doing business under the name of A. W. Pitts Company, and that they, as partners, were interested in the litigation; and that they were interested in the claims against appellee as shown in the pleas of recoupment filed by the original defendants. They sought to intervene under Tit. 7, § 247, Code 1940, which provides:
The court denied the petition on the grounds that the petitioners did "not have such an interest in the outcome of this proceeding as to entitle them to intervene;" *311 that permitting an intervention would authorize the setting up of a partnership claim of recoupment where no such claim existed in the original suit; that a judgment against the two original defendants would not be a judgment against the partnership; and that petitioners had waited more than twenty months after the filing of the suit and only three days before the cause was set for trial to file their petition for intervention.
The statute says, and our cases hold, that the right to file a petition of intervention is dependent upon the claim of interest by the petitioner in the matter in litigation. Tit. 7, § 247; Greene v. Greene, 220 Ala. 395, 125 So. 640. Appellants have failed to show such an interest as will sustain the proposed intervention. The suit was against A. W. Pitts, Sr. and Annie Pitts, individuals. It was not against a partnership, nor against all the members of the partnership. As pointed out by the trial court, a judgment against the defendants would not be a judgment against the partnership. While partners are usually "interested" in the outcome of any suit against an individual partner, that is not the "interest" required by the statute, and will not, of itself, support an intervention. The word "interest" as used in the intervention statute means more than mere concern. 67 C.J.S. Parties § 57b, p. 985.
The statute also requires that the intervention should be "filed by leave of court." The Supreme Court of the United States construed a statute similar to ours in Smith v. Gale, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, and held that "leave of court" gives the trial court the right to exercise judicial discretion, and if the request to intervene is made for the first time in a case that has been pending for two years, and the day before it is to be tried, it is a reasonable exercise of that discretion to refuse the request.
In Hulst v. Dower, 121 Colo. 150, 213 P.2d 834, the cause had been pending nearly four years. On October 20, 1947, trial was set for January 20, 1948. On December 27, 1947, motions seeking intervention were filed. The court said that "the fact that plaintiffs in error delayed until the eve of the trial date of the main action to file application to intervene, * *, in itself, as we think, justified the trial court's order of denial."
Here, appellants had knowledge of the suit since its inception some twenty months prior to the attempt to intervene, and the petition was filed on Friday before the cause was set for trial on Monday. We think the trial court was justified in denying leave to intervene under the authorities cited.
The statute provides that, to entitle one to file a petition for intervention, he must obtain leave of the court to do so on notice to opposing parties. Our cases required this procedure even prior to the enactment of the statute. Greene v. Greene, 220 Ala. 395, 125 So. 640.
The decree of the trial court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | July 12, 1962 |
b95fe9c4-a59c-4c34-8f8a-2deb41e8ba75 | State v. Norman Tobacco Company | 142 So. 2d 873 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 873 (1962)
STATE of Alabama
v.
NORMAN TOBACCO COMPANY, Inc.
6 Div. 769.
Supreme Court of Alabama.
June 14, 1962.
*874 MacDonald Gallion, Atty. Gen., and Wm. H. Burton, Asst. Atty. Gen., for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from an order of the Circuit Court of Jefferson County, denying the State's motions to discharge and dissolve a temporary injunction, mandatory in nature, which was granted peremptorily without a hearing.
The bill shows that Norman Tobacco Company is primarily a wholesaler and distributor of tobacco and tobacco products; that the State, through the Department of Revenue, made a final assessment of tobacco tax against it in 1961, totaling $6,014.72, and that being dissatisfied with the assessment, *875 they appealed to the circuit court, in equity, and gave a supersedeas bond as required by Tit. 51, § 140, Code 1940. It is further alleged that on the same day of the final assessment, June 5, 1961, the Chief of the Tobacco Tax Division wrote the taxpayer notifying them that their tax stamping permit had been cancelled because the Department, following a hearing on May 15, 1961, had found that the taxpayer had sold large quantities of tobacco products in the State without affixing the tobacco tax stamps. It was alleged that the company had ordered more stamps but the Tobacco Tax Division failed and refused to accept their check and would not sell any more stamps. As a result, the taxpayer would suffer irreparable injury and damages to its business.
The bill prayed that Harry H. Haden, as Commissioner of Revenue, H. S. Phifer, Chief of the Tobacco Tax Division, and Dewey Pinson, an agent of the Department of Revenue, be made parties; that the court find that the assessment of June 5, 1961, was illegal and set it aside, and that a temporary injunction issue restraining and enjoining the three named parties from refusing to sell tobacco tax stamps to Norman Tobacco Company, and enjoining them from further proceedings until this dispute could be settled.
The court issued the injunction upon the approval of a $1,000 injunction bond. The State filed a plea in abatement which was overruled, and then filed a motion to discharge and a motion to dissolve, and both of these motions were overruled. The State appealed.
The bill of complaint was framed in two aspects. One aspect was in relation to Tit. 51, § 140, Code 1940, which provides for appeals from assessments by the Revenue Department, and the second aspect sought an injunction against the above named officers and agents of the Department. (Tit. 51, § 732, provides that appeals from tobacco tax assessments shall be taken in accordance with Tit. 51, § 140).
The State contends that the court had no jurisdiction to entertain this bill for injunction because it is a suit against the State as prohibited by § 14 of the Alabama Constitution and that by reason of that fact, the trial court had no jurisdiction and the bill is wholly without equity. There is no dispute but that the jurisdiction vested in the trial court upon an appeal by the taxpayer from a final assessment and penalty made by the State Department of Revenue through the authority of Tit. 51, § 140, Code 1940. We have held that the statute is constitutional and this procedure is not a suit against the State. State Tax Commission v. Stanley, 234 Ala. 66, 173 So. 609.
We have also held that the enjoining of arbitrary action or abuse of discretion by public officials, or preventing irreparable damage, does not violate Art. 1, § 14, of the Constitution of Alabama.
We upheld the issuance of an injunction in an appeal from an assessment in the case of State v. Mobile & Ohio R. R. Co., 228 Ala. 533, 154 So. 91. There, the Mobile & Ohio R. R. Co., through its receivers, filed a statutory appeal from an assessment by the State Tax Commission under the General Acts of Alabama 1927, Section 73. In connection with its appeal, the railroad also requested a temporary injunction. From the decree of the trial court granting the injunction, the State appealed. This court said:
In State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342, we again approved the Mobile & Ohio case and held that a bill for declaratory judgment could be filed in connection with an appeal from an assessment.
In determining whether action against a state officer is a suit against the State in violation of constitutional prohibition, the court considers the nature of the suit or relief demanded. Horn v. Dunn Bros., Inc., 262 Ala. 404, 79 So. 2d 11; Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So. 2d 13.
Here, we have allegations that show how appellee will suffer irreparable injury if it is not permitted to purchase tobacco stamps until its case is finally determined. It has no adequate remedy at law, the bill contains equity, and the court does have jurisdiction.
Appellant argues that there is a misjoinder of parties because the officials and agents of the Revenue Department are made parties. It is true that we have held the State Department of Revenue and the Commissioner of Revenue are neither proper nor necessary parties in an appeal from an assessment under Tit. 51, § 140, Code 1940. If this were merely an appeal under the statute, the rule would apply. State v. Aluminum Ore Co., 263 Ala. 422, 82 So. 2d 800; Alabama Textile Products Corp. v. State, 263 Ala. 533, 83 So. 2d 42; Birmingham Vending Co. v. State, 251 Ala. 584, 38 So. 2d 876. But, as already shown, there was an injunctive aspect to the bill which was directed at officials named in the pleading. We note that the State Tax Commission and the State Tax Commissioner were made parties to the bill and were enjoined in the appeal from an assessment in State v. Mobile & Ohio R. R. Co., 228 Ala. 533, 154 So. 91.
In passing on the application for the issuance of an injunction pendente lite, the trial court is invested with a wide judicial discretion and has the right to consider and weigh the relative degree of injury or benefit to the respective parties, and where such discretion is not abused, the order of the circuit court will not be disturbed. Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So. 2d 539; Slay v. Hess, 252 Ala. 455, 41 So. 2d 582.
Here, the refusal to sell tobacco stamps to appellee pendente lite will inflict, under the allegations of the bill, irreparable injury upon it, while the State will continue to receive revenue from such sales.
*877 It follows that injunctive relief granted pendente lite, solely to preserve the status of the appellee before the court from irreparable damage until a final determination of the issues, is not a suit against the State within the meaning of § 14 of Art. 1 of the State Constitution.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
da3a17b9-54c7-494a-abb7-eac3341c17a6 | East Gadsden Bank v. Bagwell | 143 So. 2d 438 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 438 (1962)
EAST GADSDEN BANK
v.
G. H. BAGWELL.
6 Div. 818.
Supreme Court of Alabama.
June 14, 1962.
Frank Donaldson, Birmingham, T. J. Carnes, Albertville, and Barnes & Smith, Gadsden, for appellant.
Geo. I. Case Jr., and McGowen & McGowen, Birmingham, for appellee.
*439 MERRILL, Justice.
Appellant filed a bill for declaratory judgment against appellee Bagwell and Charles Thompson, and wife, and for the determination of the priority of liens, and asked for an injunction pendente lite. A temporary restraining order was issued by the trial court and a hearing set on the application for the temporary injunction. At the hearing, appellee Bagwell filed a motion to dismiss the bill. No other responsive pleading was filed by the appellees. Following the hearing, the trial court entered a decree denying the application for a temporary injunction and dismissed the bill of complaint. From this decree, appellant appealed. The Thompsons filed no brief on appeal.
The bill of complaint shows that appellant is a bank operating in Gadsden, in Etowah County, and appellee is an individual owning a building in Birmingham, in Jefferson County. In 1958, appellee leased the property to Charles Thompson and wife for $200 per month and they operated a cafe on the premises. The lease was to expire on May 31, 1961.
In 1959, the Thompsons sold their business to one Dickey, who executed a note and mortgage to them, which they later assigned to one Miles, and Miles assigned same to appellant in 1960. Upon default, appellant filed a detinue suit in Jefferson County and recovered possession of the property. In December, 1960, appellant sold this equipment back to the Thompsons and took their notes and a purchase money mortgage as security for the unpaid balance. As part of the transaction, appellant made a check payable to appellee and Thompson for $600, which paid rent for the months of November and December, 1960, and January, 1961. The property never left the premises owned by appellee during all of these transactions.
Appellant foreclosed the Thompson mortgage in September, 1961, and became the purchaser of the property. But in May, 1961, the Thompsons became delinquent in their rent to appellee and appellee filed a suit with writ of attachment against the property in the Jefferson County Civil Court. A judgment was rendered in favor of appellee for $982.45 on October 28, 1961.
The bill avers that a justiciable controversy exists between the parties and prays for a construction of the instruments made an exhibit thereto and that the rights and liabilities of the parties be declared and that the matter of priority between appellant's purchase money mortgage lien and appellee's landlord's lien be determined and adjusted.
The application for a temporary injunction asked that appellee be restrained from disposing of the property under his attachment suit pending the final decree in the circuit court in this case.
The main question presented by the bill and which must ultimately be decided is whether appellee's landlord's lien is superior to appellant's mortgage lien. As already shown, the lease expired May 31, 1961. Appellant concedes that, since the property never left the premises, appellee's lien for rent was superior up to May 31, 1961, at which time the Thompsons owed $200, because the rent had been paid through April, 1961. Appellant also concedes that appellee had a lien for $200 when the lease expired, but argues that appellant's mortgage was superior to appellee's lien for rent during the new term which began after the expiration of the lease, except, of course, for the $200 due for rent in May.
The only responsive pleading to the bill of complaint was a motion to dismiss, the first ground of which was that "there is no equity in the bill." Equity Rule 14 states that "The motion to dismiss for want of equity is abolished." Some testimony was taken and the court held that appellee's lien for rent was "paramount and takes precedence over complainant's claim," denied the application for temporary injunction and *440 granted the motion to dismiss the bill for want of equity.
We think the trial court erred in holding in effect that the bill is without equity, and we also think that the decision as to the priority of the liens was premature.
The bill alleged a justiciable controversy when it was shown that each of the parties claimed a valid lien on the property and that there was a dispute as to which lien had priority. We have many times affirmed the rule that in suits for declaratory judgments where the bill shows a bona fide justiciable controversy which should be settled, it states a cause of action for declaratory judgment, and the test of the sufficiency of a bill or complaint in a declaratory judgment proceeding is not whether the bill shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Foshee v. Mitchell, 270 Ala. 533, 120 So. 2d 741; Pack v. Pack, 269 Ala. 35, 110 So. 2d 282, and cases there cited.
Apart from the declaratory judgment feature, equity courts have general jurisdiction to adjust priorities among conflicting liens when the parties are before the court. Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 228 Ala. 612, 154 So. 591, 102 A.L.R. 346; Arbuthnot v. Thatcher, 237 Ala. 593, 188 So. 245.
Under these authorities, we must hold that the bill contains equity.
We cannot agree that the bill cannot be considered as a bill for declaratory judgment because appellant has an adequate remedy at law. The 1947 amendment to the declaratory judgment act (Code of Ala., Tit. 7, § 167) removed this objection and we have since held that the fact that there might be some other adequate remedy at law between complainant and defendant to settle the controversy is not a good defense. Alexander City v. Continental Ins. Co., 262 Ala. 515, 80 So. 2d 523; Hane v. Bell, 270 Ala. 82, 116 So. 2d 590.
Appellee concedes that the motion to dismiss for want of equity has been abolished, Equity Rule 14, but argues that the motion should be considered as a demurrer. Even if we did so, we have already shown that the bill has equity, and this case does not come within the exception that where the parties are agreed and request it, the case can finally be decided on demurrer.
Where the bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. City of Mobile v. Jax Distributing Co., 267 Ala. 289, 101 So. 2d 295, and cases there cited.
One of appellant's assignments of error is that the court erred in finding that the landlord's lien of appellee took priority over appellant's mortgage lien. We do not pass on this assignment because that finding was premature under the pleadings. We do not know what an answer and proof thereunder might show, and this opinion is not to be taken as any indication of our opinion on that question.
We think the temporary injunction should remain in effect until the cause is decided on its merits. The right to a temporary injunction does not depend upon any advance finding for complainant on the merits, and complainant is not required to present a case which will certainly entitle him to a decree upon final hearing, and complainant may be entitled to a temporary injunction though his right to relief may ultimately fail, and a temporary injunction to preserve the status quo is in order if the bill clearly shows a substantial question to be decided. Hamilton v. City of Anniston, 248 Ala. 396, 27 So. 2d 857, and cases there cited.
*441 It follows that the decree must be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
590357dd-997b-4aec-807c-c8956712c966 | Huggins v. State | 142 So. 2d 918 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 918 (1962)
Alto HUGGINS
v.
STATE.
4 Div. 128.
Supreme Court of Alabama.
June 21, 1962.
Boswell & Boswell, Geneva, for petitioner.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., opposed.
LAWSON, Justice.
Petition of Alto Huggins for certiorari to the Court of Appeals to review and revise the judgment and decision in Huggins v. State, 142 So. 2d 915.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | June 21, 1962 |
64e03d73-b543-4cf3-8f97-a9d717ce3f16 | Weil v. Converse | 142 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 245 (1962)
A. Sigmund WEIL
v.
Laura J. CONVERSE et al.
2 Div. 417.
Supreme Court of Alabama.
April 5, 1962.
Rehearing Denied June 21, 1962.
*246 Harry W. Gamble, Selma, for appellant.
John Randolph Smith, Selma, for appellees.
COLEMAN, Justice.
This is an appeal from a decree overruling demurrer to a bill in equity seeking to sell real estate for division of the proceeds among the persons alleged to own it as tenants in common.
It is alleged that the land was owned by O. M. Cawthon, deceased, who died testate November 4, 1935, and was survived by a widow, and one daughter named Lucy. The widow is still living. The daughter died November 20, 1958, and left no child or children surviving her.
O. M. Cawthon was survived also by three sisters, and the child of a deceased *247 brother. It appears that the three sisters died prior to the death of testator's daughter. It further appears that the sisters left children and that all the nieces and nephews of the testator are parties to the bill of complaint.
Two nieces are complainants. The other nieces and nephews are respondents. Certain other persons who claim under a deed executed by one of testator's sisters after his death are also respondents. The widow of testator is also a respondent. The appellant, who is a respondent, is alleged to be the devisee of testator's daughter, Lucy. From the decree overruling his demurrer to the bill, appellant brings this appeal.
Appellant argues that his demurrer should have been sustained because the averments of the bill fail to show that complainants have an interest in the lands which they seek to have sold.
This court has said that a bill in equity to sell lands for division among tenants in common should disclose that the parties to the bill, complainant and respondent, are the sole owners of the lands, the interest of each of the parties therein, that the same cannot be equitably divided without a sale for that purpose, and should describe the lands sought to be sold with that certainty required in judicial sales of realty. In alleging such ownership, it is not necessary to set out the source of title relied on by the tenants in common, nor describe the manner in which they or their ancestor acquired it. If, however, complainant does undertake to show the source of the parties' title or equitable interest, he must allege facts which clearly show good title or a perfect equity. If he fails to do so, the bill is insufficient and subject to demurrer even though a sufficient general averment of interest is contained in another paragraph of the bill. Bowden v. Teague, 266 Ala. 30, 93 So. 2d 408.
In the instant bill, complainants have undertaken to show the source of the title of the parties. Under the rule above set out, the complainants must allege facts which clearly show good title or a perfect equity. If the facts alleged show title in complainants, the court did not err in overruling the grounds of demurrer now insisted on by appellant. On the other hand, if the facts alleged do not show title in complainants, the demurrer ought to have been sustained.
If complainants have any title to the lands sought to be sold, complainants acquired that title under and by virtue of the will of O. M. Cawthon, deceased, a copy of which is an exhibit to the bill.
The will is dated February 18, 1935. Testator died November 4, 1935. The will was probated November 12, 1935. Testator's daughter, Lucy, died November 20, 1958. The bill of complaint was filed December 18, 1958.
The will contains fourteen items. Item One directs payment of debts. Items Two to Seven, both inclusive, and Items Ten and Eleven are specific bequests of personalty. Item Fourteen appoints executors. Items Eight, Nine, Twelve, and Thirteen with which this appeal is concerned recite as follows:
The real estate here involved is not that disposed of by Items Eight or Nine, but is part of the residuary estate devised by Items Twelve and Thirteen. There is no dispute as to the life estates which were devised to widow and daughter. The dispute is as to the right to the remainder interests which were created by Item Thirteen.
The bill of complaint alleges that Benie Cothran Cawthon, the widow of testator, conveyed her life estate in 25% to the daughter, Lucy, by deed dated May 15, 1946, and that said estate for the life of the widow in 25% was devised by the will of the daughter, Lucy, to appellant. We think it is a fair inference from the averments of the bill, although not stated clearly, that the interest, if any, which the daughter took in the remainder or reversion, by the will of her father, has been transferred to appellant. On that inference, the contest here is between the devisee of the daughter, the appellant, on one hand, and the descendants of the brother and sisters of the testator, the appellees, who are the complainants in the bill, on the other hand.
Appellant contends that under the will, the daughter took not only a life estate in 75%, but also a remainder interest in 100% of the residuary real estate. The appellees contend that the remainder in 100% vested in the descendants of testator's brother and sisters living at the death of the daughter without children surviving her.
Appellant's contention is stated in brief as follows:
Appellees' contention is stated in their brief as follows:
Appellees, as well as appellant, cite Betts v. Renfro, 226 Ala. 635, 148 So. 406, wherein the following rules are stated:
The cardinal rule, and one above all others for the construction of wills, is to ascertain the intention of the testator, and give it effect if not prohibited by law. Rules of construction are adopted as an aid to the court in ascertaining the intention of the testator when doubtful from the provisions of the will, but the intention of the testator is always the polestar in the construction of wills. Betts v. Renfro, supra.
The law favors the construction by which the estate is regarded as vested rather than contingent, or by which it will become vested at the earliest moment; and this time is usually at the death of the testator. The intent to postpone the vesting of an estate must be clear, and not arise from mere inference or construction. Betts v. Renfro, supra.
The rule is that where an estate or interest is given in one clause of a will, in clear and decisive terms, the interest so given cannot be taken away or cut down by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Duncan v. De Yampert et al., 182 Ala. 528, 62 So. 673; Springer v. Vickers, 259 Ala. 465, 66 So. 2d 740.
In this state the rule has been long declared that apparently conflicting clauses must, if possible, be so reconciled as to make each operative. Springer v. Vickers, supra.
Appellant's argument is that the will shows that the testator determined to give his only child, the daughter, an estate for her life only, if she left children, so as to provide for testator's grandchildren; but that he was content, if the daughter left no descendant, for the remainder interest in the real estate to continue in his next of kin, his daughter, as if he had died intestate.
In a number of cases involving wills where an estate for life was devised to testator's only heir, with remainder to the issue of such heir, and on failure of such issue to testator's heirs, courts have decided that the life tenant was included among the heirs of testator to whom the remainder was devised on failure of issue of the life tenant; and, that on the death of the life tenant, without issue, testator's heirs, and not those living persons who at that later time answered the description of heirs of the testator, took the remainder in fee simple.
Such a case is Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641, 13 A.L.R. 608, which is cited by appellant. See also: 20 A.L.R. 356; 30 A.L.R. 915; 61 A.L.R. 1011; 49 A.L.R. 174; 127 A.L.R. 602; 169 A.L.R. 207; 30 A.L.R.2d 393.
In Himmel v. Himmel, supra, the testatrix devised real estate to her son for his natural life, and "Upon the decease of my said son I hereby direct that all my said real estate heretofore devised to him for * * * life vest in fee simple in the issue of my said son surviving him, * * * but should he die without leaving issue surviving him, then it is my will that such real estate revert and go to my heirs as if no will had been made." The son was the only heir of testatrix at her death. He died without issue fifteen years after the death of testatrix. The half brothers and sisters of testatrix filed suit for partition. The controversy was whether the devise of the remainder was to those who were heirs of testatrix at the time of her death or to those who were such heirs at the death of the life tenant. The court said the word "heir," in its primary meaning designates the person appointed by law to succeed to the estate in case of intestacy; and where the word occurs in a will, it will be held to apply to those who are heirs of the testator *251 at his death, unless the intention of the testator to refer to those who shall be his heirs at a period subsequent to his death is plainly manifested in the will. The court said further that, while ordinarily, the term "heirs at law" used by a testator refers to those who are or will be such at the testator's death, and not at some later period, and this is the natural import of the words, yet under the rule that the intention of the testator, definitely expressed, will prevail over strictly technical terms, such meaning will be given to the term as will carry out the intention of the testator.
In the Himmel case, the court apparently concluded that the will did not express an intention that the "heirs" who would finally take the remainder should be determined at the death of the life tenant and held that the heirs were to be determined at the death of the testatrix. The decision was that the estate of the son, the life tenant and only heir of testatrix at her death, took the land in fee.
In a case somewhat like but not the same as the instant case, this court considered a will which provided that at the end of a particular period "`* * * then shall my estate both personal and real descend to my heirs in common.' * * *." This court said: "* * * It was `my heirs' who were named as the remaindermen. This related to the date of his death to ascertain who answered to that description. * * *" The court held that, under the will, the remainder vested in all the six daughters who were the heirs of testator at the time of his death, although three of them were devisees of the precedent estate. The principles here pertinent were stated as follows:
The remainder in the instant will was devised, not to the heirs or heirs at law of testator, but to his "next of kin."
The difference between the term, heirs, and the term, next of kin, is not, however, as it seems to us, of significance here. The daughter, Lucy, was testator's next of kin, as well as his heir, at the date of the will and also at his death. If the next of kin who take the remainder are to be determined at testator's death, his daughter, and through her the appellant, takes. If the next of kin are to be determined at the *252 daughter's death, the complainants take a share in the remainder.
On careful examination of all cases cited in the briefs, and some of the scores of others cited in the annotations in A.L.R., supra, we are of opinion that the correct rule of construction to be applied here may be stated as follows:
In the absence of a clear and unambiguous indication of a different intention on the part of the testator, a class described as testator's "heirs" or "next of kin," to whom a remainder or executory interest is given by the will, is to be ascertained as of the time of the death of the testator; and, the circumstance that the heirs or next of kin so determined are also the devisees of precedent estates in the same property, alone, is not sufficient to prevent the application of the general rule or overcome the presumption that such heirs or next of kin are to be determined at the time of testator's death. The circumstance that the devisee of the precedent estate is the sole heir is insufficient, in and of itself, to show that the testator intended that his heirs or next of kin be ascertained at any time other than the time of his own death.
We will repeat that where the will affords clear and unambiguous indication of the intent of testator that the heirs or next of kin be determined at a different time, the testator's intent, so indicated, will be given effect.
These principles, we think, are to be found in our cases. O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Wilson v. Ward, 224 Ala. 147, 138 So. 826; Wilcoxen v. Owen, 237 Ala. 169, 185 So. 897, 125 A.L.R. 539; Jones v. Glenn, 248 Ala. 452, 28 So. 2d 198; Allen v. Maxwell, 249 Ala. 655, 32 So. 2d 699; Springer v. Vickers, supra.
In Item Twelve of his will, O. M. Cawthon devised the residue of his estate, in the percentages set out, to his wife and daughter. The item closes with direction to executors to execute deeds to the realty to his devisees, but the deeds shall "devise" the property for the time provided in the will. In Item Thirteen testator undertook to provide the time.
Item Thirteen contains four sentences which we will sometimes refer to as clauses. The first clause gives a life estate to the wife, in 25% of the residual realty, with remainder to "vest" in his daughter "* * * if she be living * * *." and, if she be dead to her surviving children. The necessary and inescapable import of the first clause, regarded as speaking at testator's death, is to give the daughter a vested remainder in the 25% allotted to the wife, if the daughter be living at testator's death. She was living at that time.
If the second clause be regarded as speaking at testator's death, it provides that if the daughter die without surviving issue, before testator dies and also before the wife dies, remainder in wife's 25% shall vest in testator's next of kin who are living at his death. That, we think, is the correct construction of the second clause. Such construction avoids conflict with the first clause and accords with the rule that a will speaks as of the time of testator's death. If the second clause be regarded as speaking as of a time after testator's death, it provides that if the daughter die without surviving issue, after testator dies but before the wife dies, remainder in wife's 25% shall vest in testator's next of kin. Such a vesting in the next of kin conflicts with the prior vesting in the daughter. We do not think the language will justify such a construction.
Having disposed of the remainder in wife's 25% in the first and second clauses, testator proceeds, in the third and fourth clauses, to dispose of the remainder in the daughter's 75%. Such we think is a reasonable construction which will avoid conflicts. The third clause begins with the provision that the daughter shall receive a "life estate only" in "any" real estate, other than that devised in Items Eight and *253 Nine. Complainants rely on this statement in the third clause to establish testater's intent that the next of kin be determined at the daughter's death.
In Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 177 N.E. 621, the court considered the question whether the testator intended that those who should take after a precedent estate were to be his heirs at law, or those who would have been his heirs at law if he had died a moment subsequent to the death of his daughter who was the devisee of a precedent estate devised to her "for and during the term of her natural life only". In considering the effect of the word "only," the court had this to say:
We are of opinion that the word, "only," as used in the third clause of Item Thirteen of O. M. Cawthon's will is merely descriptive of the duration of the estate there granted and does not operate to cut down the vested remainder in the wife's 25% clearly devised to the daughter by the first clause, nor to postpone the time of determining the class who ultimately take the remainder under the fourth clause, nor exclude the daughter from that class.
The third clause contains language slightly different from that in the first clause with reference to the daughter's death. The first clause provides that the remainder vest in the daughter, "if she be living, and if she be dead," in her children. The third clause gives a life estate to daughter and "at her death" the remainder shall vest in her children. If the language of the third clause and also the fourth clause be regarded as speaking, with respect to the daughter's death, of a time after testator's death, even so, there is nothing to indicate that the next of kin are to be ascertained at a time other than testator's death
The concluding words of Item Thirteen suggest the time of testator's death. Those words are: "shall vest in my next of kin just as if I had died intestate." Testator did not say: as if I had died intestate at or after the death of my daughter. He did not say: my next of kin then living. An excerpt from an earlier opinion seems appropriate here:
From reading the will, we feel justified in saying that O. M. Cawthon made substantial provision for his wife and daughter, aside from the residue of the real estate. In disposing of the residual realty, testator exhibited a concern for his possible grandchildren, and provided that they should take an interest in that residue if any of them should survive the life tenants. Testator manifested an intention to give his daughter a life estate in 75%, and to preserve the remainder to her children in fee simple, but on failure of such issue, the testator expressed no wish or intention to change the disposition which the law would have made of this residual realty if he had made no will. Testator expressed all he desired in limiting the estate to his daughter for life and the fee to her issue if she should have any, and if none, then testator was content for the realty to pass by the statute of descents.
We are of opinion that there is no clear and unambiguous indication of an intention that the next of kin be determined at a time other than the time of testator's death. The daughter was his next of kin at that time.
So construed, the will passed nothing to complainants and they have failed to show an interest in the lands in suit. As a consequence, we are further of opinion that the grounds of demurrer taking that point should have been sustained.
The decree is reversed, and a decree will be here rendered sustaining the demurrer to the bill as a whole and to each of its aspects, and the cause is remanded.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | April 5, 1962 |
fc223886-ef35-4958-ba19-fa62986a6212 | Bush v. Stanton | 143 So. 2d 621 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 621 (1962)
Fred N. BUSH, Jr.
v.
Roy F. STANTON, Jr.
6 Div. 434.
Supreme Court of Alabama.
July 26, 1962.
*622 G. W. Nicholson, Birmingham, for appellant.
Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellee.
COLEMAN, Justice.
This is an appeal by plaintiff from a judgment for defendant rendered on the verdict of a jury in an action for assault and battery. Plaintiff's motion for new trial was overruled and plaintiff severally assigns as errors the overruling of three grounds of the motion.
The defendant is a surgeon. He performed a hernia operation on plaintiff's right side. Plaintiff contends that the parties agreed that defendant should operate on the hernia on plaintiff's left side, but that defendant operated on plaintiff's right side instead, contrary to the agreement and without plaintiff's consent, and that when defendant thus operated on plaintiff's right side, defendant committed an assault and battery on plaintiff for which he is entitled to recover.
Defendant contends that prior to the operation, he advised plaintiff that plaintiff's hernia on the right side should be operated on first, and that plaintiff then agreed that defendant should operate on plaintiff's right side. Thus, contends defendant, he operated with plaintiff's consent and there was no assault or battery committed by defendant.
Assignment of Error 1 is that the court erred in overruling Ground 12 of the motion which recites as follows:
The only matter in the transcript to support Ground 12 is found in two affidavits which were submitted in support of the motion for new trial. The affidavits are made by two attorneys for plaintiff, each attorney making only one affidavit.
The first affiant deposes to the following effect: that on completion of the trial, the jury retired to the jury room; that two or three hours later one of the jurors rapped on the door; that a court official opened the door and went into the jury room, came out "a minute or so later", and went into the chambers of the trial judge; that a few minutes later the official returned from the judge's chambers, went directly back to the jury room, and after a few minutes came out of the jury room when he was stopped by affiant and his associate; that affiant's associate asked the official what had transpired but the official would not tell them; that affiant dismissed the matter from his mind for the time being; that "about an hour or so later", the attorneys for defendant came into the courtroom and were told by affiant what had happened an hour or so earlier; that affiant and one of defendant's attorneys "confronted" the court official and sought to learn from him what had occurred; that after some conversation, the official told affiant and defendant's attorney that "the jurors wanted to have the Judge instruct them as to the legal significance of a release in the hospital record which the plaintiff had signed"; that the official stated that he went to the judge with the jurors' request, and, after informing the judge that the attorneys for defendant were not in the courtroom, the official was told by the judge to tell the jurors that they would have to deliberate without further instructions; that after the jury returned the verdict for defendant, *623 affiant and his associate talked with some of the jurors and were told substantially the same things that were told by the court official. The second affidavit is to like effect, with the added statement that affiant subpoenaed all the jurors and, on the day set for hearing the motion for new trial, the court refused to permit the jurors to testify.
We are of opinion that the court cannot be put in error on this showing for overruling Ground 12.
The only matter in the affidavit tending to prove that the jury requested further instructions is hearsay. Without deciding that the jurors could or could not testify as to any message they sent to the court, we see no reason why the official who took the message could not have been called to testify. At the outset, we are faced with a total lack of competent evidence to prove that the jury requested any additional instructions.
If the affidavits should be regarded as competent, they show that, at the time the jury made their request, counsel for defendant were not in the courtroom and did not return there for an hour after the request was made. The court would have erred in giving additional instructions in the absence of counsel. Kuhl v. Long, 102 Ala. 563, 15 So. 267; Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 19 So. 540.
The affidavit states that the jurors "* * * wanted to have the Judge instruct them as to the legal significance of a release in the hospital record which the plaintiff had signed". In plaintiff's Exhibit 1, there does appear a form of release purporting to have been signed by plaintiff. In the absence of a request from one of the parties, it may be doubted that the court could have, without error, instructed the jury "as to the legal significance" of the release. § 270, Title 7, Code 1940.
Appellant cites Ulrich v. Schwarz, 199 Wis. 24, 225 N.W. 195, 63 A.L.R. 886, where it was held to be error for the trial court to refuse to instruct the jury as to what constitutes a nominal amount, when the jury, after retiring to the jury room, made inquiry seeking that advice. Without committing ourselves to that holding, we are of opinion that the inquiry there may be distinguished from the inquiry here. In Ulrich, the request was for definition of an expression the court had used in the charge. In the case at bar, the request was for instruction as to "the legal significance of" part of the evidence.
In any event, the affidavits in the instant case disclose that plaintiff's counsel had knowledge of the jury's request after it had been refused by the court and after defendant's counsel had returned to the courtroom. Plaintiff states in brief:
The affidavit does not show, however, that plaintiff's counsel made any request to the court to instruct the jury, or informed the court that defendant's counsel were present, although plaintiff's counsel had knowledge of the jury's request. It has been held by this court that it will not reverse a judgment of the circuit court for its refusal to give a charge asked, unless it appear that such charge was put in writing as the statute provides. Jacobson v. State, 55 Ala. 151; Green v. State, 66 Ala. 40. See also: Mullins v. Lemley, 205 Ala. 593, 88 So. 831; Krasner v. Gurley, 248 Ala. 686, 29 So. 2d 224; Keel v. Weinman, 266 Ala. 684, 98 So. 2d 611; § *624 273, Title 7, Code 1940. If there can be no reversal for failure to give a charge where the request is made orally, then it does not appear that a reversal should be allowed where the party complaining has made no request at all. Assignment 1 is without merit.
Assignment 2 recites:
The record of the cross-examination of the plaintiff shows the following:
There appear further questions propounded to plaintiff relating to a chest condition, and later the court said:
The assignment fails to point out the question complained of. There are no questions on the pages of the transcript referred to in the assignment of error. On pages 53 and 54 of the transcript, there are three questions which mention chest trouble. The assignment is too general and indefinite. H. B. Claflin Co. v. Rodenberg, 101 Ala. 213, 13 So. 272; Shelley v. Clark, 267 Ala. 621, 103 So. 2d 743.
The question copied above is the first question asked concerning chest condition. The plaintiff did not object until after the question had been answered. There is nothing to indicate that plaintiff was prevented from making timely objection. Error cannot be predicated on court's overruling objection interposed only after responsive answers to the questions disclosing the nature of the evidence to be introduced. Adams Hardware Co. v. Wimbish, 201 Ala. 547, 78 So. 901; Lusk v. Wade, 259 Ala. 555, 67 So. 2d 805. Assignment 2 is not well taken.
Assignment 3 is that the court erred in overruling Ground 2 of the motion, which is that "the verdict is not sustained by the great preponderance of the evidence".
The issue of fact in this case is whether plaintiff consented or not. Plaintiff testified to the effect that he had consented to the operation on his left side and had not, at any time, consented to the operation on his right side.
On the night before the operation, defendant made an examination of plaintiff. Defendant contends that, as a result of that examination, he became of opinion that the operation should be on plaintiff's right side instead of his left, and that plaintiff, on being so advised, agreed to the change. Defendant testified as follows:
An issue of fact was thus presented to the jury, who resolved the issue in favor of defendant. The decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738. Under the foregoing rule, we are not clearly convinced that the preponderance of the evidence against the verdict is so decided that it is wrong or unjust. Ground 2 of the motion was overruled without error.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | July 26, 1962 |
4f7c58e6-a032-4f19-a75e-482f7cf05890 | Cooper v. Mann | 143 So. 2d 637 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 637 (1962)
Charles COOPER et al.
v.
Ida Bee MANN.
2 Div. 413.
Supreme Court of Alabama.
July 26, 1962.
*638 Reeves & Stewart, Selma, for appellants.
Glen T. Bashore, Clanton, for appellee.
LIVINGSTON, Chief Justice.
This is the second appeal in this case. 269 Ala. 505, 114 So. 2d 267.
Ida Bee Man brought suit in the Circuit Court of Dallas County, Alabama, in Equity, against Charles Cooper, Ellen Taylor Cooper and E. A. Stewart.
The bill of complaint is in one aspect and seeks discovery, and prays that respondents be required to answer certain interrogatories exhibited to the bill (Exhibit A, interrogatories to Charles Cooper; Exhibit B, interrogatories to Ellen Taylor Cooper; Exhibit C, interrogatories to E. A. Stewart).
In substance, the bill of complaint alleges that on February 6, 1957, complainant recovered of Charles Cooper, one of the respondents, a judgment in the amount of $75,00, in the Circuit Court of Autauga County, Alabama, at law, and there remains a balance due on said judgment of $6550, plus costs and interest; that Charles Cooper has no visible property subject to levy and execution; that on March 17, 1958, respondent, Charles Cooper, recovered a judgment for $10,762.25 against Central Surety & Insurance Corporation in the Circuit Court of Dallas County, and that said judgment was satisfied on December 22, 1958, by E. A. Stewart, as attorney for Charles Cooper; that the alleged proceeds of the judgment of Cooper against the Central Surety & Insurance Corporation has been paid and is subject to levy and execution.
Paragraphs 6, 7 and 8 of the bill of complaint are as follows:
It is further alleged that complainant has been unable to locate said money or other assets of Charles Cooper, which are being concealed, and only through equity can they be subjected to levy and sale under execution.
The prayer of the bill seeks to have each respondent answer the interrogatories propounded to each, separately.
Each respondent demurred to the bill, separately. The demurrers were overruled and the respondents appealed.
The bill of complaint shows on its face that respondent, E. A. Stewart, is the attorney for Charles Cooper in and about the collection of the judgment of Cooper against the Central Surety & Insurance Corporation, and that respondent, Ellen Taylor Cooper is the wife of respondent, Charles Cooper.
The demurrers of both Cooper and Stewart take the point that the bill of complaint establishes an attorney-client relationship existing between Cooper and Stewart at the time the information sought by the interrogatories was received by Stewart, and further that there is a misjoinder of parties respondents.
It is generally held, in absence of statute, that communications between attorney *639 and client are privileged and neither attorney nor client can be compelled to testify as to the contents of such communications. Birmingham Railway & Electric Co. v. Wildman, 119 Ala. 547, 24 So. 548; 58 Am.Jur., Witnesses, Sec. 460.
The term "communication" imports not only words uttered, but information conveyed by any other means. Therefore, sight is just as privileged as hearing, and privilege applies to all knowledge acquired in either instance, where acquisition is due to the attorney-client relation. 58 Am. Jur., Witnesses, Sec. 486. Acts as well as words fall within the privileged. Ex parte McDonough, 170 Cal. 230, 149 P. 566, L.R.A.1916C, 593.
Our statute fully recognizes the foregoing principles. Sec. 438, Title 7, Code of 1940, reads as follows:
We are cited to no Alabama case, nor has our research revealed a case, where the question here posed has been raised by demurrer. But there is respectable authority outside this jurisdiction to support such procedure. See 27 C.J.S. Discovery § 5, and § 15 b. where it is said:
In 17 Am.Jur., Discovery and Inspection, Sec. 78, the rule is stated as "A bill for discovery which omits some one or more of the allegations essential to the sufficiency of such a bill or which shows on its face that discovery is sought of a fact which is of a privileged nature * *, is open to objection by demurrer."
As before stated, the demurrer of both Cooper and Stewart raise the question of privilege between attorney and client, and they should have been sustained.
The demurrers of both Charles Cooper and Ellen Taylor Cooper, his wife, raise the point that the bill of complaint establishes the fact of the husband and wife relationship at the time the information sought was received by the wife, and is therefore, privileged.
The rule at common law, adopted for the protection of the marriage institution, is that neither the husband nor the wife may be a witness for or against the other. Therefore, all private and confidential communications between husband and wife are privileged and cannot be divulged by either when on the witness stand. 58 Am.Jur., Witnesses, Sec. 375.
In Swoope v. The State, 115 Ala. 40, 22 So. 479, it was held that private communications between husband and wife were privileged and neither could testify concerning them.
In Owen v. State, 78 Ala. 425, it was said:
We can conceive of no good reason why, if the bill shows on its face the relationship of husband and wife, and that the matter is privileged, it cannot be taken advantage of by demurrer. The demurrers of Cooper and his wife raising the point should have been sustained.
There is another reason why the separate demurrers of the respondents should have been sustained. It is axiomatic that pleadings are construed most strongly against the pleader, and that if one alternative allegation in a bill of complaint is insufficient, the bill is demurrable. Crisp v. First National Bank of Birmingham, 224 Ala. 72, 139 So. 213; and Hays v. McCarty, 239 Ala. 400, 195 So. 241.
For the errors pointed out, the cause is reversed and remanded.
Reversed and remanded.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | July 26, 1962 |
6b3c04c1-277c-4453-b874-51ca8be442a0 | Aliant Bank, A Division of USAmeribank v. Engineers of the South, LLC, and Tim Harbison | N/A | 1150824 | Alabama | Alabama Supreme Court | REL: 05/05/2017
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150822
____________________
Aliant Bank, a Division of USAmeribank
v.
Four Star Investments, Inc., et al.
____________________
1150823
____________________
Aliant Bank, a Division of USAmeribank
v.
Wrathell, Hunt & Associates, LLC, and Pfil Hunt
____________________
1150824
____________________
Aliant Bank, a Division of USAmeribank
v.
Engineers of the South, LLC, and Tim Harbison
Appeals from St. Clair Circuit Court
(CV-12-900044)
STUART, Chief Justice.
Aliant Bank, a division of USAmeribank ("Aliant"), sued
various individuals and
business entities involved in a failed
effort to develop the Twelve Oaks subdivision in Odenville,
alleging that, as a result of those defendants' conspiracy and
wrongful actions, Aliant's security interest in the property
upon which the Twelve Oaks subdivision was to be built had
been rendered worthless. The St. Clair Circuit Court
ultimately entered a number of orders either dismissing
Aliant's claims or entering a summary judgment in favor of the
various defendants. Aliant has filed three appeals; we affirm
in part and reverse in part in appeals no. 1150822 and no.
1150823 and affirm in appeal no. 1150824.
2
1150822, 1150823, 1150824
I.
On August 15, 2007, Aliant closed a $2.3 million loan
("the Aliant loan") with Four Star Investments, Inc., a
corporation that owned 197 acres of land in Odenville that
Four Star Investments' president, Bobby R. Smith, Jr.
("Smith"), planned to develop into a subdivision to be known
as Twelve Oaks. The proceeds of the Aliant loan were used
both to pay off a previous loan on the Twelve Oaks property
and to finance construction of the infrastructure for the
subdivision. The Aliant loan was secured by a first-priority
mortgage on the Twelve Oaks property and was also personally
guaranteed by Smith, a contractor who had experience
developing several other subdivisions in the St. Clair County
area. Another company owned and operated by Smith, Twelve
Oaks Properties, Inc., thereafter operated as the entity
developing Twelve Oaks.
During this same time frame, Smith was also seeking
additional financing from
other sources for the development of
Twelve Oaks. He eventually came into contact with Pfil Hunt,
a Mobile-based investment banker with experience setting up
public-private
partnerships
between
municipalities
and
developers. Hunt advised Smith that one option was to create,
3
1150822, 1150823, 1150824
pursuant to the Alabama Improvement District Act, § 11-99A-1
et seq., Ala. Code 1975, a type of public corporation known as
an "improvement district" for which bonds could be issued and
sold, thus providing immediate revenue for the construction of
improvements benefiting the
Twelve Oaks property.
Those bonds
would later be repaid by the end purchasers of the developed
lots, who would be responsible for paying an annual assessment
that ran with the property until the bonds were repaid. Smith
ultimately elected to pursue that route, and throughout the
fall of 2007 he worked with Hunt and Hunt's management company
Wrathell, Hunt & Associates, LLC ("WHA"), to complete the
planning of Twelve Oaks and to prepare a petition requesting
that the
Odenville town council formally create an improvement
district that encompassed the Twelve Oaks property. As part
of that process, Hunt directed Smith to Tim Harbison, an
engineer with the engineering firm Engineers of the South, LLC
("EOS"), who, in November 2007, created an engineer's report
detailing the feasibility of the planned Twelve Oaks
subdivision. That report, based on figures provided by Smith,
stated that it would cost $5,618,000 to complete the Twelve
Oaks infrastructure, including roads, sidewalks, signage,
street lighting, landscaping and irrigation, earthwork and a
4
1150822, 1150823, 1150824
series of lakes, water and sewage systems, a clubhouse and a
swimming pool, park areas, and walking trails.
Smith thereafter petitioned the Odenville town council to
create the planned improvement district, and, on January 14,
2008, the
Odenville town council adopted a resolution granting
the petition and
creating the Twelve Oaks Improvement District
("the District").
The District's board of directors consisted
of Smith; Smith's brother Billy Smith, who was the partner
with Smith in B&B Construction, Inc., a construction company
that had worked on the Twelve Oaks property; and Fran Mize, a
real-estate broker and another business partner of Smith's
responsible
for
marketing
Twelve
Oaks
(hereinafter referred
to
collectively as "the Board members"). The District
subsequently hired WHA to manage the District and EOS as the
official engineer for
the District, and they thereafter worked
toward preparing a bond issue and finding a buyer for the to-
be-issued bonds. Ultimately, Allstate Insurance Company
("Allstate") agreed to purchase $4,395,000 worth of bonds
issued by the District.
In April 2008, the District petitioned the Odenville town
council to adopt a resolution approving the assessments that
would be used to secure and pay the bonds to be issued by the
5
1150822, 1150823, 1150824
District. In support of that petition, the District submitted
the engineer's report prepared by Harbison and a methodology
report prepared by WHA, which concluded that the $4,395,000
face value of the bonds would require a special assessment of
$12,557.14 to be levied upon each of the 350 lots planned for
Twelve Oaks, which assessment WHA recommended be payable at
the rate of $1,318.67 per year for a 10-year period. The
methodology report noted that the $4,395,000 bond issue would
raise only $2,959,821 that would be available for the
development of Twelve Oaks, because $993,870 of the bond
proceeds would be set aside for capitalized interest and a
debt-service reserve fund and the remainder of the bond
proceeds would be paid out as costs and fees associated with
the issuance of the bonds, which would be underwritten by
another firm affiliated with Hunt –– Gardnyr Michael Capital.
The methodology report also noted that an additional
$2,658,179 would still be needed to finish the estimated
$5,618,000 of infrastructure improvements needed to complete
Twelve Oaks; however, the methodology report did not indicate
where those funds would come from. The Odenville town council
thereafter adopted a
resolution setting the assessments at the
6
1150822, 1150823, 1150824
requested level, and the District then adopted its own
resolution authorizing the issuance of the bonds.
On June 6, 2008, the District filed a bond-validation
petition in the St. Clair Circuit Court pursuant to § 11-81-
221, Ala. Code, which "allows a public corporation to
'determine its authority to issue ... obligations and the
legality of all proceedings had or taken in connection
therewith,' and 'the validity of the tax or other revenues or
means provided for the payment thereof.'" Houston Cty. Econ.
Dev. Auth. v. State, 168 So. 3d 4, 21 (Ala. 2014) (quoting §
11-81-221). On July 2, 2008, the trial court entered a final
judgment confirming the validity and enforceability of the
bonds and the assessments securing them. No appeal was filed,
and it was thus established that the bonds and the assessments
providing for their payment could "never be called in question
in any court in this state." § 11-81-224, Ala. Code 1975.
On July 14, 2008, Smith met with Doug Williamson, the
Aliant officer responsible for the Aliant loan, and informed
him that the bonds were ready to be issued but that the
District could not proceed until Aliant executed a "mortgagee
special assessment acknowledgment" that would subordinate
Aliant's interest in the Twelve Oaks property to the interests
7
1150822, 1150823, 1150824
of the bondholders; Aliant alleges that this was the first
time it was informed that it would be asked to subordinate its
interest in the Twelve Oaks property. Williamson alleges that
Smith
and
the
District's attorney
made
various
representations
to him during that meeting and over the course of the next
several days regarding the viability of Twelve Oaks and the
controls that would be placed upon the use of the bond
proceeds and that, based upon those and other representations
made by Smith, as well as upon written representations made in
the engineer's report prepared by Harbison and other materials
prepared by WHA, he agreed to execute the mortgagee-special-
assessment acknowledgment on behalf of Aliant, doing so on
July 24, 2008.
