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8aa3f788-c958-4905-b0a1-5afb311c0ec7 | Orum v. State | 245 So. 2d 831 | N/A | Alabama | Alabama Supreme Court | 245 So. 2d 831 (1971)
Johnny ORUM
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
3 Div. 481.
Supreme Court of Alabama.
February 25, 1971.
Rehearing Denied March 11, 1971.
William J. Baxley, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.
Morris Dees, Jr., Joseph J. Levin, Jr., Montgomery, for defendant.
MERRILL, Justice.
The State's petition for writ of certiorari to the Court of Criminal Appeals, 46 Ala. App. 543, 245 So. 2d 829, is based upon an alleged conflict in a statement appearing in that court's opinion, and statements in decisions of this court.
The factual background, based on the opinion, is that the defendant was convicted of first degree burglary, his motion for a new trial was denied on July 16, 1969, his request for a free transcript