On July 31, 2008, the bonds were issued, and the bond
proceeds were split into a series of trust accounts maintained
by U.S. Bank, N.A., which, pursuant to the District's
agreement with Allstate, had been selected to serve as trustee
of those accounts. Pursuant to the terms of the trust
indenture, the District could access the $2,959,821 available
for the construction of improvements only upon filing a
request
for
reimbursement
and
providing
appropriate
documentation describing the work that had been completed and
8
1150822, 1150823, 1150824
the costs that had been incurred; such requests then had to be
signed and approved by both a District board member and
Harbison or another EOS engineer. Unbeknownst to Aliant,
however, Odenville had, on November 26, 2007 –– before the
District had even been officially created –– adopted a
resolution authorizing Twelve Oaks Properties, Inc., to be
reimbursed from the
future bond proceeds for improvements made
to the Twelve Oaks property before the bonds were issued. In
accordance with that resolution, Smith filed a request for
reimbursement on behalf of Twelve Oaks Properties on August 8,
2008 –– eight days after the bonds were issued –– seeking
$1,181,962 from the bond proceeds for work completed before
the bonds were issued. Smith approved the request on behalf
of the District, and, after Harbison approved the request as
District engineer, the requested payment was made. On
September 10, 2008, Smith submitted another request for
reimbursement seeking $541,866, of which $306,951 was for work
performed before the bonds were issued. That request was also
approved by Harbison, and the bond proceeds were disbursed as
requested.
In the following months, virtually all the remaining bond
proceeds were paid out, and by March 2010 only $9,500
9
1150822, 1150823, 1150824
remained. Aliant alleges that little progress was made at
Twelve Oaks during this time. The trust accounts holding
reserves were exhausted by late 2010 as well, and eventually
neither the District nor Smith and his affiliated companies
were able to make future payments on the bonds when they
became due. In early 2011, Four Star Investments defaulted on
the Aliant loan, and, on May 2, 2011, Aliant sued Four Star
Investments and Smith alleging that they had breached the
terms of their loan and guarantee agreements. On September
26, 2011, the trial court entered a $2,241,288 judgment in
favor of Aliant in that action (hereinafter referred to as
"the default action").
Aliant
thereafter
began
conducting
postjudgment
discovery
seeking to learn more about the assets of Four Star
Investments and Smith. During that process, Aliant learned
more details regarding the creation of the District, the
development of Twelve Oaks, and how the bond proceeds had been
used. On March 30, 2012, Aliant, based on the information it
had
discovered,
filed
another
lawsuit
asserting various
claims
related to the development of Twelve Oaks. As eventually
amended,
Aliant's
final
complaint
asserted
nine
counts
against
various individuals and entities. Those defendants can be
10
1150822, 1150823, 1150824
categorized as follows: (1) "The Twelve Oaks defendants,"
including Four Star Investments, Twelve Oaks Properties, the
District, Smith, Billy Smith, Mize, and B&B Construction; (2)
Hunt and his management company WHA; (3) "the EOS defendants,"
including Harbison and his engineering firm EOS; and (4)
Allstate and U.S. Bank.1 The gravamen of Aliant's claims is
that those defendants combined to commit a number of wrongful
acts that siphoned all equity from the Twelve Oaks development
and that, while the defendants had individually profited from
those acts, Aliant had been injured inasmuch as its security
interest in the Twelve Oaks property had been rendered
worthless because the property was now encumbered by
assessments that had a total value in excess of the market
value of the Twelve Oaks property.
The defendants eventually all moved the trial court
either to dismiss the claims asserted against them or to enter
summary judgments in their favor. Through a number of orders
entered between April 2015 and April 2016, the trial court
dismissed some of the claims asserted by Aliant against Smith,
1Some individuals who had purchased lots in Twelve Oaks
were also added as parties to the lawsuit at various times;
however, the claims involving those parties are not relevant
to these appeals.
11
1150822, 1150823, 1150824
Four Star Investments, Allstate, and U.S. Bank and entered
summary judgments in favor of the defendants on all the
remaining claims.
Aliant subsequently filed four appeals with
this Court: appeal no. 1150637 (challenging the judgments
entered in favor of Allstate and U.S. Bank); appeal no.
1150822 (challenging the judgments entered in favor of the
Twelve Oaks defendants); appeal no. 1150823 (challenging the
judgments entered in favor of Hunt and WHA); and appeal no.
1150824 (challenging the judgment entered in favor of the EOS
defendants). We consolidated the four appeals for the purpose
of writing one opinion; however, the parties to appeal no.
1150637 subsequently settled their dispute, and that appeal
has since been dismissed.
II.
The trial court disposed of each claim asserted by Aliant
in this case either by dismissing the claim or by entering a
summary judgment in favor of the defendant against which the
claim was asserted; Aliant argues that the trial court erred
in both respects. With regard to those claims that were
dismissed, this Court has stated:
"The appropriate standard of review of a trial
court's [ruling on] a motion to dismiss is whether
'when the allegations of the complaint are viewed
12
1150822, 1150823, 1150824
most strongly in the pleader's favor, it appears
that
the
pleader
could
prove
any
set
of
circumstances that would entitle [the pleader] to
relief.' Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993); Raley v. Citibanc of Alabama/Andalusia,
474 So. 2d 640, 641 (Ala. 1985). This Court does
not consider whether the plaintiff will ultimately
prevail, but only whether the plaintiff may possibly
prevail. Nance, 622 So. 2d at 299. A 'dismissal is
proper only when it appears beyond doubt that the
plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to
relief.' Nance, 622 So. 2d at 299; Garrett v.
Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v.
Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986)."
Lyons v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003). We review the summary judgments entered by the trial
court under the following standard:
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
13
1150822, 1150823, 1150824
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III.
Aliant's final amended complaint asserted nine counts,
with each count including claims against multiple defendants.
However, we note that Aliant has not, in its briefs to this
Court, addressed the trial court's disposition of the first
three asserted counts –– labeled "judicial foreclosure,"
"declaratory judgment and bill to quiet title," and "unjust
enrichment" –– and Aliant has accordingly waived any argument
that the trial court acted in error in its disposition of
those counts. See Bogle v. Scheer, 512 So. 2d 1336, 1337
(Ala. 1987) ("The plaintiff filed a five-count complaint ....
[O]n appeal he has argued only that a summary judgment was not
proper on the conspiracy count (count four). Because issues
not argued in brief are waived, ... our review is limited to
whether the summary judgment was proper on the conspiracy
14
1150822, 1150823, 1150824
count.").2 We consider the rest of the counts asserted by
Aliant in the order in which they were presented.
Count four of Aliant's final amended complaint asserts
negligence
and
breach-of-fiduciary-duty claims
against
WHA
and
the individual Board members –– Smith, Mize and Billy Smith.
"The elements of a negligence claim are a duty, a breach of
that duty, causation, and damage." Armstrong Bus. Servs.,
Inc. v. AmSouth Bank, 817 So. 2d 665, 679 (Ala. 2001) (citing
AALAR, Ltd. v. Francis, 716 So. 2d 1141, 1144 (Ala. 1998)).
Similarly, the elements of a breach-of-fiduciary-duty claim
are the existence of a fiduciary duty, a breach of that duty,
and damage suffered as a result of that breach. Regions Bank
v. Lowrey, 101 So. 3d 210, 219 (Ala. 2012). Aliant alleges in
its complaint that WHA and the Board members had a duty to
2It appears that counts one, two, and three of Aliant's
final amended complaint were primarily directed to Allstate
and determining the validity of the assessments securing the
bonds issued by the District and Aliant's interest in the
Twelve Oaks property in relation to any interest that Allstate
might have. As explained supra, Aliant has settled its claims
with Allstate, but, to the extent counts one, two, and three
might assert claims against other defendants that are parties
to these consolidated appeals, Aliant has waived those claims
by failing to argue that the trial court erred in its
disposition of them.
15
1150822, 1150823, 1150824
responsibly manage and oversee the District and that Aliant
was damaged after they
"breached their duties by, among other things,
failing to exercise their independent professional
judgment and analysis related to the feasibility of
the [bond] issue, by failing to properly supervise
and monitor the spending of the [bonds] on the
premises, by failing to assure that the requisitions
were proper and for work actually performed, by
failing to properly monitor and supervise the
construction of the promised improvements, by
mismanaging the funds [so] that only a small portion
of the promised improvements were completed, and by
otherwise failing to carry out the responsibilities
of their job."
The determination whether a duty exists is generally a
question of law for the court to decide. Ex parte BASF
Constr. Chems., LLC, 153 So. 3d 793, 801-02 (Ala. 2013). With
regard to Aliant's claims against the Board members, like the
board of directors governing any corporate body the Board
members had the duty to act with care and the duty to act with
loyalty. See Massey v. Disc Mfg., Inc., 601 So. 2d 449, 456
(Ala. 1992) ("The corporate fiduciary duty is divided into two
parts: (1) a duty of care; and (2) a duty of loyalty.").
Although the board of directors of a typical for-profit
corporation owe those duties to the corporation and its
shareholders, see, e.g., Jones v. Ellis, 551 So. 2d 396, 401
(Ala. 1989), the District is a public corporation with no
16
1150822, 1150823, 1150824
shareholders. However, just as a for-profit corporation
exists primarily to maximize profit for the benefit of its
shareholders, the District exists primarily to benefit those
owning property within its boundaries; accordingly, the Board
members owe their duties to owners of property within the
District. Inasmuch as Alabama is a "title theory" state,
Aliant, which at all relevant times held a mortgage on the
Twelve Oaks property, must be included among those to whom the
Board members owed a duty of care and a duty of loyalty. See
Maiden v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 860, 865 (Ala.
Civ. App. 2011) ("Alabama is a 'title theory' state; thus,
when a person mortgages real property, the mortgagee obtains
legal title to the real property ....").
Having held that the Board members did owe certain duties
to Aliant, we also hold that Aliant met its burden of putting
forth substantial evidence establishing that a genuine issue
of material fact exists with regard to the other elements of
its
negligence
and
breach-of-fiduciary-duty claims
against
the
Board members. The affidavit of Aliant's expert Marcus A.
Watson in particular described the problematic nature of the
actions taken by the Board members, especially in light of the
fact that they were all related parties inasmuch as they
17
1150822, 1150823, 1150824
shared business interests in various entities involved in the
development of Twelve Oaks.
In their combined brief to this Court, the Twelve Oaks
defendants do not argue that Aliant failed to submit
substantial evidence establishing its negligence and breach-
of-fiduciary-duty claims against the Board members. Rather,
they argue that all the Twelve Oaks defendants were entitled
to a summary judgment on all the claims asserted against them
by Aliant on the basis of several affirmative defenses,
specifically, immunity, res judicata and collateral estoppel,
and the statute of limitations. In its order entering a
summary judgment in favor of the Twelve Oaks defendants, the
trial court in fact agreed that all the claims asserted by
Aliant were barred by the doctrines of res judicata or
collateral estoppel and by the statute of limitations. The
trial court also cited those affirmative defenses when
entering summary judgments in favor of the other defendants on
the claims asserted in Aliant's final amended complaint. For
the reasons that follow, we disagree that all of Aliant's
claims are barred by the doctrines of res judicata and
collateral estoppel and by the statute of limitations; the
defendants' general arguments in this regard are without
18
1150822, 1150823, 1150824
merit. Nevertheless, there are specific facts relevant to
some of
the
claims asserted against individual defendants such
that those claims are barred by principles of immunity or the
appropriate statute of limitations. Those exceptions are
discussed in subsequent sections of this opinion; no
affirmative defenses bar the negligence and breach-of-
fiduciary duty claims asserted against the Board members,
however, and our analysis of the general immunity, res
judicata/collateral-estoppel,
and
statute-of-limitations
arguments they make is equally applicable to the similar
arguments made by the other defendants.
The Board members first argue that they are entitled to
immunity based on the Alabama Improvement District Act, which
provides, in part:
"Districts, the members of the board, its
officers, and agents shall have the same immunity
from liability as a municipality and its officers.
No civil action shall be brought or maintained
against the district or any director thereof for or
on account of the negligence of a district or
director or its or his or her agents, servants, or
employees in or about the construction, acquisition,
installation,
maintenance,
operation,
superintendence, or management of any facility or
other improvement owned, controlled, maintained, or
managed by the district."
19
1150822, 1150823, 1150824
§ 11-99A-7, Ala. Code 1975. Emphasizing the second sentence
in this section, the Board members argue that no action in
negligence can be brought against them based on their actions
related to managing and operating the District. They further
argue that § 11-47-190, Ala. Code 1975, which sets forth the
immunity that applies to municipalities and their officers,
operates to bar any action against them based on intentional
torts as well; § 11-47-190 provides, in pertinent part:
"No city or town shall be liable for damages for
injury done to or wrong suffered by any person or
corporation, unless such injury or wrong was done or
suffered through the neglect, carelessness, or
unskillfulness of some agent, officer, or employee
of the municipality engaged in work therefor and
while acting in the line of his or her duty ... and
whenever the city or town shall be made liable for
damages by reason of the unauthorized or wrongful
acts or negligence, carelessness, or unskillfulness
of any person or corporation, then such person or
corporation shall be liable to an action on the same
account by the party so injured."
We disagree that these two statutes apply in this case to bar
the claims asserted by Aliant in count four of its final
amended complaint. Section 11-99A-7 is clear that the
legislature intended an improvement district and its board
members to have "the same immunity from liability as a
municipality and its officers," and § 11-47-190 provides that
a municipality can be sued for the negligent acts of its
20
1150822, 1150823, 1150824
agents and that, if a municipality is the subject of a lawsuit
as a result of the negligence of an agent, "then such person
... shall be liable to an action on the same account by the
party so injured." See, e.g., Morrow v. Caldwell, 153 So. 3d
764 (Ala. 2014) (recognizing that under § 11-47-190 a
municipality can be sued based upon the negligence of its
agent, while the agent can be sued in his or her individual
capacity for both negligent and intentional acts). Reading
these two statutes together, the sentence in § 11-99A-7
indicating that no claim can be pursued against a director of
an improvement district "for or on account of the negligence
of a district or director or its or his or her agents,
servants, or employees" must operate only to bar a negligence
claim from being asserted against a director based upon the
negligence of some other party –– not the director's own
negligence. This is consistent with how immunity is applied
to cases involving municipal employees. See, e.g., Newton v.
Town of Columbia, 695 So. 2d 1213, 1218 (Ala. Civ. App. 1997)
("[A]
municipality's chief
executive
is
not
vicariously liable
for the misconduct of his or her subordinates."). In this
case, the Board members are being sued based on their own
alleged wrongdoing, not the actions of each other or some
21
1150822, 1150823, 1150824
other agents. Accordingly, § 11-99A-7 does not bar the
negligence and breach-of-fiduciary duty claims asserted by
Aliant against the Board members.
We next consider the Board members' argument that they
are entitled to a summary judgment based on the doctrines of
collateral estoppel and res judicata. The trial court agreed,
stating in its order granting their motion for a summary
judgment:
"On May 2, 2011, Aliant filed suit previously in
this court against codefendants [Smith] and Four
Star [Investments] about the same loan they now
complain about. On October 13, 2011, the court
entered a judgment against Four Star [Investments]
and [Smith] in the amount of $2,241,287.75 as a
consequence of their default under the loan
transactions. This order represents a final,
binding adjudication of Aliant's claims concerning
the loan on the Twelve Oaks property. Indeed, this
court has previously held Aliant was estopped from
bringing tort claims against [Smith].
"Collateral estoppel applies when '(1) an issue
in a prior action was identical to the issue
litigated in the present action; (2) the issue was
actually litigated in the prior action; (3)
resolution of the issue was necessary to the prior
judgment; and (4) the same parties are involved in
the two actions.' Lee L. Saad Constr. Co. v. DPF
Architects, P.C., 851 So. 2d 507, 520 (Ala. 2002).
Here, (1) Aliant is suing over the very same issue
–- [the Aliant loan]; (2) the loan was previously
litigated to a final judgment; (3) resolution of the
loan was necessary for the prior judgment; and (4)
Aliant, Four Star [Investments], and [Smith] were
all parties to both cases. Aliant is the same party
22
1150822, 1150823, 1150824
seeking to relitigate the same loan. See Whisman v.
Alabama Power Co., 512 So. 2d 78, 82 (Ala. 1987)
('The party identity criterion does not require
complete identity, but only that the party against
whom res judicata is asserted was either a party or
in privity with a party to the prior action ....').
Because the elements of collateral estoppel have
been met, Aliant is estopped from prosecuting this
suit over the very same loan.
"Aliant's claims are precluded in this case.
Aliant has already brought suit on this very same
loan and obtained a judgment. Because Aliant seeks
to relitigate the same issues as those in [the prior
action], its claims are barred.
"'If a claim, which arises out of a single
wrongful act or dispute, is brought to a
final conclusion on the merits, then all
other claims arising out of that same
wrongful act or dispute are barred, even if
those claims are based on different legal
theories or seek a different form of
damages, unless the evidence necessary to
establish the elements of the alternative
theories
varies
materially
from
the
evidence necessary for a recovery in the
first action.'
"Equity Resources Mgmt., Inc. v. Vinson, 723 So. 2d
634, 638 (Ala. 1998).
"The prior judgment is res judicata. See Martin
v. Cash Express, Inc., 60 So. 3d 236, 241 (Ala.
2010) ('[A] judgment or decree by consent is as
conclusive between them and their privies as if the
suit had been an adversary one and rendered after a
trial on the facts.'); see Whisman v. Alabama Power
Co., 512 So. 2d 78, 82 (Ala. 1987) ('The issue has
been litigated and, if the defense is asserted, the
prior litigation will preclude this issue from being
relitigated.'). Since Aliant has already litigated
its claim on the loan at issue and obtained a
23
1150822, 1150823, 1150824
judgment, it cannot now relitigate the issue under
a different theory."
This Court has explained that "[r]es judicata and
collateral estoppel are two closely related, judicially
created doctrines that preclude the relitigation of matters
that have been previously adjudicated or, in the case of res
judicata, that could have been adjudicated in a prior action."
Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d
507, 516 (Ala. 2002). Essentially, the doctrine of collateral
estoppel operates to bar the relitigation of issues actually
litigated in a previous action, while the doctrine of res
judicata bars the litigation of claims that were or could have
been litigated in a previous action. Lee L. Saad, 851 So. 2d
at 516-17. Aliant argues that neither doctrine has
application here because, it says, the default action was
limited to determining whether Four Star Investments had
breached an agreement to repay a promissory note secured by a
mortgage on the Twelve Oaks property and whether Smith had
breached an accompanying agreement personally guaranteeing
Four Star Investments' debt. Thus, Aliant argues, collateral
estoppel does not apply because, it says, the issues
surrounding the claims raised in the instant action –– such as
24
1150822, 1150823, 1150824
whether the Board members breached any duties they owed Aliant
and whether any of the defendants made misrepresentations to
Aliant –- were not litigated in the previous action, and,
Aliant argues, res judicata does not apply because, it says,
the claims asserted in the instant action were not and could
not have been asserted in the previous action. We agree.
With regard to collateral estoppel, the trial court and
the Board members broadly identify the issue litigated in a
prior action and the issue Aliant allegedly now seeks to
relitigate as being the Aliant loan. However, although the
Aliant loan is certainly a relevant part of both actions, it
is not itself an "issue" that may be the subject of collateral
estoppel. As explained in Lee L. Saad, collateral estoppel
operates to prevent the relitigation of factual issues that
have already been decided in a prior action. 851 So. 2d at
519. Thus, factual issues relating to the Aliant loan that
were decided in the default action –– such as whether Four
Star Investments had executed a valid promissory note with
Aliant, whether Smith had personally guaranteed Four Star
Investments' debt, and whether those agreements were breached
–– cannot be relitigated in the instant or any other action;
collateral estoppel precludes it. However, the factual issues
25
1150822, 1150823, 1150824
that must be resolved to decide the negligence, fraud, and
other claims now asserted by Aliant against the Board members
and other defendants in the instant action –- such as whether
any duties were breached and whether any misrepresentations
were made –– were undisputedly not considered in the default
action; those issues simply were not relevant to whether Four
Star Investments and Smith breached their loan and guarantee
agreements. Inasmuch as the doctrine of collateral estoppel
bars the relitigation only of "issues actually decided in a
former action," it is without effect in this case. Leverette
v. Leverette, 479 So. 2d 1229, 1237 (Ala. 1985) (emphasis
added).
We next turn to the Board members' argument that Aliant's
claims against them are barred by the doctrine of res
judicata. In essence, even though we have concluded that the
factual issues relevant to Aliant's present claims were not
actually decided in the default action, we must still
determine whether Aliant could have asserted its present
claims in the default action, thus putting those factual
issues before the court at that time. See Dairyland Ins. Co.
v. Jackson, 566 So. 2d 723, 725 (Ala. 1990) (explaining that
res judicata will bar further litigation of "any claim that
26
1150822, 1150823, 1150824
was or could have been adjudicated in the prior action"). The
Board members argue that the doctrine of res judicata bars
Aliant's present claims "because the matters in the [instant]
action involve the same wrongful act and dispute (i.e., non-
payment of the [Aliant] loan) as was at issue in the first
action. This is true regardless of what name or title that
Aliant may use to describe its claims." The Twelve Oaks
defendants' brief, pp. 30-31. Aliant, however, argues that
the default action was essentially just a simple breach-of-
contract case involving one wrongful act –– the failure to pay
moneys owed by contract –– while the instant action
encompasses entirely different claims based on other wrongs,
such as the breaching of duties and the making of
misrepresentations. Moreover, Aliant argues, it could not
have asserted its present claims in the default action
because, it alleges, it did not discover the facts supporting
the present claims until after the default action was
resolved.
The elements of res judicata are (1) a prior judgment on
the merits, (2) rendered by a court of competent jurisdiction,
(3) with substantial identity of the parties, and (4) with the
same cause of action presented in both suits. Equity Res.
27
1150822, 1150823, 1150824
Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998) The
only element now disputed by the parties is the fourth ––
whether the cause of action in the instant case is the same as
the cause of action in the default action. This Court has
explained the factors relevant to making that determination:
"The determination of whether the cause of action is
the same in two separate suits depends on whether
the issues in the two actions are the same and
whether the same evidence would support a recovery
for the plaintiff in both suits. Dominex, Inc. v.
Key, 456 So. 2d 1047, 1054 (Ala. 1984). Stated
differently, the fourth element is met when the
issues involved in the earlier suit comprehended all
that is involved in the issues of the later suit.
Adams v. Powell, 225 Ala. 300, 142 So. 537 (1932)."
Dairyland Ins., 566 So. 2d at 726. See also Chapman Nursing
Home, Inc. v. McDonald, 985 So. 2d 914, 921 (Ala. 2007)
(explaining that res judicata applies to all legal theories
and claims arising out of the same nucleus of operative facts
and that two causes of action are the same for res judicata
purposes when the same evidence is applicable in both
actions).
In considering those factors, we cannot agree with the
trial court that the claims now asserted by Aliant are
essentially the same as the claim asserted by Aliant in the
default action. The evidence that Aliant presented in the
28
1150822, 1150823, 1150824
default action indicated that Four Star Investments and Smith
executed and subsequently breached agreements with Aliant and
supported a recovery for Aliant on the breach-of-contract
claims asserted in the default action. However, that evidence
would not support and is not needed to prove Aliant's present
claims of negligence, breach of fiduciary duties, fraud,
conspiracy, and wantonness. Those claims are based on
separate and distinct actions, not directly related to the
Aliant loan, that were allegedly taken by the Board members
and other defendants, and separate evidence is needed to
establish those claims. For example, with regard to the
negligence and breach-of-fiduciary-duty claims asserted
against the Board members, that evidence would include
evidence of the actions the Board members took in their
official capacities and whether those actions were sufficient
to fulfill the duties they owed Aliant. Accordingly, the
doctrine of res judicata does not bar Aliant from asserting
its present claims.
Our conclusion that the doctrines of res judicata and
collateral estoppel do not apply in this case is supported by
this Court's decision in Benetton S.p.A. v. Benedot, Inc., 642
So. 2d 394 (Ala. 1994), a similar case in which it was alleged
29
1150822, 1150823, 1150824
that a previous action between parties in which a judgment was
entered on a debt operated as res judicata to bar a subsequent
action between the same parties. Benetton involved a dispute
between the Italian clothing manufacturer Benetton and its
United
States
subsidiary
and
sales
representatives
(hereinafter referred to collectively as "Benetton"), on the
one hand, and Al-Ben, Inc., an Alabama company that had
contracted with Benetton to operate certain Benetton stores in
Alabama, on the other hand. 642 So. 2d at 396. Al-Ben had
had a tumultuous relationship with Benetton from the
beginning, alleging that Benetton failed to complete its
obligations so that the stores could open when originally
planned and that Benetton constantly sent it unordered and
unwanted merchandise that had to be sold for a loss.
Ultimately Al-Ben sued Benetton asserting claims of fraud,
conspiracy, and breach of contract.
Benetton separately sued the owners of Al-Ben in federal
district court, alleging that the owners had personally
guaranteed debt Al-Ben had incurred for merchandise received
from Benetton, and Benetton ultimately obtained a judgment in
its favor on this claim. 642 So. 2d at 397. Al-Ben thereafter
was awarded $1,500,000 in the state-court action, and Benetton
30
1150822, 1150823, 1150824
appealed that judgment to this Court, arguing that Al-Ben's
fraud, conspiracy, and breach-of-contract claims should have
been barred by the doctrines of res judicata and/or collateral
estoppel based on the earlier judgment entered by the federal
district court. 642 So. 2d at 398-99. In rejecting
Benetton's res judicata argument, this Court applied the
"same-evidence" test discussed supra, stating:
"We cannot say that the same cause of action is
present
in
both
actions.
[Al-Ben's
owners']
liability, through personal guarantees, for Al–Ben's
debt based on unpaid invoices does not involve the
issues of fraud, conspiracy, and breach of contract.
The first action does not involve the issues raised
in the second action, and the same evidence would
not support a recovery for the plaintiffs in both
actions. Therefore, the doctrine of res judicata
does not bar Al–Ben's action against Benetton based
on fraud, conspiracy, and breach of contract."
Benetton, 642 So. 2d at 400. The Benetton Court also declined
to apply the doctrine of collateral estoppel, noting that the
federal district court had not decided any factual issues
relevant to the state-court action because the federal
district court had entered a judgment representing only the
amount Al-Ben's owners conceded they owed; the federal
district court had made no judgment on debt attributable to
merchandise Al-Ben's owners claimed they had not wanted or
ordered. Id.
31
1150822, 1150823, 1150824
Applying Benetton to the facts of this case, we note that
Four Star Investments' and Smith's liability for the Aliant
loan did not involve issues of negligence, breach of fiduciary
duties, fraud, conspiracy, and wantonness. The default action
did not involve the issues raised in the instant action, and
the same evidence would not support a recovery for Aliant in
both actions. Accordingly, the doctrine of res judicata does
not bar the instant action. Moreover, because the Board
members and other defendants have not identified any issue
that was actually litigated in the default action that Aliant
is seeking to relitigate in this action, the doctrine of
collateral estoppel is inapplicable as well.
Finally, the Board members also argue that Aliant's
negligence and breach-of-fiduciary-duty claims against them
are barred by the applicable statute of limitations. The
trial court held, and the Board members argue, that Aliant
suffered injury (1) when it closed the Aliant loan in August
2007; (2) when it agreed to subordinate its security interest
in the Twelve Oaks property in July 2008; and (3) when the
bond proceeds were disbursed to Smith, his companies, and
others beginning in 2008. Accordingly, they argue, Aliant's
tort claims accrued, at the latest, in 2008, and the
32
1150822, 1150823, 1150824
applicable two-year statute of limitations, see § 6-2-38(l),
Ala. Code 1975, bars the claims now asserted inasmuch as
Aliant did not initiate this action until March 2012. They
further argue that Aliant was aware, at the time the bonds
were issued, of the general process by which the bond proceeds
would be disbursed and that Aliant knew that it could inspect
the Twelve Oaks property to view construction progress at any
time but apparently failed to do so; accordingly, they argue,
Aliant should have been aware of its potential claims within
that two-year period and it cannot rely on the discovery rule
of § 6-2-3, Ala. Code 1975. See generally DGB, LLC v. Hinds,
55 So. 3d 218, 224 (Ala. 2010) (explaining that, pursuant to
§ 6-2-3, if a potential tort claim has been fraudulently
concealed, the two-year statute of limitations generally
applicable to such a claim will be tolled until the plaintiff
discovers the fraud).
Aliant disputes the trial court's conclusion and the
Board members' argument that it suffered injury in 2008 and
that the statute of limitations began to run at that time.
Aliant argues that,
although much of the malfeasance allegedly
committed by
the
various defendants occurred during that time,
Aliant remained unaware of that fact for several years, and it
33
1150822, 1150823, 1150824
suffered no legal injury until early 2011, when Four Star
Investments defaulted on the Aliant loan. Aliant accordingly
argues that § 6-2-3 applies and that its March 2012 complaint
was timely.
In support of its argument, Aliant relies heavily upon
Bryant Bank v. Talmage Kirkland & Co., 155 So. 3d 231 (Ala.
2014), which it alleges mirrors this case. In that case, a
bank relied upon an appraisal conducted in December 2007
valuing a property at $1,700,000 to issue a commercial
mortgage loan that same month. 155 So. 3d at 233. After the
borrower defaulted in October 2008, the bank ordered a new
appraisal of the property from a different company, which
concluded that the property was worth only $205,000. In July
2010, the bank sued the appraisers, alleging negligent
misrepresentation and breach of contract. The appraisers
thereafter successfully moved the trial court to enter a
summary
judgment
in
their
favor
on
the
negligent-
misrepresentation claim, and the bank appealed that judgment
to this Court. On appeal, the appraisers argued that the
bank's claim accrued in December 2007 when the loan was made
and that the bank's July 2010 complaint was accordingly filed
outside the two-year limitations period. 155 So. 3d at 238.
34
1150822, 1150823, 1150824
The bank, however, argued that the claim did not accrue until
"it incurred damage as a result of [the borrower's] default on
the loan." 155 So. 3d at 237. This Court ultimately declined
to affirm the summary judgment on the basis of the appraisers'
statute-of-limitations argument, explaining:
"No evidence was presented indicating that [the
bank] had actual knowledge –– for more than two
years before commencing this action –– that the
appraisal was conducted in a negligent manner.
Accordingly,
[the
bank's]
negligent-
misrepresentation claim accrued when a reasonable
person would have discovered the fraud –– a question
within the purview of the jury. Because a genuine
issue of material fact exists as to when [the bank]
discovered facts that would have caused a reasonable
person to inquire and led to the discovery of the
fraud
giving
rise
to
[the
bank's]
negligent-misrepresentation claim, the defendants
were not entitled to a summary judgment on the basis
that the statute of limitations had run on its
negligent-misrepresentation claim. ..."
Bryant Bank, 155 So. 3d at 238.
There is likewise no evidence in this case establishing
that Aliant had actual knowledge of the facts that form the
basis of its claims at the time they were occurring. The
Board members and other defendants argue that Aliant should
have taken steps to discover those facts based on the lack of
progress Aliant alleges it saw at Twelve Oaks during the time
the bond proceeds were being depleted; however, Williamson
35
1150822, 1150823, 1150824
gave sworn testimony indicating that he concluded, based on
the lack of construction activity he witnessed, that
development had been temporarily put on hold during this time
and that the bond proceeds were accordingly not being
disbursed. Williamson further explained that Aliant had no
role in the disbursement of the bond proceeds, which were held
by U.S. Bank, as trustee, and were disbursed after requests
for reimbursement were approved by EOS and the District, and
that Aliant received no invoices and had no right to access
the relevant bank records. Under these facts, the question of
when Aliant's tort claims accrued is a question for the jury;
a court cannot properly decide as a matter of law when a
reasonable person should have discovered that claims had been
fraudulently concealed unless the evidence is undisputed. See
Bryant, 155 So. 3d at 237 (explaining that the issue of when
a reasonable person would have discovered fraud is generally
a question of fact for the jury that can be decided as a
matter of law only when the facts are undisputed and the
evidence supports but one conclusion). The summary judgment
entered by the trial court in favor of the Board members on
Aliant's
negligence
and
breach-of-fiduciary-duty
claims
cannot
36
1150822, 1150823, 1150824
be affirmed on statute-of-limitations grounds and is due to be
reversed.
Count four of Aliant's complaint also asserts negligence
and breach-of-fiduciary-duty claims against WHA. Aliant
maintains that, like the Board members, WHA had a duty to
responsibly manage and oversee the District and that it
breached that duty in several respects noted above in the
discussion of the similar claim made against the Board
members. WHA argues that it had no fiduciary relationship
with Aliant and that it owed no duty to Aliant –– fiduciary or
otherwise. For the reasons that follow, we agree.
With regard to Aliant's breach-of-fiduciary-duty claim
against WHA, the trial court stated:
"Aliant has also failed to establish that WHA
owed it a fiduciary duty, as the facts indicate
Aliant had no relationship, conversations, or
communications with WHA. Without a relationship
between WHA and Aliant a duty cannot be established
much
less
a
fiduciary
duty.
Aliant's
own
representative specifically testified that he was
not aware of any relationship between [Aliant and]
WHA much less a fiduciary relationship between the
two entities.
"In Alabama, a fiduciary or confidential
relationship [has been] defined [as follows]:
"'"'A confidential relationship is one in
which one person occupies toward another
such a position of adviser or counselor as
37
1150822, 1150823, 1150824
reasonably to inspire confidence that he
will act in good faith for the other's
interests, or when one person has gained
the confidence of another and purports to
act or advise with the other's interest in
mind; where trust and confidence are
reposed by one person in another who, as a
result, gains an influence or superiority
over the other; and it appears when the
circumstances make it certain the parties
do not deal on equal terms, but, on the one
side, there is an overmastering influence,
or, on the other, weakness, dependence, or
trust, justifiably reposed; in both an
unfair advantage is possible. It arises in
cases in which confidence is reposed and
accepted, or influence acquired, and in all
the variety of relations in which dominion
may be exercised by one person over
another.'"'
"DGB, LLC v. Hinds, 55 So. 3d 218, 233 (Ala. 2010)
(quoting Bank of Red Bay v. King, 482 So. 2d 274,
284 (Ala. 1985), quoting in turn 15A C.J.S.
Confidential (1967)).
"Further, a fiduciary relationship is defined
as:
"'[a] relationship in which one person is
under a duty to act for the benefit of
another on matters within the scope of the
relationship .... Fiduciary relationships
usually arise in one of four situations:
(1) when one person places trust in the
faithful integrity of another, who as a
result gains superiority or influence over
the first, (2) when one person assumes
control and responsibility over another,
(3) when one person has a duty to act for
or give advice to another on matters
falling
within
the
scope
of
the
relationship, or (4) when there is a
38
1150822, 1150823, 1150824
specific
relationship
that
has
traditionally been recognized as involving
fiduciary duties, as with a lawyer and a
client or a stockbroker and a customer.'
"Swann v. Regions Bank, 17 So. 3d 1180, 1193 (Ala.
Civ. App. 2008) (quoting Black's Law Dictionary,
1315 (8th. 2004)).
"Aliant's corporate representatives testified
that there was never any relationship between WHA
and Aliant. Mr. [Craig] Wrathell[, the president]
of WHA[,] also testified that he did not have any
communications with Aliant. Since Aliant has not
provided substantial evidence that WHA owed it a
fiduciary duty, summary judgment is granted in WHA's
favor on the breach-of-fiduciary-duty count."
Aliant has identified no evidence that would refute the trial
court's conclusion that Aliant had no relationship with WHA,
much less a confidential or fiduciary relationship. Notably,
this is not a case where we must determine whether the parties
engaged in arm's length dealing or whether there was a
fiduciary relationship; rather, it is undisputed that Aliant
and WHA did not deal with each other at all –– there was no
relationship between them. In light of this undisputed
evidence, we agree with the trial court that WHA owed Aliant
no fiduciary duties, and the summary judgment entered in favor
of WHA on Aliant's breach-of-fiduciary-duties claim is
accordingly due to be affirmed. We further note that,
although Aliant in its brief cites several cases to support
39
1150822, 1150823, 1150824
its argument that WHA owed it a general duty of care, the
alleged breach of which forms the basis of Aliant's negligence
claim, it has cited no caselaw to support its argument that
WHA owed it specific fiduciary duties.
The final remaining claim asserted by Aliant in count
four is its negligence claim against WHA. Aliant argues that
it was injured as a result of WHA's alleged failure to act
with care and skill in its role as manager of the District.
WHA's duties as manager of the District were outlined in a
management agreement between it and the District; however, it
is undisputed that Aliant was not a party to that contract.
Aliant accordingly acknowledges the general rule in Alabama
that "where the charge of negligence is based upon breach of
duty arising out a contractual relationship, no cause of
action arises in favor of one not in privity to the contract."
Federal Mogul Corp. v. Universal Constr. Co., 376 So. 2d 716,
724 (Ala. Civ. App. 1979). However, citing Berkel & Co.
Contractors, Inc. v. Providence Hospital, 454 So. 2d 496 (Ala.
1984), and Cincinnati Insurance Cos. v. Barber Insulation,
Inc., 946 So. 2d 441 (Ala. 2006), Aliant argues that it is
entitled to rely on an exception to that general rule that
applies when the defendant negligently performed its contract
40
1150822, 1150823, 1150824
with knowledge that others were relying on its proper
performance. See also Williams v. Jackson Co., 359 So. 2d
798, 801 (Ala. Civ. App. 1978) ("Thus one who undertakes to
perform a contract may be determined to owe a duty to others
not privy to the contract to perform his obligations under the
contract without negligent injury to such others. Such duty
may arise from the foreseeability that such others may be
injured by negligent performance, or duty may arise from the
knowledge
that
others
are
relying
upon
a
proper
performance."). Inasmuch as Aliant's arguments are based
primarily upon Providence Hospital and Barber, we begin with
an analysis of those cases.
Providence Hospital involved negligence claims against a
hospital and its architect asserted by a subcontractor hired
to install piling supports for an addition to the hospital.3
454 So. 2d at 499. The hospital's architect directed the
subcontractor's construction of the piling supports, and,
after the piling supports failed, the subcontractor sued,
alleging that the hospital and its architect breached their
duties of care in directing the construction. 454 So. 2d at
3The general contractor who had contracts with both the
subcontractor and the hospital was not a party to the action.
41
1150822, 1150823, 1150824
500. After a summary judgment was entered in favor of the
hospital, the subcontractor appealed to this Court, which
reversed the summary judgment, explaining that the hospital
did owe a duty of care to the subcontractor:
"[The hospital] argues further that even if
privity is not a defense, the facts disclosed that
no duty was owed to [the subcontractor]. In
deciding whether to impose a duty in a construction
context, the trial court should analyze six factors:
"'"(1)[T]he
extent
to
which
the
transaction
was intended to affect the other person;
(2) the foreseeability of harm to him; (3)
the degree of certainty that he suffered
injury; (4) the closeness of the connection
between the defendant's conduct and the
injury; (5) the moral blame attached to
such conduct; and (6) the policy of
preventing future harm."'
"Howe v. Bishop, 446 So. 2d 11 (Ala. 1984) (Torbert,
C.J., concurring in the result), quoting from United
Leasing Corp. v. Miller, 45 N.C. App. 400, 406–07,
263 S.E.2d 313, 318 (1980). Under this standard,
[the hospital] clearly owes [the subcontractor] a
duty to act reasonably in directing and approving
pile construction work. The transaction was
intended to affect [the subcontractor], and it was
foreseeable that it would. The alleged harm is
certain and directly connected to [the hospital's]
conduct. Given the business relationship and lack
of personal injury, the question of moral blame is
not relevant in this case. The final factor, the
policy of preventing future harm, also supports the
finding of duty. [The hospital] could have averted
the alleged loss either by not acting or by acting
reasonably. This Court will impose liability on
[the hospital] to require it to act responsibly.
42
1150822, 1150823, 1150824
"This argument for a legal duty is especially
compelling because [the hospital] and its architect
had the power through liquidated damages and other
means to force [the subcontractor] to do as [the
hospital] wished. The court in United States v.
Rogers & Rogers, 161 F. Supp. 132, 136 (S.D. Cal.
1958), explained the responsibilities arising from
unequal positions in the context of contractor and
architect:
"'Altogether too much control over the
contractor necessarily rests in the hands
of the supervising architect for him not to
be placed under a duty imposed by law to
perform
without
negligence
his
functions
as
they affect the contractor. The power of
the architect to stop the work alone is
tantamount to a power of economic life or
death over the contractor. It is only just
that such authority, exercised in such a
relationship, carry commensurate legal
responsibility.'
"Under the circumstances, [the hospital] and its
architect owed [the subcontractor] a duty to act
reasonably in directing the pile work."
Providence Hospital, 454 So. 2d at 502-03. Thus, in
Providence Hospital, the Court determined that it was
appropriate to find that a duty existed even in the absence of
a contract.
In contrast, in Barber this Court determined that no duty
was owed where there was no privity between the parties. In
Barber, a general contractor was hired to construct a lake
house and, during the construction process, that general
43
1150822, 1150823, 1150824
contractor hired a subcontractor to install insulation in the
walls. 946 So. 2d 442. Some time after the completed house
was delivered to the homeowners, a pipe in the walls burst,
causing extensive water damage, and the homeowners' insurance
company subsequently sued the subcontractor responsible for
installing the insulation, alleging negligence. After a
summary judgment was entered in favor of the subcontractor,
the insurance company appealed to this Court, which affirmed
the summary judgment after concluding that the subcontractor
owed no duty to the homeowners. 946 So. 2d at 449. The
Barber
Court
reviewed
Providence
Hospital
at
length,
distinguishing it as follows:
"Prominent
in
the
Court's
analysis
[in
Providence Hospital] was the control the architect
exercised over the subcontractor's work. [The
subcontractor's]
own
contractual
performance
depended on the care exercised by the architect;
that is, [the subcontractor] was relying on the
architect, as the hospital's agent, to exercise due
care in 'directing the pile work.' 454 So.2d at
503.
"The element of reliance and the nature of the
defendant are the features that most clearly
distinguish Providence Hospital from this case.
Providence Hospital simply represents the widely
recognized rule that architects and similar design
professionals may be liable in tort to persons with
whom they are not in privity, when it is foreseeable
that such persons would detrimentally rely on the
professional's representations or performance. ...
44
1150822, 1150823, 1150824
"....
"[The insurance company's] contention that the
[homeowners] relied on the contract between [the
general contractor] and [the subcontractor] falls
far short of the particularized reliance of the
plaintiffs upon the architect ... in Providence
Hospital .... Indeed, [one of the homeowners]
testified by deposition that he had 'never heard' of
[the subcontractor] prior to this litigation. In
fact, it was [the general contractor] –– not [the
homeowners] –– that relied on [the subcontractor].
The [homeowners] relied on [the general contractor],
not [the subcontractor]. The absence of reliance
and consideration of the six factors set forth in
Providence
Hospital
militate
against
imposing
liability on [the subcontractor].
"....
"In short, [the insurance company] has cited no
persuasive
authority
for
imposing
on
[the
subcontractor] a duty to the [homeowners] arising
out of its insulation subcontract with [the general
contractor. Thus, the trial court did not err in
entering
a
summary
judgment
for
[the
subcontractor]."
Id. at 447-49. The instant case is more akin to Barber than
it is to Providence Hospital. First, in Providence Hospital,
the fact that the hospital's architect exercised authority
over and directed the subcontractor's work was crucial to the
Court's holding that the hospital owed the subcontractor a
duty. In this case, Aliant seeks to impose a duty upon WHA;
however, WHA was never in a position of control over Aliant.
Rather, the entity that was in a position of control in this
45
1150822, 1150823, 1150824
case was the District. The District hired and paid WHA to
provide management services, and, under the terms of the
management agreement, the District could terminate its
relationship with WHA for good cause at any time or for any
reason whatsoever upon giving 60 days' written notice. Aliant
played no part in that relationship. To paraphrase the Barber
Court, the "particularized reliance" that was present in
Providence Hospital simply does not exist in this case. 946
So. 2d at 448.
When comparing the facts of the instant case to those in
Barber, however, it is evident that a similar conclusion that
no duty was owed is warranted. Just as the homeowners in
Barber had no relationship with the subcontractor, it is
undisputed that Aliant had no relationship with WHA. The
District, not Aliant, relied upon WHA to provide management
and administrative services. For these reasons, the trial
court correctly concluded that WHA owed no duty to Aliant, and
the summary judgment entered on the negligence claim asserted
by Aliant against WHA in count four of its complaint is
accordingly due to be affirmed.
46
1150822, 1150823, 1150824
IV.
Count five of Aliant's final amended complaint asserts
negligence
and
breach-of-fiduciary-duty
claims
against
the
EOS
defendants. Aliant argues generally that the EOS defendants
failed to perform the engineering services they were hired by
the District to perform with the skill and care required by
the recognized standards of the engineering profession. In
its final amended complaint, Aliant specifically identifies
the following ways in which the EOS defendants were alleged to
have failed in their duties:
"1)
by
failing to
properly monitor
and
supervise
the construction of the planned improvements; 2) by
failing to monitor the use of the [bond] funds; 3)
by failing to independently confirm that requisition
requests submitted for reimbursement from bond funds
contained invoices that had not been altered, were
proper and/or were for work actually performed; 4)
by relying upon representations of [Smith] about the
progress of the development without independent
knowledge or verification; 5) by failing to
understand the development, including verification
of which phases they were reviewing; 6) by
submitting false and misleading progress reports
about the actual progress of the development and
implementation of the promised improvements; and 7)
by otherwise failing to carry out their professional
responsibilities."
As the Board members and WHA argued with regard to the
negligence and breach-of-fiduciary-duty claims asserted
against them in count four of Aliant's final amended
47
1150822, 1150823, 1150824
complaint, the EOS defendants first argue that the summary
judgment entered in their favor on the similar claims asserted
against them should be affirmed on grounds of immunity, res
judicata/collateral estoppel, and statute of limitations. In
many respects, their arguments on these points are effectively
the same arguments advanced by the Board members and rejected
by this Court in Part III of this opinion; however, the facts
underlying
the
EOS
defendants'
statute-of-limitations
argument
differ in one crucial respect that ultimately dictates a
different result.
This action was initiated by Aliant in March 2012. In
that initial complaint, Aliant asserted claims against Four
Star Investments, Twelve Oaks Properties, WHA, and the Board
members. However, no claims were asserted against the EOS
defendants at that time; notably, the complaint named no
fictitious defendants either. Aliant did not assert any
claims against the EOS defendants until October 29, 2014.
Aliant argues that it did not discover the facts surrounding
the EOS
defendants' role in the alleged conspiracy surrounding
the Twelve Oaks development until after it began discovery in
this case and, more specifically, when it deposed Harbison in
August 2014; however, the EOS defendants argue that Aliant,
48
1150822, 1150823, 1150824
had it
been exercising reasonable diligence, should have known
of the relevant facts at least when it initiated this lawsuit
in March 2012 –– more than two years before it asserted its
claims against the EOS defendants in October 2014 and, the EOS
defendants argue, outside the period set forth in § 6-5-
221(a), Ala. Code 1975, which provides, in relevant part:
"All civil actions in tort, contract, or otherwise
against any ... engineer performing or furnishing
the design, planning, specifications, testing,
supervision, administration, or observation of any
construction of any improvement on or to real
property ... for the recovery of damages for:
"(i) Any defect or deficiency in the
design, planning, specifications, testing,
supervision,
administration,
or
observation
of the construction of any such improvement
...; or
"(ii) Damage to real or personal
property caused by any such defect or
deficiency; ...
"....
"shall be commenced within two years next after a
cause of action accrues or arises, and not
thereafter. ..."
Section 6-5-220(e), Ala. Code 1975, further provides that the
two-year period described in § 6-5-221(a) begins to run "at
the time the damage or injury is or in the exercise of
reasonable diligence should have been first discovered,
49
1150822, 1150823, 1150824
whichever is earlier." In § 6-5-225(c), Ala. Code 1975, the
legislature specifically stated that its intent in § 6-5-
221(a) was to apply the discovery rule of § 6-2-3, Ala. Code
1975, to
actions against architects, engineers, and builders.
As discussed in Part III, this Court explained in Bryant
Bank that the question of when a reasonable person should have
discovered a claim is generally a question of fact within the
purview of the jury. 155 So. 3d at 238. Indeed, that
question will be decided only as a matter of law when the
facts are undisputed and the evidence warrants but one
conclusion or,
stated another way, when the evidence indicates
that the plaintiff actually knew of facts that would have put
a reasonable person on notice of the existence of a claim.
155 So. 3d at 237. The EOS defendants argue that this is
precisely such a case inasmuch as, they argue, the evidence
establishes that Aliant possessed information putting it on
notice of the EOS defendants' alleged wrongful acts at least
by October 29, 2012, two years before it actually asserted
claims against them. In support of this argument, the EOS
defendants emphasize that Four Star Investments defaulted on
the Aliant loan in early 2011 and Aliant sued it and Smith
alleging breach of his personal guaranty agreement in May
50
1150822, 1150823, 1150824
2011. In a deposition, Williamson testified that he had been
monitoring the construction progress at Twelve Oaks and that,
"[w]hen the note was not renewed and went into default, and
then
through
the
process
of
discovering
additional
information, I was shocked to discover that the entire
proceeds of the bonds had been disbursed." Aliant thereafter
obtained a judgment against Four Star Investments and Smith in
August 2011. In December 2011, Aliant had the Twelve Oaks
property appraised; in its March 2012 original complaint,
Aliant asserts that it learned at that time that the promised
improvements had not been made even though Smith and his
companies were out of money with which to continue development
and that the Twelve Oaks property now had a negative net value
as a result of the assessments that encumbered it.
During this same time, Aliant was conducting post-
judgment discovery to assist it in collecting its August 2011
judgment, and it notified EOS pursuant to Rule 45(a)(3)(A),
Ala. R. Civ. P., that it intended to issue EOS a subpoena
requesting the production of all documents EOS had pertaining
to the District, including "[a] complete accounting of every
dollar spent and/or disbursed on Twelve Oaks by the [District]
or [EOS] from the funds received from the bond issue
51
1150822, 1150823, 1150824
(including documents showing when, how much, for what, and to
whom said disbursements were issued)." After Four Star
Investments objected to
the subpoena, Aliant filed a response,
explaining:
"11. While Aliant's suit claims against [Four
Star Investments and Smith] involved a breach of
promissory note, there was much more involved.
Aliant was induced by [Four Star Investments and
Smith] and other parties to subordinate its first
mortgage position in favor of [the District bonds].
The funds from these bonds were to be used to fund
the development of the infrastructure for the Twelve
Oaks subdivision.
"....
"13. It is unclear whether the funds advanced
to [Four Star Investments and Smith] through the
bonds were ever used in the subdivision. If there
is any information in possession of any of the
proposed subpoenaed parties which could be used to
enhance Aliant's position or interest in the
District property or lead to the discovery of
additional information (including the location of
any depository accounts and/or any alter egos of
[Four Star Investments and Smith]) about [Four Star
Investments' and Smith's] assets or the possible
improper or fraudulent transfer thereof then Aliant
is entitled to discover the same."
The EOS defendants allege that no subpoena was ultimately
issued to them but that they voluntarily delivered the
requested materials to Aliant in March 2012 and that Aliant
returned them that same month after making copies for its
files. Included in those materials were all the reimbursement
52
1150822, 1150823, 1150824
requests and documents submitted by Smith and approved by
Harbison.
In March 2012, Aliant filed its initial complaint
asserting claims against the Board members, WHA, and others
and alleging that a substantial amount of the bond proceeds
had been improperly disbursed to Twelve Oaks Properties
without proper documentation. In the course of the discovery
process relating to those claims, WHA, on October 4, 2012,
responded to an Aliant interrogatory regarding its oversight
of the progress of the Twelve Oaks development by stating that
"[t]he progress of the development would be under the purview
of the district engineer, who would coordinate with the
developer. [WHA] does not deal with the daily activities or
progress of the construction of the improvements."4 We also
note that when U.S. Bank moved to intervene in this action in
June 2012, it placed in the court record a copy of the
engineer's report completed by Harbison in November 2007 and
4At some point, Aliant produced a copy of WHA's
interrogatory responses for the EOS defendants. Notes,
presumably made by the person who reviewed the responses on
behalf of Aliant, were handwritten next to the responses, and
the note next to WHA's response explaining that the progress
of the development was "the purview of the district engineer"
reads "Add Engineer?"
53
1150822, 1150823, 1150824
a copy of the reimbursement form that had to be completed
before bond proceeds could be disbursed. This form was the
same style as the completed reimbursement forms produced by
the EOS defendants for Aliant in March 2012 and the form
clearly indicates that no disbursement could be paid until an
EOS engineer certified that the disbursement was for the
Twelve Oaks project and was consistent with "(i) the
applicable acquisition or construction contract; (ii) the
plans and specifications for the portion of the project with
respect to which such disbursement is being made; and (iii)
the [November 2007] report of the consulting engineer."
We agree with the EOS defendants that this evidence
establishes beyond dispute that Aliant knew of the EOS
defendants' alleged wrongful acts and role in the alleged
conspiracy before October 29, 2012, and that its October 29,
2014, amended complaint asserting claims against them for the
first time was accordingly untimely. Even though Aliant may
not have known that the proceeds of the bonds had been
improperly disbursed and
misused when it initiated the default
action and obtained a judgment against Four Star Investments
and Smith in 2011, it certainly was aware of facts indicating
as much when it filed its second lawsuit in March 2012,
54
1150822, 1150823, 1150824
because that initial complaint alleged that the various
defendants "should have known that the requisition requests
made for the bond funds were not for goods or services
provided to the [Twelve Oaks development]." Aliant also had
documents in its possession from at least March 2012
indicating that no bond proceeds could be disbursed unless EOS
certified that the disbursal was proper and that Harbison had,
in fact, approved the requests for reimbursement filed by
Smith. Furthermore, it is undisputed that by March 2012
Aliant had knowledge of facts that had led it to conclude that
Smith's reimbursement requests had improperly been approved
and paid and that Aliant was aware that EOS's approval was
required before any reimbursement could be paid and that
Harbison had in fact provided that approval. Nevertheless,
Aliant did not assert claims against the EOS defendants until
October 29, 2014. This was more than two years after those
claims had accrued, i.e., when, in the exercise of reasonable
diligence, they should have been discovered, and we can
accordingly conclude as a matter of law that all claims
asserted by Aliant against the EOS defendants are barred by
the statute of limitations set forth in § 6-5-221(a). See §
6-5-221(a)
(explaining
that
the
two-year
statute
of
55
1150822, 1150823, 1150824
limitations set forth therein applies to all civil actions "in
tort, contract, or otherwise"); and Dickinson v. Land
Developers Constr. Co., 882 So. 2d 291, 299 (Ala. 2003)
(holding that the plaintiffs discovered a number of problems
with their house more than two years before they filed their
action against the builder and their claims arising from those
problems were accordingly barred by § 6-5-221).5
5Aliant has argued that it did not discover the facts that
form the basis of its claims against the EOS defendants until
it deposed Harbison in August 2014 and when, in conjunction
with that deposition, the EOS defendants produced an internal
memorandum written by Harbison in June 2012 indicating that,
in May 2012, Harbison had discovered that Smith had copied his
signature to certain reimbursement forms that had been
submitted and paid. Aliant argues that the EOS defendants
suppressed this memorandum; the EOS defendants dispute that
characterization, arguing that it did not exist when they
voluntarily produced their Twelve Oaks records for Aliant in
March
2012
and
that
they
had
received
no
further
communications or request for information from Aliant until
Aliant sought Harbison's deposition in the summer of 2014, at
which time the memorandum was produced. We note only that,
although this memorandum and Harbison's deposition may have
revealed additional facts pertinent to Aliant's case, it is
still undisputed that Aliant had knowledge of the facts that
form the basis of its claims against the EOS defendants for
more than two years before it formally asserted those claims.
Aliant's claim accrued when it became privy to facts that
would provoke inquiry in a person of reasonable prudence and
that, if further investigated, would have led to the discovery
of the EOS defendants' alleged deficient performance of their
duties, not when Aliant became privy to all the facts
surrounding
the
EOS
defendants'
alleged
wrongdoing.
Dickinson, 882 So. 2d at 299.
56
1150822, 1150823, 1150824
V.
Count six of Aliant's final amended complaint asserts
fraud claims against Four Star Investments, Twelve Oaks
Properties, and B&B Construction based on invoices submitted
for reimbursement by those companies for goods and services
supposedly provided to the District. Aliant asserts that many
of the claimed goods were never actually provided and claimed
services were never actually rendered and that those
companies' receipt of bond proceeds based on those invoices
accordingly constitutes fraud.
In its brief to this Court, Aliant quotes Harmon v.
Motors Insurance Corp., 493 So. 2d 1370, 1373 (Ala. 1986), in
which this Court recited the elements of a fraud claim:
"(1) a false representation;
"(2) concerning a material fact;
"(3) reliance upon the false representation, and;
"(4) damage as a proximate result."
Aliant then proceeds to detail the evidence it submitted to
the trial court indicating that the invoices submitted by Four
Star
Investments,
Twelve
Oaks
Properties,
and
B&B
Construction
contain
false
representations
concerning
material
facts
before
concluding that Aliant was damaged inasmuch as the paying of
57
1150822, 1150823, 1150824
the allegedly fraudulent invoices substantially exhausted the
bond proceeds without providing any benefit to the Twelve Oaks
development. However, although we agree that the evidence
cited by Aliant constitutes substantial evidence that a false
representation of a material fact was made, it is apparent,
considering the whole of the evidence and Aliant's theory of
the case, that Aliant never relied upon the misrepresentations
in the allegedly fraudulent invoices. In Hunt Petroleum Corp.
v. State, 901 So. 2d 1, 4-5 (Ala. 2004), this Court explained
that reliance is an essential part of any fraud claim and
detailed what kind of evidence is needed to establish the
element of reliance:
"The law of fraud is well-settled. 'An essential
element of any fraud claim is that the plaintiff
must
have
reasonably
relied
on
the
alleged
misrepresentation.' Waddell & Reed, Inc. v. United
Investors Life Ins. Co., 875 So. 2d 1143, 1160 (Ala.
2003). Section 6–5–101, Ala. Code 1975, provides
that '[m]isrepresentations of a material fact made
willfully
to
deceive,
or
recklessly
without
knowledge, and acted on by the opposite party ...
constitute legal fraud.' Thus, reliance in the form
that the misrepresentation is 'acted on by the
opposite party' is an essential element of fraud in
Alabama. Liberty Nat'l Life Ins. Co. v. Allen, 699
So. 2d 138, 141 (Ala. 1997).
"....
"Reliance requires that the misrepresentation
actually induced the injured party to change its
58
1150822, 1150823, 1150824
course of action. See Restatement (Second) of Torts
§ 537 (1977) ('The recipient of a fraudulent
misrepresentation can recover against its maker for
pecuniary loss resulting from it if, but only if ...
he relies on the misrepresentation in acting or
refraining from action, and ... his reliance is
justifiable.'); 9 Stuart M. Speiser et al., The
American Law of Torts § 32:49 (Clark Boardman
Callaghan 1992) ('It is a fundamental principle of
the law of fraud throughout the United States,
regardless of the form of relief sought, that in
order to secure redress, the representee (person to
whom or which the misrepresentation was made) must
have relied upon the statement or representation as
an inducement to his action or injurious change of
position.').
"This
Court
has
explained
what
constitutes
legal
reliance in Alabama:
"'"To
determine
whether
or
not
a
misrepresentation
was
actually
relied
upon,
whether it was a cause in fact of the
damage, the sine qua non rule is often
applied. If the plaintiff would not have
acted on the transaction in question but
for
the
misrepresentation,
such
misrepresentation was an actual cause of
his loss. If he would have adopted the
same
course
irrespective
of
the
misrepresentation and would have sustained
the same degree of damages anyway, it can
not be said that the misrepresentation
caused any damage, and the defendant will
not be liable therefor."'
"Shades Ridge Holding Co. v. Cobbs, Allen & Hall
Mortgage Co., 390 So. 2d 601, 611 (Ala. 1980)
(quoting Fowler V. Harper and Fleming James, Jr.,
The Law of Torts § 7.13 (1956)). See also Fisher v.
Comer Plantation, Inc., 772 So. 2d 455, 466 (Ala.
2000) ('When deciding whether the plaintiff relied
on
a
misrepresentation,
the
fact-finder
must
59
1150822, 1150823, 1150824
consider whether the plaintiff would have chosen a
different course but for the suppression of a
material fact.'). Other states have adopted similar
tests.
"....
"Although the terminology varies from state to
state, the underlying principle is the same –– for
a plaintiff to state a fraud claim, he must show
that a misrepresentation induced him to act in a way
that he would not otherwise have acted, that is,
that he took a different course of action because of
the misrepresentation."
It is undisputed in this case that Aliant never relied on or
changed
its
course
of
action
based
on
the
false
representations allegedly made in the identified invoices.
Indeed, when asked in his deposition about Aliant's
involvement in the process by which the bond proceeds were
disbursed, Williamson stated that "[Aliant] had no knowledge
of ... any of the disbursements in how those proceeds were
used." In response to a subsequent question, Williamson
further stated that "[Aliant] didn't have any access to what
transpired with the disbursement of the proceeds of the bond
issue. We didn't know when they were disbursed, who they were
disbursed to, what was supposed to happen." This testimony is
consistent with Aliant's position that it did not learn that
the bond proceeds had been exhausted until Four Star
60
1150822, 1150823, 1150824
Investments defaulted on the Aliant loan in early 2011. In
light of the undisputed fact that Aliant had no knowledge of
the false representations allegedly made in the invoices
submitted by Four Star Investments, Twelve Oaks Properties,
and B&B Construction, it cannot have relied on those false
representations. See Fisher v. Ciba Specialty Chems. Corp.,
Civil Action No. 03-0566-WS-B (S.D. Ala. Oct. 11, 2007) (not
selected for publication in F. Supp. 2d) ("It is axiomatic
that a plaintiff cannot show reliance (reasonable or
otherwise) on a statement of which he or she is unaware.").
In conclusion, if the false representations allegedly
made in the invoices submitted by Four Star Investments,
Twelve Oaks Properties, and B&B Construction support a cause
of action for fraud, that cause of action must belong to some
party other than Aliant. Aliant had no knowledge of the false
representations and accordingly could not have taken, or
refrained from taking, any action in reliance upon those
representations. Inasmuch as reliance is a required element
of any fraud claim, this lack of evidence is a sufficient
basis upon which to affirm the summary judgment entered by the
trial court in favor of Four Star Investments, Twelve Oaks
61
1150822, 1150823, 1150824
Properties, and B&B Construction on the fraud claims asserted
by Aliant in count six of its amended complaint.
We also note, however, that B&B Construction has claimed
that Aliant's claims against it are barred by the statute of
limitations. Had Aliant asserted no other claims against B&B
Construction it would be unnecessary for us to address this
issue; however, inasmuch as Aliant asserts conspiracy and
additional fraud claims against B&B Construction in count
seven of its final amended complaint, we address B&B
Construction's statute-of-limitations argument.
Aliant filed its initial complaint in March 2012;
however, it did not designate any fictitious defendants in
that complaint, and it did not designate B&B Construction as
a defendant until it filed an amended complaint on October 29,
2014. Aliant's fraud and conspiracy claims against B&B
Construction are all subject to a two-year statute of
limitations. See § 6-2-3, Ala. Code 1975 ("In actions seeking
relief on the ground of fraud where the statute has created a
bar, the claim must not be considered as having accrued until
the discovery by the aggrieved party of the fact constituting
the fraud, after which he must have two years within which to
prosecute his
action."), and Garris v. A&M Forest Consultants,
62
1150822, 1150823, 1150824
Inc., 623 So. 2d 1035, 1039 (Ala. 1993) (noting that the
plaintiff's claim was "barred by the statute of limitations
for a conspiracy action, which is two years; § 6-2-38(l), Ala.
Code 1975, as amended"). The question of when a reasonable
person should have discovered a claim is generally a question
of fact within the purview of the jury; however, that question
may be decided as a matter of law when the facts are
undisputed and the evidence warrants but one conclusion or,
stated another way, when the evidence indicates that the
plaintiff actually knew of facts that would have put a
reasonable person on notice of the existence of the claim.
Bryant Bank, 155 So. 3d at 237-38. In this case, the relevant
facts are undisputed and require the conclusion that Aliant
knew or reasonably should have known of its claims against B&B
Construction at least when it filed its initial complaint in
March 2012. Accordingly, the claims asserted against B&B
Construction for the first time in October 2014 are untimely
and are barred by the statute of limitations.
In its March 2012 complaint, Aliant made the following
allegations:
"47. Upon information and belief, large sums of
the funds received pursuant to the bonds were
diverted and not used for their intended purposes.
63
1150822, 1150823, 1150824
Many were paid and/or transferred to entities wholly
owned and controlled by Bobby Smith with little or
no description of the actual goods or services
purportedly rendered.
"....
"54. [WHA], [Twelve Oaks Properties], and the
District knew or should have known that the
requisition requests made for the bond funds were
not for goods or services provided to the premises.
Said requests were either on their face not for the
premises or were so vague that a reasonably prudent
person in the defendants' position would have made
further inquiry and/or sought additional details."
Thus, Aliant acknowledges that it knew by March 2012 that a
large amount of the bond proceeds had been paid out in
reimbursements to entities "owned and controlled" by Smith.
Aliant knew at that time that Smith had an ownership interest
in B&B Construction, and it was in possession of the
reimbursement requests indicating that bond proceeds had been
claimed by B&B Construction. This information was sufficient
to put Aliant on notice of its potential claims against B&B
Construction, but Aliant nevertheless waited over two and a
half years before filing an amended complaint asserting those
claims. Because the statute of limitations for those claims
was two years, however, they were untimely, and the summary
judgment entered by the trial court in favor of B&B
64
1150822, 1150823, 1150824
Construction is accordingly due to be affirmed in all
respects.
VI.
Count seven of Aliant's final amended complaint also
asserts two species of fraud claims –– misrepresentation and
suppression –– as well as conspiracy claims against Twelve
Oaks Properties, the District, Four Star Investments, Smith,
Mize, and Billy Smith, and Hunt and WHA.6 The gravamen of
those claims is that the defendants conspired together and
concocted a plan whereby the District was created and the
bonds were issued for the purpose of enriching the defendants
without regard to the fact that the plan virtually ensured the
ultimate failure of the Twelve Oaks development. Aliant
argues that a crucial part of this plan involved the
defendants' convincing Aliant to execute the mortgagee-
special-assessment acknowledgment that subordinated its
interest in the Twelve Oaks property –– a requirement for the
bonds to be issued –– and, Aliant argues, the defendants
6Count seven also asserts those claims against the EOS
defendants and B&B Construction; however, for reasons already
discussed, those claims are barred by the relevant statutes of
limitations, and we accordingly need not address the specific
allegations made against the EOS defendants and B&B
Construction in the context of those claims.
65
1150822, 1150823, 1150824
accomplished
that
goal
by
making
fraudulent
misrepresentations
and concealing and suppressing material facts. However,
before we consider whether substantial evidence exists to
support the fraud and conspiracy claims asserted by Aliant, we
first address affirmative defenses claimed by two of the
defendants named in this count.
We first note that Aliant has identified the District
itself as a defendant with regard to these claims. In Part
III of this opinion we addressed the Twelve Oaks defendants'
§ 11-99A-7 immunity argument as it related to the negligence
and
breach-of-fiduciary-duty
claims
asserted
against
the
Board
members. Although we ultimately concluded that § 11-99A-7 did
not shield the Board members from liability as to those
claims, under the plain language of § 11-99A-7 and § 11-47-
190, we must nevertheless conclude that the District itself is
entitled to immunity on the claims asserted against it by
Aliant. Section 11-99A-7 expressly provides that an
improvement district has "the same immunity ... as a
municipality," and this Court has stated that § 11-47-190
"absolves a municipality from liability for the intentional
torts of its agents." Altmayer v. City of Daphne, 613 So. 2d
366, 369 (Ala. 1993). The Altmayer Court specifically noted
66
1150822, 1150823, 1150824
that fraud claims were among those claims barred by § 11-47-
190, id.; conspiracy likewise is an intentional tort, and
conspiracy claims are barred by § 11-47-190. See Grider v.
Carver, 767 F. Supp. 2d 1246, 1251 (M.D. Ala. 2011) (noting
that the
plaintiffs' state conspiracy claim was an intentional
tort). Inasmuch as § 11-99A-7 grants the District the same
immunity to which a municipality would be entitled, the
summary judgment entered by the trial court is due to be
affirmed with regard to the claims asserted by Aliant against
the District.7
Aliant has also named Hunt, a partner in WHA, as a
defendant to the fraud and conspiracy claims asserted in count
seven of its final amended complaint; Hunt argues that the
claims asserted against him personally are barred by the
statute of limitations because, although WHA was named as a
defendant in
Aliant's initial March 2012 complaint, Aliant did
not amend its complaint to add him as a defendant until
October 2014 –– more than two years later –– and thus, Hunt
7Aliant has also asserted a wantonness claim against the
District in count eight of its amended complaint; that claim
is also barred by § 11-99A-7. See Town of Loxley v. Coleman,
720 So. 2d 907, 909 (Ala. 1998) ("This Court has construed §
11–47–190 to exclude liability for wanton misconduct.").
67
1150822, 1150823, 1150824
argues, outside the two-year period allowed by § 6-2-38. The
trial court agreed with Hunt, stating in its order entering a
summary judgment in his favor:
"[T]he undisputed evidence shows Aliant knew of Mr.
Hunt and his role in the project in 2008, yet failed
to name him in the 2012 suit. Aliant was aware that
Mr. Hunt was working for Gardnyr Michael [Capital],
the underwriter for the bonds, no later than July
10, 2008, the date of the validation order. ...
Aliant knew of Mr. Hunt and Gardnyr Michael
[Capital] at the outset of the bond deal in 2008."
This Court will decide as a matter of law when a fraud claim
accrued, that is, when "a person of reasonable prudence would
have discovered the alleged fraud," only when the evidence is
undisputed and allows but one conclusion. Bryant Bank, 155
So. 3d at 237. In this case, Hunt argues only that Aliant
should have been aware of its fraud and conspiracy claims
against him in 2008 because it undisputedly knew at that time
that he was involved in the bond issue through his work for
Gardnyr Michael Capital, the underwriter for the bonds. We
disagree that this is a sufficient basis upon which to
conclude as a matter of law that Aliant must have known of its
claims against Hunt at that time. Hunt has cited this Court
to no evidence establishing when Aliant knew of Hunt's
involvement in any wrongdoing; it points only to evidence
68
1150822, 1150823, 1150824
establishing that Aliant knew Hunt was involved in the bond
issue through his work at Gardnyr Michael Capital, the
underwriter for the bonds. However, Aliant has not asserted
any claims against or alleged any wrongdoing by Gardnyr
Michael Capital; its claims against Hunt are based on
wrongdoing he committed in his individual capacity or through
his work at WHA. Hunt has not attempted to establish when
Aliant should have been aware of that wrongdoing, and Aliant
argues that this is an issue of fact for the jury. We cannot
resolve this issue as a matter of law at this time, and we
accordingly decline to affirm the summary judgment entered in
favor of Hunt on that basis.
We thus turn to the merits of Aliant's fraudulent-
misrepresentation claims.
"To establish a prima facie case
of fraudulent misrepresentation, a plaintiff must show: (1)
that the representation was false, (2) that it concerned a
material fact, (3) that the plaintiff relied on the false
representation, and (4) that actual injury resulted from that
reliance." Boswell v. Liberty Nat'l Life Ins. Co., 643 So. 2d
580, 581 (Ala. 1994). As the basis for these claims, Aliant
has identified alleged misrepresentations 1) orally made by
Smith in his communications with Williamson and 2) contained
69
1150822, 1150823, 1150824
in written materials prepared by WHA. In an affidavit,
Williamson
described
those
misrepresentations
and
their
impact
on Aliant's decision to agree to subordinate its interest in
the Twelve Oaks property as follows:
"16. Over [a period of several months beginning in
February 2008] Bobby Smith provided me with various
documents related to the proposed bond deal,
including, but not limited to, a term sheet and a
financial analysis prepared by [Gardnyr Michael
Capital], the engineer's report, a proposed budget
analysis for the phase by phase development of the
subdivision, as well as a draft of the methodology.
"17. It was not until a meeting I had with Bobby
Smith in mid-July 2008 that I was presented with the
mortgagee special assessment acknowledgment for
[Aliant] to sign. A true and correct copy of my
July 14, 2008, memo is attached hereto.
"18. I was assured by representations made by Bobby
Smith
and
the
various
[District]
and
bond
transaction documents referenced above that the bond
proceeds would be used strictly for the development
of the infrastructure
for the remaining 270
undeveloped lots and a clubhouse and pool, that the
funds' disbursement would be carefully controlled
and monitored, and that there would be independent
inspections to verify the expenditures purportedly
made on the project.
"19. A few days later I had a follow-up discussion
with Bobby Smith and Heyward Hosch, District
counsel, regarding additional requirements related
to the bonds and whether there were any restrictions
preventing [Aliant] and Bobby Smith from having
agreements related to lot releases.
"20. [Aliant] was satisfied based on my discussion
with Mr. Hosch and Bobby Smith that in such
70
1150822, 1150823, 1150824
situation the bond fund spending could be halted or
slowed. A true and correct copy of my July 21,
2008, memo is attached hereto.
"21. At no time was it revealed to me that the
parties intended to use any of the bond proceeds to
pay any Bobby Smith-controlled entity (owner,
developer, or otherwise) for work done or expense
incurred before the bond issue.
"22. Based on all of the above, Aliant executed the
mortgagee special assessment acknowledgment on or
about July 24, 2008.
"23. If I had known that all of the equity built up
in the development was going to be given back to the
development with the first two draws, that there
were not going to be controls over the disbursements
of the bond funds, and that the progress of the
development was not going to be carefully monitored
by professionals, I would not have signed the
mortgagee special assessment acknowledgment.
"24. As of July 24, 2008, the infrastructure of
phase I of the development was complete and eighty
(80) lots of that phase [were] available for
development.
"25. I was told that the bond proceeds would be
used to expand the subdivision so that an additional
270 lots (a total of 350) would be made available.
"26. I had [no] idea that over one half of the
total bond proceeds was going to be used to
reimburse Bobby Smith and [Twelve Oaks Properties]
for virtually all of the pre-bond issuance work,
work which had been funded with money largely
advanced by Aliant through [the Aliant loan].
"27. As of [January 27, 2016], with the exception
of the club house and pool, the infrastructure is
not measurably further along and there are no more
completed and saleable lots available than existed
71
1150822, 1150823, 1150824
on the day I signed the [mortgagee special
assessment] acknowledgment."
Williamson's affidavit is sufficient to establish a prima
facie case of fraudulent misrepresentation against Smith and
Twelve Oaks Properties, the entity Smith is alleged to have
been representing when making the oral misrepresentations, as
well as against Hunt and WHA based on misrepresentations
allegedly made by Hunt in WHA documents transmitted to Aliant.
Accordingly, the summary judgment was improper as to those
claims.
Aliant also argues that the misrepresentations allegedly
made by Smith and in the WHA documents should support
fraudulent-misrepresentation
claims
against
Four
Star
Investments, Mize, and Billy Smith because, it argues, they
were all allegedly part of an overarching conspiracy.
However, this argument evinces a misunderstanding of the
conspiracy cause of action. If the finder of fact is
ultimately
convinced
that
Smith
made
fraudulent
misrepresentations and that there was a conspiracy in which
Four
Star
Investments,
Mize,
and
Billy
Smith
were
participants, then Four Star Investments, Mize, and Billy
Smith
may
be
held
liable
for
Smith's
fraudulent
72
1150822, 1150823, 1150824
misrepresentations by being held liable for conspiracy, not
fraudulent misrepresentation.
This Court's decision in DGB is
instructive. We noted in that case that the fraudulent-
misrepresentation and fraudulent-suppression claims asserted
against defendant Ray Jacobsen were properly dismissed, but a
conspiracy
claim
asserted
against
Jacobsen
based
on
allegations that other defendants worked together and with him
"to
knowingly misrepresent information
and
to
conceal
material
facts" was nevertheless viable. DGB, 55 So. 3d at 231-34.
We next consider the fraudulent-suppression claims
asserted by Aliant. The gravamen of those claims is that the
defendants knew that Smith was going to use the bulk of the
bond proceeds to reimburse himself and his companies for work
done before the bonds were issued and that the defendants
concealed this fact from Aliant in order to induce it to sign
the
mortgagee-special-assessment
acknowledgment.
"The
elements of a suppression claim are '(1) a duty on the part of
the defendant to disclose facts; (2) concealment or
nondisclosure of material facts by the defendant; (3)
inducement of the plaintiff to act; (4) action by the
plaintiff to his or her injury.'" Freightliner, L.L.C. v.
Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 891 (Ala.
73
1150822, 1150823, 1150824
2005) (quoting Lambert v. Mail Handlers Benefit Plan, 682 So.
2d 61, 63 (Ala. 1996)). Aliant does not cite these elements
anywhere in the briefs it filed in its appeals of the
judgments entered in favor of the Twelve Oaks defendants and
Hunt and WHA, but it cites Shades Ridge Holding Co. v. Cobbs,
Allen & Hall Mortgage Co., 390 So. 2d 601, 616 (Ala. 1980),
for the
proposition that fraudulent suppression exists "where
the defendant has special knowledge or means of knowledge not
open to the plaintiff and is aware that the plaintiff is
acting under a misapprehension as to facts which would be of
importance to him and would probably affect his decision" and
Bank of Red Bay v. King, 482 So. 2d 274, 284-85 (Ala. 1985),
to suggest that fraudulent suppression might be found when a
party knows that the plaintiff is relying on something that is
not true. See Aliant's briefs in appeal no. 1150822, pp. 31-
33, and in appeal no. 1150823, pp. 29-31.
The first element of a fraudulent-suppression claim that
must be established is whether the defendant alleged to have
concealed a material fact had a duty to disclose that fact to
the plaintiff; this inquiry presents an issue of law to be
determined by the court. Freightliner, 932 So. 2d at 891. To
the extent Aliant addresses this element, it essentially
74
1150822, 1150823, 1150824
argues that the various defendants owed it such a duty based
solely on the fact that they knew that Aliant was unaware that
the vast majority of the bond proceeds would be disbursed to
reimburse Smith and his companies for work completed before
the bonds were issued. See, e.g., Aliant's brief in appeal
no. 1150823, p. 33 (arguing that the trial court erred in
entering a summary judgment in favor of Hunt and WHA on the
fraudulent-suppression claims asserted against them because
the trial court failed to give effect to the law set forth in
Shades Ridge Holding Co. and Bank of Red Bay, which, Aliant
argues, "creat[ed] a duty for WHA to disclose the detail of
the plan for the [District] by reason of their knowledge of
Aliant's misapprehension"). We disagree that the defendants'
knowledge that Aliant was unaware that the bond proceeds could
be distributed for work performed before the bonds were issued
was sufficient in itself to create a duty to disclose.
This Court has explained the duty to disclose as follows:
"A duty to communicate can arise from a confidential
relationship
between
the
plaintiff
and
the
defendant, from the particular circumstances of the
case, or from a request for information, but mere
silence in the absence of a duty to disclose is not
fraudulent. Dodd v. Nelda Stephenson Chevrolet,
Inc., 626 So. 2d 1288 (Ala. 1993); Hardy v. Blue
Cross & Blue Shield of Alabama, 585 So. 2d 29
(Ala.1991); King v. National Foundation Life Ins.
75
1150822, 1150823, 1150824
Co., 541 So. 2d 502 (Ala. 1989); see, McGowan v.
Chrysler Corp., 631 So. 2d 842 (Ala. 1993); §
6–5–102, Ala. Code 1975.
"....
"This Court has stated that whether one has a
duty to speak depends upon a fiduciary, or other,
relationship of the parties, the value of the
particular fact, the relative knowledge of the
parties, and other circumstances of the case. Bama
Budweiser of Montgomery, Inc. v. Anheuser–Busch
Inc., 611 So. 2d 238 (Ala. 1992); Norman v. Amoco
Oil Co., 558 So. 2d 903 (Ala. 1990); see § 6–5–102,
Ala. Code 1975. When the parties to a transaction
deal with each other at arm's length, with no
confidential relationship, no obligation to disclose
information arises when the information is not
requested."
Mason v. Chrysler Corp., 653 So. 2d 951, 954-55 (Ala. 1995)
(emphasis added). Essentially, the primary factor to be
considered when determining whether a duty to disclose exists
is the nature of the relationship between the parties. See,
e.g., Armstrong Bus. Servs., 817 So. 2d at 677 (noting that
the Court begins its inquiry by considering whether the facts
establish "a relationship sufficient to give rise to a duty to
disclose"). A duty to disclose is more likely to be found
where there is a special or confidential relationship between
the parties, but a duty to disclose may still be found when
the parties engage in an arm's length business transaction and
there are special circumstances or when specific information
76
1150822, 1150823, 1150824
is requested. Mason, 653 So. 2d at 954-55. However, it will
be the rare situation and only under the most extreme special
circumstances that a duty to disclose is imposed upon parties
that have no relationship with each other.
In this case, it is undisputed that Aliant had no
relationship with Hunt and WHA. At most, the evidence in the
record indicates that Hunt was a participant in one telephone
call with an Aliant employee and the substance of that call is
unknown. Based on this lack of a relationship –– much less a
confidential relationship or even an arm's length business
relationship –– we cannot conclude that Hunt and/or WHA owed
Aliant a duty to disclose. Aliant has identified no special
circumstances that warrant the imposition of such a duty;
instead, it effectively assumes that such a duty existed
solely because Hunt and WHA had greater knowledge than it and
said nothing. However, "mere silence in the absence of a duty
to disclose is not fraudulent." Mason, 653 So. 2d at 954.
The summary judgment entered in favor of Hunt and WHA on the
fraudulent-suppression claims asserted against them is due to
be affirmed.
With regard to the claims asserted against the various
Twelve Oaks defendants, however, Aliant did have a business
77
1150822, 1150823, 1150824
relationship with Smith. Aliant has alleged that Smith
represented to it that the bond proceeds would be used to
develop 270 additional lots in Twelve Oaks while allegedly
knowing that he and/or his companies would actually receive
the majority of the bond proceeds for work that had already
been performed in association with the development of the
first 80 lots. In CNH America, LLC v. Ligon Capital, LLC, 160
So. 3d 1195, 1202-03 (Ala. 2013), we explained that "'once a
party elects to speak, he or she assumes a duty not to
suppress or conceal those facts that materially qualify the
facts already stated'" (quoting Freightliner, 932 So. 2d at
895). See also First Alabama Bank of Montgomery, N.A. v.
First State Ins. Co., 899 F.2d 1045, 1056 (11th Cir. 1990)
("Finally, even if one is not under a duty to speak, if he
decides to do so, 'he must make a full and fair disclosure,'
without concealing any facts within his knowledge." (quoting
Ellis v. Zuck, 409 F. Supp. 1151, 1158 (N.D. Ala. 1976), and
citing Jackson Co. v. Faulkner, 55 Ala. App. 354, 315 So. 2d
591 (1975))). Thus, once Smith represented how the bond
proceeds would be used, he had a duty to make a full
disclosure as to how those proceeds would be used. Aliant has
submitted evidence indicating that Smith failed to fulfill
78
1150822, 1150823, 1150824
that duty and instead concealed the truth about how the bond
proceeds would be used, thus inducing Aliant to execute the
mortgagee-special-assessment acknowledgment and resulting in
subsequent injury to Aliant. Accordingly, the summary
judgment
entered
on
the
fraudulent-suppression
claims
asserted
against Smith and Twelve Oaks Properties is due to be
reversed. Aliant has failed to establish that Mize or Billy
Smith owed it a duty to disclose, however, and the summary
judgments entered in favor of them on the fraudulent-
suppression claims asserted by Aliant are due to be affirmed.
Finally, inasmuch as we have held that Aliant has put
forth substantial evidence supporting at least some of the
fraudulent-misrepresentation
and
fraudulent-suppression
claims
asserted in count seven of its final amended complaint and
that the trial court accordingly erred in entering a summary
judgment against Aliant on those claims, we also hold that the
trial court erred in entering a summary judgment against
Aliant on the conspiracy claims it asserted against Smith,
Twelve Oaks Properties, Four Star Investments, Mize, Billy
Smith, Hunt, and WHA. Some of the defendants have argued that
they cannot be found liable for conspiracy if they are not
liable for the underlying wrong upon which the conspiracy
79
1150822, 1150823, 1150824
claim is based; however, our holding in DGB refutes this
argument. Although it is true that "[a] plaintiff alleging
conspiracy must have a valid underlying cause of action,"
Callens v. Jefferson County Nursing Home, 769 So. 2d 273, 280
(Ala. 2000), it is not necessary that each alleged conspirator
be the subject of an underlying cause of action, only that
there be a valid cause of action against at least one of the
alleged conspirators. See DGB, 55 So. 3d at 234 ("Because the
[plaintiffs] have alleged valid underlying causes of action
and because acts of coconspirators are attributable to each
other, see [Ex parte] Reindel, [963 So. 2d 614, 621 (Ala.
2007),] the [plaintiffs] have stated a claim of civil
conspiracy upon which relief may be granted against each of
these defendants."). Thus, the defendants in this case may be
liable for conspiracy even if they are not liable for the
underlying fraud.
VII.
In count eight of its final amended complaint, Aliant
asserts wantonness claims against Smith, Mize, Billy Smith,
Twelve Oaks Properties, and WHA.8 Specifically, Aliant
8Aliant also asserts wantonness claims against the EOS
defendants and the District in count eight; however, as
80
1150822, 1150823, 1150824
asserts that these defendants "undertook a duty to carefully
and prudently spend and/or assure that the [bond proceeds]
were spent in accordance with the bond documents to make the
promised improvements" and that they "consciously and/or
intentionally
acted
with
reckless
disregard
to
the
consequences of their wrongful acts."
We first note, however, that, although Aliant adequately
explained the basis of its wantonness claim in its complaint,
in its brief to this Court in appeal no. 1150822 challenging
the judgment entered in favor of the Twelve Oaks defendants,
Aliant has wholly failed to explain its wantonness claim or to
cite any authority regarding wantonness. In J.K. v. UMS-
Wright Corp., 7 So. 3d 300, 305-06 (Ala. 2008), we considered
an argument that a trial court had erred in entering judgment
on a wantonness claim where the appellants had similarly
failed to support their argument:
"Not only do [the appellants] not describe with any
specificity conduct of the trustees that they
consider to have been wanton, but they also fail to
cite any statute or caselaw that defines wantonness,
and they do not illustrate how the actions by the
members of the board of trustees could satisfy any
discussed supra, all claims against the EOS defendants are
barred by the statute of limitations, and the District is
protected by § 11-99A-7 immunity.
81
1150822, 1150823, 1150824
such definition. '"'Where an appellant fails to
cite any authority, we may affirm, for it is neither
our duty nor function to perform all the legal
research for an appellant.'"' McCutchen Co. v.
Media General, Inc., 988 So. 2d 998, 1004 (Ala.
2008) (quoting Henderson v. Alabama A & M Univ., 483
So. 2d 392, 392 (Ala. 1986), quoting in turn Gibson
v. Nix, 460 So. 2d 1346, 1347 (Ala. Civ. App.
1984)). Because [the appellants] have not provided
us with a standard against which to evaluate the
trustees' allegedly wanton behavior ... the trial
court's judgment on this issue is affirmed."
Thus, by failing to adequately argue the issue, Aliant has
effectively waived its argument that the trial court erred in
entering summary judgment against it on the wantonness claims
asserted against Smith, Mize, Billy Smith, and Twelve Oaks
Properties. Bogle, 512 So. 2d at 1337.
With regard to the wantonness claim asserted against WHA,
we stated in Lemley v. Wilson, 178 So. 3d 834, 841-42 (Ala.
2015), that, "'[t]o establish wantonness, the plaintiff must
prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful
act or omitted some known duty.'" (Quoting Martin v. Arnold,
643 So. 2d 564, 567 (Ala. 1994).) Aliant has based its
wantonness claims on the omission or breach of a known duty;
however, we have already determined, supra in Part III, that
WHA owed Aliant no duties. Moreover, Aliant's wantonness
82
1150822, 1150823, 1150824
claims are premised on the allegation that the named
defendants failed to make sure that the bond proceeds were
properly spent; however, the documentary evidence in the
record establishes that WHA had no role in approving the
disbursement of bond proceeds. Disbursements had to be
approved by EOS and the District's board of directors; WHA
provided only administrative assistance in that process.
Accordingly, the summary judgment entered in favor of WHA on
the wantonness claim asserted against it in count eight of
Aliant's final amended complaint is also due to be affirmed.
VIII.
In the last count of its final amended complaint, Aliant
argues that Twelve Oaks Properties and WHA are liable for
breach of contract. Aliant acknowledges that there is no
contract between it and either Twelve Oaks Properties or WHA;
however, it nevertheless argues that it was an intended third-
party beneficiary of 1) a completion agreement between Twelve
Oaks Properties and the District executed in conjunction with
the bond issuance in which Twelve Oaks Properties took
responsibility for completing the planned improvements at
Twelve Oaks that were not funded by the bond proceeds; and 2)
the management agreement between WHA and the District. In
83
1150822, 1150823, 1150824
Swann v. Hunter, 630 So. 2d 374, 376 (Ala. 1993), this Court
stated:
"To recover in a breach-of-contract action, as
a third-party beneficiary, the plaintiff must prove
the following: (1) that the contracting parties
intended, when they entered the contract, to bestow
a direct, as opposed to an incidental, benefit upon
a third party, (2) that the plaintiff was the
intended third-party beneficiary of the contract,
and (3) that the contract was breached. ..."
Aliant argues that the completion agreement executed by Twelve
Oaks Properties and the management contract executed by WHA
were intended to benefit the owners of property in the
District –– including Aliant inasmuch as it held a mortgage on
the Twelve Oaks property –– and that Twelve Oaks Properties
and WHA failed to fulfill their obligations under those
contracts to the detriment of Aliant.
Both the completion agreement and the management
agreement were intended to bestow some benefit upon the
District. Aliant argues, essentially, that, inasmuch as the
District's raison d'etre is to provide improvements to the
property within its borders, as the holder of an interest in
such property it was an intended beneficiary of any contract
that benefited the District. Twelve Oaks Properties and WHA
rightfully do not dispute that Aliant had an interest in
84
1150822, 1150823, 1150824
property within the District when those contracts were
executed because it is undisputed that Aliant held a mortgage
on the Twelve Oaks property at that time and "Alabama is a
'title theory' state; thus, when a person mortgages real
property, the mortgagee obtains legal title to the real
property and the mortgagor retains an equity of redemption."
Maiden, 69 So. 3d at 865. However, Twelve Oaks Properties and
WHA argue that Aliant's interest in the Twelve Oaks property
at most made Aliant an incidental beneficiary to the cited
contracts, not a direct beneficiary such that Aliant can sue
for the breach of a contract. See Holley v. St. Paul Fire &
Marine Ins. Co., 396 So. 2d 75, 80 (Ala. 1981) ("One who seeks
recovery in contract as a third-party beneficiary must
establish that the contract was intended for his direct, as
opposed to incidental, benefit."). In its orders entering a
summary judgment against Aliant on these claims, the trial
court agreed, holding that Aliant was not an intended third-
party beneficiary to either of the cited contracts.
"[T]he
determination
of
third-party-beneficiary
status
is
a conclusion of law that we review de novo." Harris Moran
Seed Co. v. Phillips, 949 So. 2d 916, 920 (Ala. Civ. App.
2006). For the reasons that follow, we agree with the holding
85
1150822, 1150823, 1150824
of the trial court that Aliant was not an intended beneficiary
to the cited contracts. Although those contracts were
intended to benefit the District, even if we were to conclude
that the parties to those contracts intended to bestow
benefits upon the "owners" of property within the District as
well, those benefits would run directly only to the party in
possession of the property –– any benefit to the mortgagee
would necessarily be incidental.9 Benefits and improvements
made to mortgaged property would not directly benefit the
9In First Union National Bank of Florida v. Lee County
Commission, 75 So. 3d 105, 113 (Ala. 2011), this Court
explained how a mortgagee and a mortgagor are both in some
sense "owners" of mortgaged property:
"[The mortgagee's] argument presumes that legal
title is the equivalent of absolute ownership of
property, but that presumption is incorrect. See
Alabama Home Mortgage Co. v. Harris, 582 So. 2d
1080, 1083–84 (Ala. 1991) (recognizing that there is
no 'absolute owner' of property until there is a
merger of equitable title and legal title). [The
mortgagee's] interpretation of the term 'owner' in
§ 40–10–28[, Ala. Code 1975,] fails to consider the
fact that when real property is mortgaged, only
legal title passes to the mortgagee, and the
mortgagor retains his or her other status as 'owner
and holder of equitable title.' Sims v. Riggins,
201 Ala. 99, 103, 77 So. 393, 397 (1917) (the
mortgagor is 'the owner and holder of the equitable
title'). Until there has been a foreclosure, the
mortgagor continues to 'own' the property. Alabama
Home Mortgage, 582 So. 2d at 1083–84."
86
1150822, 1150823, 1150824
mortgagee until there is a merger of equitable title and legal
title. At best, Aliant in this case would receive an
incidental benefit from the cited contracts inasmuch as the
property securing the Aliant loan would increase in value and
Aliant's risk of loss in the event of default would decrease;
however, this is far from a direct intended benefit that will
support a third-party-beneficiary breach-of-contract claim.
Accordingly, the trial court's judgments in favor of Twelve
Oaks Property and WHA on the claims asserted against them in
count nine of Aliant's amended complaint are due to be
affirmed.
IX.
Aliant sued various individuals and business entities
involved in developing the Twelve Oaks subdivision in
Odenville, alleging that, as a result of those defendants'
conspiracy
and
wrongful
actions,
Aliant's
security
interest
in
the property upon which the Twelve Oaks subdivision was to be
built had been rendered worthless. The trial court ultimately
entered judgments against Aliant and in favor of the
defendants on all counts. We now affirm those judgments in
part and reverse them in part. In appeal no. 1150822, we
reverse the summary judgment entered by the trial court
87
1150822, 1150823, 1150824
against Aliant (1) on the negligence and breach-of-fiduciary-
duty claims asserted against the Board members in count four
of
Aliant's
complaint;
(2)
on
the
fraudulent-misrepresentation
and fraudulent-suppression claims asserted against Smith and
Twelve Oaks Properties in count seven of Aliant's complaint;
and (3) on the conspiracy claims asserted against Smith,
Twelve Oaks Properties, Four Star Investments, Mize, and Billy
Smith in count seven of Aliant's complaint. We affirm the
summary judgment entered by the trial court against Aliant and
in favor of the various Twelve Oaks defendants in all other
respects. In appeal no. 1150823, we reverse the summary
judgments
entered
against
Aliant
on
the
fraudulent-
misrepresentation and conspiracy claims asserted against Hunt
and WHA in count seven of Aliant's complaint; however, we
affirm those summary judgments with regard to all other claims
asserted by Aliant against Hunt and WHA. Finally, in appeal
no. 1150824, we affirm the summary judgment entered by the
trial court against Aliant and in favor of the EOS defendants
on all counts.
1150822 –– AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
88
1150822, 1150823, 1150824
1150823 –– AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
1150824 –– AFFIRMED.
Bolin, Parker, Main, and Wise, JJ., concur.
Shaw, J., concurs in the result.
89 | May 5, 2017 |
206c3fa0-4a08-4028-b4a9-b4f4e333d84a | City of Jasper v. Sherer | 141 So. 2d 202 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 202 (1962)
CITY OF JASPER
v.
Fannie SHERER.
6 Div. 499.
Supreme Court of Alabama.
May 10, 1962.
*203 Tweedy & Beech, Jasper, for appellant.
Selman & Beaird and Wiggins & Wiggins, Jasper, for appellee.
GOODWYN, Justice.
This is a workmen's compensation case (Code 1940, Tit. 26, § 253 et seq., as amended) brought here by certiorari on petition of the defendant below (City of Jasper) to review a judgment of the circuit court of Walker County awarding compensation to plaintiff-appellee, as the widow of a deceased employee of defendant City.
As to the cause of employee's death, the trial court made the following factual findings, as required by § 304, Tit. 26, viz.:
There can be no award of compensation unless an employee's injury or death is "caused * * * by an accident arising out of and in the course of his employment." Section 253, Tit. 26, Code 1940. The term "accident" is defined by amended § 262(i), Tit. 26, as meaning "an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body by accidental means." So, the first question presented, the answer to which is decisive of this appeal, is whether the facts as found by the trial court (assuming them to be supported by the evidence) show that the employee's death was caused by an "accident." Our conclusion is that it was not, making it unnecessary to decide whether the heart attack was an "injury to the physical structure of the body."
Upon this record, our view is that the argument between these two city employees cannot be regarded as involving or inducing any greater emotional or nervous strain or tension than the many verbal differences to which nearly all workers are at times subjected in the normal course of their work. To hold that the employee's death, under the circumstances of this case, was the result of an "accident", as that term is used in the Workmen's Compensation Law, would be stretching the legislative intent beyond the breaking point. Assuming that Mr. Sherer, the deceased employee, saw Mr. Lester, his fellow employee, approaching him at a distance of approximately 150 to 200 feet away, we just simply are unable to agree that this was such "an unexpected or unforeseen event, happening suddenly and violently," as to constitute an "accident."
While the Workmen's Compensation Act should be liberally construed to accomplish its beneficent purposes (Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 97 So. 2d 688; Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So. 2d 315; Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728), it should not be given a construction extending it beyond its legitimate scope (United States Steel Corporation v. Baker, 266 Ala. 538, 97 So.2d 899), nor one which the language of the Act does not fairly and reasonably support.
To sustain the award in this case would require a strained construction of the Act. We find no language in it which would fairly and reasonably support an award of compensation in this case. The propriety of extending the law to cover cases of this character, and the consequences of failure to do so, are matters for consideration by the legislature. There is no warrant for us to add coverage under it which is not there.
The following apt statement is from Nichols v. St. Louis & S. F. R. Co., 227 Ala. 592, 594, 151 So. 347, 349, 90 A.L.R. 842:
Reversed and remanded.
SIMPSON, MERRILL and COLEMAN, JJ., concur. | May 10, 1962 |
a74aa0ce-0aa4-4f99-9607-7b745c19bc97 | Beavers v. Boykin | 142 So. 2d 10 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 10 (1962)
Eldridge BEAVERS, as Administrator, etc.
v.
Ural BOYKIN.
6 Div. 676.
Supreme Court of Alabama.
May 10, 1962.
Rehearing Denied June 14, 1962.
D. G. Ewing, Birmingham, for appellant.
London, Yancey, Clark & Allen and Bibb Allen, Birmingham, for appellee.
SIMPSON, Justice.
Appellant brought suit against appellee for damages sustained by appellant's intestate (Elzetta Kidd) as a result of a collision between an automobile owned and operated by one Louis Davis and the automobile of appellee, which was being operated by his agent or employee, and in which appellant's intestate was riding as a guest of appellee. The case was submitted to the jury on the complaint, as amended, which charged appellee with wanton misconduct, in that his agent or employee, while acting within the line and scope of his employment as such agent or employee wantonly injured appellant's intestate by wantonly driving the automobile of appellee upon or against the automobile of one Davis.
*11 The jury returned a verdict in favor of appellee and the trial court rendered judgment on such verdict. From this judgment, this appeal is taken.
Appellant assigns as error the refusal of the trial court to give the following written charge requested by appellant:
It is axiomatic that a case will not be reversed on the refusal of a requested charge where the same principle of law is substantially covered in the court's oral charge. Such a refusal must be found, after an examination of the entire cause, to have probably injuriously affected the substantial rights of the parties. Title 7, § 273, Code 1940; Helms v. State, 254 Ala. 14, 47 So. 2d 276; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So. 2d 75.
Of course it would have made our task easier if the trial court had used the approved terminology, "wilfully and corruptly", but we find nothing to indicate that the court's refusal to give the requested charge injuriously affected the substantial rights of appellant, since the court's oral charge substantially covered the subject matter thereof. Bahakel v. Great Southern Trucking Co., supra.
In addition, this court has repeatedly urged caution in the application of the maxim "falsus in uno, falsus in omnibus". Tindell v. Guy, 243 Ala. 535, 10 So. 2d 862. The prevailing attitude of the courts toward such instructions is "one of tolerance and sufferance. The instructions labor under faint praise and are generally regarded as of little assistance to the juries." 4 A.L.R.2d 1078. Professor Wigmore on Evidence, § 1008, p. 675, states his view as follows:
We think it would be fractious to reverse the case in the circumstances stated and so hold.
In addition to this assignment, there are but two others. The first of these takes objection to a statement made by appellee's *12 counsel in his opening statement to the jury, which remark was, "Elzetta [appellant's intestate] was killed in another automobile accident a few daysa few weeksafter she was killed early one morning some six weeks later". Appellant takes the position that it was prejudicial to his cause to have the jury know that appellant's intestate had subsequent to the accident, the subject of this suit, been killed in another automobile accident. While it is not disputed that evidence bearing an another accident would not be admissible, we do not find such injury in this remark as would dictate reversal. As a matter of fact, we think the jury had a right to know that even though the plaintiff sued as administrator of Miss Kidd, deceased, that her death was not caused by the wreck involved in the suit at bar.
Moreover, it is well settled that argument of counsel is a matter which rests in the sound discretion of the trial court and it is not our province to interfere unless it has abused its discretion. Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So. 2d 549; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So. 2d 331. The trial court here stated to the jury, "We are not trying any case except the one right here". We fail to apprehend any error here.
The only remaining assignment complains of the trial court's overruling appellant's motion for new trial. The ground argued was that the verdict was against the great weight of the evidence. It should be noted that this case was submitted to the jury on a count charging wanton misconduct only. The jury found for the defendant on this count. Its finding should not be disturbed in the absence of substantial cause. The evidence was in conflict and we cannot say the verdict was palpably wrong or unjust. Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799.
Affirmed.
GOODWYN, MERRILL and COLEMAN, JJ., concur. | May 10, 1962 |
0825c823-708e-4a86-a788-911ba0c6e367 | BROTHERHOOD OF LOCOMOTIVE FIRE. & ENG. v. Hammett | 140 So. 2d 832 | N/A | Alabama | Alabama Supreme Court | 140 So. 2d 832 (1962)
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN
v.
James E. HAMMETT.
6 Div. 389.
Supreme Court of Alabama.
March 29, 1962.
Rehearing Denied May 17, 1962.
Harold C. Heiss and Russell B. Day, Cleveland, Ohio, and Erle Pettus, Jr., and Rives, Peterson, Pettus & Conway, Birmingham, for appellant.
Thos. F. McDowell and Geo. S. Brown, Birmingham, for appellee.
COLEMAN, Justice.
This is an appeal by a defendant, the Brotherhood of Locomotive Firemen and *833 Enginemen, an unincorporated association, from a judgment rendered against it on the verdict of a jury in an action for compensatory and punitive damages. Plaintiff alleged that "* * * as a proximate consequence of the willful, malicious and wrongful interference with his right to earn a living, he was caused to lost his employment * * *" and the earnings he would have received, and that he suffered other damage proximately resulting from such interference with his employment.
As originally commenced, the action was against three defendants, namely: the appellant, Local Number 937 of the appellant union, and one J. B. Otts, Jr. On motion of the plaintiff, Otts was stricken as a party defendant. The jury returned a verdict against appellant but not against Local Number 937.
The amended complaint recites that between March 21, 1955, and June 30, 1956, plaintiff was an employee of the Louisville & Nashville Railroad Company, herein sometimes referred to as the L. & N., and a member in good standing of a labor union known as the Brotherhood of Locomotive Engineers; that on March 21, 1955, the defendants were on strike against the L. & N., which strike lasted until May 11, 1955; that during said period plaintiff's union was not on strike and plaintiff operated a locomotive for his employer; that shortly after said strike was over, plaintiff's employer promoted plaintiff to a management position known as a "traveling engineer"; that
There was no motion for new trial.
The appellant requested affirmative charges, with and without hypothesis, and the refusals thereof are severally assigned as error.
We do not understand that appellant controverts the proposition that an employee is entitled to recover compensatory and punitive damages from a defendant who maliciously and wrongfully causes the employee to lose his employment. Neither does appellant appear to deny the proposition that the requested affirmative charges were refused without error if there was sufficient proof from which a reasonable inference could be drawn that defendant wrongfully and maliciously caused plaintiff to lose his employment. Evans v. Swaim, 245 Ala. 641, 18 So. 2d 400.
In this jurisdiction, the rule is firmly established that in civil cases the question must go to the jury if the evidence, or reasonable inferences arising therefrom, furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory. Pappa v. Bonner, 268 Ala. 185, 188, 105 So. 2d 87.
The question on this appeal, therefore, is to decide whether there was or was not a scintilla of evidence in support of plaintiff's theory.
Pertinent evidence tended to show that plaintiff's employment by the L. & N. commenced March 21, 1955, during a strike. Plaintiff was employed as a locomotive engineer. We understand that the appellant union was on strike, but that the union to which plaintiff belonged was not on strike. Appellant states in brief:
"* * * The two Brotherhoods are fierce competitors for the right to represent locomotive engineers and firemen in collective bargaining with the railroads."
The strike lasted 58 days and ended May 10, 1955, after which date plaintiff was employed by the L. & N. as a traveling engineer on the Nashville & Decatur Division of that railroad. Traveling engineer is a supervisory position. Appellant's general chairman, Paschall, was active in having plaintiff removed "from the N. & D. Division as Traveling Engineer," and a strike was threatened by appellant unless plaintiff was so removed. On July 11, 1955, plaintiff was removed from the position of traveling engineer and employed as Assistant to the General Master Mechanic. Plaintiff encountered various difficulties as traveling engineer and as Assistant to the General Master Mechanic as he traveled over the L. & N. system in performing the duties of his employment. As soon as his identity became known, there was a continuous "cat call," or throwing of something, or hammering on tables. There was a general disturbance wherever plaintiff appeared. In February, 1956, an incident occurred at Mobile, and shortly thereafter plaintiff was removed from the position of Assistant to the General Master Mechanic. Plaintiff's removal was caused by violence and threats of violence which occurred when plaintiff's identity became known to personnel at places on the L. & N. system. Plaintiff continued on the L. & N. payroll until June 1, 1956, when he was discharged. There was work available for him as traveling engineer at the time of his discharge. This lawsuit was commenced March 21, 1957.
Appellant insists that it was entitled to the affirmative charge under its plea of the statute of limitations of one year. Appellant's argument is that the evidence fails to show any act on its part against plaintiff within one year next preceding the commencement of this action on March 21, 1957.
Under the rule of the one-year statute, the time of limitation begins to run when the injury happens or damage accrues, and not from the date of the act causing *835 the injury or damage. Corona Coal Company v. Hendon, 213 Ala. 323, 325, 104 So. 799. In the case at bar, plaintiff was not taken off the payroll of the L. & N. until June 1, 1956. He suffered no loss of employment prior to June 1, 1956, and, for one year thereafter, was not barred from maintaining an action to recover for damage resulting from such loss of employment. The instant action was commenced within that year and appellant's contention with respect to the statute of limitations is without merit.
Appellant's other contention is that it is entitled to the affirmative charge because "* * * there is a complete failure to prove that the defendant Brotherhood was responsible for or in any way connected with any violence and threats resulting in plaintiff's loss of employment."
Appellant appears to regard the violence and threats of violence as the gravamen of this action. The graveamen of this action is the malicious and wrongful causing of plaintiff to lose his employment. Evans v. Swairm, supra. In that connection there was evidence as follows:
On June 1, 1955, Jake Paschall, as General Chairman of the appellant union, signed and sent to the Director of Personnel of the L. & N. Railroad a letter which refers to plaintiff and his employment as traveling engineer, and with reference to the plaintiff recites in pertinent part as follows:
After receiving the letter, the witness Scholl, on June 8, 1955, representing the Director of Personnel, had a conference with Paschall and a Mr. Porch who was a vice-president of the appellant brotherhood. Scholl testified as follows:
On June 23, 1955, Paschall, as General Chairman, sent another letter to the Director of Personnel. With reference to plaintiff, the letter recites:
*836 Scholl testified that on July 10, 1955, he had another communication from Paschall wherein Paschall advised that a strike vote was being taken and one item of the vote was a request that plaintiff be removed from the N. & D. Division as traveling engineer. On the night of June 10, 1955, plaintiff was removed as traveling engineer. There was no strike. Paschall testified that a strike was never called, that a date for a strike was never set.
Shortly thereafter, plaintiff was given the position of Assistant to the General Master Mechanic, which required plaintiff to travel "* * * all over the System, from one end of the System to the other."
Appellant takes the position that the objections of its officials, that is, Paschall and Porch, to the employment of plaintiff as traveling engineer, were that they objected to plaintiff only "* * * on the N & D Division out of Nashville," and that appellant's officials did not object to plaintiff's employment elsewhere on the L. & N. system. When the witness Scholl was asked on cross-examination whether or not appellant's objections were so limited, Scholl testified that, to his best recollection, "* * * no one made it specific." Whether appellant's objections were so limited, was, in view of the evidence, a question for the jury.
There is testimony that two elections were held, one in July and one in August, 1955, to decide which union, appellant or the Brotherhood of Locomotive Engineers, should be the bargaining agent for certain employees of the L. & N., and that in seeking to influence the voters in those elections, appellant's representatives circularized certain letters, including the letter of June 23, 1955, from Paschall to Howard, which is mentioned and quoted from hereinabove. The defendant, Otts, admitted on cross-examination that
On July 25, 1955, Otts, as Local Chairman, wrote a letter protesting the placing of plaintiff's name, together with four others, on the S & N A's Engineer's Seniority Roster. Here again it was for the jury to decide whether appellant's effort was to remove plaintiff from the division or from the whole L. & N. system.
There is testimony that the defendant, Otts, Chairman of the Local Grievance Committee of the appellant in Birmingham, in August, 1955, informed the witness, Laney, "* * * that the B of L F & E, that they were going to have a strike, a system-wide strike to remove him." We understand that "the B of L F & E" refers to the appellant, and that the "him" refers to plaintiff. We also understand that Otts denied making such a statement. Otts testified that from approximately May 22 to September 1, in 1955, as we understand it, he was on leave from his employment by the L. & N. Railroad and, during that period, worked as a general organizer for the appellant union.
There is testimony that in February, 1956, plaintiff, in the course of his employment by the L. & N., went into its shops in Mobile; that "cat calls" and "booing" occurred; that bolts, nuts, and lumps of coal were thrown at plaintiff; that it took five or ten minutes to get plaintiff out of the shop of the office; that it was necessary to take plaintiff back through the shop and that again there were "cat calls" and profanity directed toward plaintiff; that a fireman said, with reference to plaintiff and the witness:
Plaintiff testified that after he was transferred from the job of traveling engineer to that of Assistant Master Mechanic he traveled around the L. & N. system three or four months; that he was subjected to threats; that, at each city or location, after *837 his identity became known, there were cat calls or throwing of something; that these events occurred at Cincinnati, at Evansville, Indiana, at Owensboro, Kentucky, at Mobile and Nashville, and that plaintiff could not come to Birmingham.
There is contradictory testimony. We are not here concerned with the weight of the evidence. Under the familiar rule, we are required to view the evidence in the light most favorable to plaintiff, and to allow all inferences favorable to him which can reasonably be drawn from the evidence. Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So. 2d 727. Viewing the evidence according to the rule, we are of opinion that the evidence affords at least a scintilla to support a reasonable inference that appellant maliciously and wrongfully caused plaintiff to lose his employment, and, therefore, that the affirmative charges requested by defendant were refused without error.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, and GOODWYN, JJ., concur. | March 29, 1962 |
3af275a9-5d08-4153-8f76-dc3ecc064fe2 | Stapler v. State | 141 So. 2d 181 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 181 (1962)
James Wade STAPLER
v.
STATE of Alabama.
8 Div. 82.
Supreme Court of Alabama.
May 10, 1962.
*182 Lusk & Lusk, Guntersville, for appellant.
MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for appellee.
COLEMAN, Justice.
This is an appeal from a decree in equity which ordered that the prosecution of a fifteen-year-old minor, under an indictment for murder and robbery, be transferred from the juvenile court to the circuit court.
On August 10, 1961, the grand jury returned the indictment and, on the same day, the circuit court ascertained that the minor was fourteen years of age and, therefore, under § 363, Title 13, transferred the cause to the juvenile court. On August 21, 1961, the juvenile court rendered judgment finding that the minor was more than fourteen years old, that he could not be made to lead a correct life and could not be properly disciplined under the provisions of Chapter 7, § 350 et seq., of Title 13, Code 1940, and transferring the cause back to the circuit court. Such a judgment by the juvenile court is provided for by § 364, Title 13.
From the judgment of the juvenile court, appeal was taken to the circuit court, in equity, as provided for by § 362, Title 13, which provides that on appeal, "the circuit court shall try the case de novo," and also that all appeals under this chapter shall take precedence over all other business of the court to which the appeal is taken.
The circuit court, in equity, after hearing testimony ore tenus, ordered the cause transferred to the circuit court, "* * * there to be placed upon the Criminal Docket of said Court and there to be proceeded against according to law." The decree is assigned as error.
Appellant recognizes the rule of review that the appellate court will not reverse a decree rendered on testimony heard ore tenus by the trial court unless the decree is palpably wrong. Appellant insists, however, that a consideration of the evidence in the record shows that the decree is palpably wrong.
Appellee replies that the finding of the equity court, with reference to the delinquency of a minor, is not revisable by the Supreme Court in the absence of a clear abuse of discretion, citing Berry v. State, 209 Ala. 120, 95 So. 453; and Sims v. State Dept. of Public Welfare, 259 Ala. 283, 66 So. 2d 460. We do not think that either case supports appellee's proposition, as we hereinafter undertake to show.
*183 The correct determination of the power of the juvenile court, and our duty on appeal, must be determined from an examination of the statute.
So far as we are advised, § 364, Title 13, originated as § 11 of Act No. 340, General Acts of 1907, page 442. § 11 of the 1907 Act, which bears but slight resemblance to § 364 of Title 13, provided that when a child under fourteen years of age is arrested for violation of law, the child must not be imprisoned but shall forthwith be taken before the proper judicial officer provided by the 1907 Act. § 11 was codified as § 6458 of Code 1907.
§ 6458 of the Code of 1907 was amended by Act No. 506, General Acts 1915, pages 577, 584. In the last two sentences of § 9 of said act will be found the progenitor of the first sentence of § 364, Title 13. The 1915 Act provided as follows:
Act No. 295, 1923 General Acts, page 296, approved September 18, 1923, made extensive amendment to the juvenile offender statutes. The first sentence of Subdivision (2) of § 11 of the 1923 Act, page 310, and the first sentence of § 364, Title 13, Code 1940, are substantially the same. That sentence, as it appears in Code 1940, recites:
The 1923 Act made two significant changes in the sentence. First, where the 1915 Act provided that the probate court might transfer "any child," the 1923 Act, and the 1940 Code, limit the power of the juvenile court so that it may transfer only "a delinquent child, more than fourteen years of age," and not just any child. Second, the 1915 Act provided that "If at any time, said probate court is convinced" that any child before the court could not be reformed and brought to lead a correct life, the court could transfer the child, but the 1923 Act, and the 1940 Code, limit the power of transfer to "* * * any time, after thorough investigation or exercise of its disciplinary measures," and not just any time.
Where the 1915 Act apparently granted a power to transfer without investigation or trial of such measures, the 1923 Act, and the present law, require, as a condition precedent to transfer, that the juvenile court either make a "thorough investigation" of all pertinent circumstances, or "exercise" the disciplinary powers of the juvenile court under the statute. To hold otherwise would be to ignore the clear meaning of the language of the 1923 Act. See Biennial Report of Attorney General, 1922-24, page 425.
In the instant case, there is no insistence that the juvenile court exercised "its disciplinary measures," and the order of the juvenile court to transfer the prosecution to *184 the circuit court can rest only on the performance of the other condition which authorizes such transfer, namely, "thorough investigation."
Berry v. State, supra, was decided February 8, 1923, prior to the effective date of said Act No. 295, approved September 18, 1923. The Berry case was decided under the 1915 Act which did not require a "thorough investigation" or the "exercise of its disciplinary measures" by the juvenile court as a condition precedent to the exercise of its power to transfer the case against a minor, more than fourteen years of age, back to the circuit court.
The other case cited by appellee, Sims v. State Dept. of Public Welfare, supra, had nothing to do with the prosecution of a minor for crime. That case was a contest between grandparents and the Welfare Department for the custody of minor children and is not in point here.
In Ex parte State ex rel. Echols, 245 Ala. 353, 17 So. 2d 449, also cited by appellee, the petitioner sought to prohibit the circuit court, in equity, from proceeding against a minor, or to compel transfer of the prosecution to the law docket with a jury. In the Echols case, the issue in the cause, trial of which petitioner sought to prohibit, was delinquency vel non, which is not the issue in the proceeding now under review. The issue here is whether the minor can be made to lead a correct life, etc., as the statute provides. With reference to that issue, and the transfer of the prosecution to the circuit court, which issue and transfer were not present in the Echols case, the court had this to say:
Appellee has cited no authorities other than the three cases we have mentioned and § 364 of Title 13. A case which, as we think, sheds some light on the interpretation of § 364, is Macon v. Holloway, 19 Ala.App. 234, 96 So. 933; cert. denied, 209 Ala. 580, 96 So. 936.
In the Macon case, the court considered an act of the legislature which applied to counties of certain population and related to dependent, neglected, or delinquent children, to wit: Act No. 40, General and Local Acts 1920, page 76, approved October 2, 1920. The first sentence of § 20 of that act may well have been taken as a model by the draftsman of Act No. 295, 1923 Acts, page 296, discussed supra. The 1920 Act, considered in the Macon case, in pertinent part recited as follows:
In the Macon case, the minor applied to the circuit court for mandamus, to compel the juvenile court to rescind its order transferring the prosecution of the minor to the circuit court and to compel the trial of the minor as a juvenile in the juvenile court. The circuit court sustained demurrer to the petition, and, on the appeal that ruling was reviewed and affirmed. With reference to the power to transfer, conferred by the statute on the juvenile court, the opinion in pertinent part recites:
In the light of the foregoing authorities, we are of opinion that the juvenile court could transfer the prosecution of the minor to the circuit court in the instant case only after a thorough investigation and a finding supported by proof that the minor cannot be made to lead a correct life and cannot be properly disciplined under the provisions of the juvenile statute.
We are further of opinion that on appeal to the circuit court, in equity, that court could transfer the prosecution to the circuit court only after such investigation and a finding supported by such proof presented on trial de novo.
In the case at bar, the evidence which was before the circuit court, in equity, is in the record before us and we must consider the same under the recognized rules of appellate review.
Seventeen witnesses testified on behalf of the minor. Many of the witnesses had known the minor all his life. All, except the child welfare worker, had known him for a number of years. Sixteen witnesses testified that his reputation in the community in which he lived was good, that he was a quiet boy, that he did not misbehave, that he was obedient, and that he was a good worker.
The child welfare worker had made an investigation pursuant to an order of the juvenile court. She testified as to the results of her investigation of the minor *186 and his family and associates. Among other things she said:
She testified that on the basis of her investigation and experience, she "feels" that the minor, "* * * due to his age that he should be accepted by the Juvenile authorities in the juvenile age range and rehabilitated," and that she "feels" that he can be rehabilitated.
There is nothing in the testimony of these seventeen witnesses to support a finding that the minor cannot be made to lead a correct life or that he cannot be properly disciplined under the provisions of the juvenile offender statutes. On the contrary, the testimony, if true, compels a contrary finding.
The only additional testimony is that of a deputy fire marshal who was called in to investigate an automobile fire which occurred in connection with the crimes with which the minor is charged.
This last witness testified that he received a call from the sheriff's office and that he went "to the scene together" with others. The witness testified as to what he found. Some of the testimony of this witness is clearly hearsay and could not be considered under any rule that holds hearsay to be incompetent. The details of what the witness found at the scene of the alleged crime are not relevant to the issue on trial, i. e., whether the minor can be made to lead a correct life and can be properly disciplined under the juvenile court statutes, unless there is evidence to connect the minor with the alleged crime.
This last witness testified that the minor made oral and written confession of his guilt, and the alleged written confession was admitted in evidence. When counsel for the minor moved to exclude a certain statement of the witness made in connection with the confessions, the court stated:
The decree recites:
We think the record discloses that the learned trial court considered the testimony *187 going to prove the confessions of the minor and regarded the confessions as competent evidence.
The deputy fire marshal, as predicate to admission of his testimony, testified that neither he nor anyone else offered to the minor any inducement to get him to make a statement, but on cross-examination the deputy fire marshal testified as follows:
We are of opinion that the evidence going to prove the confessions was not competent and, therefore, should not have been considered by the court.
This case was tried in equity, without a jury. The court had indicated that only relevant evidence would be considered. We think the record shows that the court was proceeding under Act No. 101, approved June 8, 1943, General Acts 1943, page 105, which appears as § 372(1), Title 7, Code of Alabama Recompiled 1958. See also Act No. 479, General Acts 1923, page 631. This statute provides that in the trial of equity cases it shall not be necessary that objection be made to any testimony which may be offered by either party and that the court shall not consider any testimony which is irrelevant, immaterial, incompetent, or illegal, whether objections shall have been made thereto or not, and whether such testimony be brought out on direct, cross or re-direct examination, or is hearsay. In such posture of the case, we do not think it was necessary for the minor to object to the evidence proving the confessions, or to move to exclude it, if such evidence was incompetent.
§ 377, Title 13, provides that the "voluntary" confessions of any delinquent child, in reference to any cause, if otherwise competent, shall be received "in such court as legal evidence." The present Code section appears in Act No. 295, General Acts 1923, at page 315, as an amendment of § 6464, Code 1907, which formerly provided that the confessions made by a child under fourteen years of age shall never be legal or competent evidence against the child in any court or proceedings whatever. Thus it appears that the "voluntary" confessions of the minor in the instant case would be admissible against him if the confessions be otherwise competent.
Appellant contends that the evidence relating to the crime charged against the minor in the instant case is not relevant to the issue of whether he cannot be made to lead a correct life and cannot be properly disciplined as aforesaid. In view of our conclusion that the confessions were not shown to be voluntary, we forego determination of the issue raised by appellant's contention.
It scarcely seems necessary to cite authority for the proposition that a confession is prima facie inadmissible as evidence and it must be satisfactorily shown to the court that it is voluntary before it can be received in evidence. Mullis v. State, 258 Ala. 309, 62 So. 2d 451
In the instant case, however, predicate was laid to show that the confessions were voluntary, and it was only on cross-examination of the witness who proved the confession that its involuntary character was shown.
*188 In Newman v. State, 49 Ala. 9, judgment was reversed for admission of evidence proving a confession which was held to be involuntary.
Where witness told defendant "you had better return the chair" which had been stolen, and defendant replied "that he would," this court held the confession involuntary and inadmissible. Lacey v. State, 58 Ala. 385.
In Owen v. State, 78 Ala. 425, the defendant had been delivered into the custody of J. W. Robertson, a special constable.
This court reversed and said:
Concerning Anderson v. State, 104 Ala 83, 16 So. 108, it has been said:
In another case, on trial for infanticide, the defendant had been told "Tell us the truth about it all, and that will be the last of it." Defendant shortly after said, "Yes, Martha did have a baby, and I burned it up." This court held it error to refuse to exclude this evidence, for the reason that inducement was held out to defendant to make the confession. Gregg v. State, 106 Ala. 44, 17 So. 321.
A confession induced by hope was held inadmissible in Ballard v. State, 225 Ala. 202, 142 So. 668.
The rule of procedure on admission of testimony to prove a confession has been stated as follows:
See also Lewis v. State, 220 Ala. 461, 125 So. 803.
Although the rule is that where proper predicate is laid and the confession is admitted in evidence, but it afterwards appear, upon cross-examination, or otherwise from the evidence, that the confession was not voluntary, then the court should, on proper motion, exclude the confession; nevertheless, it has been held that, in the absence of the motion to exclude, the trial court cannot be put in error for permitting the evidence to remain before the jury. Lett v. State, 19 Ala.App. 298, 97 So. 148; cert. denied, 210 Ala. 699, 97 So. 923; Minton v. State, 20 Ala.App. 176, 101 So. 169. See also Dossett v. State, 19 Ala.App. 496, 98 So. 359.
In the instant case, the statute itself, Act No. 101, General Acts 1943, page 105, supra, makes the objection and motion to exclude. Under Act No. 101, supra, "The *190 court will, without objection, only consider legal evidence * * *." Low v. Low, 255 Ala. 536, 539, 52 So. 2d 218. Although, on preliminary examination, the witness testified that no one offered the minor any inducement to get him to make a statement, the same witness, on cross-examination testified that he told the minor, in effect, that if the minor "didn't try to hide anything," "he," meaning "the judge," might give a lighter sentence. This statement by the witness stands uncontradicted. We are of opinion that the undisputed evidence shows that the confessions were not voluntary and the evidence going to prove them should have been excluded and not considered by the court.
We do not ignore the rule which has been stated as follows:
The minor had allegedly confessed that he took money, and later an amount of money had been found buried where the minor showed the witness. We do not find it shown, however, other than by the confessions, that the money recovered had, in fact, ever been stolen. If the money could be regarded as stolen, then it would be proper for the court to consider that, in consequence of the statement made by the minor, the stolen money had been found at the spot pointed out by the minor, but not his acknowledgment that he had participated in the alleged crimes or had stolen the money. Those are facts that the court must collect or not from all the circumstances of the case, and the court is "not to be aided by confessions extorted from the excited hopes of the prisoner." Murphy v. State, supra.
When the confessions of the minor are excluded, there is no evidence left to support a finding that the minor "cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter." A finding, which requires evidence to support it, but which is not supported by evidence, cannot be allowed to stand.
Reversed and remanded.
SIMPSON, GOODWYN, and MERRILL, JJ., concur. | May 10, 1962 |
5f03dfac-7a54-4732-a0dd-2719cf5b46a6 | Jowers v. Dauphin | 143 So. 2d 167 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 167 (1962)
Fay Simmons JOWERS
v.
Heathie DAUPHIN.
4 Div. 78.
Supreme Court of Alabama.
June 14, 1962.
Rehearing Denied July 12, 1962.
Prestwood & Prestwood, Andalusia, for appellant.
Tipler & Fuller, Andalusia, for appellee.
SIMPSON, Justice.
Appellee recovered a judgment in a tort action against appellant arising from the collision of appellant's automobile with the pick-up truck in which appellee was riding.
The pick-up truck was proceeding in a northerly direction over Highway 231 near Opp, Alabama and the automobile of appellant was traveling in the same direction behind the pick-up truck when appellant drove her automobile into the rear of the pick-up truck.
Appellant assigns several errors but in view of our conclusion that there is one patent error which requires a reversal of the case, we see no good purpose in discussing the other assignments.
The error which we think is fatal to an affirmance of the case was the admission of certain testimony of the highway patrolman who was not present when the accident occurred but was allowed to testify as to the speed of both vehicles immediately before the collision, from what he observed at the scene.
Following is the record, with reference to the testimony of the highway patrolman:
It will be observed from the foregoing testimony that the skid marks on the highway were made when the vehicles collided. In our recent case of Baggett v. Allen, Ala., 137 So. 2d 37, this court held testimony substantially similar to the foregoing to be error authorizing the trial court to grant a motion for a new trial for allowing it in evidence. The only difference between the evidence in the instant case and that in the Baggett case is that after the impact in the Baggett case there were "scuff marks in the road", whereas in the instant case after the impact there were "skid marks" in the highway. The cases of Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So. 2d 902, and Huguley v. State, 39 Ala.App. 104, 96 So. 2d 315, are cited in the Baggett case as supporting the holding that such evidence is erroneously admitted. We entertain the view that these authorities impel us to order a reversal of the case for the admission of the foregoing testimony.
Appellee cites Jackson v. Vaughan, 204 Ala. 543, 86 So. 469 and Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702 to sustain the ruling below. The Jackson case sustains the principle that one shown to be an expert may express opinion as to the estimated speed of an automobile predicated on the distance the tires "skidded" or were dragged along the highway before the impact; and that case seems to have been cited with approval in the Johnson case. This seems to be the distinguishing difference which this court has made with reference to this type of testimony. We think the first cited authorities rule out evidence of such expert testimony when the "scuff marks" or "skid marks" in the road or highway were made at the time of the impact and that the witness may not testify as to the speed of the vehicles simply by observing these local conditions and viewing the damage to the vehicles; whereas the last two cited cases are cases where the skid marks were made by the vehicle before impact. For general authorities see 70 A.L.R. 544 and 156 A.L.R. 383.
If the distinction needs any rationalization we might well quote from Mobile City Lines v. Alexander, 249 Ala. 107, 112, 30 So. 2d 4, 8, where this court observed:
For the error noted the case must be reversed. Reversed and Remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | June 14, 1962 |
7d3c126f-b9c1-4964-9dd5-2d97e836e3df | Curlee v. Wadsworth | 136 So. 2d 886 | N/A | Alabama | Alabama Supreme Court | 136 So. 2d 886 (1962)
Betty Jean CURLEE
v.
Jacob G. WADSWORTH et al.
3 Div. 970.
Supreme Court of Alabama.
January 18, 1962.
Godbold, Hobbs & Copeland, Montgomery, for appellant.
Rushton, Stakely & Johnston, Montgomery, for appellees.
MERRILL, Justice.
This appeal is from a decree sustaining a demurrer to a bill of complaint. The appeal was taken prior to September 15, *887 1961, the approval date of the act abolishing such appeals.
The bill sought a construction of Item 2 of the will of M. S. Wadsworth, which was probated in Autauga County in 1912. The trial court sustained the demurrer on the ground that the provisions of Item 2 violated the Alabama rule against perpetuities, as that rule existed in 1912, in so far as appellant was concerned.
The statute then in effect was § 3417, Code 1907, which provided:
Appellant is a grandchild of the testator, being a child of one of the several children of M. S. and Mary C. Wadsworth. Appellant, claiming to be a remainderman under the will, joined as parties respondent the now living children and grandchildren of M. S. and Mary.
After alleging the probate of the will, setting forth its provisions, and alleging the interests of the parties in the subject matter of the litigation, the amended bill further alleges that the demurring respondents:
The bill prays among other things that the fee of the Pope Place be declared to be in the grandchildren subject to the life interests of the children.
Appellees argue that the use of the word "or" in the granting or devising clause violates § 3417, Code 1907, in that it is not absolutely certain that the future interests devised will vest within the prescribed period, i. e., three lives in being and ten *888 years thereafter. We again quote that clause:
It can readily be seen that the bequest of "the remainder over to the children of the said Mary C. Wadsworth" could include children of Mary by an earlier husband than the testator and she could have had as many as four living children at the time of the testator's death. This fact would have extended the vesting of the future interests beyond three lives in being and ten years thereafter.
The same result could be reached if Mary married after the testator's death and had children by the second marriage.
Following this devise, the testator used the word "or" and then described a class that would not be in violation of the statute, namely, to his and Mary's children and "to the heirs of their body."
The "habendum clause" following "my Pope place" shows that the devisees are limited in two instances to Mary's children born "as the result of her marriage with me." This part of Item 2 is definitely not violative of the rule against perpetuities under § 3417, Code 1907.
Appellant, in oral argument, conceded that if the will is construed to apply to a child of Mary, not fathered by the testator, then it does violate § 3417, Code 1907. But appellant contends that a reading of Item 2 as a whole shows that a different construction can be given to the will.
In a fine article by Professor W. Barton Leach, "Perpetuities In A Nutshell," 51 Harvard Law Review 638, at 642, we read:
Under this statement, the devise to Mary's children was too uncertain. But the succeeding sentences would not render it too uncertain.
The appellant is a "person interested" under the will as described in our declaratory judgment statute, Tit. 7, § 159, and is entitled to have the will construed in this action. Robinson v. Robinson, 3 Div. 979, Ala., 136 So. 2d 889.
It is well settled that it is usual for the court to require an answer and hearing on the pleadings and proof, and not to proceed with a construction of the will by acting on a demurrer. Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792; Gant v. McCarty, 242 Ala. 350, 6 So. 2d 17.
The fundamental rule in the construction of wills is that the intention of the testator is the controlling factor, and his intent must be gathered from the will in its entirety, and each clause or provision should be so interpreted as to avoid an irreconcilable conflict when reasonably susceptible of such a construction. Sewell v. Byars, 271 Ala. 148, 122 So. 2d 398; Orr v. Helms, 217 Ala. 603, 117 So. 61.
We hold that the bill shows that appellant is entitled to have a construction of the will; that Item 2 of the will requires a construction, that an answer and testimony will probably aid the trial court *889 in construing the will, and that the will in this case should not be construed on demurrer. It follows that the decree of the lower court is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 18, 1962 |
72c00a89-9888-4f40-8eca-4c59aac0478a | Knight v. State | 142 So. 2d 899 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 899 (1962)
Ansley KNIGHT
v.
STATE of Alabama.
4 Div. 101.
Supreme Court of Alabama.
June 21, 1962.
*901 Allen Cook, Andalusia, for appellant.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
COLEMAN, Justice.
This is an automatic appeal from a conviction for murder in the first degree and sentence of death.
In bare outline, the evidence for the State tended to show that defendant entered a taxicab and rode out from town to a spot where defendant killed the taxi driver by stabbing him many times with an ice pick. The evidence for defendant tended to show self-defense.
We are of opinion that the court did not err in overruling defendant's motion to postpone arraignment.
*902 The record contains an order of the court filed September 5, 1961, setting arraignment for September 18, 1961. Defendant's motion shows that defendant's counsel examined the file on September 13, 1961. Our conclusion is that defendant's counsel thus had five days' notice of the day set for arraignment.
In many cases this court has said that a motion for continuance is addressed to the sound discretion of the court and the exercise thereof is not subject to review except for gross abuse. We are not cited to any case where this court has held that the trial court erred to reversal in denying a continuance.
We are not persuaded that the record in the instant case shows such an abuse. The only matter in the record which supports the motion is the motion itself, which is sworn to. The statements in the motion to effect that defendant's counsel needed more time to investigate are "conclusion of counsel, without any fact to show that the accused would be prejudiced" by denial of the motion. Morris v. State, 193 Ala. 1, 6, 68 So. 1003. See Peterson v. State, 231 Ala. 625, 166 So. 20.
Defendant argues that the judgment must be reversed because part of the trial of defendant was conducted while the defendant was absent from the court.
The record discloses that defendant filed a motion to "re-qualify the jury venire" on the ground that defendant was absent from the courtroom at the time the court qualified the venire. Testimony was taken for and against the motion. The court denied the motion and defendant excepted.
After conviction, defendant moved for a new trial. The first and second grounds of that motion seek a new trial for:
The motion for new trial was overruled.
The transcript of testimony commences as follows:
As we understand the record, defendant was not in the courtroom while the foregoing proceedings took place.
*904 In support of the motion, defendant's counsel testified that at the time the court qualified the venire for the week defendant was not in the "courtroom proper" and if defendant was anywhere near, his presence was not known to his counsel; that defendant "* * * wasn't anywhere near the desk and had not been seen by me at any time during the morning * * *."
The sheriff testified that throughout the qualification of the jurors, defendant "* * * was right in that room with the door open, standing behind some of the jurors. Chief Porter Moore was present with him and Olin Lawson, Deputy Sheriff"; that in the opinion of witness "20 or 25 feet" was the distance "* * * between the court bench here and the door there where the defendant was."
Defendant testified that he could hear the court but could not understand what the court was saying.
Chief Porter Moore testified that he was standing near defendant; that he, Moore, was nearer to the court than defendant was, by 2 or 3 feet; and that he, the witness, was "* * * able to hear the qualification of the jury."
The State insists that because defendant could hear the court defendant was present in court, and in support of that contention relies heavily on Dozier v. State, 17 Ala.App. 609, 88 So. 54. The opinion in that case begins as follows:
The instructions thus given are then set out, but we omit them here because they have no bearing on the question at hand. The opinion continues as follows:
The statement to effect that the action of the court did not constitute reversible error is a gratuitous comment unnecessary to the decision on that appeal. The language plainly shows that the question of the erroneous character of the court's action was not "properly presented for review." *905 The two cases cited reinforce this proposition. In Grand Bay Land Co. v. Simpson, supra, this court said:
In Sovereign Camp Woodmen of the World v. Wallace, supra, this court said:
The statement in Dozier v. State, supra, to effect that the action of the court did not constitute reversible error is a comment not necessary to the decision in that case and is therefore dictum and is not controlling. Roquemore v. Sovereign Camp, W. O. W., 226 Ala. 279, 282, 146 So. 619.
We are of opinion that on the trial of a capital case, a defendant is not personally present in court when he is not in the courtroom; his counsel is in the courtroom but is not aware of defendant's whereabouts and has not seen defendant that morning; defendant is in a side room, the door of which is 20 or 25 feet from the bench; defendant is in custody and is standing by two officers, one of whom is 2 or 3 feet nearer the bench than defendant; defendant is standing behind some of the jurors; and defendant can hear the court talking but cannot understand what the court is saying.
Because defendant was not present in court when the court qualified the jury, the judgment must be reversed and the defendant tried again.
Defendant argues that the court erred to reversal in asking whether or not the defendant agreed to excusing the jurors who sought to be excused.
In a case where it was insisted that the court erred in ordering jurors who desired to be excused to see the attorney for defendant, this court declined to reverse because the record did not disclose such an order or a proper objection. With respect to the propriety of such an order, however, this court said:
In the instant case, however, the State insists that even if the court did err in asking defendant whether he agreed to excusing the jurors, defendant failed to object to the action of the court in so asking, and, therefore, there is no ruling to be reviewed.
*906 We forego deciding whether the action of the court was in accord with § 38, Title 30, Code 1940, and Taylor v. State, supra.
We are of opinion that there is no ruling presented for review because defendant did not object to the inquiry made by the court with reference to defendant's agreeing to excuse jurors.
The purpose of objection and exception are to challenge the correctness of the action of the court so that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for review, if necessary, by the appellate tribunal. Without such objection, the trial court ordinarily has the right to assume that its action is acquiesced in and free from error. Haygood v. State, 252 Ala. 3, 38 So. 2d 593.
Neither do we think that the automatic appeal statute has dispensed with the necessity for an objection to enable us to review the action of the court in asking defendant whether he agreed to excusing jurors. Under the automatic appeal act, § 382(10), Title 15, Code of Alabama, Recompiled 1958, we are not required to review the oral charge of the court in the absence of an exception thereto. Easley v. State, 246 Ala. 359, 20 So. 2d 519; Byrd v. State, 257 Ala. 100, 57 So. 2d 388. The instant inquiry addressed by the court to defendant stands on no higher ground than the oral charge of the court, and in the absence of objection to the inquiry there is no ruling for review.
Defendant argues that the court erred in admitting in evidence three photographs of the naked torso and head of the deceased and cites McKee v. State, 33 Ala. App. 171, 31 So. 2d 656, for the proposition that photographs should be limited to such amount of the human anatomy as is necessary to show the wounds.
On examination of the photographs, we are of opinion that the photographs were sufficiently limited in that respect, and that the photographs met the test that they must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. They must have some tendency to shed some light upon some material inquiry. Rollings v. State, 160 Ala. 82, 49 So. 329; Nichols v. State, 267 Ala. 217, 100 So. 2d 750.
Defendant argues that his alleged confession should not have been admitted in evidence. Defendant insists that the confession was not admissible because it was obtained at 1:30 a. m., when defendant had suffered numerous mosquito bites, had not eaten for five days, and neither defendant's counsel or relatives were present.
Defendant testified that he got to the sheriff's office where the confession was made at night, "about 11:00 or 12:00 o'clock"; that on Friday night defendant made up his mind to give himself up; that he went to the house of Melvin Pickett; that Pickett gave him a plate which was the first meal defendant had eaten since Monday; that Pickett took defendant to "Mr. Buck's," who was not at home; that defendant stayed in a box car until Pickett returned with Mr. Buck; that Mr. Buck asked defendant only one question and brought defendant to the city jail in Florala; that defendant stayed there a couple or three minutes and they brought him to the office; "But at the mean time I had a couple of drinks which I got, which I was very full and sleepy and tired"; that the drinks were "moonshine."
The witness Wilson, deputy sheriff, testified that the statement was made "Shortly after mid-night." Predicate was laid to show that the statement was voluntary. It was read to defendant. It has been sent to us. It bears several corrections near which appear in handwriting the initials, "A. K." The name, "Ansley Knight" is written at the bottom of each page.
*907 The transcript shows that on cross-examination the signatures were shown to defendant and he admitted they were his signatures. Defendant testified as follows:
Defendant's testimony in court is similar to the confession. We find no showing that the confession was obtained by threats or promises. The record does not indicate to us that defendant was subjected to prolonged questioning. There was no error in admitting the confession.
Defendant contends that the verdict was contrary to the weight of the evidence, "especially in view of the relative sizes of the two men." A careful reading of the transcript does not persuade us that defendant's contention is correct. In view of another trial we forego discussion of the evidence.
In view of the action of the court in excluding the argument of the solicitor "comparing the defendant to a rattlesnake and a fang to an ice pick," we anticipate that this argument will not be repeated.
Defendant undertook to reserve two exceptions to the oral charge. Counsel for defendant stated:
The oral charge recites in pertinent part as follows:
Every person over fourteen years of age is presumed to be responsible for his acts, and the burden of proving that he is irresponsible *908 is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury. § 422, Title 15, Code 1940. Parrish v. State, 139 Ala. 16, 50, 36 So. 1012; Jones v. State, 181 Ala. 63, 82, 61 So. 434; Grammer v. State, 239 Ala. 633, 637, 196 So. 268.
In the instant charge, we find no instruction that defendant's burden was to prove his plea of insanity to the reasonable satisfaction of the jury. The court did instruct that the burden was on the State to satisfy the minds of the jury beyond a reasonable doubt of his guilt. The jury could well assume that defendant's burden "to show" was also to show beyond a reasonable doubt.
Because of the difference between the degrees of proof resting on the State and defendant in the instant case, we think the portion of the oral charge quoted above is fairly subject to the criticism that the charge omits to state that defendant's burden is to prove his plea of insanity to "the reasonable satisfaction of the jury."
While defendant's exception does not reach this omission, the defect is noted so that it may be hereafter avoided.
Defendant's argument is directed to the concluding sentence of the quoted excerpt from the charge. Defendant insists that it was error to leave to the jury the question as to whether or not there was evidence to support the plea of insanity.
This court, in reviewing a conviction for rape, considered the propriety of a statement by the trial court that there was certain evidence before the jury. This court said there was no error in the statement made by the trial court, "but, what that testimony proved was for the jury to determine." The opinion closes with the following quotation:
So in the instant case, whether or not there was any evidence to substantiate the plea of insanity was a question for the court.
After reviewing the evidence, however, we are of opinion that there was no evidence to support that plea. This court has held that where there is no evidence to establish the plea of insanity, it is not reversible error for the court in its oral charge to instruct the jury to the effect that there is no evidence which would justify a finding of not guilty by reason of insanity. Walker v. State, 269 Ala. 555, 560, 114 So. 2d 402. This court has further held that persons on trial for the commission of crimes are presumed sane and proof of the crime does not affect that presumption, and that the burden of proof is on defendant to support his plea of insanity. Walker v. State, supra.
As a result, we are of opinion that the portion of the charge excepted to, although incorrect, did not injure defendant, but was favorable to him, because the charge permitted the jury to find evidence to support defendant's plea of insanity, although there was no such evidence before them.
The oral charge recites in part:
In the instant case, defendant reserved a second exception as follows:
An exception to "that part of the charge defining wantonness" has been held too indefinite to reserve an exception to the court's oral charge. Conway v. Robinson, 216 Ala. 495, 113 So. 531. The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court and this court the matter and rulling of which complaint is made. Pollard v. Rogers, 234 Ala. 92, 96, 173 So. 881.
Statements of law in judicial opinions are not always proper for jury instructions in other cases. Mobile Infirmary v. Eberlein, 270 Ala. 360, 367, 119 So. 2d 8. Lifting language from an opinion and embodying it in a written charge does not of itself make it a correct instruction to the jury. Lakey v. State, 258 Ala. 116, 122, 61 So. 2d 117. Much is properly said in the opinions of appellate courts which is not proper to be given in charge to juries. Kansas City, M. & B. R. Co. v. Matthews, 142 Ala. 298, 313, 39 So. 207. To like effect, see Woodbury v. State, 69 Ala. 242; Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 194, 67 So. 407; Gray v. Anderson, 241 Ala. 154, 157, 1 So. 2d 384; Harper v. State, 16 Ala.App. 153, 75 So. 829.
Defendant's attempt to reserve his second exception to the oral charge may be sufficient to present for review the propriety of the first sentence quoted by the trial court from Cooke v. State, supra, but we do not think defendant properly reserved exception to the entire quotation of which he now complains.
The first sentence of the quotation, standing alone, may not be such error as to require reversal, but we are not to be understood as approving that sentence as a proper one to give in a charge to the jury. Defendant's argument is addressed to the entire quotation, not merely the first sentence, but the remainder of the quotation was not excepted to.
In view of another trial, however, and the argumentative nature of the quotation, we deem it proper to suggest that possible error may be avoided by omitting the quotation altogether.
The mother of deceased testified for the State that deceased had twin children, who were eleven years old "the 27th of last May," and who "are here today" and "in the witness room." The court overruled defendant's motion to strike the testimony of the mother.
We have not found where the children of deceased testified or how they have any connection whatever with the issues on trial in this case.
In Fisher v. State, 23 Ala.App. 544, 129 So. 303, the Court of Appeals, in a homicide case, held it to be reversible error to permit widow of deceased to testify "* * * in detail, about the number of children left by deceased, their ages, etc." The Fisher case is criticized, but not overruled *910 in Lovejoy v. State, 244 Ala. 637, 15 So. 2d 303.
How many children the slain man had, their ages, and that they were in attendance in the witness room are irrelevant facts in the instant case. The writer is of the view that to hold such evidence not prejudicial to the defendant is to disregard the realities of trial atmosphere and the emotional frailties of human nature. This the writer feels bound to note in view of another trial and § 382(10), Title 15, Code 1940, Recompiled 1958; 40 C.J.S. Homicide § 225, p. 1146; and 26 Am.Jur. 367, Homicide, § 314.
The judgment recites in pertinent part as follows:
and
"* * * Thereupon, the court sentenced the defendant to death * * *."
As in Gray v. State, 55 Ala. 86, the quoted recital of the instant judgment "strictly considered, is the mere memorandum of a ministerial officer, narrative of, but not contemporaneous with, the transaction to which it refers."
The judgment is insufficient. Wright v. State, 103 Ala. 95, 15 So. 506; Marks v. State, 131 Ala. 44, 31 So. 18; Moss v. State, 140 Ala. 199, 37 So. 156; Shepard v. State, 20 Ala.App. 627, 104 So. 674; Blakely v. State, 28 Ala.App. 574, 190 So. 102.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | June 21, 1962 |
f20ac3b1-1218-4269-a98e-881c38268ffe | Mobile City Lines, Inc. v. Holman | 141 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 180 (1962)
MOBILE CITY LINES, INC.
v.
Louela HOLMAN.
1 Div. 14.
Supreme Court of Alabama.
May 10, 1962.
Johnston & Johnston, Mobile, for appellant.
M. A. Marsal, Mobile, for appellee.
SIMPSON, Justice.
Suit for damages by appellee against appellant. Judgment in favor of appellee for $28,000 on jury verdicthence this appeal.
Appellee was a passenger on one of appellant's buses on February 6, 1960, at a bus stop on Royal Street near the intersection of Dauphin Street. When the bus started to cross Dauphin Street the plaintiff had not yet seated herself. A pedestrian stepped into the path of the bus and the driver pulled the bus to a sudden stop, causing appellee to fall and injure herself.
The assignments of error, in addition to claiming excessiveness of damages, are the giving of one charge requested by plaintiff and the refusal of several charges requested by defendant. We do not consider all these assignments of error, since the conclusion seems inescapable to us that the learned trial court committed reversible error in giving the charge requested by the plaintiff.
The charge given for the plaintiff reads:
Manifestly the charge was prejudicially erroneous in omitting that the alleged negligence must be the proximate cause of the injury. See Atlantic Coast Line R. Co. v. Horn, 37 Ala.App. 220, 66 So. 2d 202; Johnson v. Louisville & Nashville R. Co., 220 *181 Ala. 649, 127 So. 2d 216; Harris v. Schmaeling, 270 Ala. 547, 120 So. 2d 731; Zemczonek v. McElroy, 264 Ala. 258, 86 So. 2d 824; Mobile City Lines v. Proctor, 272 Ala. 217, 130 So. 2d 388. Many other cases could be cited.
But appellee argues that the charge was merely incomplete and that a subsequent explanation by the court that "This of course is predicated on if you also believe that she suffered injuries and damages as a proximate result of the negligence", cured the error. The argument is untenable. The charge was not merely incomplete, it was positively erroneous.
Code 1940, Title 7, § 273, provides:
From an early time this Court, in construing this language in the predecessor statute, has held:
If this principle needs any rationalizing, its obvious purpose must be to keep from the jury prejudicially erroneous instructions which they take into the jury room to consider in connection with the case, where they do not have with them any documentation of the court's "explanation" of the charge.
Feeling constrained to hold that the giving of the charge was error to reverse, we deem it unnecessary to consider the other assignments of error.
Reversed and remanded.
GOODWYN, MERRILL and COLEMAN, JJ., concur. | May 10, 1962 |
5434acd5-50d5-4495-99bf-6c08a4a73f60 | Martin v. Stoltenborg | 142 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 257 (1962)
Lillian Irene MARTIN
v.
Mildred F. STOLTENBORG.
6 Div. 778.
Supreme Court of Alabama.
March 22, 1962.
Rehearing Denied June 21, 1962.
*258 Roger F. Rice and Fred Blanton, Birmingham, for appellant.
Corretti & Newsom, Birmingham, for appellee.
LAWSON, Justice.
This suit was brought in the Circuit Court of Jefferson County by Mildred F. Stoltenborg against Lillian Irene Martin, d/b/a Martin Real Estate and Insurance Company.
The first count of the complaint was upon an open account, the second upon an account stated. The amount sued for in those counts was $1783, with interest. The three remaining counts were for work and labor done in the amount of $933, $750 and $1783 respectively.
The cause was tried upon those counts and the plea of the general issue in short by consent in the usual form.
There was a jury verdict in favor of the plaintiff in the amount of $1974.48. Judgment was in accord with the verdict. The defendant's motion for a new trial being overruled, she perfected her appeal to this court.
The appellant's principal insistence for reversal is that the trial court erred in refusing to give, at appellant's request, the general charge with and without hypothesis. Those charges were not as to any specific count or counts but as to the whole case. Hence if there was evidence affording a basis for recovery under any one of the five counts, the charges were refused without error. Georgia Cotton Co. v. Lee, 196 *259 Ala. 599, 72 So. 158; Brown v. Corona Coal Co., 208 Ala. 522, 94 So. 535; Woodward Iron Co. v. Burges, 219 Ala. 136, 121 So. 399; American Railway Express Co. v. Dunnaway & Lambert, 17 Ala.App. 649, 88 So. 60.
In dealing with the affirmative charges refused the defendant, we must look to the strongest tendencies of the evidence for the plaintiff. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Southern Ry. v. Sanford, 262 Ala. 5, 76 So. 2d 164; Moore v. Cooke, 264 Ala. 97, 84 So. 2d 748.
The evidence viewed in the light most favorable to the plaintiff is as summarized hereinafter.
Plaintiff, a real estate broker, was an employee of defendant when she secured the listing of a forty-acre tract of land in Jefferson County with the understanding that the purchaser, not the owner, would have to pay the broker's commission.
After she acquired the right to sell the land, the plaintiff was told by the defendant not to attempt to sell it to anyone because the defendant's husband, a real estate developer, was interested in acquiring it. Plaintiff was told by defendant that plaintiff would be paid her usual commission when the defendant's husband purchased the land and in consideration of that promise, the plaintiff did not attempt to sell the land.
The defendant's husband formed a corporation for the purpose of acquiring the land. That corporation, whose stock was practically all owned by the defendant's husband, did secure title to the land from the owner, who had listed it for sale with the plaintiff.
After the negotiations between defendant's husband and the owner had been completed, the defendant admitted she owed the plaintiff $1783 and promised to pay that sum to plaintiff. The defendant later refused to pay the plaintiff as promised and this suit followed.
We are of the opinion that the evidence summarized above presented a jury question under the second count which, as shown, was upon an account stated, which is an agreement between parties who have had a previous transaction or transactions of a monetary character that the item or items of account representing such transaction or transactions and the balance struck are correct, together with a promise, express or implied, for the payment of such balance. Walker v. Trotter Brothers, 192 Ala. 19, 68 So. 345, and cases cited; Ware v. Manning, 86 Ala. 238, 5 So. 682; Jasper Trust Co. v. Lamkin, 162 Ala. 388, 50 So. 337, 24 L.R.A.,N.S., 1237. See Ingalls v. Ingalls Iron Works Co., 5 Cir., 258 F.2d 750.
An account may consist of a single item. Wharton v. Cain, 50 Ala. 408; Nooe's Ex'r v. Garner's Adm'r, 70 Ala. 443. To create a stated account, it is not essential that the statement of the account should be made in writing. Lallande v. Brown, 121 Ala. 513, 25 So. 997. The term "account" covers any item of indebtedness by contract, express or implied. Dees v. Self Bros., 165 Ala. 225, 51 So. 735. An account stated is not founded on the original liability, but on the defendant's admission that a definite sum is due in the nature of a new promise, express or implied. Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273. In an action upon an account stated, to authorize recovery there must be shown a consideration to support the promise relied on, and if there is shown no consideration for the alleged promise, the plaintiff is not entitled to recover. In other words, in the absence of any original pecuniary obligation there can be nothing to settle or to merge into an accounting, and hence the promise to pay a claim not founded on such obligation, though it purports to be made as upon an account stated, is not conclusive and may be shown to be without consideration. Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 So. 722.
*260 In the instant case there was an original pecuniary obligation based upon a valid consideration, plaintiff's action in securing the property for sale, together with her abandonment of efforts to sell it because plaintiff's husband was to become the purchaser.
The evidence making out a case for jury determination under the second count of the complaint, the trial court correctly refused the affirmative instructions which were as to the entire complaint. Authorities, supra.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur. | March 22, 1962 |
d29f72a4-6f1f-471c-a5fc-9c90cc10de55 | Paulson's Steerhead Restaurant, Inc. v. Morgan | 139 So. 2d 330 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 330 (1962)
PAULSON'S STEERHEAD RESTAURANT, INC., et al.
v.
James W. MORGAN et al., Members of City Commission of Birmingham.
6 Div. 479.
Supreme Court of Alabama.
March 22, 1962.
*331 Fred Blanton and Geo. E. Trawick, Birmingham, for appellants.
Watts E. Davis, Birmingham, for appellees.
COLEMAN, Justice.
This is an appeal by petitioners from a judgment sustaining a demurrer to their petition for mandamus and dismissing it.
Petitioners allege that they are a corporation and the officers and shareholders thereof; that the respondents are the individuals who are members of the Commission of the City of Birmingham and the Commission itself; that petitioners are qualified to engage in a restaurant business in Birmingham; that petitioners have, since incorporation, conducted a restaurant business at a specified address in Birmingham, that said premises are properly equipped for a restaurant business, and the business is properly conducted; that the individual petitioners are of high moral character and are responsible and law-abiding citizens of Birmingham; that other restaurants of similar kind, located in the immediate vicinity of petitioners' premises, have applied for and obtained the approval of the respondents for the issuance of a restaurant liquor license as provided by Title 29, Code 1940; that an application in proper form was made by petitioners to the City of Birmingham for a restaurant liquor license; that petitioners, on information and belief, aver that their application was referred to the Police Department of the City of Birmingham for investigation and report, and that the report thereof was favorable to petitioners; that respondents, in a meeting of the Commission of the City of Birmingham, considered petitioners' application for a restaurant liquor license and that respondents adopted a resolution denying the application; that denial was improperly and illegally motivated by the malice of one of the respondents against the husband of one of petitioners; that the other respondents did not exercise an independent judgment but accepted and ratified the judgment of that respondent who was motivated by malice; that the denial of petitioners' application was arbitrary and capricious, and that petitioners are in all respects qualified to be issued a restaurant liquor license as provided by law. The prayer is for the alternative writ of mandamus, and, on final hearing, for the peremptory writ requiring respondents to approve issuance of restaurant liquor license to petitioners.
Respondents demurred on the ground, among others, that the consent or approval by respondents, of the issuance of a restaurant liquor license to petitioners, is a matter lying within the irrevisable discretion of respondents and is not subject to review by the court in this proceeding.
Petitioners assign as errors: that the court erred in sustaining the demurrer, in dismissing the petition, and in dismissing the petition without allowing petitioners to amend it.
Petitioners set out two propositions of law in brief, to wit:
Petitioners do not, as we understand their argument, assert that the statute is invalid for the reason that it violates any constitutional provision, or for any other reason, and, therefore, we are not called upon and do not undertake to determine the validity of the statute.
The question presented, as we understand it, is one of statutory construction. Petitioners state in brief as follows:
Consideration of the correctness of petitioners' first proposition requires that we determine the nature of the power conferred by the statute on the municipal governing body with respect to granting or withholding its "approval," or "consent and approval," of the issuance of a restaurant liquor license by the Alabama Alcoholic Beverage Control Board, hereinafter referred to as the ABC Board or the board. The statute makes such consent and approval by the municipal governing body a condition precedent to the issuance of such license by the board.
If appellants be correct in their assertion that the power granted to the municipal governing body is merely the power to do an administrative act, or the power to do a discretionary act which is subject to judicial review, then we reach the question posed by the second proposition, i. e., do the allegations of the petition show an abuse of discretion, or arbitrary action, which the courts will revise.
On the other hand, if the statute confers on the municipal governing body a power to do an act which is neither merely administrative, nor a discretionary power subject to judicial revision, but which is an irrevisable power with the exercise of which the courts are not authorized to interfere, the questions posed by appellants' second proposition is not reached.
We consider appellants' first proposition and the authorities relied on to support it. First cited are §§ 5, 13, and 14, Title 29, Code 1940, as amended. Pertinent provisions of these sections, and also § 15, Title 29, recite as follows:
In support of Proposition I, petitioners cite State ex rel. Morrow v. Santa Cruz, 252 Ala. 130, 39 So. 2d 786, and the Opinion of Attorney General, of May 29, 1947, Vol. 7, page 171. In State ex rel. Morrow v. Santa Cruz, supra, this court held that, under the allegation and proof in that case, the petitioner for mandamus had shown a right to the peremptory writ of mandamus to require the license officer of the City of Mobile to issue to petitioner a license for the sale of beer in a cafe or restaurant. The opinion of the Attorney General states that the city has authority to levy a reasonable license for selling beer but has no authority to prohibit the selling of beer by one legally licensed to do so by the State. The opinion also states that a municipality may collect licenses for hotels, restaurants, or clubs located without the city limits but within the police jurisdiction. Neither the cited case, nor the opinion, as it seems to us, deals with the authority of a city to grant or withhold approval of the issuance of a restaurant liquor license.
The legislature appears to have made a distinction between liquor licenses and beer licenses. In § 5, Title 29, the authority of the board to issue and suspend liquor licenses is stated in one sentence. Like authority as to beer licenses is stated in the sentence following immediately thereafter. The issuance of liquor licenses is dealt with in §§ 13, 14, 15 et seq., Title 29, while the issuance of retailer's beer licenses is provided for in § 25 et seq., of the same title. § 22, Title 29, provides that every license issued to a restaurant for the sale of liquor shall authorize the licensee to sell vinous or brewed beverages at the same place, subject to certain restrictions. The quoted Code sections require approval of the municipal governing body for the issuance of liquor licenses, but, so far as we are advised, the statute does not state that such approval is required for the issuance of beer licenses. The conclusion appears to us inescapable that the legislature has placed beer licenses in one category and liquor licenses in another. As a result, the cited authorities, which relate to beer licenses, do not govern the issuance of restaurant liquor licenses.
In three separate Code sections, 13, 14, and 15, Title 29, the legislature has specified that an applicant for restaurant liquor license must have the approval of the municipal governing authority, but, so far as we have found, the statute does not define or restrict the meaning of such consent and approval, or set out conditions under which the municipal authority must or may give its consent, or the conditions under which its consent may be withheld.
As to the power of the state to grant liquor licenses the following has been said:
In City Council of Montgomery v. West, 149 Ala. 311, 42 So. 1000, 9 L.R.A.,N.S., 659, this court considered a municipal ordinance which provided that no person should operate a steam engine within the city "without first obtaining the consent of the council." The court held the ordinance invalid because it granted to the city council the right to grant or withhold the privilege and admitted of the exercise of an arbitrary discrimination. In the instant case, the statute forbids issuance of a restaurant liquor license without the applicant's first obtaining consent of the municipal governing authority. If the ordinance in the West case, supra, conferred an irrevisable discretion, then the statute in the instant case, Title 29, Code 1940, confers an irrevisable discretion on the municipal body to grant or withhold its approval.
Section 220, Constitution of 1901, provides that no person can use city streets for any public utility or private enterprise without consent of the proper city authority. This court has held that said Section 220 vests in cities an irrevisable discretion to refuse a taxicab license. City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550.
A recent case holds that § 88, Title 22, Code 1940, confers on municipal governing bodies a discretion to deny a cemetery permit, which discretion cannot be reviewed or revised by mandamus. Gardner v. Stevens, 269 Ala. 213, 111 So. 2d 904.
We are of opinion that Title 29, Code 1940, grants to the municipal governing body an irrevisable discretion to grant or withhold its consent and approval of the issuance of a restaurant liquor license, and, therefore, that the court did not err in sustaining the ground of demurrer which takes that point.
The court will not inquire into the motives of the members of the municipal council in exercising a legislative discretion, except to examine the records of the council. Clements v. Commission of City of Birmingham, 215 Ala. 59, 109 So. 158. The discretion to approve or disapprove the issuance of a restaurant liquor license, conferred on the municipal governing body by Title 29, is irrevisable and is of the nature of a legislative discretion. As stated in the Clements case, supra, 215 Ala. at page 61, 109 So. at 160, "* * * bad faith must be apparent upon the face of the act, and cannot be shown by extrinsic facts. * * *"
Petitioners argue that the court erred in not allowing them to amend their petition. The record does not show that petitioners made any attempt to amend nor the nature of any amendment offered by them. Petitioners say in brief that, if permitted to amend, they could have alleged that respondents "* * * have fixed no terms and conditions for `approval' of an applicant for a state restaurant liquor license. * * *"
Even if we assume that petitioners could or did attempt to amend as suggested in brief, we are still unable to perceive injury to petitioners in view of the construction hereinabove placed on the statute. If it confers on respondents a discretion which, after its exercise, is not revisable by mandamus, and we so hold, then we do not think that such discretion is controllable, prior to its exercise, by mandamus to compel the setting of standards and conditions to govern the discretion. Even if the amendment now urged by petitioners were allowed, their petition would still be insufficient against respondents' demurrer.
Each of the thirty-one cases cited by appellants in support of Proposition II has been carefully examined. We note that in a substantial number of the cases which involved granting or refusing a liquor license, *335 the appellate court upheld the action of the statutory licensing authority. We do not think, however, that the cited cases are of assistance in construing our statute, or that discussing them in detail would serve a useful purpose.
From what we have said, it follows that we are of opinion that the judgment appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 22, 1962 |
e003f82b-77af-4f22-977d-9b33634b36bd | Sparks v. Brock & Blevins, Inc. | 145 So. 2d 844 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 844 (1962)
Guy SPARKS, as Commissioner of Revenue
v.
BROCK & BLEVINS, INC.
3 Div. 985.
Supreme Court of Alabama.
October 18, 1962.
MacDonald Gallion, Atty. Gen., and Herbert I. Burson, Jr., Asst. Atty. Gen., for appellant.
John R. Matthews, Jr., Ball & Ball, Montgomery, and Robt. B. Wilkins, Wilkins, Stephenson & Byrd, Mobile, for appellee.
SIMPSON, Justice.
Bill for declaratory judgment brought under the provisions of § 810, Title 51, Code of Alabama 1940, to recover use taxes paid under protest. The primary contention of the appellant is that the lower court should not have taken jurisdiction because appellee did not file a request for a redetermination under § 797 of Title 51 within the statutory period after assessment was made final, although accorded the opportunity to do so, and that the time for appeal to the circuit court had expired. The argument runs that the appeal not having been taken, the finding by the Department of Revenue was final and res judicata as to the instant controversy; and so no justiciable controversy existed.
On the other hand, appellee contends that § 810, supra, gives him the unqualified right to pay the tax under protest, and within two years bring an action in the Montgomery Circuit Court, in Equity, praying for a declaratory judgment determining his tax liability or the right to a refund.
We are thus called on to reconcile an apparent conflict between § 810 and § 797, which heretofore has been unresolved.
*845 The pertinent provisions of said § 810 read:
Section 797, as pertinent, provides:
It appears from the record that the assessment was made final against appellee on September 23, 1955, and that the tax was paid under protest February 27, 1956. No petition for a redetermination was filed and no appeal was taken. The time for petitioning for a redetermination having run the appellee sought declaratory judgment pursuant to the provisions of said § 810, which the lower court entertained. In this there was error.
We have held on numerous occasions that the action for a declaratory judgment cannot be used as a substitute for an appeal. Ex parte State ex rel. Lawson, 241 Ala. 304, 2 So. 2d 765; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342; Mitchell v. Hammond, 252 Ala. 81, 39 So. 2d 582. Appellee sought to do by a declaratory judgment proceeding what he could no longer do by appeal. After final assessment by the Department, appellee had the right to appeal within the time provided from the adverse finding of the Department, but he chose not to do this, but rather to wait until some months later and file an action praying for a declaratory judgment. This in effect was substituting a declaratory judgment proceeding for an appeal which we think appellee should not have been allowed to do.
Section 797 clearly provides that the taxpayer who has been notified that an assessment for use tax has been made against him under either section 794 or 795 must petition for a redetermination within thirty days and if such petition is not made, the assessment becomes final. It, of course, affirmatively appears that an appeal was not taken under § 140 of Title 51 within thirty days after the assessment was made final. Thus there was no justiciable controversy between the parties. The question had already been decided by the Department having jurisdiction of the subject matter and parties. Mitchell v. Hammond, supra, and cases cited therein.
The rule in our jurisdiction is that a final assessment of the Department of *846 Revenue unappealed from is as conclusive as a judgment of a circuit court of Alabama, and may be impeached only by a direct proceeding not being subject to collateral attack. State v. Woodroof, 253 Ala. 620, 46 So. 2d 553; State ex rel. Carmichael, Atty. Gen. v. Jones, 252 Ala. 479, 41 So. 2d 280. The right of appeal is clearly statutory and must be exercised in the mode and within the prescribed time. State v. Ide Cotton Mills, 175 Ala. 539, 57 So. 481; Ross Jewelers v. State, 260 Ala. 682, 72 So. 2d 402, 43 A.L.R.2d 851. The action for a declaratory judgment in the instant case was in effect a collateral attack on a final judgment. The language of the court in State v. Woodroof, supra, is here appropriate:
To recapitulate, we hold that where the Department has entered a final assessment under § 794 or § 795, the taxpayer must then petition for a redetermination under § 797, and if still aggrieved appeal as provided for therein. If the assessment has not been made final by the Department, the taxpayer may pay the assessment under protest, and file suit for a declaratory judgment under § 810, provided all other conditions are met.
This has been the long-standing ruling also of the Department of Revenue. See "Methods of Judicial Review" promulgated by the legal division of the Department by "Bulletin" dated May 31, 1961.
So considered, the procedure was improper and the court was without authority to entertain the bill. Shadix v. City of Birmingham, 251 Ala. 610, 38 So. 2d 851; Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450; Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720; Bagwell v. Woodward Iron Co., 236 Ala. 668, 184 So. 692; Theater Co. v. Manning, 236 Ala. 670, 185 So. 171; Saenger Theatres Corp. v. McDermott, 237 Ala. 489, 187 So. 460; Bates v. Baumhauer, 239 Ala. 255, 194 So. 520; Bullock County v. Sherlock, 242 Ala. 262, 5 So. 2d 800.
It results, therefore, that a judgment of reversal must be here entered and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | October 18, 1962 |
7da334b7-55e1-446c-b456-1652b339d570 | Albright and Wood, Inc. v. Wallace | 148 So. 2d 240 | N/A | Alabama | Alabama Supreme Court | 148 So. 2d 240 (1962)
ALBRIGHT AND WOOD, INC.
v.
Rita WALLACE.
1 Div. 858.
Supreme Court of Alabama.
October 25, 1962.
Rehearing Denied January 10, 1963.
Johnston, McCall & Johnston, Mobile, for appellant.
Diamond, Engel & Lattof, Mobile, for appellee.
COLEMAN, Justice.
This is an appeal by defendant from judgment for plaintiff, on the verdict of a jury, in action for personal injury.
Assignment 4 asserts that the court erred in overruling defendant's objection to plaintiff's challenge of juror Williams for cause as follows:
"Court: Overrule the objection.
"Mr. McCall: We except."
All that the record shows, even when viewed most strongly against the qualification of juror Williams, is that he was, at the time of the instant trial, a client of one of the attorneys for defendant.
This court has said: "There is no statute in Alabama, nor rule of common law, which make a juror subject to challenge for principal cause, for the reason that he had employed a party to the suit as an attorney *241 in some other case in court, or that the juror was engaged in a business similar to that involved in the pending controversy. Such matters do not import absolute bias or favor." (Emphasis supplied.) Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404, 406, 64 A.L.R. 640.
If a juror is not subject to challenge for principal cause when he is client of the party himself, certainly the juror is not subject to challenge for such cause when he is client, not of the party, but of the party's attorney merely. Under the quoted rule, juror Williams was not subject to challenge for principal cause.
The only remaining ground for disqualifying juror Williams is that he be subject to challenge to the favor. "A challenge for favor or bias is to be determined by the trial court as any other question of fact, tried without a jury, and is reviewable on like principles. (Citations omitted.) The decision of the trial court on such question founded on oral evidence is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. (Citation omitted.)" Brown v. Woolverton, supra, at page 115, 121 So. at page 406.
The question then is whether the facts shown as to juror Williams proved favor or bias in fact. The record shows no facts other than as above set out. There is no evidence to support a finding that Williams was in fact biased in favor of or against either party. As a result, a finding that Williams was disqualified is clearly erroneous, and overruling defendant's objection to plaintiff's challenge for cause was error.
We are not persuaded that this action was error without injury. Under our system of selecting a jury in a civil case, the clerk furnishes a list of jurors from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing. § 54, Title 30. It would scarcely be contended that a party was not prejudiced if the opposite party, on his first strike, were permitted to begin by striking two names instead of one, and thereafter the parties struck one each. Such is the result of sustaining plaintiff's challenge to juror Williams. The effect is to allow plaintiff one strike more than the statute gives him.
Whether the trial be in a circuit with more than two judges or not makes no difference. In either case, the challenger is enabled to eliminate the unwanted juror without using a strike, although the juror is not disqualified.
What was said in an earlier case involving striking a jury seems appropriate here, to wit:
Assignment 5 asserts that the court erred in allowing plaintiff to challenge for cause the juror Ledyard, as follows:
"Mr. Lattof: I challenge Mr. Ledyard.
"Mr. McCall: I object to that.
"Court: Overrule.
"Mr. McCall: We except."
*242 Here again we are faced with the question whether or not the juror is subject to challenge for principal cause or to the favor. We have not found nor have we been cited to any case considering the question whether a juror is subject to challenge because he is "bonded" by a party directly interested in the result of the suit.
The exact relation between the Casualty Company and Ledyard does not appear. Whether he is principal on a bond executed by the Casualty Company as surety, or whether he is obligee for whose benefit the bond was executed by the Casualty Company does not appear. His statement, that he is bonded, in ordinary usage could mean either situation. Whichever is the case, however, his relationship to the Casualty Company, on breach of condition of the bond, would seem to become that of debtor or creditor. If he is principal and defaults, he might become debtor; if he is obligee he would become creditor if the condition of the bond should be broken. Thus it seems that the juror's qualification or disqualification, to serve as juror in a case in which the Casualty Company is directly interested, would rest on the same considerations as those which determine the qualification or disqualification of debtor and creditor.
In the instant case, no showing is made that the juror Ledyard is pecuniarily interested in the result of this suit. It is not made to appear how he would be affected, or that he would be affected at all, if plaintiff or defendant be successful. There is no evidence to prove bias or favor in fact. Thus it does not appear that he was subject to challenge either for principal cause or to the favor, and overruling defendant's objection to plaintiff's challenge of Ledyard was error for the same reasons which apply to Assignment 4.
It may be well to note that the question here is as to the qualification of jurors and not as to the right of a party to have the jury interrogated for the purpose of obtaining *243 information so as to exercise the right to strike intelligently.
For these errors the cause must be reversed and remanded. Other errors argued will probably not occur on another trial so we pretermit discussion of them.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 25, 1962 |
d1fe2bce-5da7-4b11-b4f5-64b35a645489 | Holmes v. Compton | 142 So. 2d 697 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 697 (1962)
Hester Clarkson HOLMES et al.
v.
Lillard C. COMPTON et al.
8 Div. 71.
Supreme Court of Alabama.
January 18, 1962.
Rehearing Denied June 28, 1962.
Harris & Harris, Decatur, for appellants.
Peach, Caddell & Shanks, John A. Caddell and Robt. H. Harris, Decatur, for appellees.
STAKELY, Justice.
This is an appeal from a final decree in the equity court by the respondents Hester Clarkson Holmes, Margaret Clarkson. The third respondent in the court below, Edith Clarkson McDonald, is not an appellant. The bill of complaint as originally filed was to sell for division the oil and minerals on a 12 acre tract of land more particularly described in the bill of complaint. The bill of complaint was subsequently amended by seeking to quiet title to the 12 acres of land or in the alternative to sell for division the mineral and oil interests.
The case was submitted upon an agreed statement of facts. To state the facts as briefly as possible Mrs. Ada Cornelison executed a deed in 1928 to complainants' predecessors in title conveying 12 acres of *698 land. The deed contained words of inheritance and immediately after the description and before the habendum clause contained the following provision, "the grantor herein reserves to herself and her heirs ½ of the oil and all minerals that may be discovered in said land." In order that there may be a thorough understanding of the situation we set out the deed as follows, omitting the acknowledgment of the deed:
By mesne conveyances the 12 acre tract came to complainants with the same reservation contained in their deed. Appellants are the heirs of Ada Cornelison, the original grantor whose deed contained the reservation. The appellees have been in possession of the surface of the property along with their predecessors in title since the deed in 1928. There have been no mining or oil operations on the land. There have been no separate assessments between the surface rights and the mineral rights and no one has been in actual possession of the property other than as to surface rights.
I. Citing such cases as Henry v. White, 257 Ala. 549, 60 So. 2d 149; Hardee v. Hardee, 265 Ala. 669, 93 So. 2d 127 and Section 14, Title 47, Code of 1940, the court held that where there is an inconsistency between the granting clause containing words of inheritance and statements in the habendum or clauses subsequent to the granting clause, the granting clause in the deed will prevail and the clause containing the reservation of mineral rights will be considered void.
We do not take this view of the situation. Considering the entire deed we believe that a clear intention appears in *699 the deed for the grantor to reserve certain mineral rights in the property. This is true although the granting clause contains words of inheritance. Accordingly there is no necessity to invoke any arbitrary rules of construction.
We believe that this intention becomes more apparent when we consider that the reservation excepts oil or mineral interests. There is a clear difference between a grant of surface rights and a grant of mineral rights. "Minerals, coals and ores excepted from a grant remain in the grantor as before the grant. They are distinct and separate properties which may be conveyed separately from the surface." Thompson on Real Property, Volume 6, Section 3462, page 692. This court has expressly given effect to a reservation excepting oil or mineral interests. McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635.
We do not think that a general rule should be stated which must govern all cases, but that each case should be considered on its own merits. Considering mineral rights as separate and apart from surface rights we see no repugnancy between the causes in the deed now before us and so we will not resort to arbitrary rules of construction. Slaughter v. Hall, 201 Ala. 212, 77 So. 738; Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562; McCall v. Nettles, supra.
II. This brings us to a consideration as to quantum of minerals reserved. The reservation is:
Without question one-half of the oil is reserved but is the mineral reservation one-half or all? It is generally recognized that oil is a mineral. Carter Oil Company v. Blair, 256 Ala. 650, 57 So. 2d 64. But that is no reason why the parties may not draw a distinction between the two. Accordingly since the deed refers to oil and minerals, we think that a difference is indicated, which means that the reservation is to one-half of the oil and to all of the other minerals.
Reversed and remanded.
LIVINGSTON C. J., and LAWSON and MERRILL, JJ., concur. | January 18, 1962 |
c3504043-3543-4907-b71e-036c3538a99d | FW Woolworth Company v. Bradbury | 140 So. 2d 824 | N/A | Alabama | Alabama Supreme Court | 140 So. 2d 824 (1962)
The F. W. WOOLWORTH COMPANY
v.
Lydia M. BRADBURY.
F. W. WOOLWORTH COMPANY
v.
O. H. BRADBURY, Sr.
6 Div. 595, 596.
Supreme Court of Alabama.
March 29, 1962.
Rehearing Denied May 17, 1962.
*825 E. L. All, John H. Morrow and White, Bradley, Arant, All & Rose, Birmingham, for appellant.
Here, Wynn & Newell, Birmingham, for appellees.
SIMPSON, Justice.
The appellee in one of these cases, Mrs. Lydia M. Bradbury, is the wife of Mr. Bradbury, Sr., the appellee in the other case, which was consolidated for trial. Mrs. Bradbury sued F. W. Woolworth Company as the result of her fall in an offsidewalk vestibule leading into appellant's store located at the corner of 19th Street and 3rd Avenue, North, in Birmingham. Mrs. Bradbury alleged the defendant was guilty of negligence in and about the maintenance of the floor of the vestibule where she fell. Mr. Bradbury brought a companion suit for loss of consortium. Thereafter, verdicts were rendered against appellant in favor of appellees$3,000 in Mrs. Bradbury's case and $7,000 in Mr. Bradbury's case. Appellant filed its motion for new trial in each of the cases, which was overruled in each case, provided appellee, Mr. Bradbury file a remittitur of $2,000 in his case. Such remittitur was filed and motions for new trial overruled.
Appellant basically makes three contentions on this appeal:
It was entitled to the affirmative charge, both without and with hypothesis, in its favor. Appellant submits that the case is controlled by the principle that liability cannot be imposed upon a storekeeper or other possessor of premises because *826 of any injury occasioned by an open and obvious condition existing on the premises of the defendant; that the defendant's duty to the plaintiff is discharged when knowledge is brought home to the plaintiff of the dangerous condition; the defendant simply owes plaintiff no duty in regard to those conditions of which plaintiff actually has knowledge. Appellant says appellee seeks to impose liability upon the storekeeper because of its "constructive knowledge" of the presence of trash in its entrance, on which she fell. Appellant contends that liability cannot be imposed upon appellant when appellee's knowledge of the defective condition is equal or superior to the knowledge of defendant, appellant. Appellant then insists that no duty was breached by it and the affirmative charges should have been given. Also, appellant contends that appellee's own testimony establishes she was guilty of contributory negligence as a matter of law and the affirmative charge thereby should have been granted.
Appellee argues the fallacy of appellant's major and initial contention is that he seeks to substitute a "duty to warn" for the duty imposed by law upon a merchant with respect to business invitees in a retail store, which duty is to keep the premises in a condition reasonably safe for the intended use of such invitees.
Appellant next contends that the court erred in refusing to give its requested written charges 35, 36, A-2, and G. Appellant contends the foregoing charges were not adequately covered by the court's oral charge.
Charge G affirmatively tells the jury that it could not find for the plaintiff on account of any defect in the terrazzo tile in the vestibule where plaintiff fell. Appellant contends although the court's oral charge in effect charged "terrazzo" out of the case, the jury should be positively charged on the proper request of defendant that composition defects in terrazzo cannot be the basis of a verdict, since the right to recover was rested on the presence of debris or foreign matter on the floor of the vestibule.
The court erred in refusing to grant a motion for a new trial in O. H. Bradbury, Sr.'s case on the ground assigned that the verdict was excessive. It is argued that as the result of a stroke suffered by Mr. Bradbury nearly two months before the trial, which caused him to attend the trial in a wheel chair, and the comments by counsel, that the jury was motivated by sympathy, passion or prejudice, and the jury took into consideration his increased need for his wife's services because of the stroke suffered two months before the trial.
Both counsel for the appellant and for the appellees are to be commended for the excellence of their briefs filed with the court.
Appellant's brief argues assignments of errors 29 and 27 together. One assignment complains of the refusal to give the affirmative charge without hypothesis and the other with hypothesis, set out above. The same argument supporting errors 27 and 29 is adopted for errors 1 and 4. Errors 29 and 27 concern the charge without hypothesis and 1 and 4 concern the charge with hypothesis.
The argument for these four charges is in two parts. The first part asserts that the testimony of the injured woman indicates that she was aware of the trash in which she slipped and therefore appellant was under no duty to warn her. The other contention is that her testimony showed her to be guilty of contributory negligence as a matter of law.
On direct examination she testified that there was some popcorn and peanuts and she just stepped out the door and with her first step slid across and hit her knee and crushed it. She said she stepped on something and slid on something. She said she thought it was the peanuts. On cross-examination she testified that as she entered the store she saw trash in the vestibule at *827 the entrance. She described the debris as peanuts and popcorn and candy papers and such things as that. She did not know whether or not she avoided stepping on the trash as she entered the store. At another point in her testimony, she said she was aware of it when she entered the store and that she avoided stepping on it when she entered the store.
Appellant argues that the defendant discharged his duty to plaintiff when plaintiff had knowledge of the condition; that the defendant simply owed the plaintiff no duty in regard to those conditions of which the plaintiff had knowledge. It contends that the plaintiff's knowledge as to the condition of the floor was equal to or superior to that of the defendant.
The appellant also argues that plaintiff put herself in the way of an open and obvious danger, known to her and consciously in her mind, making her guilty of contributory negligence as a matter of law, thereby barring her recovery. Appellant cites, among other authorities, the case of Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So. 2d 825, one of the leading cases in this jurisdiction on the subject. In that case the three elements essential to contributory negligence are defined to be (1) knowledge of the condition or failure, yet (2) appreciated the danger under surrounding conditions and circumstances and did not (3) exercise reasonable care in the premises, but with such knowledge and appreciation, put himself in the way of danger. Appellant argues that reasonable minds can draw but one conclusion from the evidence given by the plaintiff here.
To obviate the duty of the appellant to inform the plaintiff of the dangerous condition she must have actual knowledge of the condition. This assumes that she must know that it is a dangerous condition. Similarly, with regard to contributory negligence the rule is that she must appreciate the danger. The question of whether or not appellee's knowledge of the condition included an appreciation of its danger was held to be, in Foster & Creighton Co. v. St. Paul Mercury Indemnity, supraand we hold herea question to be submitted to the jury. Walker County v. Davis, infra. Refusing to give the general charges would not be error in any case where the jury would be required to determine any factor. If any doubt is created by the appellee's testimony, there is no error in refusing the affirmative charge. Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So. 2d 727; Brandwein v. Elliston, 268 Ala. 598, 109 So. 2d 687.
As we pointed out in Yates v. De Mo, 270 Ala. 343, 118 So. 2d 924, the question of contributory negligence is generally one for the jury. This is also the rule with regard to initial negligence. The fact that testimony indicates the debris was in the appellant's vestibule and had been there for a period of time, overcomes the contention that the jury need not determine any question concerning the appellant's duty to its invitee. We have long been committed to the proposition that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury.
We held in City of Birmingham v. Gordon, 167 Ala. 334, 52 So. 430, that one injured by walking on a defective sidewalk is not necessarily guilty of contributory negligence if he had knowledge and notice of the defect and that the question was properly one for the jury. In Foster & Creighton, supra, this court cited Walker County v. Davis, 221 Ala. 195, 128 So. 144, which in turn cited 20 R.C.L. 110, to the effect that the fact that plaintiff had knowledge of the physical condition does not necessarily mean that he appreciated the danger and that there must be either an appreciation of the danger or an opportunity to do so and negligence in that respect. The question was whether or not the condition was appreciated as being dangerous. This was held to be a question for the jury. See also Yates v. De Mo, supra; Mayor, etc. *828 of City of Birmingham v. Gordon, 167 Ala. 334, 52 So. 430.
In Montevallo Mining Co. v. Little, 208 Ala. 131, 93 So. 873, there was an action brought by an invitee against a proprietor for an injury sustained when a piece of coal came from a "washer" and struck him in the head. The defendant sought the general affirmative charge, the plaintiff having testified he knew that coal was cast off the washer and that he advised the operator of the washer of the fact, and that the place was thereby rendered dangerous. The court said it could not be affirmed as a matter of law that the particular place at which he was injured was within the area of the dangerous character of which he was aware and had complained. It went on to say: "Knowledge of the elements of a dangerous situation is not necessarily knowledge of the danger itself."
We are constrained to hold, therefore, no error intervened by the refusal of the trial court to give the affirmative charge either as to the lack of negligence of defendant or the contributory negligence of Mrs. Bradbury.
Errors 18 and 19 are argued together, contending that the court erred in refusing to give charges 35 and 36. Error 22 is argued separately and it consists of refusal to give charge A-2 which appellant says is in legal effect substantially similar to charges 35 and 36. The argument to error 22 adopts the argument for errors 18 and 19, as well as errors 29 and 27.
Charge 35 says that if the jury finds that plaintiff suffered a fall as a direct consequence of the presence of foreign matter and that at the time she fell she knew of the presence of the foreign matter and knew that its presence constituted a hazard which she should avoid, then the verdict must be for the defendant. The question is whether or not the court covered these charges in its oral charge.
The judge said: "Well, the law says that if she saw some foreign object there and at that time had a realization of the dangers or the probable or possible danger to herself, if she stepped on it, if she realized that and knew it, or if a reasonably prudent person in her position would have so realized it, then immediately the burden would fall on her to use reasonable care to avoid the danger. Or, on the other hand, of course, if she sees some debris there and it looks innocent enough, if it did, and did not look to be dangerous, and she had no realization of the floor surface itself or of the nature and character of the debris and had no realization and no proper reason to have a realization that it would be dangerous to step on, then that in turn would be different. It is for you gentlemen to say."
It seems to us that the court adequately charged the jury of the applicable rule in its oral charge. The court had already said that if there was negligence on the part of both there could be no recovery. The refusal of a charge, though a correct statement of law, shall not be cause for a reversal on appeal if it appears that the same rule was substantially and fairly given in the court's general charge. Title 7, § 273, Code of Alabama 1940.
The appellant assigns as errors 14, 15, 20, 21, and 25 the refusal of the court to charge the jury that it could not find for the plaintiff on account of any defect in the terrazzo and vestibule where plaintiff fell. All the charges raise the same question, the specimen one quoted in the brief being to the effect that the jury is not authorized under the evidence in this case to find a verdict in favor of the plaintiff because of or on account of, the construction and composition of the floor of the entrance of the store. Appellant argues that there is no evidence that plaintiff's fall was the result of anything but the debris. The fact is that the plaintiff testified that that was the sole cause of her fallthe debris. In its oral charge the court instructed the jury that the defendant would not be liable solely because there was a terrazzo floor there. We think this instruction suffices to avert errors *829 in the refusal of these special requested charges.
Assignment of error No. 32 contests the ruling of the trial court overruling the defendant's motion for new trial. It argues under this assignment the fact that the husband's verdict was excessive. The $7,000 verdict returned by the jury was reduced to $5,000 on rehearing. Assessment of damages is left largely to the discretion of the jury, in the first instance, and to the discretion of the trial judge on motion for new trial. Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So. 2d 741; Louisville & Nashville R. R. Company v. Tucker, 262 Ala. 570, 80 So. 2d 288; Montgomery City Lines Inc. v. Davis, 261 Ala. 491, 74 So. 2d 923. We are unwilling to say the ruling of the trial judge on this was palpably wrong.
There being no other assignments of error insisted upon it follows that the judgments appealed from must be affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | March 29, 1962 |
9c33d698-5265-4a0b-839a-ff0c9201be7a | Alabama Power Company v. Smith | 142 So. 2d 228 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 228 (1962)
ALABAMA POWER COMPANY
v.
Carrie S. SMITH et al.
C. Pierson COSBY
v.
Carrie S. SMITH et al.
John J. SMEDLEY
v.
Carrie S. SMITH et al.
2 Div. 401-403.
Supreme Court of Alabama.
March 22, 1962.
Rehearing Denied June 21, 1962.
*230 Bonner & Bonner, Camden, and Martin, Vogtle, Balch & Bingham, Alvin W. Vogtle, Jr., and Carey J. Chitwood, Birmingham, for appellant Alabama Power Co.
Harry W. Gamble and McLean Pitts, Selma, for appellant Cosby.
Pitts & Pitts and Cecil C. Jackson, Jr., Selma, for appellant Smedley.
Roy Kimbrough, Thomasville, and Godbold, Hobbs & Copeland, Montgomery, for appellees.
*231 COLEMAN, Justice.
This is an appeal by defendants from a judgment for plaintiffs, rendered on a jury verdict, in an action for wrongful death.
Mitchell & Nall, Inc., hereinafter sometimes referred to as the contractor, was engaged in constructing an additional wing to a school building in Dallas County. The deceased, for whose death the action is brought, was Earl Smith. He was an employee of the contractor. The widow and minor children of Smith are the plaintiffs in the case. The contractor is not a party to this action.
The three defendants are the Alabama Power Company, a corporation, sometimes herein referred to as the Power Company or the company; C. Pierson Cosby; and John J. Smedley. The Power Company maintained high tension wires carrying a potential of 4160 to 2400 volts to provide electrical service to the school. The new wing of the school building lay under the wires. The wires were approximately fifteen feet above the roof of the new wing. The wires were not insulated. The wing was one-story high, about 13½ feet above the ground.
The roof of the new wing was to be made of steel reinforced concrete. In order to lift fresh concrete from the ground to the roof, the contractor procured a crane which was used to lift a bucket of concrete from the ground and swing the bucket over the roof where the bucket was emptied and the concrete spread so as to form the roof.
The crane used for this purpose was the property of the defendant, Cosby. The crane operator was the defendant, Smedley. The contractor arranged with Cosby to use the crane and the operator. The operator, Smedley, was employed by Cosby. Whether Smedley continued to be the servant of Cosby so as to make Cosby liable for injury proximately resulting from Smedley's negligence is one of the questions in the case.
The deceased, Earl Smith, was an electric welder. He had been assigned the duty of giving signals to the crane operator and of helping to dump the concrete on the roof. Two other employees of the contractor were under Smith's supervision to assist him in dumping the concrete.
When first brought to the job, the crane was equipped with a 35-foot boom which was not long enough, so a 15-foot extension was added. The bucket, when loaded with concrete, weighed 2700 to 2900 pounds.
On the morning of the day in question, concrete was lifted to the roof and poured in one position. The crane was then moved to another position. At some time during the moving of the crane, the cable from which the bucket was suspended touched the high tension wire and made "sparks fiy." The crane was moved a "little bit further away" from the wires.
Shortly after lunch, the pouring of concrete in the new position was resumed. Smith and his two helpers were unloading a bucket of concrete on the roof. Smedley testified as to Smith's actions at the time he was fatally injured as follows:
*232 The case was tried on a single count charging that the negligence of Cosby and Smedley in operating or maintaining the crane and the negligence of the Power Company in allowing or causing its electric wires to become or remain in an unsafe condition united or concurred in proximately causing the death of Smith. Each defendant pleaded the general issue and contributory negligence on the part of Smith, in short by consent. The defendants have severally assigned errors and have filed separate briefs.
Defendants, Cosby and Smedley, each filed a separate plea in abatement which asserts that the venue was improperly laid in Wilcox County. The pleas allege that none of the defendants had a permanent residence in Wilcox County and that each of the defendants, respectively, was a permanent resident of another county. The complaint alleges that the act or omission which caused the death of Smith occurred in Dallas County.
The court sustained plaintiffs' demurrers to the pleas in abatement and those rulings of the court are assigned as error.
Cosby and Smedley argue that because none of the defendants had a permanent residence in Wilcox County and all the defendants had a permanent residence in a different county, the action could not be brought properly in Wilcox County under § 54, Title 7, which provides in pertinent part that: "* * * all other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be brought in the county of such residence, or in the county in which the act or omission complained of may have been done or may have occurred. * * *" These defendants concede, however, that under § 60, Title 7, a corporation may be sued in any county in which it does business by agent, and that, if the Alabama Power Company were the only defendant, then the action would have been properly brought in Wilcox County. In support of this argument, the defendants rely on Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663, where it was said concerning § 4207, Code 1896, the progenitor of § 60, Title 7:
The defendants further recognize that their contention is contrary to the holding in Louisville & Nashville R. Co. v. Strickland, 219 Ala. 581, 122 So. 693, but insist that the holding in the Strickland case is erroneous.
In the Strickland case, this court said that § 9418, Code 1923 (§ 185, Title 7, Code 1940), provides that any joint or joint and several action may be brought in a county having jurisdiction of any one of the defendants, and be executed in any county in the state. The court held that the pleas in abatement in that case were subject to the ground of demurrer which pointed out that the pleas did not allege that one of the corporate defendants was not doing business in the county where the action was brought, which, by coincidence, was also Wilcox County, when that action was commenced.
In the instant case, the pleas do not allege that the defendant, Alabama Power Company, a corporation, was not doing business in Wilcox County when this action was commenced. The demurrers pointed out this defect in the pleas. The rulings sustaining the demurrers are supported by the decisions of this court and are not in error. National Surety Company v. First National Bank of Opelika, 225 Ala. 108, 142 So. 414; Ex parte Kemp, 232 Ala. 434, 168 So. 147; Leath v. Smith, 240 Ala. 639, 200 So. 623; Ex parte Southern Bell Tel. & Tel. Company, 267 Ala. 139, 99 So. 2d 118.
The Power Company has assigned as error the action of the court in overruling its demurrer to the complaint. As last amended the complaint contained a single count, E(1), which recites as follows:
The Power Company's insistence is that Count E(1) is demurrable because plaintiffs have not alleged that the Power Company, "in the exercise of reasonable care, should have anticipated that persons, or things that such persons were carrying or handling, would come in contact with the Company's electric lines, as the facts of the case show that no person, or an object being carried or handled, came into contact with such line." As we understand the brief, the Power Company insists that the complaint fails to show a duty on its part to anticipate that the decedent, Smith, or anyone else, was likely to come in contact with the power line. The Power Company appears to insist that the complaint should have alleged that the Power Company had notice, actual or constructive, that the crane would be used, as it was used, in proximity to the power line. The complaint does allege that:
When Count E(1) in the instant case is compared with Count 1 in Sullivan v. Alabama Power Company, 246 Ala. 262, 20 So. 2d 224, it appears to us that Count E(1) is sufficient. In the Sullivan case, this court held Count 1 to be sufficient and on that authority we hold the instant Count E(1) also to be sufficient.
Refusal of the affirmative charge with hypothesis requested by the Power Company is assigned as error.
The argument is that plaintiffs failed to prove actionable negligence on the part of the Power Company because "the record shows a complete absence of evidence of notice of the use of a crane in this construction." The argument of the Company appears to be that the use of the crane may have rendered the 2400-volt lines dangerous to workmen on the roof, but that the lines were not shown to be dangerous in the absence of the crane, and, because it was not shown that the Power Company had actual notice of the use of the crane or, under the circumstances, ought to have anticipated its use, there was a failure to show any breach of any duty on its part which proximately caused the death of Smith.
The duty of one who maintains a power line has been stated as follows:
"An electric company is not an insurer nor is it under obligation to so safeguard its wires that by no possibility can injury result therefrom. Its duty is to exercise that degree of care commensurate with the danger involved. (Citations Omitted)" Alabama Power Company v. Berry, 254 Ala. 228, 233, 48 So. 2d 231, 235.
See also: Alabama Power Company v. Irwin, 260 Ala. 673, 72 So. 2d 300.
The familiar rule is that when the affirmative charge is refused and the party who requested the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party, and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of the trial court in refusing the charge must be affirmed. Louis Pizitz Dry Goods Company v. Harris, 270 Ala. 390, 118 So. 2d 727.
The evidence does not show that the Power Company had actual notice that the crane would be used. The crane came onto the job site the morning of the accident and we do not think that it can be fairly said that the Power Company, in the discharge of its duty of reasonable inspection, ought to have discovered the presence of the crane. On the other hand, we are of opinion that certain tendencies of the evidence do support a reasonable inference that the Power Company had notice that workmen would be rightfully present and employed in dangerous proximity to its 2400-volt line, that in failing to guard against injury to such workmen the company failed to exercise that degree of care commensurate with the danger involved, and that the failure to exercise such care was a proximate cause of Smith's death.
As we understand the record, three high voltage wires crossed the roof at a height of fifteen feet three inches above it. Each of these wires was the same height, they were separated horizontally, and contact with any one of them by a person connected to the gound was dangerous to human life. Below these three wires, and from the same poles, three additional wires were *236 strung across the roof. One of the additional wires, called a common neutral, carried no voltage. It was two to two and a half feet below the three high voltage wires. About two feet below the common neutral was the second additional wire which was not carrying any voltage at the time of the accident. The third additional wire was a telephone wire not dangerous to human beings. It appears to have been less than a foot above the roof.
The high voltage line had been constructed several years prior to the commencement of construction of the new wing on the school building. A month or more before the accident, J. W. Breedlove, Jr., District Engineer for the Power Company, advised F. D. Kimbrough, job superintendent for the contractor, that the Power Company planned to retain the existing lines as they then were. Kimbrough testified that he had a conversation with Breedlove on the job site ten days prior to Smith's death, and that he, Kimbrough, asked if the high powered line was going to stay over the new wing, that Breedlove said yes, and that he, Kimbrough, said he did not like it and thought it was dangerous, and that Breedlove said he thought it complied with the law.
Kimbrough testified that steel rods used to reinforce the roof concrete were then "in plain view" on the job site; that the rods were of varying lengths up to forty feet; that use of such rods was customary in constructing such roofs; that Breedlove was on the job on subsequent occasions prior to Smith's death; that he stated to Breedlove that he, Kimbrough, "would like to have those wires removed."
Kimbrough testified that the steel rods were not a hazard. Mosley, consulting electrical engineer, testified that handling the longer rods would not constitute the same hazard as would handling the shorter rods, that a workman handling a 10 or 12-foot rod might swing it up and get in contact with the dangerous wire. Mosley testified further that if the crane were eliminated and the rods were properly handled there would be no danger from leaving the wires in place during construction, but he also testified that "There would have been a certain amount of danger in handling reinforced rods there," although, if the men had been instructed to handle the rods without holding them up in the air there would not be any danger there "With the exception of human error."
Mosley testified that two precautions could have been taken to render the wires less dangerous, to wit, keep the crane away from or deenergize the wires, and that deenergizing was not difficult. He further said it is a common practice to use cranes on such construction jobs. Kimbrough also testified that cranes were commonly used by contractors on such work.
Mosley testified that the high voltage lines complied with the "National Safety Code" in that they were more than eight feet above the roof, but also said that the Code "does not take into consideration men working under the wires."
We are of opinion that the evidence in the instant case is such that reasonable men may fairly differ on the question as to whether or not the Power Company was negligent in failing to anticipate and guard against the injury to Smith, and that it cannot be fairly said that the only reasonable conclusion to be drawn is that Smith's injury could not reasonably have been anticipated.
We do not think the evidence reasonably requires exclusion of the inference that injury to workmen from handling the steel rods on the roof or from the use of the crane should have been anticipated. Mosley's testimony is to effect that there was danger of electrocution of workmen handling the rods on the roof. There is evidence that Breedlove, the Power Company's engineer, was on the premises when the rods were in plain view. Use of rods on such construction was said to be a common practice. We think the evidence reasonably supports an inference that the company should have anticipated danger from the rods.
There was testimony by Mosley and Kimbrough that cranes were commonly used in such construction. We do not think it can be fairly said that the jury could not reasonably infer that the Power Company should have anticipated use of the crane.
The exhaustive briefs filed on behalf of the Power Company cite a number of cases where injury or death resulted from a crane coming into contact with a power line. The cited cases hold that the defendant power company in those cases was not liable. We have carefully examined all of them but do not think a detailed statement concerning each case would serve any useful purpose. These cases appear to turn either on the holding that the power company was not, under the facts shown, under a duty to anticipate the use of a crane or on the holding that negligence in maintaining the wires was not the proximate cause of the injury and that operation of the crane was the proximate, independent, intervening cause. A New York case is typical of these holdings. A workman who was laying a sewer was killed when a crane came in contact with overhead wires. The Appellate Division of the Supreme Court of New York, in affirming dismissal of the complaint against the power company said:
The cases cited by the power company, as we understand them, apply the same test which we undertake to apply here. The courts in those cases concluded that the power company was not bound to anticipate the danger.
A different result was reached by the Court of Appeals of New York in an action for wrongful death of a workman which occurred when the cable of a crane came in contact with a power line. The workman was directing the cable which was being used to unload structural steel from a truck. The steel was for use in a building there being constructed. The Court of Appeals reversed the Appellate Division and held that the issue of whether or not the defendant power company was negligent in failing *238 to protect workmen from its wires was for the jury. The New York Court of Appeals said:
An annotation on the liability of electric power company for injury resulting from contact of crane or other machine with electric line appears in 69 A.L.R.2d 93. Cases are listed in which liability has been upheld, in which liability has been denied, in which negligence was held to be a question for the jury, and in which it was held that the power company was not negligent as a matter of law. See Kingsport Utilities v. Brown, 201 Tenn. 393, 299 S.W.2d 656, 69 A.L.R.2d 87, there annotated.
In the case at bar, for the reasons we have undertaken to show, we are of opinion that the jury could infer that the power company, in exercise of care commensurate with the circumstances, was bound to anticipate the probable danger to workmen from the wires over the roof where Smith was injured, and that this duty rested on the power company even though it had no actual notice that a crane would be used.
A question due to be considered in deciding the correctness of refusing the company's requested affirmative charge is whether or not the jury could find that negligence in maintaining the high voltage line was a proximate cause of Smith's death. We think that if the jury could find that the company was negligent in maintaining the wires as they were maintained (and we have already said the jury could so find), the jury could find also that such negligence was a proximate, concurring cause of the death.
It is true that Smith's death would not have occurred in the manner in which it did occur without the operation of the crane in the manner in which it was operated. The concurring cause, to wit, operation of the crane, was not the sole proximate cause of the death, or at least the jury could so find; and, as we view it, the jury *239 could find that the operation of the crane did not break the causal connection between negligent maintenance of the wires and Smith's death. The jury could find that negligent maintenance of the high voltage wires was a continuing negligence endangering persons on the roof, without which negligence the injury would not have occurred. In all cases of concurring negligence, it may be said the one would not have produced the result without the other. If this be a defense, both would escape, although both be in the wrong. A present danger caused by present maintenance of wiring in a negligent manner concurring with present negligence of another, both creating the conditions causing the mishap, renders both liable. Alabama Power Company v. McIntosh, 219 Ala. 546, 122 So. 677.
We are of opinion that when the evidence is viewed according to the rule of Louis Pizitz Dry Goods Company v. Harris, supra, the Power Company's requested affirmative charge was refused without error.
Appellant Cosby asserts that the court erred in refusing his requested, affirmative charge with hypothesis. Cosby's argument is that a verdict against him must rest on proof that Smedley, the crane operator, was acting within the line and scope of his employment as a servant of Cosby at the time of Smith's injury; that the evidence completely fails to show that Smedley was so acting; and, therefore, Cosby was entitled to his requested charge and its refusal was error. Cosby insists that Smedley was not Cosby's servant at the time of the injury but had become and was the servant of the contractor, Mitchell & Nall, Inc.
An employee may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that the employee becomes the servant of such third person with all the legal consequences of the new relation. Whether one who is usually the servant of one master has become specially and temporarily the servant of another is ordinarily a question of fact. If, under the circumstances only one inference can be properly drawn, the court will determine the issue, but if reasonable men may fairly come to different conclusions respecting the inference to be drawn from the facts, the case will be one for the jury. United States Steel Corp. v. Mathews, 261 Ala. 120, 73 So. 2d 239.
In the Mathews case, citation of authority and the rules to guide determination of the issue are set out. The result will be determined by answer to the questions: Whose work was the servant doing and under whose control was he doing it? It is the reserved right of control rather than its actual exercise that furnishes the true test of relationship. He is master who has the supreme choice, control, and direction of the servant and whose will the servant represents in the ultimate result and in all its details. There must be careful distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation where the work furnished is part of a large undertaking. The fact that the borrower gives information and directions to the servant as to details of work or the manner of doing it does not make this general servant of the employer the servant of such other person. Where the evidence does not clearly establish who the employer is, consideration must be given to the character of the service to be rendered, the duration of employment, and the one who is paying the employee. United States Steel Corp. v. Mathews, supra. It seems axiomatic that all competent, relevant, legal evidence tending to prove or disprove the issue should be considered and that each case must be determined on its own facts.
Much of the language of the preceding paragraph is found in The Standard Oil Company v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480, a much cited, leading *240 case, where pertinent principles are considered at length. In that case the court considered the question whether a servant of defendant had become the servant of a contractor who had undertaken to load a ship for the defendant. To accomplish the work, an employee of defendant operated a winch of the defendant. Negligent operation of the winch caused plaintiff's injury. The court held that the winchman remained the servant of defendant.
The many cases cited by able counsel have been carefully considered. Discussion of each case would be of little value. The question here presented, simply put, is does the evidence support any reasonable inference that the crane operator was the servant of Cosby, or provide a scintilla of evidence to support such inference? The general rule of the loaned servant doctrine is certain and easy; the difficulty arises in applying the facts of a given case to the rule. Pearson v. Arlington Dock Company, 111 Wash. 14, 189 P. 559. Annotation on liability for acts of operator furnished with leased machine is found in 17 A.L.R.2d 1388. The cases there cited reach varied results.
Evidence favorable to plaintiff was presented as follows: Kimbrough testified that he "contacted Mr. Cosby" and asked Cosby "where and how we might get a crane and bucket to pour that roof," and Cosby told Kimbrough that he, Cosby, had a crane and would rent it to pour the roof, that "He had a competent crane operator that would come with the crane, who had operated it for a good many years"; that Kimbrough did not request any particular operator and had never seen Smedley before; that the conversation with Cosby took place in the schoolyard probably a month or more before the accident; that Kimbrough called Mr. Cowan, an employee of Cosby, one or two days prior to the accident; that Cowan came out on the job and went up on the roof with Kimbrough who pointed out to Cowan "what we had to do there to get the concrete poured."
Carmichael, manager of Cosby's sand and gravel business, and also interested in Cosby-Carmichael Transit Mix Company, testified that Cosby was supplying sand and gravel, and the Mix Company was supplying concrete, to the contractor; that Cosby leased cranes periodically, he, Carmichael, supposed several times a year; that Smedley was their "regular" crane operator; that Smedley is the only person authorized to operate that crane on the Mitchell & Nall job; that Smedley is the operator that goes with the crane; that on this same job he had rented a bulldozer to Mitchell & Nall, and the bulldozer was leased with an operator; that operation of the crane requires a "man with skill and a specialty"; that the crane cost between twenty and twenty-five thousand dollars; that crane and operator were rented for $100.00 per day; that the total charge to the contractor for crane and operator was $460.00, being four days' rent, $40.00 for moving crane and $20.00 for moving bucket and extension.
Kimbrough further testified that he had never operated a crane, and did not have knowledge as to how to operate a crane; that Kimbrough told Smith to work out signals with Smedley and Smedley said "he would instruct Mr. Smith how to give those signals, what signals to give for a certain movement of the bucket and so forth"; that no one told Smedley where to place his crane and placing the crane after he started to work on the building was "left entirely up to" Smedley.
Smedley was paid by Cosby. Mitchell & Nall, Inc. paid Smedley nothing. Cosby carried Smedley on his records as an employee for tax purposes at the time of injury. Smedley had been Cosby's employee since 1951, and was still Cosby's employee at the time of trial. Cosby provided the gas and maintained the crane when it was leased. It was Smedley's job to maintain the crane and keep it up. A man not skilled in operating a crane could not with safety and good sense operate one. Smedley did nothing on that job other than operate the crane hauling concrete to the roof, which *241 was what Cosby had told Smedley he would be doing.
It is, of course, clear and as we understand it, undisputed that Cosby was the general master of Smedley. The only question is does the evidence justify a finding that Cosby had not lost the right to control Smedley in operating the crane on the job. We are of opinion that the evidence justifies an inference that Cosby had a reserved right of control over Smedley at the time of the injury. This, we think, is a case where the question of who was master was a question of fact and that reasonable men might fairly come to different conclusions respecting the inference to be drawn from the evidence. Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So. 2d 672. Consequently, the issue was properly submitted to the jury and Cosby's affirmative charge was correctly refused.
The Power Company assigns as error three separate portions of the oral charge to which the company asserts it reserved three separate exceptions. The record discloses that the company undertook to reserve exceptions as follows:
The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court and this court the matter and ruling of which complaint is made. Pollard v. Rogers, 234 Ala. 92, 173 So. 881. An exception to "that part of the charge defining wantonness" is too indefinite to reserve an exception to the oral charge. Conway v. Robinson, 216 Ala. 495, 113 So. 531. We are of opinion that the attempt, as aforesaid, to reserve exceptions to the oral charge in the case at bar was likewise insufficient to present for review the alleged errors in the oral charge. Birmingham Ry., Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Birmingham Ry., Light & Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; Bean v. Stephens, 208 Ala. 197, 94 So. 173.
The Power Company and Cosby argue that the court erred in giving plaintiffs' requested Charges 12 and 13 which recite as follows:
It is argued that these charges are bad because they omit any mention of proximate causation and instruct that the master is answerable for all negligent acts of the servant, whether such acts be the proximate cause of injury or not.
Charges 12 and 13 are not unlike portion 19 of an oral charge which was considered in Southern Ry. Co. v. Smith, 221 Ala. 273, 128 So. 228, and which recites as follows, to wit:
Both Charges 12 and 13 and portion 19 in the Smith case, supra, are expressions of the doctrine of the master's liability for the acts of his servant, and all three statements omit mention of proximate cause.
We have noted that portion 19 is from an oral charge while Charges 12 and 13 are requested charges. As to portion 19, however, this court said:
If portion 19 contains no misstatement of the law, then neither Charge 12 or Charge 13 contains misstatement of the law.
If, however, Charges 12 and 13 be deemed incomplete and, therefore, misleading, giving them was not reversible error. "It is not necessarily reversible error to give ambiguous or misleading charges; proper explanatory instructions should be given at request of party supposing himself prejudiced thereby." Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 291, 82 So. 534, 541. Concerning a given charge which allegedly imposed on defendant a duty greater than that required by law, this court said: "If defendant considered charge 7 to be misleading or not a full statement of the applicable law the remedy was to request explanatory or additional charges. In fact, it seems to us that several of the given charges requested by defendant, and also the oral charge, adequately dealt with the question of plaintiff's duty to exercise reasonable care for her own safety." First National Bank of Mobile v. Ambrose, 270 Ala. 371, 374, 119 So. 2d 18, 21.
In the instant case, subsequent to giving plaintiffs' requested charges, the court gave at Cosby's request his Charge 16 as follows:
For the reasons stated, we are of opinion that the court did not err to a reversal in giving either Charge 12 or Charge 13.
Charges 1, 3, and 18 requested by Cosby and Smedley were refused without error because they were fairly and substantially covered by the oral charge and given charges. § 273, Title 7, Code 1940.
Cosby and Smedley argue that the court erred in overruling their motion to declare a mistrial which occurred during the argument of counsel as follows:
The particular language which appellants assert to be prejudicial is as follows:
Appellants insist that appellees' remark is highly prejudicial "since it could have *244 no other meaning than that the defendant himself would not have to pay whatever damages were awarded, but rather that the money would come from an insurance company."
W do not agree that the statement about going into where the money comes from can have no meaning other than a reference to Cosby's insurance. Cosby's counsel had made a reference to taking Cosby's "property" that he had "worked for and earned." Appellees argue, and we think correctly, that the remark of appellees' counsel about "where the money comes from" can fairly be interpreted to be a challenge to investigate the source of Cosby's property, that is, whether he had acquired it by his own efforts or by gift or inheritance.
In Cosby's reply brief, suggestion is made that plaintiffs' counsel well knew that Cosby had earned his money, not inherited it, and that the meaning now given to the objectionable language by plaintiffs was not in the mind of plaintiffs' counsel when he made the statement. The record sheds no light on this point, and properly so, because how Cosby acquired his property or who would pay the judgment were not issues in the case. For aught that appears, the language now in question is as easily susceptible of the meaning given to it by plaintiffs as of the meaning given to it by defendant, Cosby. We do not agree that the statement here is subject to the same vice as the statement in Colquett v. Williams, 264 Ala. 214, 221, 86 So. 2d 381, 386, where counsel for plaintiff referred to defendant's testifying "that his insurance company took a statement from him," and asked the jury whose money is the plaintiff trying to get.
Examination of the entire record leaves us with the impression that insurance was not injected into this case by the plaintiffs. Appellants say in brief that this record will show "there was no evidence whatever regarding insurance." That appears to be the case so far as insurance to protect defendants is concerned. In the cross-examination of the widow, by appellants' counsel, there is mention of an insurance company as paying workmen's compensation to the widow. On re-direct examination of defendant, Smedley, he makes a reference to "the insurance company for Mitchell & Nall." On direct examination of defendants' witness, Cowan, he also refers to U. S. F. & G. Company as Mitchell & Nall's insurer.
With respect to remarks of counsel, much discretion is allowed the trial court; Phillips v. Ashworth, 220 Ala. 237, 241, 124 So. 519; and the appellate court will not interfere where this discretion is not abused; Southern Ry. Co. v. Jarvis, 266 Ala. 440, 446, 97 So. 2d 549. We are of opinion that abuse of discretion does not appear in the instant case and that the court did not err in overruling the motion for mistrial.
All defendants argue that the court erred in overruling that ground of the motions for new trial which asserts that the verdict for $75,000.00 is excessive.
The rules which govern review on this point are well understood. The practical application of this rule by appellate courts to verdicts challenged for this alleged vice is a matter of great difficulty as well as delicacy. Central of Georgia Railway Co. v. White, 175 Ala. 60, 62, 56 So. 574. The trial court refused to disturb the amount of the verdict and the presumption attending the verdict is thereby strengthened. When such is the case, the appellate court is very reluctant to substitute its judgment for that of the jury and court below unless the amount is so excessive as to indicate passion, prejudice, corruption, or mistake on the part of the jury. Liberty National Life Insurance Company v. Weldon, 267 Ala. 171, 100 So. 2d 696, 61 A.L.R.2d 1346; Airheart v. Green, 267 Ala. 689, 104 So. 2d 687. When the whole evidence is considered, we cannot say that the verdict is so excessive as to so indicate.
*245 Appellants cite Central of Georgia Railway Co. v. White, supra, 175 Ala. at page 63, 56 So. at page 577 where this court quoted a statement to effect that, as a general guide, if the amount of a verdict is much above or greatly below the average, it is fair to infer, in absence of extraordinary features, that some improper motive has led the jury astray. Appellants further assert that it is common knowledge that the highest jury verdict in Wilcox County, prior to this one, was in a death case for $22,500.00. Without questioning the soundness of the quoted rule, we are of opinion that the rule does not require that the size of verdicts in the particular county of the forum be the limiting criterion as to the permissible amount. It would appear that the size of verdicts in adjacent territory, at least, might be considered, because this court, in the cited case, after stating the rule, proceeded to compare the amount of the verdict in that case with verdicts in eleven other states. Measured by out of state standards, the amount of the instant verdict is not immodest. It does not exceed the judgments in the Weldon and Airheart cases, supra. The concluding statement in the last cited case appears to be appropriate here:
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ, concur. | March 22, 1962 |
c1ec55fe-43de-45b7-91f0-7201080de4d9 | CHERRY INVESTMENT CORPORATION v. Folsom | 143 So. 2d 181 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 181 (1962)
CHERRY INVESTMENT CORPORATION, Lewis R. Donelson, III, L. S. Ralner, Jr., and George C. Wilkinson
v.
Malissa Carney FOLSOM et al.
1 Div. 982-985.
Supreme Court of Alabama.
March 29, 1962.
Rehearing Denied June 14, 1962.
Further Rehearing Denied July 12, 1962.
Lewey Stephens, Jr., Elba, and Oliver W. Brantley, Troy, for appellants.
Allan R. Cameron, Mobile, and Thos. E. Skinner, Birmingham, for appellees.
SIMPSON, Justice.
The appeal in this case proceeded from a decree of the lower court overruling the *182 motions of the respective appellants to dissolve a temporary injunction theretofore issued against them.
The appellees are minority stockholders of Emergency Aid Insurance Company, a life insurance corporation qualified to do business in Alabama, with principal offices in Elba.
The appellants are Cherry Investment Corporation, a foreign corporation, with principal offices in Memphis, Tennessee; Lewis R. Donaldson, III, director and stockholder of Emergency Aid; L. S. Rainier, Jr., director and president of Emergency Aid; and George C. Wilkinson, owner of majority stock of Cherry Investment.
The bill, on the basis of which the writ of injunction was issued, was designed to protect the interest of the appellees as minority stockholders of Emergency Aid Insurance Company against threatened dissipation of the corporate assets by the appellants. The bill in substance alleges that Emergency Aid has many thousands of policy holders and many millions of dollars of assets being held in trust for its policy holders and stockholders; that respondent Wilkinson is the legal or equitable owner of the stock of Cherry Investment Corporation, a foreign corporation organized under the laws of Tennessee; that Cherry is a paper corporation, created for the manipulation of stock; that its financial status is unknown and it has no assets subject to the jurisdiction of the court; that respondent Wilkinson, through his ownership of Cherry's stock, controls directly or indirectly all the actions of Cherry and that Cherry owns a majority of Emergency Aid and that, therefore, Wilkinson, through his control of Cherry, can control and dominate and secure the election of the majority of the board of directors of Emergency Aid; that unless restrained, Wilkinson proposes to elect persons to the board of Emergency Aid whom he can dominate and who will serve as his "puppets and stooges" for the purpose of plundering and dissipating the assets of Emergency Aid, all to the irreparable injury of appellees and other stockholders of Emergency Aid; that the said Wilkinson occupies a fiduciary relation to Emergency Aid, its policy holders, and the appellees by reason of his controlling interest and ownership of Cherry, which owns a majority of stock of Emergency Aid; that if the said Wilkinson is allowed to take over the control of Emergency Aid by the means alleged, the public's confidence in Emergency Aid will be destroyed, thereby resulting in the cancellation of many insurance policies which constitute the assets of Emergency Aid, thereby resulting in irreparable damage to appellees and the stockholders and policy holders of Emergency Aid. It is alleged that respondent Wilkinson, is insolvent and unable to respond to damages for any injury which he might cause to be done to Emergency Aid and its stockholders. The bill also alleges, factually, two instances where the respondents, through the alleged manipulations, attempted to defraud the Emergency Aid of many thousands of dollars for the benefit of respondents.
On the basis of these allegations the bill prayed that a temporary writ of injunction be issued to the respondents enjoining and restraining them as individuals, agents, directors, and stockholders, from voting or attempting to vote, or attending or attempting to attend, or holding of a stockholders meeting of Emergency Aid, until further orders of the court, and further restraining the respondents from removing or replacing anyone on the board of directors of Emergency Aid. As we take it, the import of the bill and its prayer is to restrain the respondents from displacing the present board of directors and officers of Emergency Aid until the merits of the bill can be explored, and if found meritorious, that the injunction be made permanent. The trial court, as stated, issued the temporary writ.
Appellants Ranier, sometimes called Rainer in the proceedings, Donaldson, and Wilkinson filed separate motions to dissolve the writ of injunction on the ground *183 that the bill was without equity. Wilkinson also demurred for want of equity, and Cherry also filed a plea in abatement. No answer was filed by any of the respondents.
It is noted that the court made no ruling on the plea in abatement of Cherry or the demurrer of Wilkinson, but overruled the motions to dissolve the writs of injunction, grounded on want of equity. It is this last ruling which is assigned here for error.
Concededly, the bill is no model of perspicuity, but in testing the general equity of the bill the court considers the substance of the allegationsthe facts stated not the form of the bill, the manner of stating the facts, nor the specific relief prayed for and all amendable defects are treated as amended. Holcomb v. Forsyth, 216 Ala. 486, 489, 113 So. 516; Union Central Life Insurance Company v. Thompson, 229 Ala. 433, 157 So. 852; Badham v. Johnston, 239 Ala. 48, 193 So. 420. The general demurrer is properly overruled if the bill contains any equity. Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 110 So. 2d 911.
Moreover, in considering the question of the dissolution of the injunction, the court is vested with a wide discretion and will weigh the relative degree of injury or benefits to the respective parties and especially where the discretion of the lower court has been exercised without apparent abuse. Holcomb, supra.
It is true, as argued by appellants, that as a general rule courts of equity will not interfere with the internal business management of corporate assets by the board of directors. But in case of fraud or maladministration, destructive or injurious to the corporation, this rule does not apply. Holcomb, supra, and cases cited. See also 13 Fletcher, Cyc.Corp., § 5829, p. 161 et seq.
The bill in this last cited case was held to contain equity against the general demurrer. It is considerably similar to the bill in the instant case and of consequence we hold it to be not without equity, resulting that the motions to dissolve the temporary injunction on the stated ground were not well taken.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
On Rehearing.
In our original opinion, supra, we did not pass upon the question of jurisdiction raised by this appellant's plea in abatement, pointing out that there had been no ruling on the plea. We treated the appeal as though all of the appellants alike charged error in the decree denying the several motions to dissolve the temporary injunction on the ground that the bill did not contain equity. Separate applications for rehearing have been filed by the corporate appellant and by the individual appellants.
Addressing ourselves first to the application of Cherry Investment Corporation, this appellant is correct in the statement that we were in error in so treating the appeal. On re-examination of the record and briefs we find that the Cherry Company made no general appearance in the case, but appeared specially by interposing its plea to the jurisdiction *184 and a motion to discharge the injunction as to it. Both the plea and motion stated that the Cherry Company is a foreign corporation doing business alone in the county of Coffee by agent and that in view of Section 232 of the Constitution it is not suable in Mobile County. In no wise did this appellant contest the equity of the bill. By a separate decretal order the trial court passed upon the plea and motion of the Cherry Company. Reciting at the outset that this respondent's plea had not been set down for hearing, the order stated that the matter of the motion to discharge coming on to be heard and having been heard and argued by the parties the court denied the motion for discharge. Whether the initial declaration that the plea had not been set down for hearing prior to the hearing set for the motions to discharge or dissolve the injunction meant that the respondent had not set the plea down for hearing, or the court had not set it down, is not clear, but the end result must be the same. Since the substance of the plea and the motion to discharge was the same, the effect of the order was to decide the question of jurisdiction adversely to the corporate respondent. We are thus met at the threshold with the question of jurisdiction of this court to entertain this respondent's appeal.
In stating and applying the rule that the appropriate method of testing a plea of this nature is to set it down for hearing and have the court determine whether or not it is sufficient, we have consistently held that, whatever method was followed, an order sustaining or denying such a plea was not appealable. We have also held that such ruling could not be assigned as error upon appeal from another interlocutory decree. Bullen v. Bullen, 231 Ala. 192, 164 So. 89; Templeton v. Scruggs, 234 Ala. 146, 174 So. 237; Thomas v. State, 241 Ala. 381, 2 So. 2d 772; Little v. Little, 249 Ala. 144, 30 So. 2d 386, 171 A.L.R. 1399; Gordon v. Central Park Little Boys League, 270 Ala. 311, 119 So. 2d 23. Decrees sustaining, dissolving or discharging injunctions are interlocutory. Code 1940, Title 7, § 757.
On its appeal from the decree affecting it the respondent Cherry Company assigned as error only the denial of its motion, making no reference to the ruling on the plea, and the brief argued the error assigned, relying upon authorities to the effect that a foreign corporation might be sued only in a county in which it does business. Appellant's brief on rehearing shows an awareness that a ruling on a plea such as here involved is not appealable. The question then arises whether the appeal from the ruling on motion to discharge the injunction served to bring the question before this court. We must answer this in the negative. The issue in both plea and motion to discharge was the same, the plea, or a copy of it, being filed along with the motion. For this court to respond to the error assigned would be to do by indirection that which it may not do directly. Even if this were not so, there is a further impediment in the way of our deciding the question. Neither the decree, nor the record elsewhere, discloses the evidence, if there was such, or the argument upon which the trial court based its decretal order.
In view of the conclusion we here reach, it results that our original judgment on the separate appeal of Cherry Investment Corporation should have been a dismissal of the appeal rather than affirmance. The original judgment will, therefore, be corrected by affirming as to the appeals of the individual respondents and dismissing the appeal of the corporate respondent, and its application for rehearing is overruled.
As to the applications of the individual appellants, we are not persuaded that we should recede from or add to our original deliverance affirming the decretal orders appealed from by them.
Judgment corrected and application of Cherry Investment Corporation overruled.
Applications for rehearing of the individual appellants overruled. | March 29, 1962 |
3e80592b-5838-4ab5-b97f-f2a6268183a8 | Christison v. State | 142 So. 2d 676 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 676 (1962)
Helen CHRISTISON
v.
STATE of Alabama.
7 Div. 536.
Supreme Court of Alabama.
March 22, 1962.
Rehearing Denied June 28, 1962.
Geo. Murphy and Roy D. McCord, Gadsden, for petitioner.
*677 MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty.Gen., opposed.
STAKELY, Justice.
Helen Christison was convicted on a judgment based on a general verdict of guilty on an indictment consisting of two counts and sentenced to five years imprisonment. The judgment was affirmed by the Court of Appeals and rehearing was denied. The petition for writ of certiorari was granted and the case was argued orally.
Helen Christison as custodian of Etowah County school funds drew a check dated January 23, 1951 on the American National Bank of Gadsden, Alabama for $225.00, payable to "Helen ChristisonBookkeeper". The reverse side of the check was endorsed "Helen ChristisonBookkeeper and Etowah County Exchange, Inc." After the bank paid the check and charged it to Miss Christison's account as custodian, the cancelled check was returned by the bank to petitioner. Petitioner then erased the name of the payee so as to make the name of the payee on the check read "Clorene C. Hallmark". According to the opinion of the Court of Appeals Clorene C. Hallmark, a teacher on maternity leave without pay in January 1951, denied that she had written the purported endorsement.
In count one of the indictment, petitioner is charged with forgery. The Court of Appeals appears to concede that there is no forgery in the first degree since the instrument was no longer a check under Section 199, Title 14, Code of 1940 when the alteration was made. However the Court of Appeals has regarded the cancelled check as a receipt and found forgery in the second degree under Section 200, Title 14, Code of 1940. The court stated in Wyatt v. State, 257 Ala. 90, 57 So. 2d 366, 368:
The Court of Appeals held the indictment to charge forgery in the second degree under the first alternative. Petitioner argues that the endorsement was not in evidence so far as the forgery count in the indictment was concerned. Thus without an endorsement, it is impossible for a cancelled check to constitute a receipt. We cannot agree. The perforations on the check showing that it was paid on a certain date and other bank markings show that the payee presented the instrument to the bank and that the bank cancelled the check. The face of the check indicates that the payee or someone other than petitioner cashed the check. Moreover, the Court of Appeals stated on rehearing that the endorsement went to the jury for the purpose of showing the entire instrument as described in count one of the indictment. The endorsement did not go to the jury for the purpose of showing forgery. Thus the endorsement was not completely excluded but excluded from being the forgery aspect of the check. The instructions to the jury were not altogether unambiguous, but the construction of the Court of Appeals is very plausible and we can find no reason to alter that finding.
The petitioner, in a former trial in which she was acquitted, was charged in count two of that indictment with the embezzlement of two hundred and fifty dollars. In count three of the present indictment, she is charged with embezzlement of a check for two hundred and twenty-five dollars. This court in response to a certified question of the case at bar has held that an indictment charging embezzlement of money was not supported by proof of *678 embezzlement of a check citing O'Brien v. State, 238 Ala. 189, 191 So. 391 as the leading case on the matter. Thus the petitioner's pleas of autrefois acquit fail.
However it might be found that the check in question was not the petitioner's own check but was merely in her custody by virtue of her position as bookkeeper and custodian of the school funds.
Petitioner contends that a person cannot embezzle a check in which he is the specified payee and cites Martin v. State, 37 Ala.App. 197, 65 So. 2d 540. This case and Gray v. State, 160 Ala. 107, 49 So. 678 held only that checks being payable to accused and cashed by him are not sufficient facts to constitute embezzlement of checks. The cases did not indicate that it was impossible to embezzle such checks. In this instance, the check was not embezzled if we halted the facts after the cashing of the Hallmark check. The embezzlement occurred when the check was fraudulently appropriated for the use of the petitioner. The petitioner erased her name as payee and her endorsement and inserted that of Clorene C. Hallmark. The entire instrument was in evidence without qualification in regards to the embezzlement count. The cancelled check was the property of the school and functioned as a receipt to account for the disbursement of the school funds.
Other matters raised by the petitioner have been given adequate treatment by the Court of Appeals. The evidence fully supports the verdict on counts one and three.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON and MERRILL, JJ., concur. | March 22, 1962 |
ab678fc0-8d7e-4aa4-8875-a830fb445279 | Hilyer v. Fortier | N/A | 1140991 | Alabama | Alabama Supreme Court | Rel: 01/06/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1140991
____________________
Adam Dan Hilyer
v.
Betti Fortier, individually and as mother and next friend of
M.M., a minor
Appeal from Elmore Circuit Court
(CV-13-900405)
PARKER, Justice.
Adam Dan Hilyer appeals from the order of the Elmore
Circuit Court ("the circuit court"), following this Court's
remand of the case, denying Hilyer's motion filed pursuant to
1140991
Rule 55(c), Ala. R. Civ. P., to set aside the default judgment
entered against him and in favor of Betti Fortier,
individually and as mother and next friend of M.M., a minor.
For the reasons explained below, we reverse and remand.
Facts and Procedural History
This case has previously been before this Court. See
Hilyer v. Fortier, 176 So. 3d 809 (Ala. 2015)("Hilyer I").
The following facts from Hilyer I are pertinent to our review:
"On the evening of July 29, 2013, Hilyer was
backing a tractor-trailer rig used to transport logs
into his private driveway on Kennedy Avenue. At the
time, Hilyer was blocking both lanes of traffic on
Kennedy Avenue. M.M., a minor, was driving Fortier's
van and was traveling westbound on Kennedy Avenue.
B.D., M.M.'s brother; R.W., M.M.'s fiancé; and B.H.,
a friend of B.D.'s, were also in the vehicle with
M.M. M.M.'s vehicle collided with Hilyer's trailer,
and M.M. sustained injuries.
"On October 30, 2013, Fortier, individually and
as the mother and next friend of M.M., sued Hilyer,
asserting claims of negligence and wantonness. In
her complaint, Fortier alleged that, at the time of
the accident, it was dark and that Hilyer's
tractor-trailer was blocking both lanes of travel on
Kennedy Avenue, which caused M.M.'s vehicle to
collide with the trailer. Fortier alleged:
"1.
That
Hilyer
negligently
and
wantonly blocked both lanes of travel on
Kennedy Avenue in the dark while attempting
to back the tractor-trailer rig into his
private driveway;
2
1140991
"2.
That
Hilyer
negligently
and
wantonly failed to give adequate warnings
to motorists approaching on Kennedy Avenue
that the tractor-trailer rig was blocking
both lanes of travel on Kennedy Avenue;
"3.
That
Hilyer
negligently
and
wantonly failed to have adequate and/or
proper lighting on the truck and/or the
trailer.
"4.
That
Hilyer
negligently
and
wantonly
violated
certain
provisions
of
the
Alabama Rules of the Road.
"A summons and a copy of the complaint were served
on Hilyer by certified mail on November 6, 2013. On
January 27, 2014, Fortier filed a motion for a
default judgment against Hilyer and requested a
hearing on damages.
"On January 28, 2014, the trial court entered an
order granting Fortier's motion for a default
judgment and stating: 'Damages to be proven by
affidavit and proposed judgment in 15 days.'
Subsequently,
Fortier
submitted
a
'proposed
judgment,' in which she requested that the trial
court enter a judgment against Hilyer in the amount
of $550,000 and 'to find that the proposed
settlement of the claim of the minor, M.M. is just,
fair, reasonable, in keeping with the evidence, and
is in the minor's best interest.' In support of her
request, Fortier attached an affidavit from her
counsel regarding the injuries sustained by M.M. and
the expenses that had been incurred as a result of
those injuries.
"On February 12, 2014, the trial court entered
a judgment against Hilyer in the amount of $550,000
and found 'that the proposed settlement of the claim
of the minor, M.M. is just, fair, reasonable, in
3
1140991
keeping with the evidence, and is in the minor's
best interest.'
"On March 7, 2014, Hilyer filed a motion to set
aside the default judgment pursuant to Rule 55(c),
Ala. R. Civ. P.[ ] In his motion, Hilyer addressed
1
the requirements for setting aside a default
judgment set forth in Kirtland v. Fort Morgan
Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.
1988). He also attached to his motion his affidavit;
an affidavit from his neighbor, Wyman Earl Jackson,
who witnessed the accident; an affidavit from
Roberto Lozano, a claims manager for Alteris
Insurance Services ('Alteris'), which was the
third-party
administrator
for
Hilyer's
commercial-insurance
policy;
letters
Fortier's
counsel had sent to Lozano; an affidavit from
Christopher Wyatt, an employee of Crawford &
Company, which Alteris had hired to investigate the
accident; copies of letters Wyatt had sent to
Fortier's counsel; and a copy of a letter Fortier's
counsel had sent to Wyatt after the default judgment
had been entered."
The affidavits Hilyer attached to his Rule 55(c) motion
to set aside the default judgment contain facts pertinent to
our review in the present case. In Hilyer's affidavit, Hilyer
stated that he backed the tractor-trailer rig into his
Rule 55(c), Ala. R. Civ. P., provides:
1
"(c) Setting Aside Default. In its discretion,
the court may set aside an entry of default at any
time before judgment. The court may on its own
motion set aside a judgment by default within thirty
(30) days after the entry of the judgment. The court
may also set aside a judgment by default on the
motion of a party filed not later than thirty (30)
days after the entry of the judgment."
4
1140991
driveway at least twice a week for six years before the
accident. He stated that his general practice in backing the
tractor-trailer rig into the driveway was to drive past his
driveway, stop, turn on the four-way flashers, make sure that
the road was clear, and back into his driveway. According to
Hilyer, the stretch of road in front of his house was never
very busy, and, on most occasions, he stated, he did not see
any vehicles while backing the tractor-trailer rig into his
driveway.
Additionally, according to Hilyer's affidavit, on the
night of the accident, Hilyer followed his general practice of
backing into his driveway. Hilyer stated that he stopped
after passing his driveway and turned on the four-way
flashers. He further stated that he looked in all directions
and, not seeing any vehicles approaching, began backing into
his driveway.
Hilyer also stated that, at some point, he saw a minivan
coming toward his tractor-trailer rig. According to Hilyer,
the driver of the minivan should have seen his tractor-trailer
rig. Hilyer stated that there was a streetlight behind his
tractor-trailer rig, that the four-way flashers were on, and
5
1140991
that there was reflective tape running along the length of the
side of the trailer. According to Hilyer, he flashed his
lights to get the driver's attention but the minivan crashed
into the tractor-trailer rig. Hilyer stated that the minivan
appeared to be going well over the 35 m.p.h. speed limit.
According to Hilyer, he notified his insurance agent at
Ledkins Insurance Agency ("Ledkins") of the accident on July
30, 2013, the day after the accident. Hilyer stated that,
based on that conversation, it was his understanding that his
insurance company was investigating the accident and would
defend him if a lawsuit was filed against him.
In the affidavit filed by Hilyer's neighbor, Wyman Earl
Jackson, Jackson stated that on the night of the accident the
headlights on the tractor-trailer rig were on. Jackson
further stated that the hazard lights began flashing once
Hilyer began backing the rig into his driveway. According to
Jackson, he saw the minivan approach, and it appeared to
Jackson that the minivan was going faster than the 35 m.p.h.
speed limit. Jackson stated that, as the minivan approached,
Hilyer flashed the headlights on the tractor-trailer rig and
6
1140991
honked the horn. Jackson further stated that there were
reflectors on the trailer.
In Roberto Lozano's affidavit, Lozano, a claims adjuster
for Alteris Insurance Services, stated that Sparta Insurance
("Sparta") had issued Hilyer a commercial automobile policy
that was in effect on the day of the accident. Lozano stated
that, on July 30, 2013, Ledkins reported a claim arising out
of the accident involving Hilyer and that, as a result, Lozano
established a claim number for Hilyer's claim. Lozano further
stated that, on August 2, 2013, he hired Crawford & Company,
a property and casualty company, to investigate the accident.
Lozano stated that he intended to assign responsibility
for Hilyer's claim to another Alteris adjuster and that,
thinking he had done so, he did not monitor Hilyer's claim.
Lozano stated that, because of his belief that he had assigned
the case to another Alteris adjuster, he did not read or
respond to any further correspondence he received from
Fortier's counsel. According to Lozano, when the default
judgment against Hilyer was brought to his attention, he
realized that he had not assigned the claim to another
adjuster as he had thought he had done. He stated that he
7
1140991
then retained counsel and that "had [he] realized sooner a
complaint had been filed, [he] would have immediately
retained
counsel to defend Hilyer."
The letters from Fortier's counsel Hilyer attached to his
Rule 55(c) motion also include facts pertinent to our review
of the ruling before us. One letter, a letter from Fortier's
counsel to Lozano dated August 8, 2013, indicates that counsel
was representing Fortier with reference to the accident and
requested, among other things, that future correspondence be
sent to her. It is undisputed that Lozano read this letter,
but the letter does not mention an intent to file a lawsuit
against Hilyer. Another letter from Fortier's counsel to
Lozano, dated October 31, 2013, references a complaint filed
against Hilyer in the circuit court. A third letter from
Fortier's counsel to Lozano, dated January 2, 2014, advises
Lozano, among other things, that an answer had not yet been
filed on Hilyer's behalf. On January 28, 2014, the circuit
court entered the default judgment.
On March 7, 2014, the same day Hilyer filed his motion to
set aside the default judgment, Hilyer filed his answer to
Fortier's complaint and asserted affirmative defenses.
8
1140991
"The trial court subsequently entered an order
setting a hearing on Hilyer's motion to set aside
the default judgment.
"On
April
11,
2014,
Fortier
filed
her
opposition
to Hilyer's motion to set aside. In support of her
opposition,
Fortier
attached
her
affidavit;
affidavits from M.M., B.D., and R.W.; an affidavit
from Marc McHenry, an investigator with Fortier's
counsel's law firm; copies of correspondence from
Fortier's counsel; an affidavit from Fortier's
counsel; and an affidavit from Shannon Rattan, the
secretary for Fortier's counsel."
Hilyer I, 176 So. 3d at 812.
The affidavits Fortier attached to her motion opposing
Hilyer's Rule 55(c) motion contain facts pertinent to our
review in the present case. In M.M.'s affidavit, M.M. stated
that she had slowed to 20 m.p.h. before the accident. She
stated that she never heard a horn or saw any lights,
flashers, or reflectors before the accident. In B.D.'s
affidavit, B.D. stated that there were no lights on the
tractor or the trailer on the night of the accident. B.D.
stated that there was no warning that the tractor-trailer rig
was blocking the lane in which they were traveling. In R.W.'s
affidavit, R.W. stated that the reflectors on the trailer were
"dirty." R.W. also stated that, while waiting to leave the
scene of the accident, he ran his hand along the side of the
9
1140991
trailer. According to R.W., when he ran his hand along the
side of the trailer, he felt dirt, rust, and chipped paint.
In Marc McHenry's affidavit, McHenry, an investigator for
Fortier's counsel's law firm, stated that he spoke with Lozano
on August 7, 2013. According to McHenry, he asked Lozano if
he could inspect the tractor and the trailer as soon as
possible. McHenry stated that Lozano told him that he,
Lozano, had authority to allow McHenry to see the tractor and
trailer but that McHenry needed to communicate with
Christopher Wyatt, the investigator hired by Crawford &
Company to investigate the accident. McHenry stated that he
contacted Wyatt, who, in turn, stated that he would continue
to try to make contact with Hilyer to coordinate McHenry's
inspection of the tractor-trailer rig. McHenry stated that he
spoke to Hilyer about accessing the tractor-trailer rig;
however, Hilyer apparently directed McHenry to Wyatt.
McHenry stated that, during a conversation he had with
Wyatt on September 18, 2013, Wyatt stated that he had already
inspected and photographed the tractor and trailer.
According
to McHenry, Wyatt also told him that the tractor was repaired
two days after the accident. McHenry stated that he sent an
10
1140991
e-mail to Wyatt requesting copies of the photographs of the
tractor, the trailer, and the parts that were removed but that
he never received a response.
Finally, in her affidavit, Fortier's counsel stated that
she telephoned Lozano to see if an answer would be filed on
Hilyer's behalf. Fortier's counsel stated that Lozano did not
answer the call and that she left him a voicemail. It is
unclear as to when Fortier's counsel made the telephone call,
and Fortier's counsel does not describe the contents of the
voicemail.
"On April 16, 2014, the trial court entered an
order stating that the hearing on the motion to set
aside had been held and that the issue remained
under advisement. The record does not include a
transcript of the hearing.
"On May 13, 2014, Hilyer filed a supplement to
his motion to set aside the default judgment, in
which he submitted an affidavit from Scott Kramer,
a member of the Coosada Volunteer Fire Department
('the CVFD'), who was the on-scene supervisor for
the accident."
Hilyer I, 176 So. 3d at 812.
Scott Kramer stated that he drove a fire engine from the
station to the scene of the accident; that he was traveling
north on Kennedy Avenue and approached the accident scene from
the south; that, in the area just south of the accident,
11
1140991
Kennedy Avenue curves from west to north; that, when he
entered the curve, he could see across his right to the area
where the curve ended; that he could see the lights of
Hilyer's tractor-trailer rig and the lights of a police
vehicle at the accident scene; that he could clearly see the
running lights and headlights of the tractor-trailer
rig; that
the hazard lights on the tractor-trailer rig were flashing;
and that the tractor-trailer rig and the police vehicle were
approximately one-quarter of a mile away when he first saw
them. He further stated that, when he arrived at the scene,
M.M.'s vehicle was on fire; that the tractor-trailer rig was
parked in the road and its running lights were on; that he
looked at the running lights to maneuver the fire engine
between the police vehicle and the tractor-trailer rig; that
he did not see anything that night to explain why M.M. would
not have seen the tractor-trailer rig; and that anyone
traveling the 35 m.p.h. speed limit would have had ample time
to avoid a collision. Finally, Kramer stated that he lived in
Coosada; that he was familiar with traffic on Kennedy Avenue;
that Kennedy Avenue was not a heavily traveled road; that he
had previously seen Hilyer backing his tractor-trailer rig
12
1140991
into his driveway; and that it never took Hilyer very long to
get his tractor-trailer rig out of the road.
"On May 21, 2014, Fortier filed a reply to Hilyer's
supplement to his motion to set aside the default
judgment
and
a
motion
to
strike
Kramer's
affidavit.[ ] Hilyer's motion to set aside the
2
default judgment was denied by operation of law on
June 5, 2014. Hilyer appealed."
Hilyer I, 176 So. 3d at 812.
On appeal in Hilyer I, this Court considered whether
Hilyer's Rule 55(c) motion had properly alleged the three
factors set out in Kirtland v. Fort Morgan Authority Sewer
Service, Inc., 524 So. 2d 600 (Ala. 1988). 176 So. 3d at
3
In Fortier's motion to strike, filed pursuant to Rule 6,
2
Ala. R. Civ. P., Fortier argued that the circuit court should
not consider Kramer's affidavit because it was not timely
filed. We noted in Hilyer I, however, that the circuit court
did not rule on Kramer's motion. 176 So. 3d at 816 n.1. We
held that because Rule 6 allowed for the possibility that the
circuit court could have considered Kramer's affidavit, we
would consider Kramer's affidavit in our review. Id.
In Kirtland, we held that a trial court's broad
3
discretionary authority to set aside a default judgment under
Rule 55(c) should not be exercised without considering the
following three factors: 1) whether the defendant has a
meritorious defense; 2) whether the plaintiff will be
unfairly
prejudiced if the default judgment is set aside; and 3)
whether the default judgment was a result of the defendant's
own culpable conduct. 524 So. 2d at 605. "'"However, in order
to trigger the mandatory requirement that the trial court
consider the Kirtland factors, the party filing a motion to
set aside a default judgment must allege and provide arguments
and evidence regarding all three of the Kirtland factors."'"
13
1140991
814. We held both that Hilyer's Rule 55(c) motion met the
threshold showing of each of the three Kirtland factors and
that those factors were not considered in the denial by
operation of law of Hilyer's Rule 55(c) motion. 176 So. 3d at
820-21. Therefore, we reversed the denial of Hilyer's Rule
55(c) motion and remanded the case with instructions for the
circuit court to consider the three Kirtland factors in
determining whether to grant or to deny Hilyer's Rule 55(c)
motion. 176 So. 3d at 820-21. We noted:
"'"[O]ur mandate in this case 'is not to be
construed to mean that the trial court must set
aside the default judgment, [but] only that the
trial court must apply the Kirtland factors in
deciding
whether
to
set
aside
the
default
judgment.'" Richardson v. Integrity Bible Church,
Inc., 897 So. 2d 345, 349 (Ala. Civ. App. 2004),
quoting White v. Westmoreland, 680 So. 2d 348, 349
(Ala. Civ. App. 1996).' [D.B. v. D.G.,]•141 So. 3d
[1066,] 1072 [(Ala. Civ. App. 2013)]."
176 So. 3d at 821.
On May 27, 2015, the circuit court held a hearing on
Hilyer's Rule 55(c) motion. No new evidence was offered.
Hilyer I, 176 So. 3d at 813-14 (quoting D.B. v. D.G., 141 So.
3d 1066, 1070-71 (Ala. Civ. App. 2013), quoting in turn
Brantley v. Glover, 84 So. 3d 77, 81 (Ala. Civ. App. 2011)).
14
1140991
Following the hearing, the circuit court entered
the
following
order:
"This case coming on before this Court upon the
remand from the appellate court for this Court to
consider the Kirtland factors in whether the default
judgment that is entered in this cause should be set
aside. The parties appearing and submitting only
evidence through pleading and no new evidence being
presented on the date of this hearing through
testimony. Only argument being presented, this Court
finds as follows:
"This Court hearing the argument and reviewing
the pleadings as to the 1. Meritorious defense of
the Defendant, 2. The plaintiff unfair prejudice and
3. [W]hether the default was a product of the
Defendant's own conduct, with the idea that all
three factors must be shown for the Kirtland
analysis to be applied.
"Parties stating through counsel that Agent
Lazono [sic] received the correspondence from
[Fortier], received phone calls and text messages
along with letters that he placed in the claim file
but mistakenly thought he had assigned the claim to
another. Agent Lazono [sic] failed to respond to
letters asking if he was going to respond. [Fortier]
making direct contact with the adjuster for the
carrier but was unable to get the carrier to arrange
for [Fortier] to review the vehicle of [Hilyer],
even though the same was in [Hilyer's] possession.
Lazono [sic] knew the suit was pending.
"This Court finds that Lazono [sic], the
employee of the carrier, exhibited 'intentional
non-responsiveness.'
"Upon
review
of
the
Kirtland
factors,
this
Court
finds that the default judgment entered herein
15
1140991
should remain. Motion to set aside is denied. DONE
this 27th Day of May 2015."
Hilyer appealed.
Standard of Review
"In reviewing a trial court's denial of a motion
to set aide a default judgment, this Court has
stated:
"'A trial court has broad discretion
in deciding whether to grant or deny a
motion to set aside a default judgment.
Kirtland v. Fort Morgan Auth. Sewer Serv.,
Inc., 524 So. 2d 600 (Ala. 1988). In
reviewing an appeal from a trial court's
order refusing to set aside a default
judgment,
this
Court
must
determine
whether
in refusing to set aside the default
judgment the trial court exceeded its
discretion. 524 So. 2d at 604. That
discretion, although broad, requires the
trial court to balance two competing policy
interests
associated
with
default
judgments: the need to promote judicial
economy and a litigant's right to defend an
action on the merits. 524 So. 2d at 604.
These interests must be balanced under the
two-step process established in Kirtland.
"'We begin the balancing process with
the presumption that cases should be
decided on the merits whenever it is
practicable to do so. 524 So. 2d at 604.
The
trial
court
must
then
apply
a
three-factor analysis first established in
Ex parte Illinois Central Gulf R.R., 514
So. 2d 1283 (Ala. 1987), in deciding
whether to deny a motion to set aside a
default judgment. Kirtland, 524 So. 2d at
605. The broad discretionary authority
16
1140991
given to the trial court in making that
decision should not be exercised without
considering the following factors: "1)
whether the defendant has a meritorious
defense; 2) whether the plaintiff will be
unfairly
prejudiced
if
the
default
judgment
is set aside; and 3) whether the default
judgment was a result of the defendant's
own culpable conduct." 524 So. 2d at 605.'
"Zeller v. Bailey, 950 So. 2d 1149, 1152-53 (Ala.
2006)."
Manci v. Ball, Koons & Watson, 995 So. 2d 161, 165 (Ala.
2008).
Discussion
Hilyer argues that the circuit court exceeded its
discretion when it denied his Rule 55(c) motion because, he
argues, each of the three Kirtland factors weigh in favor of
granting the motion.
A. Whether the Defendant Has a Meritorious Defense
Concerning
whether
the
defendant
has
alleged
a
meritorious defense under Kirtland, this Court has stated:
"To present a meritorious defense, for Rule 55(c)
purposes, does not require that the movant satisfy
the trial court that the movant would necessarily
prevail at a trial on the merits, only that the
movant show the court that the movant is prepared to
present a plausible defense. Kirtland, 524 So. 2d at
605.
17
1140991
"'The defense proffered by the defaulting
party must be of such merit as to induce
the trial court reasonably to infer that
allowing the defense to be litigated could
foreseeably alter the outcome of the case.
To be more precise, a defaulting party has
satisfactorily
made
a
showing
of
a
meritorious defense when allegations in an
answer or in a motion to set aside the
default
judgment
and
its
supporting
affidavits, if proven at trial, would
constitute a complete defense to the
action, or when sufficient evidence has
been adduced either by way of affidavit or
by some other means to warrant submission
of the case to the jury.
"'The allegations set forth in the
answer and in the motion must be more than
mere
bare
legal
conclusions
without
factual
support; they must counter the cause of
action averred in the complaint with
specificity -- namely, by setting forth
relevant legal grounds substantiated by a
credible factual basis. Such allegations
would constitute a "plausible defense."'
"Kirtland, 524 So. 2d at 606."
Sampson v. Cansler, 726 So. 2d 632, 634 (Ala. 1998).
In her complaint, Fortier alleged negligence and
wantonness claims against Hilyer. As set out above, we
summarized Fortier's claims against Hilyer in Hilyer I as
follows:
"1.
That
Hilyer
negligently
and
wantonly
blocked
both lanes of travel on Kennedy Avenue in the dark
18
1140991
while attempting to back the tractor-trailer rig
into his private driveway;
"2. That Hilyer negligently and wantonly failed
to give adequate warnings to motorists approaching
on Kennedy Avenue that the tractor-trailer rig was
blocking both lanes of travel on Kennedy Avenue;
"3. That Hilyer negligently and wantonly failed
to have adequate and/or proper lighting on the truck
and/or the trailer.
"4. That Hilyer negligently and wantonly
violated certain provisions of the Alabama Rules of
the Road."
176 So. 3d at 811.
We first address whether, for Rule 55(c) purposes,
Hilyer presented a meritorious defense to Fortier's claims
that Hilyer negligently and wantonly failed to give adequate
warnings and that Hilyer negligently and wantonly failed to
have adequate and/or proper lighting on the tractor-trailer
rig.
In Lemley v. Wilson, 178 So. 3d 834 (Ala. 2015), this
Court set out the elements a plaintiff must prove to establish
negligence and wantonness:
"'To
establish
negligence,
the
plaintiff must prove: (1) a duty to a
foreseeable plaintiff; (2) a breach of that
duty; (3) proximate causation; and (4)
damage or injury. Albert v. Hsu, 602 So. 2d
895,
897
(Ala.
1992).
To
establish
19
1140991
wantonness, the plaintiff must prove that
the defendant, with reckless indifference
to
the
consequences,
consciously
and
intentionally did some wrongful act or
omitted some known duty. To be actionable,
that act or omission must proximately cause
the
injury
of
which
the
plaintiff
complains. Smith v. Davis, 599 So. 2d 586
(Ala. 1992).'"
Lemley, 178 So. 3d at 841-42 (quoting Martin v. Arnold, 643
So. 2d 564, 567 (Ala. 1994)) (emphasis omitted).
In the past, this Court has held that a defendant
presents a meritorious defense under the first
Kirtland
factor
when he or she provides affidavit testimony that directly
disputes the circumstances described in the plaintiff's
complaint. See, e.g., Ex parte Family Dollar Stores of
Alabama, Inc., 906 So. 2d 892, 901 (Ala. 2005)(holding that
the defendant had presented a "plausible defense" under the
first Kirtland factor because "[t]he affidavit of [the
defendant] directly disputes the circumstances described by
the [plaintiffs] in their complaint concerning the March 17,
2002, incident and, if believed by the fact-finder, would
completely undermine the theories of liability asserted
by
the
[plaintiffs]"); Summit Photographix, Inc. v. Scott, 763
So.
2d
956, 960 (Ala. 2000)
("Through [the witness's]
affidavit,
[the
20
1140991
defendant] has specifically refuted [the plaintiff's] claims;
therefore, [the defendant] has made a showing that it could
present a meritorious defense. See Kirtland, 524 So. 2d at
605–06.").
In Hilyer's Rule 55(c) motion, Hilyer provided the
affidavit testimony of his neighbor, Jackson. Jackson
specifically stated that the lights on Hilyer's tractor-
trailer rig were on and visible and that Hilyer honked the
horn before the accident. Additionally, Hilyer provided his
own affidavit testimony in which he stated that the headlights
and four-way flashers of his tractor were on when he was
backing into his driveway. Hilyer also stated that he flashed
his lights when it was evident to him that the minivan driven
by M.M. was not going to stop. Thus, the facts alleged in the
affidavit testimony provided by Hilyer in his Rule 55(c)
motion, if true, directly contradict the factual basis for
both Fortier's claim that Hilyer negligently and wantonly
failed to give adequate warnings and Fortier's claim that
Hilyer negligently and wantonly failed to have adequate
and/or
proper lighting on the tractor-trailer
rig.
Therefore,
Hilyer
21
1140991
has presented a meritorious defense, for Rule 55(c) purposes,
to those claims.
We
next
address
whether
Hilyer
has
presented
a
meritorious defense, for Rule 55(c) purposes, to Fortier's
claim that "Hilyer negligently and wantonly blocked
both lanes
of travel on Kennedy Avenue in the dark while attempting to
back the tractor-trailer rig into his private driveway" and to
Fortier's
claim
that
"Hilyer
negligently
and
wantonly
violated
certain provisions of the Alabama Rules of the Road."
"'Contributory
negligence
is
an
affirmative and complete defense to a claim
based on negligence. In order to establish
contributory negligence, the defendant
bears the burden of proving that the
plaintiff 1) had knowledge of the dangerous
condition; 2) had an appreciation of the
danger
under
the
surrounding
circumstances;
and 3) failed to exercise reasonable care,
by placing himself in the way of danger.'•
"Ridgeway v. CSX Transp., Inc., 723 So. 2d 600, 606
(Ala. 1998)."
Norfolk S. Ry. v. Johnson, 75 So. 3d 624, 639 (Ala. 2011).
It is undisputed that Hilyer blocked both lanes of travel
while backing his tractor-trailer rig into his private
driveway; however, in his Rule 55(c) motion to set aside the
default judgment, Hilyer alleged that the collision was the
22
1140991
result
of
contributory
negligence
on
M.M.'s
part.
Specifically, Hilyer alleged that the accident was the result
of M.M.'s failure to keep a proper lookout and M.M.'s
excessive speed. Hilyer supported his allegation that M.M. was
contributorily negligent with affidavit testimony of himself,
Jackson, and Kramer.
In Hilyer's affidavit, Hilyer stated that there was a
streetlight behind his tractor-trailer rig. He stated that
his trailer had reflective tape and that the tractor's four-
way flashers were on. He alleged that M.M. should have seen
his tractor-trailer rig.
In Jackson's affidavit, Jackson stated that the minivan
appeared to be speeding. Jackson also stated that Hilyer
flashed the lights on the tractor-trailer rig and honked the
horn when M.M.'s vehicle approached the tractor-trailer rig.
And Jackson stated that the tractor's hazard lights were
flashing before M.M.'s vehicle hit Hilyer's tractor-trailer
rig.
In Kramer's affidavit, Kramer stated that he did not see
anything that night to explain why M.M. would not have seen
the tractor-trailer rig and that anyone traveling the 35
23
1140991
m.p.h. speed limit would have had ample time to avoid an
accident. Kramer also stated that the hazard lights of the
tractor were on when he arrived at the scene.
Accordingly, Hilyer's motion to set aside the default
judgment alleged facts that, if true, would permit a jury to
conclude that M.M. was contributorily negligent. As a result,
Hilyer presented a meritorious defense, for Rule 55(c)
purposes, to Fortier's claims that he negligently
blocked
both
lanes of travel and that he negligently violated certain
provisions of the Alabama Rules of the Road.
Of course, contributory negligence "is not a bar to a
wantonness claim." Tyler v. City of Enterprise, 577 So. 2d
876, 878 (Ala. 1991). Thus, we must now determine whether
Hilyer presented a meritorious defense, for Rule 55(c)
purposes, to Fortier's claims that Hilyer wantonly blocked
both lanes of travel and that Hilyer wantonly violated certain
provisions of the Alabama Rules of the Road. As set out
above, to establish wantonness, the plaintiff must prove, in
part, that the defendant acted with reckless indifference to
the consequences.
"'Reckless' is defined as 'careless, heedless,
inattentive; indifferent to consequences,' Black's
24
1140991
Law Dictionary 1270 (6th ed. 1990); 'marked by lack
of
proper
caution:
careless
of
consequence,'
Webster's New Collegiate Dictionary 957 (1981);
'having no regard for consequences; uncontrolled;
wild.' The American Heritage Dictionary of the
English Language 1088 (1969); see Harrison v. State,
37 Ala. 154 (1861)."
Berry v. Fife, 590 So. 2d 884, 885 (Ala. 1991).
In his Rule 55(c) motion, Hilyer provided affidavit
testimony concerning the alleged precautions he took to avoid
an accident while backing his tractor-trailer rig into his
driveway. Those alleged precautions include activation
of
the
tractor's
four-way
flashers;
reflective
tape;
and
flashing
the
lights and honking the horn at the oncoming minivan driven by
M.M. Those precautions, if in place, plausibly refute
Fortier's
claim
that
Hilyer
acted
with
"reckless
indifference"
to the risk of an accident. Accordingly, for Rule 55(c)
purposes, Hilyer has presented a meritorious defense to
Fortier's allegation that he wantonly blocked both lanes of
travel and wantonly violated certain provisions of
the
Alabama
Rules of the Road.
Because Hilyer has, for Rule 55(c) purposes, presented
a meritorious defense to each of the claims set out in
25
1140991
Fortier's complaint, the first Kirtland factor weighs
in
favor
of setting aside the default judgment.
B. Whether the Plaintiff Will Suffer Substantial Prejudice
Concerning the second Kirtland factor, whether a
plaintiff will suffer substantial prejudice, this Court has
said:
"The second factor that a trial court must
consider in ruling on a motion to set aside a
default judgment is whether the plaintiff will be
unfairly prejudiced if it grants the motion.
Kirtland, 524 So. 2d at 606-07. This prejudice
cannot take the form of mere delay or increased
costs, because those can be remedied by imposing
additional costs on the defendant if the plaintiff
later prevails. 524 So. 2d at 607. Rather, the
prejudice must be substantial, facilitating fraud or
collusion, resulting in the loss of evidence, or
hindering discovery. 524 So. 2d at 607.
"Although
common
sense
dictates
that
a
plaintiff
is usually in a far better position to know what
prejudice might befall him from the delay, and more
importantly how substantial that prejudice would be,
we have placed upon the defendant the initial burden
of demonstrating that the plaintiff will not be
substantially prejudiced. As we have stated:
"'We hold that when a party files a motion
to set aside a default judgment, the movant
has the initial burden of making a prima
facie showing that the plaintiff will not
be unfairly prejudiced if the default
judgment is set aside. If the movant makes
a prima facie showing that the plaintiff
will not be unfairly prejudiced, the burden
then shifts to the plaintiff to present
26
1140991
facts showing that the plaintiff will be
unfairly
prejudiced
if
the
default
judgment
is set aside.'
"Phillips v. Randolph, 828 So. 2d 269, 278 (Ala.
2002). Additionally, a defendant cannot simply state
that the plaintiff will not be prejudiced if the
motion to set aside the default judgment is granted.
Phillips, 828 So. 2d at 275."
Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So. 2d
802, 811 (Ala. 2004).
In the present case, Hilyer did more than simply state
that Fortier would not be prejudiced if the motion to set
aside was granted. As this Court explained in Hilyer I:
"In his motion to set aside, Hilyer asserted that
Fortier would not be prejudiced by setting aside the
default judgment because:
"'This accident occurred less than
eight months ago. Hilyer and Jackson are
both Coosada residents and are available
for deposition. All of the vehicles
involved
in
the
accident
are
still
available for inspection, Hilyer still
drives the tractor, and his father owns the
trailer. M.M.'s medical care is documented
in her hospital records. It is believed the
minivan is currently being held at Coosada
Towing. But, even if this is not the case,
[Fortier's] counsel had an investigator
investigating this accident fairly soon
after it occurred, and he likely was able
to photograph and inspect the minivan ....
While
[Fortier's]
counsel
has
been
inconvenienced by the delay in answering
the complaint, she has not expended any
27
1140991
significant time or expense in obtaining
the default judgment. M.M. has not been
required
to
attend
any
hearings
or
proceedings
in
obtaining
the
default
judgment.'"
176 So. 3d at 817. Accordingly, Hilyer has met his initial
burden of making a prima facie showing that Fortier will not
be unfairly prejudiced if the default judgment is set aside.
In response, Fortier argues that she will suffer
substantial prejudice if the default judgment is set aside,
because, she argues, evidence has been lost or destroyed.
Specifically, Fortier alleges that because she was denied
access to evidence and because the evidence was not properly
preserved she will never have physical evidence of the
condition of Hilyer's tractor-trailer rig as it was on the day
of the accident. "[A]s a result," Fortier asserts, she "has
forever lost access to critical evidence that would have
conclusively established Hilyer's negligence and wantonness
and that would have defeated Hilyer's claim of contributory
negligence." Fortier's brief, at p. 39.
The basis of Fortier's allegation that physical evidence
of the tractor-trailer rig is "forever lost" is Wyatt's
statement to McHenry that the tractor-trailer rig
was
repaired
28
1140991
two days after the accident. After Fortier made a similar
argument in Hilyer I, this Court stated:
"Fortier's argument in this regard and the
affidavits
she
submitted
in
support
of
her
opposition do not establish that the delay caused by
setting aside the default judgment will result in
the loss or destruction of evidence. At best, the
evidence before this Court establishes that any loss
of evidence occurred two days after the accident and
well before any action had been filed in this case."
176 So. 3d at 818. That is, the default judgment
notwithstanding, Fortier would still be required to prove her
case in light of the "lost access" to evidence allegedly
caused by Hilyer's repairs to the tractor-trailer rig. Thus,
Fortier's argument that setting aside the default judgment
will cause substantial prejudice because physical evidence
would be lost is unpersuasive.
Next, Fortier argues that she would suffer substantial
prejudice if the default judgment is set aside because, she
says, discovery of the condition of the trailer and of any
repairs to it have been hindered or "made impossible."
Fortier's brief, at p. 41. Fortier argues that, although the
repairs to the tractor-trailer rig took place before Hilyer's
answer was due, the ensuing years after the accident have
29
1140991
rendered discovery on the repairs and condition of the trailer
impossible.
Pursuant to Phillips v. Randolph, 828 So. 2d 269 (Ala.
2002), at this stage of the Kirtland analysis, Fortier bears
the burden of presenting facts showing that she will be
unfairly prejudiced if the default judgment is set aside. "We
have held that mere allegations and conclusory statements do
not constitute sufficient evidence to establish facts. See
Hall v. Chrysler Corp., 553 So. 2d 98, 100 (Ala. 1989)." Ex
parte Gilliam, 720 So. 2d 902, 906 (Ala. 1998). In her brief
before this Court, Fortier merely alleges that discovery as to
the repairs to the tractor-trailer rig following the accident
is impossible; she does not direct this Court to any facts to
support that allegation. For example, Fortier has not
provided any facts indicating that records of the repairs do
not exist or that she attempted to obtain records of those
repairs but was prevented from doing so. Accordingly,
Fortier's conclusory allegations at this point in the
proceedings do not establish that discovery of the repairs to
the tractor-trailer rig is impossible. Consequently, Fortier
has not presented facts showing that she would be unfairly
30
1140991
prejudiced if Hilyer's motion to set aside the default
judgment was granted because discovery of the repairs to the
tractor-trailer rig would be hindered.
Fortier also alleges that setting aside the default
judgment will hinder discovery she would have been able to
pursue because, Fortier argues, if Hilyer had timely answered
her initial complaint, she could have inspected the tractor-
trailer rig to determine whether lights and reflective tape
were present and/or working properly and could have
reconstructed the accident. Fortier has not alleged any facts
indicating that access to the tractor-trailer rig would be
hindered if the motion to set aside the default judgment was
granted. Additionally, Fortier does not present facts
indicating that
the
tractor-trailer rig
is currently
unavailable for inspection.
Furthermore, we note that there is nothing to suggest
that relevant witnesses who can testify to the condition of
the tractor-trailer rig at the time of the accident, such as
R.W., are not available. Additionally, according to
McHenry's
affidavit, the investigator hired by Hilyer took photographs
of the tractor-trailer rig following the accident. Fortier
31
1140991
does not direct this Court to any facts indicating that those
photographs do not exist or that, if the photographs do exist
Fortier attempted to obtain those photographs but was
prevented from doing so.
Accordingly, for Rule 55(c) purposes, sufficient facts
have not been presented demonstrating that Fortier would
suffer substantial prejudice if the default judgment were to
be set aside. Thus, the second Kirtland factor weighs in
favor of setting aside the default judgment.
C. Lack of Culpable Conduct on the Part of the Defaulting
Party
The third Kirtland factor requires a circuit court to
examine the conduct of the defaulting party. Concerning the
third Kirtland factor, this Court has stated:
"To warrant a refusal to set aside a default
judgment, the defaulting party's actions that
resulted in the entry of the default judgment must
constitute willful conduct or conduct committed in
bad faith. Negligence alone is not sufficient. Bad
faith or willfulness is identified by 'incessant and
flagrant disrespect for court rules, deliberate and
knowing
disregard
for
judicial
authority,
or
intentional nonresponsiveness.'• Kirtland, 524 So.
2d at 608 (citing Agio Indus., Inc. v. Delta Oil
Co., 485 So. 2d 340, 342 (Ala. Civ. App. 1986)). A
trial
court's
finding
with
respect
to
the
culpability of the defaulting party is subject to
32
1140991
great deference. Jones v. Hydro–Wave of Alabama,
Inc., 524 So. 2d 610, 616 (Ala. 1988)."
Zeller v. Bailey, 950 So. 2d 1149, 1154 (Ala. 2006).
In the present case, the circuit court found that Lozano,
an
employee
of Hilyer's
insurance
carrier,
exhibited
"intentional
nonresponsiveness."
As
set
out
above,
"intentional nonresponsiveness" may constitute the bad faith
or willfulness necessary to warrant a finding of culpable
conduct under the third Kirtland factor. See Zeller, supra.
The circuit court did not make any findings concerning the
conduct of any party other than Lozano. Thus, it appears that
the circuit court implicitly found that, based solely on
Lozano's conduct, the
third
Kirtland factor –- the culpability
of the defaulting party -- weighed in favor of denying
Hilyer's Rule 55(c) motion.
On appeal, Hilyer argues that the circuit court's finding
that Lozano exhibited intentional nonresponsiveness under the
third Kirtland factor is not substantiated by the record. As
set out above, the circuit court's judgment states that it
"[heard] argument and [reviewed] the pleadings" as to the
three Kirtland factors. The circuit court then states:
33
1140991
"Parties stating through counsel that Agent
Lazono [sic] received the correspondence from
[Fortier], received phone calls and text messages
along with letters that he placed in the claim file
but mistakenly thought he had assigned the claim to
another. Agent Lazono [sic] failed to respond to
letters asking if he was going to respond. [Fortier]
making direct contact with the adjuster for the
carrier but was unable to get the carrier to arrange
for [Fortier] to review the vehicle of [Hilyer],
even though the same was in [Hilyer's] possession.
Lazono [sic] knew the suit was pending.
"This Court finds that Lazono [sic], the
employee of the carrier exhibited 'intentional
non-responsiveness.'"
There are no facts in the record indicating that Lozano
received text messages. There are also no facts in the record
indicating that Lozano received multiple telephone calls from
Fortier's
counsel;
instead,
the
record
reflects
that
Fortier's
counsel telephoned Lozano once and left a voicemail message.
There are no facts in the record concerning the contents of
that voicemail. Additionally, there are no facts in the
record indicating that Lozano placed letters from Fortier in
Hilyer's "claim file."
Furthermore, the undisputed facts in the parties'
pleadings do not support the circuit court's finding that
Lozano "knew the suit was pending" against Hilyer. It is
undisputed that two of the three letters Fortier's counsel
34
1140991
sent to Lozano, if read, would have been sufficient to put
Lozano on notice both that Fortier had filed suit against
Hilyer and that an answer had not been filed on Hilyer's
behalf. But it is also undisputed that Lozano did not read or
respond
to
the
relevant
correspondence
from
Fortier's
attorney
because Lozano believed that he had assigned Hilyer's
insurance claim to another adjuster. Given the undisputed
evidence that had been submitted to the circuit court
indicating that Lozano did not know the suit against Hilyer
was pending, we hold the circuit court's finding that "Lazono
[sic] knew the suit was pending" is not substantiated by the
record before this Court.
Next, we examine the circuit court's finding that Fortier
made contact with Lozano but was unable to get Lozano to
arrange a viewing of the tractor-trailer rig. According to
McHenry,
the
investigator
for
Fortier's
counsel,
he
telephoned
Lozano about accessing the tractor-trailer rig. Lozano
answered McHenry's call and told McHenry that Lozano had
authority to allow McHenry to see the tractor-trailer rig but
that McHenry needed to coordinate the viewing with Wyatt. The
remainder
of
McHenry's
attempts
to
inspect
the
tractor-trailer
35
1140991
rig were based on McHenry's attempts to contact Wyatt or
Hilyer. There are no facts suggesting that McHenry attempted
to contact Lozano after Lozano initially responded and
referred McHenry to Wyatt or that Lozano took any action to
avoid responding to McHenry. Thus, contrary to the circuit
court's order, there is no evidence indicating that Fortier
was unable to get Lozano to arrange for Fortier to view the
tractor-trailer rig.
Instead, the undisputed facts presented in the record
before us demonstrate that Lozano's conduct, although
negligent, was not intentionally nonresponsive.
"Reasonable explanations for defaults, such as
attorney neglect (Ex parte Illinois Central Gulf
R.R., [514 So. d 1283, 1288 (Ala. 1987)]) and
liability insurance company neglect (Lee v. Martin,
533 So. 2d 185 (Ala. 1988), attributable to innocent
inadvertence, militate in favor of a finding of an
absence of culpability and provide a basis for
setting aside a default judgment. Kirtland, 524 So.
2d at 607-08."
Sanders v. Weaver, 583 So. 2d 1326, 1329 (Ala. 1991). In
Sanders, the defendant forwarded the plaintiff's summons and
complaint to its insurance carrier the day it was received.
583 So. 2d at 1328. The insurance-claims adjuster handling
the claim was away from the office for several weeks, and the
36
1140991
summons and complaint were placed on the adjuster's desk. 583
So. 2d at 1329. The adjuster, who was experiencing personal
difficulties and whose department was being reorganized, did
not find the summons and the complaint until after the default
judgment had been entered. Id. In reviewing the trial
court's decision to deny the defendant's motion to set aside
the default judgment on appeal, we held that the default was
attributable, not to wilful disregard of court rules, but to
negligence, and we reversed the circuit court's decision. Id.
In this case, Lozano believed -- mistakenly, it appears
-- that Hilyer's claim was being handled by another claims
adjuster. Lozano claims that, based on that mistaken belief,
he did not respond to Fortier's counsel or retain counsel to
defend Hilyer. Additionally, after the default judgment was
entered, Lozano promptly retained counsel for Hilyer, who
filed an answer to Fortier's complaint and a motion to set
aside the default judgment within 30 days of the entry of the
default judgment. Finally, Lozano responded to McHenry's
request to examine the tractor-trailer rig by referring
McHenry to Wyatt. Pursuant to Sanders, Lozano's conduct
constitutes,
at
most,
insurance-carrier
neglect
and
37
1140991
"militate[s] in favor of finding an absence of culpability."
583 So. 2d at 1329.
As set out above, the circuit court's implicit finding
that the third Kirtland factor weighed in favor of denying
Hilyer's Rule 55(c) motion was based solely on Lozano's
conduct; however, Fortier argues that Hilyer's conduct in
failing to file an answer to the complaint after receiving
service
was,
itself,
sufficient
to
constitute
culpable
conduct
under the third Kirtland factor. We address Fortier's
argument out of an abundance of caution and because this Court
can affirm a trial court's judgment for any reason, even one
not relied upon by the trial court. Bank of the Southeast v.
Koslin, 380 So. 2d 826, 830 (Ala. 1980) ("It is a settled
principle that if the ultimate decision of a trial court is
correct, that judgment will be upheld on appeal even though
the trial court gave a wrong or insufficient reason therefor.
City of Birmingham v. Community Fire District, 336 So. 2d 502
(Ala. 1976).").
In support of her argument that Hilyer's conduct in
failing to file an answer to the complaint after receiving
service was sufficient to constitute culpable conduct under
38
1140991
the third Kirtland factor, Fortier relies on this Court's
decision in Phillips v. Randolph, 828 So. 2d 269 (Ala. 2002).
In Randolph, the defendant did not file an answer to the
plaintiff's complaint, despite receiving service of process.
The trial court entered a default judgment on behalf of the
plaintiff and, thereafter, denied the defendant's motion to
set aside the default judgment. On appeal from the trial
court's denial of the defendant's motion to set aside the
default judgment, this Court held that the trial court did not
exceed its discretion in refusing to set aside the default
judgment based on its determination of the defendant's
culpability. We relied, in part, on reasoning from DaLee v.
Crosby Lumber Co., 561 So. 2d 1086, 1091 (Ala. 1990):
"'"'A party who ignores a summons and,
without good excuse, neglects to make his
defense at the proper time has no standing
in any court when he seeks to avoid the
resulting judgment or decree. Read v.
Walker, 18 Ala. 323, 333 [(1850)].' Boothe
v. Shaw, 214 Ala. 552, 108 So. 563, 564
[(1926)]."'
"[DaLee v. Crosby Lumber Co.,] 561 So. 2d [1086,]
1091 [(Ala. 1990)].
"The Court, in DaLee, quoting McDavid v. United
Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.
2d 499, 503 (1946), further stated:
39
1140991
"'"It is the duty of every party
desiring to resist an action or to
participate in a judicial proceeding to
take timely and adequate steps to retain
counsel or to act in his own person to
avoid an undesirable judgment. Unless in
arranging for his defense he shows that he
has exercised such reasonable diligence as
a man of ordinary prudence usually bestows
upon important business, his motion to set
aside a judgment for default should be
denied."'
"561 So. 2d at 1091."
828 So. 2d at 279.
First, there is reason to question the proposition, which
Fortier derives from Randolph, that a defendant's failure to
file an answer after receiving service, without more,
constitutes culpable conduct under the third Kirtland factor.
See Ex parte Family Dollar Stores of Alabama, Inc, supra;
Sampson v. Cansler, supra. In Ex parte Family Dollar Stores
of Alabama, which this Court decided three years after
Randolph, it was undisputed that the defendants received
personal service of the plaintiff's complaint but did not
answer or otherwise defend against it. 906 So. 2d at 894.
The circuit court entered a default judgment against the
defendants and thereafter
denied
the defendants' motion to set
aside the default judgment, in which the defendants
40
1140991
acknowledged that they "'negligently failed to protect their
interest and to inquire as to the status of the case.'" 906
So. 2d at 902. This Court, however, reversed the circuit
court's decision denying the defendants' motion to set aside
the default judgment. Concerning the third Kirtland
factor,
we
reasoned that
"the materials submitted by the parties in this case
contain no facts suggesting that the [defendants]
acted willfully or in bad faith in omitting to
respond to the complaint served upon them; to the
contrary, although they were clearly initially
negligent,
they
exhibited
no
intentional
nonresponsiveness and they acted in a timely fashion
once they became aware of the default judgment."
906 So. 2d at 903. Thus, Ex parte Family Dollar Stores,
decided three years after Randolph, does not support the
proposition that a defendant's failure to file an answer to a
complaint after receiving service, without more, constitutes
culpable conduct under the third Kirtland factor.
Second, Fortier's reliance on Randolph is misplaced.
Randolph supports the proposition that a defendant's failure
to file an answer after receiving service may be culpable
conduct but only when the defendant has no "good excuse." See
Randolph, 828 So. 2d at 279 ("'"'A party who ignores a summons
and, without good excuse, neglects to make his defense at the
41
1140991
proper time has no standing in any court when he seeks to
avoid the resulting judgment or decree. Read v. Walker, 18
Ala. 323, 333 [(1850)].' Boothe v. Shaw, 214 Ala. 552, 108 So.
563, 564 [(1926)]."'"(emphasis added)). In the past, this
Court has held that a defendant's reasonable reliance on a
third party to provide its defense militates against a finding
of culpability when determining whether to deny a motion to
set aside a default judgment. See, e.g. Sampson v. Cansler,
supra; Lightner Investigators, Inc. v. Goodwin, 447 So. 2d 679
(Ala. 1984); see also Appalachian Stove & Fabricators, Inc. v.
Roberts, 544 So. 2d 893, 896 (Ala. 1989)("If [the defendant]
had taken the summons and complaint and the letters from
plaintiffs' counsel to its proper insurance carrier, as did
the appellant in Lee [v. Martin, 533 So. 2d 185 (Ala. 1988)],
it would have done all that it was required to do and it could
have reasonably and correctly assumed that the insurance
carrier had properly defended it as required."(emphasis
added)).
In Goodwin, Lightner Investigators, Inc. ("Lightner"),
and Chrysler Credit Corporation ("Chrysler") were sued after
Lightner repossessed a vehicle on behalf of Chrysler. 447 So.
42
1140991
2d at 680. Later, an employee from Chrysler represented to an
employee from Lightner that Chrysler's lawyer "would handle
the whole matter." Id. Chrysler's attorney did not represent
Lightner, however, and a default judgment was entered against
Lightner. 447 So. 2d at 681. Lightner filed a motion to set
aside the default judgment, which the trial court denied. Id.
On appeal, this Court reversed the trial court's order denying
the motion to set aside the default judgment, reasoning, in
part, that it was reasonable for Lightner to rely on the
representations made by the Chrysler employee that Chrysler
would provide it with a defense. Id.
In Cansler, the estate of Neil Cansler sued Jesse Sampson
and Terence Sampson, among others, after Cansler was struck
and killed by an automobile. 726 So. 2d at 632. Both Jesse
and Terence received service of process, and both men
contacted the same attorney to represent them. 726 So. 2d at
633. The attorney, however, never made a formal appearance.
Id. The trial court entered a default judgment against Jesse
and Terence and denied their subsequent motion to set aside
the default judgment. Id. On appeal, this Court reversed the
trial court's decision denying the motion to set aside the
43
1140991
default judgment. 726 So. 2d at 632. This Court reasoned, in
part, that Jesse and Terence's actions in failing to protect
their interest and to inquire as to the status of their case
constituted negligence, but "the record contains no evidence
indicating that [Jesse and Terence's] negligent actions were
undertaken in bad faith or willfully." 726 So. 2d at 635.
In the present case, it is undisputed that Hilyer had
notice of Fortier's complaint against him. It is also
undisputed that Hilyer did not hire an attorney or attempt to
file an answer to Fortier's complaint until after the default
judgment was entered against him. But Hilyer believed, based
on his conversation with an insurance agent at Ledkins, that
he would be provided with a defense. Furthermore, there are
no facts before this Court indicating that Hilyer's reliance
on Ledkins to provide him with a defense was unreasonable.
See, e.g., Zeller v. Bailey, 950 So. 2d at 1154 (holding that
defendant's reliance on third party to provide a defense was
"patently unreasonable in light of the trial court's repeated
efforts, after [the defendant's] attorney had withdrawn, to
give [the defendant] notice of the various stages of the
proceedings by mail at his residence").
Accordingly,
although
44
1140991
not addressed by the circuit court, we conclude that, for Rule
55(c) purposes, Hilyer's conduct in failing to file an answer
to Fortier's complaint after receiving service, in light of
his reasonable reliance on his belief that Ledkins would
provide him with a defense, was not culpable conduct under the
third Kirtland factor. Thus, we conclude that the third
Kirtland factor weighs in favor of setting aside the default
judgment.
Accordingly, we conclude that, under the particular
circumstances of this case, all three Kirtland factors weigh
in favor of setting aside the default judgment. Therefore, we
hold that the circuit court exceeded its discretion in denying
Hilyer's Rule 55(c) motion to set aside the default judgment.
4
Fortier additionally argues that we should affirm the
4
circuit court's finding that Lozano was "intentionally
nonresponsive" in light of the "great deference [we show]
toward the trial court's decisions with respect to such
culpability." Jones v. Hydro-Wave of Alabama, Inc., 524 So.
2d 610, 616 (Ala. 1988). Yet even if we were to hold that the
circuit court's finding under the third Kirtland factor is
supported by the facts in this case –- which we do not -–
Jones does not change our conclusion that the circuit court
here exceeded its discretion. In Jones, we upheld a circuit
court's denial of a defendant's Rule 55(c) motion because,
despite demonstrating the existence of a meritorious defense,
defendant
Jones's
behavior
warranted
"a
finding
of
intentional
'conduct evidencing disrespect for the judicial system.'"
Jones, 524 So. 2d at 614-15 (quoting Ex parte Illinois Central
Gulf R.R., 514 So. 2d 1283, 1288 (Ala. 1987)). Among other
45
1140991
See Ex parte Family Dollar Stores, 906 So. 2d at 903 ("Each of
the Kirtland factors, when applied to the particular
circumstances of this case, weigh in favor of setting aside
the interlocutory default judgment. ... Given all of the
particular circumstances of this case, we conclude that the
trial court exceeded its discretion in declining to set aside
the interlocutory default judgment."); Summit Photographix,
Inc. v. Scott, 763 So. 2d at 961 ("Utilizing the test set out
in Kirtland, we hold that the trial court [exceeded] its
discretion in not setting aside the default judgment.").
In the remainder of his brief on appeal, Hilyer argues
that the circuit court exceeded its discretion because, he
argues, the circuit court failed to hold a hearing to
determine whether the default judgment was in the best
interests of M.M., a minor, and because the circuit court did
things, the circuit court stated it was "'completely
incredulous as to Mr. Jones's claims,'" that Jones was
"'playing games with the Court,'" which had "'been a pattern'"
of his, and that his failure to appear was a "stunt." 524 So.
2d at 615. Although we show great deference to a trial court's
findings of culpability, here, even if Lozano's conduct was
culpable under the third Kirtland factor, it was manifestly
unlike Jones's "intentional evasion of the court and ...
flouting of its authority," Jones, 524 So. 2d at 615.
Therefore, we would nevertheless conclude that the circuit
court exceeded its discretion in denying Hilyer's Rule 55(c)
motion to set aside the default judgment.
46
1140991
not hold a postjudgment hearing to determine whether its
judgment was excessive. Because we hold that the circuit
court exceeded its discretion in denying Hilyer's Rule 55(c)
motion, we pretermit discussion of those arguments.
Conclusion
The circuit court exceeded its discretion in denying
Hilyer's Rule 55(c) motion to set aside the default judgment
because all three Kirtland factors weigh in favor of setting
aside the default judgment. Even if Lozano's conduct
constituted culpable conduct under the third Kirtland factor,
the circuit court nonetheless exceeded its discretion in
denying Hilyer's Rule 55(c) motion to set aside the default
judgment based on the facts of this case. Accordingly, we
reverse the circuit court's order denying Hilyer's Rule 55(c)
motion to set aside the default judgment and remand the case
for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the result.
Main, J., dissents.
Shaw, J., recuses himself.
47 | January 6, 2017 |
fdc0fc08-c5d1-4180-b299-6e42b6b6b805 | Alabama Public Service Commission v. Perkins | 151 So. 2d 627 | N/A | Alabama | Alabama Supreme Court | 151 So. 2d 627 (1962)
ALABAMA PUBLIC SERVICE COMMISSION et al.
v.
William PERKINS, d/b/a Mobile Homes Service Co. et al.
3 Div. 974.
Supreme Court of Alabama.
August 30, 1962.
Rehearing Denied February 28, 1963.
Further Rehearing Denied April 11, 1963.
*628 MacDonald Gallion, Atty. Gen., Jas. T. Hardin, Asst. Atty. Gen., and Wm. F. Black, Montgomery, of counsel for Alabama Public Service Commission.
Chas. Cleveland and Marcus A. Jones, Birmingham, and Jack Crenshaw, Montgomery, for Mobile Home Undersellers.
Wm. A. Oldacre, Hill, Hill, Stovall & Carter, and J. Douglas Harris, Montgomery, for appellees.
SIMPSON, Justice.
This is an appeal by Mobile Home Undersellers, Inc. and Alabama Public Service Commission from a final decree of Montgomery Circuit Court, in equity, setting aside an order of the Commission granting a certificate of convenience and necessity to a motor carrier. We have been favored with excellent briefs from the able attorneys representing the parties.
The applicant carrier had filed with the Commission its application for authority as a common carrier to transport house trailers from Birmingham and any point within a 65 mile radius of Birmingham to any point within the State. The application was protested by Perkins, doing business as Mobile Homes Service Company, holder of a certificate authorizing operations from, to and between all points and places in the State, and by National Trailer Company of Alabama and Morgan Drive Away, Inc., which latter two hold certificates authorizing statewide service but with restriction against orginating traffic in Birmingham proper, though not including the 65 mile radius. The Commission referred a hearing on the application to its two attorney-examiners. It was heard by only one of the attorney-examiners, who made a report to the Commission making a detailed summary of the evidence and concluding as follows:
"CONCLUSIONS AND FINDINGS
The applicant filed exceptions to this report, and the matter was taken under consideration by the commissioners, two of whom (associate commissioners) signed an order reciting, "Our findings and conclusions differ from those recommended by the examiner. Upon consideration of the record as made, the commission is of the opinion and finds that the applicant is fit, willing and able to properly perform the service proposed * * * and that the service is and will be required by the present and future convenience." The third member of the commission (the president) did not concur.
The order of the commission was dated January 4, 1961. Thereafter the protestants filed with the Commission a petition for reconsideration for the limited purpose of inserting in the record certain documentary evidence. This petition not having been acted upon by the commission, the protestants on February 3, 1961, perfected an appeal to the Circuit Court from the original order, giving bond and filing a bill of complaint. The commission filed answer to the bill on March 15, 1961. May 18, 1961, the commission filed in the Circuit Court a motion to dismiss the appeal on the ground that it was premature by reason of the fact that the matter was still pending before the commission on appellants' motion to reconsider. On the same date Mobile Home Undersellers filed a like motion with the added averment that the commission had overruled and denied appellants' motion to reconsider. That appellant then filed motion to intervene, which was allowed by the court. Both motions to dismiss were overruled.
We first consider the assignments of error based upon the motions to dismiss. These assignments are without merit. In Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401, we dealt with a contention that the appeal was not properly taken in that there was no application for reconsideration or rehearing of the order granting the certificate, as may be made under subdivision 9 of § 301 (5), Title 48 of the Code. We there held (256 Ala., p. 625, 56 So.2d p. 404):
In Baggett Transportation Co. v. Avery Freight Lines, 256 Ala. 615, 56 So. 2d 669, we dealt with an order of the commission striking a petition for rehearing. We there held that while an appeal would lie from a final order of the commission either granting or denying a petition for rehearing, the statute does not provide for an appeal from a ruling striking the petition for rehearing. See also Alabama Public Service Commission v. Decatur Transfer & Storage Co., 257 Ala. 346, 58 So. 2d 887.
Since it was within the province of the commission to either grant, overrule or strike the petition of the protestants, it was not encumbent upon protestants to await its action or inaction upon the petition, at the risk of having its appeal dismissed for failure to appeal within 30 days from the original final order granting the certificate.
The general principle is thus stated in 4 C.J.S. Appeal and Error § 106, pp. 295-296:
Coming now to the merits of the case, we take into account the rules governing both the trial court and this court in the review of actions and orders of the Public Service Commission. Section 82, Title 48 of the Code contains the admonition that on appeal "the commission's order shall be taken as prima facie just and reasonable". This section further provides that the court shall hear the case upon the certified record and shall set aside the order if it finds that the commission erred to the prejudice of appellant's substantial rights in application of the law or the order was based upon a finding of facts contrary to the substantial weight of the evidence. Running through our decisions has been the recognition of the principle that the matter of issuance of a certificate by the commission "calls for conclusions of fact upon evidence heard by a special tribunal set up as a permanent body to deal with the problems involved". North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183. We there also held that on appeal to this court it must review the judgment of the circuit court setting aside an order of the commission without any presumption of correctness, since the circuit court was in no better position than this court, and this court is governed by the same rules in its review as was the circuit court. Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., supra.
In the case before us, as we have shown, there was no hearing of evidence by the commission or its members. The evidence was heard ore tenus by the attorney-examiner duly appointed by it to conduct the hearing. From the evidence itself and the demeanor of the witnesses, he made findings and drew conclusions which he reported in writing to the commission. While it was the privilege of the commission to reach their own conclusions from the record before them, just as it is the privilege of the court to reach conclusions contrary to those of the commission, yet, as we have said in reviewing the judgment of the circuit court, the commission was in no better position than the circuit court or this court. Since the attorney-examiner alone saw and heard the witnesses and observed their demeanor on the stand, it would be illogical and unwarranted on the part of both the circuit court *632 and this court not to indulge some favorable presumption in considering the attorney-examiner's report as a part of the whole record. Especially is this true when the findings and conclusions find support in the evidence. Upon the two essential questions of the fitness of the applicant, acting by and through its principal officer and owner, and the need for the proposed service, after a careful and attentive consideration of the entire record we reach the conclusion that the judgment of the circuit court, setting aside the order of the commission, should be affirmed.
So ordered.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.
SIMPSON, Justice.
Appellant urges in support of his application for rehearing that we erred in according the report of the attorney-examiner, who heard the testimony ore tenus, more weight than the finding of the Public Service Commission on the report; and that we violated the "substantial evidence rule", § 82, Tit. 48, Code of Ala.1940, as applied in Railway Express Agency v. Alabama Public Service Commission, 265 Ala. 369, 91 So. 2d 489; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721; North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183. Upon a careful consideration of this argument, we have concluded that the rule as applied in those cases has not in any way been transgressed and that the application must be denied.
Appellant will concede that the attorney-examiner is in the better position to determine the truth and veracity of those testifying at the hearing conducted by him. Thus, he must be in the better position to determine the weight to be accorded the testimony taken at such a hearing.
We have not placed the burden of final decision upon the attorney-examiner; this, as it should, rests upon the members of the Commission. But when as here, the members of the Commission did not personally conduct the hearing and had not otherwise observed the demeanor of the witnesses, the evidence being conflicting, the findings of the attorney-examiner on factual issues should be accorded the usual presumptions. This is a basic theory upon which all appellate tribunals and decision-making bodies not observing the witnesses must operate, having only the benefit of the cold record before them.
For the reason hereinabove reiterated and announced the application for rehearing must be denied.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | August 30, 1962 |
390b1167-a064-4b14-968a-2a974b44d9f1 | Engelhardt v. Jenkins | 141 So. 2d 193 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 193 (1962)
Sam ENGELHARDT, as State Highway Director,
v.
Hillard D. JENKINS et al.
7 Div. 552.
Supreme Court of Alabama.
March 29, 1962.
Rehearing Denied May 10, 1962.
*194 MacDonald Gallion, Atty. Gen., Julius T. Cage, Jr., and Samuel L. Stockman, Asst. Attys. Gen., and H. C. Orme, Jr., Gadsden, for appellant.
Embry & Whitten, Pell City, for appellees.
SIMPSON, Justice.
This appeal challenges the correctness of a decree of the Circuit Court in Equity of St. Clair County, overruling appellant's demurrer to appellees' amended bill of complaint.
The single question presented is whether this is a suit against the State in violation of § 14, Constitution of 1901. Appellant confines his argument to this one point.
The bill as amended alleges that the appellees are joint owners of certain lands in St. Clair County, that a proceeding of condemnation was undertaken in said county to condemn said lands for right of way purposes; that appellees received no notice of said condemnation proceeding but that the said proceeding terminated in a decree or order of condemnation in the probate court and that the appellant took possession of said property, resulting in the appellees' property being taken without just compensation and without due process of law.
In essence the case made by the bill as amended shows that the property of appellees was being taken by appellant without proper condemnation proceeding and without paying them just compensation therefor, as the constitution and statute require. If this be so, this is taking private property by the State without due process in violation of both State and Federal constitutions.§§ 23 and 235, Alabama Constitution 1901; United States Constitution, 14th Amendment, § 1.
That courts of equity have jurisdiction to enjoin such conduct there can be no doubt. This court, speaking through the elder Justice Coleman observed in Birmingham Traction Co. v. Birmingham Railway *195 Electric Co., 119 Ala. 129, 132-133, 24 So. 368, 371, 43 L.R.A. 233:
An apt quotation in that case from East and West R. R. Co. v. East Tennessee, Va. & Ga. R. R. Co., 75 Ala. 275, 280, by Chief Justice Brickell, also states the principle:
See also Mobile and Montgomery Ry. Co. v. Alabama Midland Ry. Co., 123 Ala. 145, 160, 26 So. 324; Memphis & Charleston R. R. Co. v. Birmingham, Sheffield, & Tenn. River Ry. Co., 96 Ala. 571, 576, 11 So. 642, 18 L.R.A. 166.
And in an equitable proceeding to enforce this constitutional right the damages or amount of compensation due the property owner may be ascertained and awarded. Benson v. Pickens County, 253 Ala. 134, 43 So. 2d 113; Folmar v. Brantley, 238 Ala. 681, 193 So. 122; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40.
This being the posture of the case and governed by the foregoing authorities, no sort of rationale can bring the case within the ban of § 14 of our constitution, prohibiting suits against the State or its agencies. Clearly, if the allegations of the bill as amended be true, and they are so taken on demurrer, appellant was acting beyond his authority in taking or attempting to use appellees' property for State purposes without proper legal proceeding and making just compensation therefor. As this court observed in Smith v. Inge, 80 Ala. 283, 287:
This case seems to fall more within the influence of the case of Finnell v. Pitts, 222 Ala. 290, 132 So. 2, where the late Justice Foster in commenting on the Finnell case, stated in the later case of State Docks Commission v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582:
It results as our conclusion that the point argued by appellant is without merit.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
SIMPSON, Justice.
Counsel for appellant seem to apprehend that we have departed from the rule that a suit against a state agent in his representative capacity, such as State *196 Highway Director, is a suit against the state which is forbidden by the Constitution. Attention is directed to the fact that, by amendment on the part of complainants, appellees, and allowance by the trial court, the suit was "against him (appellant) in his representative capacity as Highway Director." Cases which it is argued, we have ignored, are the following: Barlowe v. Employers Insurance Co., 237 Ala. 665, 188 So. 896; State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581; Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383; State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31, among others. None of these cases is analogous to the case at bar, and nothing held by us in this case in anywise militates against the pronouncements in those cases. Mere designation of appellant "as highway director" does not make the suit one against the state or the State Highway Commission which is the agency through which the state acts. The bill alleges an unauthorized procedure on the part of appellantthe taking of private property in violation of the owners' Constitutional right of compensation. Though the alleged taking was for the benefit of the state, such action, as alleged, was without authority of law. Even the state could not authorize an unlawful taking.
The fact that the relief sought is by way of injunction rather than by mandamus or some other remedy is immaterial. Any form of action amounting to one against the state is forbidden, injunction no more nor less than any other. If the performance of official duty may be compelled by mandamus,as we have held in a wide range of cases,we can conceive of no reason why the performance of an unauthorized or unlawful act by an official might not be enjoined.
As pointed out originally, we here deal with the allegations of a bill in equity which, on demurrer, we take as true. With the terms of a final decree, after due submission on pleading and proof, we are not here concerned. We are not persuaded that our original opinion is subject to the objections raised. We adhere thereto.
Opinion extended and application for rehearing overruled.
GOODWYN, MERRILL and COLEMAN, JJ., concur. | March 29, 1962 |
31d0929e-f14b-499c-990b-f5844b22169b | Ex Parte Rice | 143 So. 2d 848 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 848 (1962)
Ex parte Roger F. RICE.
In re Roger F. RICE, as qualified voter,
v.
Bettye FRINK, Secretary of State, and Sam Engelhardt, Chairman, State Democratic Executive Committee.
3 Div. 11.
Supreme Court of Alabama.
May 9, 1962.
Roger F. Rice, pro se.
PER CURIAM.
Petition denied without opinion.
SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | May 9, 1962 |
67c814b2-12ec-4709-97d7-f6ac88ea7569 | Rinehart v. Reliance Insurance Company | 142 So. 2d 254 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 254 (1962)
Edmon L. RINEHART, Superintendent of Insurance,
v.
RELIANCE INSURANCE COMPANY.
3 Div. 942.
Supreme Court of Alabama.
March 22, 1962.
Rehearing Denied June 21, 1962.
*255 MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellant.
Mead, Norman & Fitzpatrick, Birmingham, for appellee.
LAWSON, Justice.
Reliance Insurance Company, a foreign corporation, filed its complaint in the Circuit Court of Montgomery County against the Superintendent of Insurance of the State of Alabama, as authorized by § 890, Title 51, Code 1940, as amended, to recover back "premium tax" in the sum of $2634.13 which it had paid under protest for the calendar year 1958.
From a judgment in favor of the plaintiff below, the Superintendent of Insurance appealed to this court.
Under the provisions of § 816, Title 51, Code 1940, as amended, hereinafter referred to as § 816, foreign insurance companies doing business in this state must pay an "annual premium tax," the amount of which is provided at a per centum of the premiums received for business done in this state. The manner in which that tax is to be computed and paid is spelled out in § 816 in the following language:
During the calendar year 1957 and for many years prior thereto, Fire Association of Philadelphia and its wholly-owned subsidiary, Reliance Insurance Company of Philadelphia, both Pennsylvania corporations, did business in Alabama. Those two companies merged as of January 1, 1958. Under the agreement of merger, Fire Association of Philadelphia continued as the surviving corporation under the name of Reliance Insurance Company.
On or before March 1, 1958, Reliance Insurance Company made a payment of 1958 premium tax to the Superintendent of Insurance. It computed the amount of that *256 payment only on the basis of premiums received by Fire Association of Philadelphia for business done by that company in Alabama in 1957, without giving consideration to the premiums received by Reliance Insurance of Philadelphia for business which it did in Alabama in 1957.
The Superintendent of Insurance took the position that the premiums so collected by Reliance Insurance Company of Philadelphia in 1957 should have been included in the computation of the amount of premium tax to be paid by Reliance Insurance Company in 1958 and made demand for the payment of the tax so computed.
Reliance Insurance Company complied with the demand of the Superintendent of Insurance, but protested the payment of that part of the tax computed on the premiums received by Reliance Insurance Company of Philadelphia in 1957 and then instituted this proceeding to recover back the tax paid under protest.
The question for decision is, did Reliance Insurance Company owe a 1958 premium tax based on the premiums received by Reliance Insurance Company of Philadelphia as well as on the premiums received by Fire Association of Philadelphia, whose name was changed to Reliance Insurance Company by the merger agreement?
While the tax required by § 816 is referred to as an "annual premium tax," it is actually an excise or license tax imposed for the privilege of doing business in this state.
Reliance Insurance Company (Fire Association of Philadelphia) and Reliance Insurance Company of Philadelphia both had done business in this state for more than two years prior to 1958, so any tax due on or before March 1, 1958, computed on premiums received by those companies in 1957 for business done in Alabama would be payable for the privilege of doing business in this state in 1958.
With this major premise established, Reliance Insurance Company proceeds to its minor premise: Under the laws of Pennsylvania and the provisions of the merger agreement, Reliance Insurance Company of Philadelphia ceased to exist and could not do business in Alabama in 1958.
From these premises, Reliance Insurance Company concludes that the premiums received by Reliance Insurance Company of Philadelphia in 1957 cannot be made the basis of a tax under § 816 for the calendar year 1958.
For the purpose of this appeal, we will admit the correctness of appellee's minor premise and, as shown, its major premise is not in dispute.
However, we do not agree with appellee's conclusion, for we do not think that the decision in this case rests on the effect of a merger of Pennsylvania corporations. The question, as we see it, is the construction to be placed on § 816.
The primary purpose of statutory construction is to ascertain not only from the language which the legislature has used, but also from the reason and necessity for the act, the evil sought to be remedied, and the object and purpose sought to be obtained.
The purpose of § 816 seems clear. The legislature determined that the amount of the annual tax upon foreign insurance companies for the privilege of doing business in this state in a given year shall bear a direct relationship to the amount of business done within this state. The tax is payable in advance (except in instances not here involved) and the legislature provided that the tax would be measured by the business done by the company within this state for the preceding calendar year. This measuring stick is based upon the presumption that the premiums received by an insurance company during the preceding calendar year on contracts covering risks within Alabama will reasonably approximate the *257 premiums which the company will receive in the subsequent year; and that the privilege tax based on such premiums would be fairly apportioned among all foreign insurance companies doing business within the state.
We do not think the effect of the statute, § 816, can be avoided simply by combining two corporations, both of which had been doing business in this state.
Reliance Insurance Company became the owner of the premiums received by Reliance Insurance Company of Philadelphia for business done in this state in 1957 and took over all of the latter's assets and assumed its liabilities. The policies of Reliance Insurance Company of Philadelphia remained in force and became the responsibility of Reliance Insurance Company. The net practical result is that Reliance Insurance Company continued to do the combined business of both Fire Association of Philadelphia (Reliance Insurance Company) and Reliance Insurance Company of Philadelphia in the state of Alabama in 1958 and it should pay the license tax for the privilege of doing business in this state in 1958 computed on premiums received by it and its constituent parts for business done in this state in 1957.
The appellee, Reliance Insurance Company, relies upon State ex rel. Smrha v. General American Life Insurance Company, 132 Neb. 520, 272 N.W. 555, saying that it "appears to be the only case in this country which answers the question before this court." That case is not directly in point, but it does tend to support the judgment of the trial court.
The case most nearly in point is Great American Insurance Company v. Commonwealth of Virginia, 197 Va. 449, 90 S.E.2d 108. It involved a merger of two New York insurance corporations and the Virginia court reached the same result as we reach in this case, although not on the same theory.
The judgment of the trial court is reversed and the cause is remanded with directions that a judgment be entered ordering the State Treasurer to disburse the funds in question as authorized by law.
Reversed and remanded with directions.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | March 22, 1962 |
3aceefee-9d61-47cb-8695-7d50a52d9f8e | Dean v. Mayes | 145 So. 2d 439 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 439 (1962)
Martha E. DEAN
v.
Dorothy L. MAYES.
6 Div. 796.
Supreme Court of Alabama.
June 14, 1962.
Rehearing Denied October 18, 1962.
*441 Brown, Pointer & Pointer and Hare, Wynn & Newell, Birmingham, for appellant.
Mudd, Baker & McDaniel, Schuyler A. Baker and Jas. E. Clark, Birmingham, for appellee.
MERRILL, Justice.
Appellant sued for damages for personal injuries. The verdict was for the defendant. Appellant's motion for a new trial was overruled, and this appeal followed.
The appellant was an interior decorator, conducting her business from her home. The appellee was her customer and friend. They both rode in appellee's car to attend to the preparing of some curtains which appellant was furnishing appellee. Their business completed, appellee took appellant by a store to buy groceries and then drove to appellant's home and stopped the car in front of appellant's home. Approaching the house, they came up a hill; and while the street was "fairly level" in front of the house, there still was some incline in front of the car when it was stopped in front of the house. After the car stopped, they remained inside for some time. Appellee finally turned off the ignition, placed the gear shift in "park," put on the emergency brake, got out and began getting groceries out of the car which had been placed on the floor behind the front seats. The car was headed up the incline, and the left, or driver's side of the car was nearest the curb. Appellant got out of the car on the street side and the door on her side of the car remained open. The car was a two-door convertible, and the backs of the front seats folded over to provide access to the rear seat.
Appellee took a load of groceries to the house and heard her name called by appellant. She saw the car "creeping" backwards and appellant was lying on the street. Her hip was fractured. Appellee ran to where appellant was and said: "Oh, Mrs. Dean, did the car run over you? And she said, `Oh, no, my dear, I simply lost my balance.'"
Count one of the complaint charged that "the defendant parked said car at the curb on a public street in the City of Birmingham at or near the street curbing in front of plaintiff's residence * * * that the defendant thereupon removed herself from said car via the left hand door of said car and the plaintiff removed herself from said car via the right hand door of said car; that after removing herself from said car as aforesaid, the plaintiff standing on the ground where she had a right to be, reached in said car to remove some groceries which belonged to the plaintiff; that the defendant knew that plaintiff would attempt to remove said groceries at said time; that, in parking said car, the defendant had negligently failed to secure said car in such a manner as to prevent it from rolling; that said car began to roll as plaintiff was removing said groceries from said car and in said rolling knocked the plaintiff down or caused the plaintiff to fall, and as a proximate consequence thereof, the plaintiff's left hip was fractured, * * *. Plaintiff avers that her said injuries and damages as aforesaid were proximately caused by the defendant's negligence in failing to secure said automobile when she parked same so as to prevent the same from moving."
Count A of the complaint quoted Tit. 36, § 27, as amended, Code 1940, and sued for injuries resulting from its violation. That section reads:
Appellee pleaded in short by consent.
*442 The first assignment of error is that the court erred in overruling the motion for a new trial because the verdict was against the great weight of the evidence.
Verdicts are presumed to be correct and no ground of a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence; and when the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So. 2d 453; Mobile City Lines Inc. v. Hardy, 264 Ala. 247, 86 So. 2d 393. A verdict is not to be set aside merely because it may not correspond with the opinion of the court as to the weight of the testimony, or because it is against the mere preponderance of the evidence. Tallapoosa County v. Holley, 268 Ala. 67, 104 So. 2d 834. Where there is evidence which, if believed, justified the verdict, the motion for a new trial is properly overruled. Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921; Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725.
Our discussion of other questions will demonstrate that we think there was evidence which justified the verdict. The motion for a new trial was properly overruled as to the ground here argued.
Assignments of error 5 and 9 charge error because the court submitted the question of contributory negligence to the jury. Relative to contributory negligence we have held that in civil cases, the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere "gleam," "glimmer," "spark," "the least particle," "the smallest trace" or "a scintilla" in support of the theory. Alabama Great Southern Railroad Company v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A.L.R.2d 1190; and unless the evidence bearing upon this issue is entirely free of doubt or adverse inference, this question must be submitted to the jury for decision. Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240, 157 A.L.R. 1207.
We think the testimony and statements of the appellant herself furnishes an inference sufficiently strong to require the submission of the question of her contributory negligence to the jury. In one signed statement, she said: "I was tugging with a large sack which was behind the front seat on the right side of the car. As I lifted the sack from the car the car began to roll backwards and I lost my balance and fell. I was tugging at the groceries as the car began to roll. I had the groceries in my arms when I began falling. The door of the car didn't hit me as I fell before the door could strike me."
She testified that she simply lost her balance and fell. She was asked if any part of the car had struck her and she said, "I can't prove it." She also testified that she took a step away from the car and "my legs shot out from under me and that was it." She also testified that she was holding the door open as she reached in the car for some loose oranges, that the car began to roll, she stepped back, the car door closed and then she fell. This evidence justified the submission of the issue of contributory negligence, because it was sufficient to raise the inference that her fall was proximately caused by her own conduct and negligence.
A conflicting tendency of the evidence making a question for the jury may be presented by the direct and cross-examination of one witness. Parkinson v. Hudson, 265 Ala. 4, 88 So. 2d 793, and cases there cited.
The principles stated in F. W. Woolworth Co. v. Bradburry, Ala., 140 So. 2d 824, and Yates v. De Mo, 270 Ala. 343, 118 So. 2d 924, relative to contributory negligence presenting a jury question are applicable here.
Assignment of error 6 charges that the court erred in giving charge 8, requested by defendant, which reads:
Appellant says the "fatal defect in this charge is that it assumes that her loss of balance was the sole cause of Mrs. Dean's injuriesthat is, it is founded only upon answering why Mrs. Dean fell, and not why she was injured." The argument is that the door of the car may have broken her hip rather than the fall.
In Mobile Light & R. Co. v. Phillips, 24 Ala.App. 318, 135 So. 424, certiorari denied, 223 Ala. 218, 135 So. 426, a given written charge was attacked on the ground that it assumed the street railway was a common carrier and the plaintiff was a passenger. The court said:
This rule was also applied in Somerall v. Citizens' Bank, 211 Ala. 630, 101 So. 429, and Alabama Credit Corp. v. Higgins, 251 Ala. 17, 36 So. 2d 227.
We construe appellant's pleadings to claim damages because her hip was fractured from a "fall." A reading of the testimony indicates to us that the case was tried on that theory. The testimony of the plaintiff, taken on direct examination, supports the theory:
Considering the pleadings, the evidence and contentions during the trial that the appellant received her injuries as a proximate consequence of her fall, we find no error in the giving of charge 8.
Assignment of error 12 concerns the court's interpretation of Tit. 36, § 27, as amended, set out in Count A, and quoted supra. The following took place:
We think a reading of this colloquy shows no error. The statute does not require the wheels to touch the curb or the side of the highway; it only requires that when the vehicle is standing upon a grade, the wheels must be turned to the curb, and "to" does not mean touching in this instance. This should also dispose of assignment of error 10.
Assignment of error 11 charges error in this portion of the court's oral charge:
Appellant contends that if the car moved, as it unquestionably did, that the brake was not effectively set as required by the statute, and this failure to effectively set the brake was negligence per se, and the jury should have been so instructed.
The undisputed evidence is that the appellee set the brake, that the car did not move until appellant was "tugging" at groceries behind the front seat, and one of appellant's witnesses testified that it came to a stop within a short distance without any reapplication or setting of brakes, and without rolling into the curb. We think what was said in Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So. 2d 865, is applicable here:
We hold that there was no reversible error in the explanation given by the trial court. This also applies to assignments of error 2, 3 and 7.
The final assignment of error is that the court erred in refusing Charge 6, requested by plaintiff, which read: "If you believe the evidence in this case the plaintiff is entitled to recover a verdict."
It is sufficient to say that a jury question was presented by the evidence and the court properly refused to give this affirmative charge for the plaintiff.
Having found no reversible error, the judgment should not be disturbed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
dbffed7a-a90f-4025-9843-b6f1951d7a8a | Brown v. Allied Steel Products Corporation | 136 So. 2d 923 | N/A | Alabama | Alabama Supreme Court | 136 So. 2d 923 (1962)
Coy O. BROWN et al.
v.
ALLIED STEEL PRODUCTS CORPORATION of Alabama.
6 Div. 788.
Supreme Court of Alabama.
January 18, 1962.
Chas. Tweedy, Jr., Jasper, John T. Batten, Montgomery, for appellants.
*924 Curtis, Maddox & MacLaurin, Jasper, for appellee.
MERRILL, Justice.
Appellants filed a bill for injunction, alleging that appellee, Allied Steel Products Corporation, was operating its plant in such a way that the noise emitting therefrom constituted a nuisance. After a hearing, the trial court denied the relief sought and dismissed the bill. This appeal followed.
The Industrial Development Board of Cordova was seeking industry for location in or near Cordova. As an inducement to appellee to locate a steel fabricating plant there, the Board purchased ten acres just outside the city limits for $5,000 and deeded it to appellee for the location of its plant. Appellee's chief business was the fabricating of steel tanks and cones and considerable hammering and noise was involved in the shaping and fitting of the tanks and cones.
The deed to the Board was signed by appellant Zula Miller. The other two appellants are Coy Brown and his wife Thelma, who is a sister of Mrs. Zula Miller.
When the Board deeded the property to appellee, Coy Brown was a member thereof, and he and his wife signed the deed to appellee. At Mrs. Zula Miller's insistence, the deed to appellee contained the following condition: "The above described premises are restricted to industrial use by industries which do not emit an excessive amount of foul noxious odors or smoke."
For about six months while the plant was being built, appellee operated its plant in a building in Cordova, about one-half a block from Coy Brown's store. The same type of work was done there as was later performed at the plant, and about the same number of employees were used as were being employed when the trial was had. The undisputed testimony was that the work in the city building was noisy and could be heard over the business section.
When the plant outside the city was completed and operations were started, there was no complaint from the Browns or the Millers about the noise until about eighteen months had passed. Then the appellants complained about the excessive noise and on December 10, 1958, filed their bill praying that the operation of the plant be declared a nuisance and that appellee be restrained and enjoined "from creating noises which materially interfere with the use of the complainants' property as a home place by them and award to the complainants damages they have already suffered."
The plant was located on land which was separated from the land of appellants by a highway and the Frisco Railroad right of way, over which some twenty trains ran every day, as the Illinois Central ran its trains over that part of the Frisco tracks.
The trial court heard the witnesses in January and April, 1958, but deferred a ruling until appellee had an opportunity to abate excess noise and use such means as possible to "reduce the alleged nuisance." In August, 1960, appellants again complained and the court called upon appellee for a report of progress made on the abatement of the noise.
Appellee reported that it ceased operations in July, 1958, but shortly before making the report it had resumed operations; that it had sufficient orders to operate two eight hour shifts, but in order to cooperate with complainants it was operating only one shift from 7:00 A.M. to 3:30 P.M. and had applied silencers to all equipment where feasible.
After another hearing, the court rendered a decree on May 26, 1961, denying the injunction and dismissing the bill. The court also made the following separat "FINDING OF FACT AND OPINION:"
The assignments of error, including one that the court erred in overruling the socalled motion for a new trial, raise the points that the decree is not sustained by the great preponderance of the evidence, and that it is contrary to the law and the evidence.
In Dixie Ice Cream Co. v. Blackwell, 217 Ala. 330, 116 So. 348, 58 A.L.R. 1223, we said:
Appellants argue that since the court found that "complainants are disturbed by the noise," they should not be left without a remedy. But they overlook the fact that our courts follow the "comparative injury doctrine" in injunction cases. This is explained in Pritchett v. Wade, 261 Ala. 156, 73 So. 2d 533, where we upheld the action of the trial court in denying relief where complainant sought to enjoin respondents from depositing waste materials upon his land and from erecting a muck pond thereon as a part of a mining operation. This court said:
We reach the same conclusion in the instant case.
Appellants argue that Tit. 7, § 1088, Code 1940, which provides that no manufacturing plant shall become a nuisance by any changed conditions in the locality, after the same has been in operation for more than one year, does not apply and that the trial court erred in so finding in paragraph 3 of the opinion.
We do not interpret the opinion of the trial court as applying the statute. We think it is merely one of the reasons for the application by him of the comparative injury doctrine.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 18, 1962 |
c0b00b79-5dd8-4e65-9c95-46166789dc8e | Evers v. Thomas | 137 So. 2d 39 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 39 (1962)
Ray EVERS
v.
Don L. THOMAS et al.
4 Div. 41.
Supreme Court of Alabama.
January 18, 1962.
Ewell N. Clark, Florala, for appellant.
Ralph A. Clark, Andalusia, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from the Circuit Court of Covington County, Alabama, in Equity, from a final decree granting a permanent injunction against Dr. Ray Evers, appellant, to abate a nuisance caused by the operations of his farm within the city limits of Andalusia, Alabama, which caused special *40 damages to Don L. Thomas et al., appellees.
The cause was submitted here on a motion to dismiss the appeal and on the merits.
As originally filed, the bill of complaint was against Dr. Ray Evers and Elbert Williams. The lower court entered a decree exonerating Elbert Williams, which we will note later on. The bill of complaint as originally filed alleged, in substance, that Dr. Evers was the owner of certain described real estate located within the city limits of Andalusia, Alabama; that respondents were operating a hog farm on said land, engaged in the growing, producing, raising, fattening and marketing hogs in large numbers; that there was located on said land and in close proximity to complainants in this cause a large number of hogpens commonly referred to as farrowing pens, also a large number of hogpens commonly referred to as pig parlors, and a large number of feeder pens, barn, and sheds in which a large number of hogs, to wit, several hundred, and at times 3 or 4 thousand were kept on said lands for the purpose of farrowing and rearing the pigs and for growing the hogs to maturity and marketable age and size. Complainants further alleged that a large amount of feces was deposited in the farrowing pens, the pig parlors, the feeder pens, and other structures in connection therewith and owned by the respondents, and that said feces at times accumulates to excessive quantities, amounting to many tons, and that said feces is stored in a pit or vat constructed for that purpose, and that said pit or vat is not covered or protected, and is not disinfected to prevent flies and other nauseous and obnoxious insects and bacteria; and that said premises, including pits or vats in which the feces is stored, are continuously and literally working alive with maggots and flies, and that said flies migrate to the homes of each of the complainants in great swarms, and that the complainants, and each of them, are unable to occupy their yards or lawns during the daytime without being covered in obnoxious and filthy flies from the pens and installations of the respondents; that the filth and bacteria in the cesspool or pit in which the feces is stored are poisonous, and that said cesspool frequently fills with water and runs over, draining down the hill into a fish pond belonging to the respondent, Dr. Ray Evers, and that said drainage is so filthy and contaminated with bacteria that the same killed the fish in the pond; that said existing condition causes an obnoxious odor that can be smelled for more than one-half mile from the installations, and that said odor is so obnoxious and unpleasant that complainants cannot occupy their yards or lawns, and cannot leave their doors or windows open; and further that the respondents are storing or placing on the premises herein described large quantities of chicken feces, or manure, and that said feces is continuously infected with maggots and flies and causes odors that affect each of the complainants; that flies from said chicken feces, together with flies from other installations complained of, literally swarm over the premises of complainants; and further complainants aver and show the court that on different occasions hogs have died on the premises herein described and the carcasses were not burned or buried, that vultures and flies swarmed over the dead animals and then migrated to the homes of complainants; and that all of these conditions render the homes and premises of complainants unhealthy and unsanitary, thereby creating a menace and nuisance to the complainants and others who reside in the neighborhood; that if said operations are continued, they will materially depreciate the value of the homes and property of complainants and other people who reside in close proximity thereto. Complainants further aver that they are each permanent residents of the area in which they reside, that they own their homes, and many of the complainants have resided in their present homes for many years prior to the filing of this complaint, and that the installations complained of on the property owned by respondents, or one of the respondents, *41 are located in the city limits of Andalusia, Alabama, and that said location is zoned by the City of Andalusia for residential purposes.
The bill prays for a decree to the effect that the existing conditions are a nuisance to the complainants and the public generally, and to abate the same; and that the respondents be permanently enjoined from further operations of the hog farm and from farrowing and raising pigs thereon and from feeding or penning hogs on said premises in close proximity to complainants' homes; and to require respondents to remove all hogs from said premises and in close proximity to complainants' homes, and to remove all feces and to clean up and put the premises in a sanitary and healthy condition, and for further relief.
After taking the testimony in this cause and prior to submission of the cause, and with the consent of the court, complainants amended their bill of complaint, in substance, as follows: that since the filing of this suit, the respondents have erected "feeder pens" for cattle and have been feeding cattle in large numbers, to wit, 1400 head of cows, confined in small feeder pens, and that although these feeder pens are purportedly floored with concrete covered with straw, that the feces, and other foreign matter on the floor ranges from a few inches deep to belly deep to the cows, and this condition creates very unpleasant and abnoxious odors and flies in large numbers. The prayer was also amended and asks for a permanent injunction against the respondents from further operations of the feeder pens for cattle.
The motion to dismiss the appeal is not well taken. The decree from which the appeal is taken in the instant cause is a final decree, and the time for taking the appeal is controlled by the statute applicable to such decrees; Title 7, Sec. 788, and not by Sec. 1057, Title 7, Code of 1940. Sec. 1057 of Title 7, Code of 1940, only applies from the order granting or refusing a temporary writ of injunction. Francis v. Scott, 260 Ala. 590, 72 So. 2d 93; Employers Ins. Co. of Alabama v. Brooks, 250 Ala. 36, 33 So. 2d 3; City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550; Dunn v. Ponceler, 235 Ala. 280, 178 So. 47. The bill of complaint in this case was not presented to the judge for fiat as authorized by Sec. 1054, Title 7, Code of 1940. The motion to dismiss is denied.
There are four assignments of error. Assignment of error No. 1 complains of the court's action in denying appellant's motion to strike the amendment to the bill of complaint.
As we view the amendment, it is not a departure from the original bill, but is merely an allegation of a continuation of the offensive and obnoxious conditions brought about by the feeding of cattle instead of hogs. It seems to us that the conditions brought about by feeding and housing a large number of hogs would be, for all practical purposes, the same as from feeding and housing a large number of cows. There is no merit in this insistence.
The second assignment of error is based on the overruling of respondents' demurrer refiled to the amended bill.
In the case of Kyser v. Hertzler, 188 Ala. 658, 65 So. 967, this court said, as follows:
"And again, as in section 5198, as follows:
We have set out, substantially, enough of the bill of complaint to indicate clearly that the demurrers were properly overruled.
Assignment of error No. 3 is as follows:
*43 The argument of appellant to support this assignment of error is to the effect that because the original bill charged that appellant, Dr. Ray Evers, and Elbert Williams did all the acts complained of, whereas the proof showed absolutely no connection between Elbert Williams and any of the actual things averred in the bill of complaint as amended, therefore, there is a variance between the allegations and proof, which is fatal to the whole bill. We cannot agree.
The case cited in support of this proposition, Tedescki v. Burger et al., 62 Ala. 534, 50 So. 150, is evidently in error (the correct citation is 162 Ala. 534, 50 So. 150) and does not in any way sustain the view of appellant. While the evidence in the instant case does not support a finding against Elbert Williams, and the trial court correctly so held, the trial court nevertheless could find the issues against Dr. Ray Evers, and there is no fatal variance between the allegations and the proof.
Assignment of error No. 4:
As we view it, this assignment of error only questions the sufficiency of the evidence.
The evidence was taken ore tenus before the trial court, and in addition, the trial court viewed the premises before rendering his decree. In such a case, the findings of the trial court are like unto a jury's verdict and will not be here disturbed unless plainly and palpably wrong.
We have examined the entire record and are clear to the conclusion that the decree of the trial court must be affirmed.
Affirmed.
LAWSON, STAKELY, and MERRILL, JJ., concur. | January 18, 1962 |
bf4c916a-9221-413e-bc21-9cfa824f0a00 | Cobern v. State | 142 So. 2d 869 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 869 (1962)
James W. COBERN
v.
STATE of Alabama.
2 Div. 419.
Supreme Court of Alabama.
April 5, 1962.
Rehearing Denied June 28, 1962.
Mortimer P. Ames and B. Valentine Hain, Selma, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
Appellant was indicted, tried, and convicted of robbery and sentenced to death. The victim was Mamie Belle Walker, who operated Belle's Cafe on Alabama Highway 22 between Selma and Plantersville in Dallas County, Alabama. The property alleged to have been taken was a 1957 Chevrolet automobile belonging to Mamie Belle Walker.
The F.B.I. located appellant, a few days, later, in Chicage, Illinois, at which time he was in possession of the automobile of Mamie Belle Walker.
The circumstantial evidence, aside from appellant's confession, shows rather conclusively that he murdered Mamie Belle Walker, took some of her jewelry and her automobile, and left the state. The body was in a deplorable condition, her skull *870 practically beaten to pieces, a 22-caliber rifle bullet wound in the chest which penetrated the body. The doctor testified that these two wounds were sufficient to cause death. Her body was otherwise bruised and mutilated, including the puncturing of her vaginal area, evidently with a poker found in the room, on which were vaginal hairs similar to those of the victim.
The appellant's main contentions for reversal are:
That the three essential elements of the offense of robbery, viz.: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means taking and carrying away of the property of another from his person or in his presence, all these elements concurring in point of time, were not proven by the State. Citing Thomas v. State, 91 Ala. 34, 9 So. 81. His argument runs that there is nothing in the evidence to show that the taking of the property of the victim was the result of putting her in fear or the result of force, and that the probabilities from the evidence indicate that she was murdered some time before he took the automobile and that under these circumstances he could not be guilty of robbery.
Certain photographs of the victim's vaginal area were introduced in evidence, and to say the least, they were somewhat gruesome. The appellant argues that these photographs in no way shed any light on the issue of robbery, were calculated only to inflame the jury, and were therefore inadmissible.
There are other claims for a reversal, but they impress us as trivial. We treat the two main contentions in order and will only mention the others with minuscule treatment.
There is no statutory definition of robbery, but the common law definition prevailing as an offense in this state is the felonious taking of money or goods of value from the person of another or in his presence by violence to his person or by putting him in fear, etc. Parsons v. State, 251 Ala. 467, 38 So. 2d 209.
With respect to the first contention for a reversal, the Thomas case, supra, does state the elements of robbery as above delineated, but those statements must be taken in context, and when so taken it becomes apparent that they are in no way controlling here. In that case the undisputed evidence shows the property taken from the possession of the victim "was obtained from the prosecutor by artifice, and without violence or putting in fear; and that, after the possession had been thus peaceably obtained, it was retained, and the property carried away, by putting the prosecutor in such fear as prevented any effort on his part to regain it." (91 Ala. 35, 9 So. 81)
From the evidence, both direct and circumstantial, there is no sort of doubt in the minds of the Court that the violence perpetrated on the victim preceded the taking of her automobile and other property. Dr. Shoffeitt testified that deceased died some twelve to eighteen hours before he saw her on December 6, 1959; that she *871 bled to death. John Rasberry and Leighton Tyus left appellant alone with Mamie Belle Walker in her cafe, where she lived, at around 10:00 P.M. on December 5, 1959. Aubrey Morrison, police officer, stopped appellant in Maplesville around 1:00 A.M. Mrs. Jimmie Lou Little testified that she saw appellant around 1:30 A.M. and they drove him to a place between Belcher Lumber Company and Selma and that he got out and into another car and drove away. Eugene Little testified that appellant got Belle's car from in front of the cafe, and the testimony of Mrs. Odessa Gay tended to show that Belle's car had been in front of the cafe at 12:10 A.M. She identified one car as belonging to Mamie Belle Walker and the other as a two-tone green car that someone had said was a Pontiac. The evidence further disclosed that the old car, a Pontiac, which appellant gave to his sister contained a bloodstained newspaper containing hairs similar to those of deceased, and was dated November 17, 1959. Testimony further disclosed that the stolen car was recovered while in possession of appellant in Chicage and he signed a voluntary confession. Hence, clearly the circumstances show that defendant made a fatal attack on the deceased and thereafter feloniously took her automobile from in front of her home and cafe. Just how many minutes or hours the attack preceded the taking of the automobile cannot be definitely fixed, but the interim was not long. The jury had the right to infer from the proven facts and circumstances that the robbery began when the attack took place and was consummated when defendant took the car and fled to Chicago. State v. Coe, 34 Wash. 2d 336, 208 P.2d 863. The jury was authorized to infer that his traveling about after he killed Mamie Belle and delivered his old car to his sister and then returned to Belle's Cafe, was preparatory to the theft of her automobile and fleeing to Chicago.
Nor, under the best reasoned authorities, does the fact that the victim was dead at the time of taking her property militate against the conclusion of robbery. If the intervening time between the time of the murder and the time of taking of the property formed a continuous chain of events, the fact that she was dead when he took the property could not absolve the defendant from the crime of robbery. Coe's case, supra; Carey v. United States, U. S. Ct. of App., Dist. of Columbia Cir., 296 F.2d 422; Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965; People v. Jordan, 303 Ill. 316, 135 N.E. 729; State v. Covington, 169 La. 939, 126 So. 431.
Nor, on a charge of robbery, must the stolen property be in the manucaption or on the person of the victim. It is sufficient if the property was taken from the victim's presence or personal protection. Hill v. State, 145 Ala. 58, 40 So. 654. Other states have held similarly:
In line, therefore, with these well reasoned authorities we entertain the view that the car stolen from Mamie Belle's yard was taken from her presence within the meaning of that phrase as defined in the authorities.
Appellant brings very cogent argument that the photographs of the victim introduced by the State were inadmissible, *872 shed no light on the matters at issue, and were but gruesome evidence, the sole effect of which was to inflame the jury. We do not think so, and even appellant in brief "acknowledges the fact that the Supreme Court of this state has been liberal in the admission of gruesome photographs into evidence, though the same be merely cumulative in nature." Robbery is a crime of violence and undoubtedly the photographs of the victim, even though unsightly, were admissible as tending to illustrate the gravity of the assault. By analogy see Johnson v. State, 272 Ala. 633, 133 So.2d 53(4); Reedy v. State, 246 Ala. 363(10), 20 So. 2d 528.
We cannot pronounce error in the refusal of the trial court to exclude the testimony of Odessa Gray of seeing the vehicle of the same make and color as that belonging to appellant because her answer was based partly on hearsay. In her testimony Mrs. Gray identified the car belonging to Mamie Belle Walker and described the other car as a two-tone green car, but on cross-examination she admitted she did not know the model. We are not impressed that the failure to exclude that portion of the testimony was error to reverse, since both cars had been described by others. If there was any error, it impresses us as being without injury. Supreme Court Rule 45.
Appellant argues error to reverse in the refusal of the trial court to grant a continuance or a change of venue on account of an item in the Sunday edition of the Selma Times-Journal just two days prior to appellant's trial, carrying the news of the Psychiatric Board of Bryce Hospital pronouncing defendant legally sane. Such matters rest within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. We are unable to say that the newspaper article mentioned made a fair and impartial trial so unlikely as to require this court to overturn the ruling below. Goldin v. State, 271 Ala. 678, 127 So. 2d 375.
Counsel are to be commended for the excellence of their briefs. The case was well tried. We have carefully searched the entire record for substantial error and find none.
Affirmed.
All the Justices concur except STAKELY, J., not sitting. | April 5, 1962 |
6e7db35e-c37f-4b46-a36d-432e57fa6ce1 | State v. KERSHAW MANUFACTURING COMPANY. | 137 So. 2d 740 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 740 (1962)
STATE of Alabama
v.
KERSHAW MANUFACTURING COMPANY.
3 Div. 939.
Supreme Court of Alabama.
February 1, 1962.
*741 MacDonald Gallion, Atty. Gen., Guy Sparks, Sp. Asst. Atty. Gen., and Jas. R. Payne, Asst. Atty. Gen., for appellant.
Ball & Ball, Fred S. Ball, Jr., and John R. Matthews, Jr., Montgomery, for appellee.
SIMPSON, Justice.
This is an appeal by the State from a final decree of the Circuit Court of Montgomery County, in Equity, vacating and setting aside a deficiency sales tax assessment made by the State Department of Revenue against The Kershaw Manufacturing Company, a corporation, the appellee here.
During the period of time covered by the assessment, June 1, 1953 through May 31, 1956, Kershaw was in the business of manufacturing various types of railroad maintenance equipment. Seventy-five percent of the equipment manufactured during this period was initially sold to some railroad. Twenty-five percent of the taxpayer's production was initially leased and later either sold to customers or junked.
The single issue involved on this appeal is whether a tax is due on the parts which went into production of the 65 pieces of machinery leased by the taxpayer. The State contends that tax is due on the theory that the leasing of the equipment involved was a "withdrawal, use or consumption" of tangible personal property bought at wholesale within the meaning of Subsection (j), § 752, Title 51, Code of 1940, as amended. Taxpayer, appellee, on the other hand contends that as the machines were "manufactured or compounded for sale" within the meaning of such section, the value of such parts was not subject to the sales tax.
It is clear that Subdivision (j), § 752, was enacted to reach transactions which could not be taxed because there was a withdrawal and use or consumption by the purchaser at wholesale but no sale by him to another.Hamm v. Windham, 254 Ala. 356, 48 So. 2d 310; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465, 11 A.L.R.2d 918; State Tax Commission v. Burns, 236 Ala. 307, 182 So. 1, all cited in State v. Helburn Co., 269 Ala. 164, 111 So. 2d 912.
There is no dispute as to the facts. The sixty-five machines involved in the audit, *742 the subject of this litigation, were initially leased by Kershaw to railroads. Forty-four of these sixty-five machines were initially leased under agreements containing written purchase options. Thirty-five of these forty-four lessees exercised the purchase option. Of the remaining nine transactions, six machines were returned to Kershaw, which later sold to railroads other than the original lessee or optionee. Twenty-one machines were leased under agreements containing no written purchase option. Of these, nine were sold finally to the original lessee under an oral purchase option, nine were returned to Kershaw and later sold to another than the original lessee, and three were returned to taxpayer and not later sold. In summary then, forty-four machines were sold to the original lessee under either written or oral purchase options; 12 were leased, later returned, and finally sold to others; 6 machines were returned and scrapped, and 3 were returned to Kershaw and further used.
The appellee argues that the lease agreements which contained options to purchase are conditional sales within the meaning of the sales tax statute. One of the distinguishing features between a conditional sale and a lease is whether or not the lessee is obligated in all events to pay the total purchase price of the subject of the contract. If return of the property is required or permitted the instrument is a lease; but if on the other hand the so-called lessee is absolutely obligated to pay the purchase price, even though such a price is designated as rental or hire, the contract is one of sale. Where the written evidence of the transaction gave the one described as lessee the option of buying the property, in which event the lessee as purchaser was to receive a credit of 75% for all the monthly rentals that he had paid against the purchase price, it was held in Oberan v. Western Machinery Co., 65 Ariz. 103, 174 P.2d 745, not to make the contract one of conditional sale, as there was no obligation on the part of the lessee to pay beyond the rental period. We think that holding is sound and such is precisely the situation involved in the lease agreements we have here.See cases collated at 175 A.L.R. 1366, et seq.
It appears clear that the agreements involved in this case were leases, which did not place upon the lessee the obligation to pay the full purchase price. Machines would be returned at the expiration of the term, or the lessee could elect to exercise the purchase option. It is clear that title to the property did not pass with the execution of the agreements, but at all times remained in the taxpayer until the purchase option was exercised. Such is a characteristic of a lease.
We come then to a determination of whether the leasing of the machines in question is a "withdrawal, use or consumption" by a purchaser at wholesale within the meaning of the pertinent section. We are constrained to hold that it is. The appellee relies on the case of State Tax Comm. v. Burns, 236 Ala. 307, 182 So. 1, and Hamm v. Windham, supra, for the proposition that the determining factor to be considered is the manufacturer's intent to sell at the time of manufacture and not the initial use to which property is put. With this contention we cannot agree. Both of the aforementioned cases dealt with taxpayers who were in the restaurant business. They bought food products at wholesale, which purchases are exempt from the sales tax act. They compounded these products for sale to the public. Some of the food, however, was consumed by employees of the taxpayer. This court held that no tax was due on the withdrawal. In these cases, however, the consumption was but an incident to the "manufacturing and compounding" process. The employees consumed a part of the product during the course of the offering to the public for sale. Such is not the case here. The taxpayer has, instead of selling the manufactured product, leased the same for profit. It is true that the taxpayer is in the business of *743 manufacturing these machines for sale. But, more accurately, we think, he is in the business of manufacturing machines for profit. If the profit is a result of sale, he is under an obligation to collect sales tax, assuming the sale is not otherwise exempt from tax. It is the transaction itself which is taxable. If, on the other hand, instead of selling the machines for profit, the appellee leases them, then it is our view that the transaction amounts to a "withdrawal" for the use and benefit of the taxpayer, and as such the transaction is taxable. It is just this kind of transaction, as we see it, which § 752, Title 51, sub. (j) was enacted to reach.State v. Helburn Co., supra.
To adopt the argument of the appellee to the effect that the only meaning which could attach to the words of the statute "manufactured and compounded for sale" is "manufactured or compounded with the intention of selling" would lead to the conclusion that a manufacturer who had purchased at wholesale could produce the product with the intention of ultimately selling the item, but could lease it for profit for the term of its life, and then ultimately sell it for salvage, and the products under such lease arrangements would not be subject to tax under the withdrawal provision of the statute. Such we believe was not the intention of the Legislature.
Neither can we agree with the conclusion of the trial court that the various lease transactions were "mere devices" for the purpose of effecting sales. Surely it cannot be said that a sale was effected in those instances where the purchase option was not exercised by the lessee. This alone points up the fallacy of such a position.
The presumption traditionally indulged in favor of the trial court's finding of fact is inapplicable where there is no substantial conflict in the evidence.State v. Mobile Stove & Pulley Manufacturing Co., 255 Ala. 617, 52 So. 2d 693; Alabama Farm Bureau Mut. Ins. Co. v. Mills, 271 Ala. 192, 123 So. 2d 138.
The views hereinabove being contrary to those of the learned trial court necessitates a reversal of the decree.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 1, 1962 |
d57448f3-fd1e-4e95-827c-07bd3853a262 | Kelly v. State | 139 So. 2d 326 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 326 (1962)
John Harvey KELLY
v.
STATE of Alabama.
6 Div. 534.
Supreme Court of Alabama.
March 22, 1962.
*327 Peter A. Hall, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
On an information filed by the Circuit Solicitor of Jefferson County, Alabama, John Harvey Kelly was convicted for a violation of Title 14, Sec. 56 of the Code of Alabama 1940. The trial was had on evidence taken ore tenus before the trial judge, and without the aid of a jury. A motion to set aside the judgment and grant a new trial was overruled. Kelly appealed to the Court of Appeals of Alabama.
Under and pursuant to the provisions of Title 13, Sec. 102 of the Code of 1940, the cause was transferred to this Court.
Section 56 of Title 14, Code 1940, reads as follows:
Section 56, supra, is a part of Chapter 20, Title 14, Code 1940, dealing with "Boycotting and Blacklisting." It was codified from Act No. 23, General and Local Acts of Alabama, Sp.Sess.1921, p. 31.
Section 54, Title 14, Code 1940, is also a codification of the same General Act of 1921, and deals with the same subject *328 "Boycotting and Blacklisting." Sec. 54 of Title 14, reads:
Appellant Kelly insists that said Sec. 56, supra, is unconstitutional and void as violative of the due process clause of the 14th Amendment to the Constitution of the United States and Article 1, Sec. 4 of the Constitution of Alabama 1901.
Section 2 of the 1921 Act (Act No. 23, supra) was not brought forward in the 1940 Code, but reference to it is made as Sec. 55 of Title 14, Code 1940. Sec. 2 reads as follows:
In 1936, the Supreme Court of the United States, in Thornhill v. State, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093, struck down Sec. 2 of the 1921 Act, supra, as being a denial of freedom of speech and contrary to the 14th Amendment of the Constitution of the United States.
In 1943, in the case of Lash v. State, 244 Ala. 48, 14 So. 2d 229, 31 Ala.App. 121, 14 So. 2d 235, cert. den. 244 Ala. 568, 14 So. 2d 242, cert. den. 320 U.S. 784, 64 S. Ct. 192, 88 L. Ed. 471, rehearing den. 320 U.S. 814, 64 S. Ct. 259, 88 L. Ed. 492, this Court had before it the question of the constitutionality of Sec. 54, supra, and the same questions were raised in the Lash case as are raised in the instant case.
The Supreme Court of Alabama, for reasons stated, held that Sec. 54, supra, was not subject to the attack made upon it by Lash. Certiorari was denied by the Supreme Court of the United States. Lash v. State, supra.
It is axiomatic that sections of the Code dealing with the same subject are in pari materia.
It is implicit in Sec. 56, supra, that the printing or circulating of the matters condemned by Sec. 56 is the "unlawful printing or circulating," in other words, "printing or circulating without just cause or legal excuse."
The opinion in the Lash case, supra, is a complete answer to the constitutional questions presented in the case now before us. We see no point in repeating what was there said, but on that authority, we hold that the constitutional questions raised here are without merit.
The information filed in the instant case is in the language of the statute and was sufficient. The motion to strike the information and the demurrer interposed to it were overruled without error.
But we feel impelled to reverse and remand this case on the ground that the judgment is against the weight of the evidence, and for the refusal of the trial court to grant a new trial based on that ground.
*329 The statement of facts contained in appellant's brief are concurred in by the Attorney General except as to the last two paragraphs, which he contends contains conclusions and arguments rather than facts. The statement of facts is as follows:
It is axiomatic that in the trial of all criminal cases the state has the burden of proving every element of the offense charged, and to a degree beyond a reasonable doubt and to a moral certainty.
And we are not unmindful of the rule that when, as here, the evidence was heard orally by the trial judge, his findings have the weight of a jury's verdict and will not be disturbed on appeal unless palpably wrong or unjust.
We are unwilling to say that there was no evidence from which the trial court could find the defendant guilty. The judgment of a trial court is a solemn pronouncement, *330 and an appellate court should most hesitantly disturb it.
On the other hand, the duty remains in this Court "to revise the verdict of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong." Bowen v. State, 32 Ala.App. 357, 26 So. 2d 205; Taylor v. State, 30 Ala.App. 316, 5 So. 2d 117.
After an examination of this record with painstaking care, we are clear to the conclusion that the judgment is wrong and unjust and should be reversed. It is so ordered.
Reversed and remanded.
LAWSON, SIMPSON and MERRILL, JJ., concur. | March 22, 1962 |
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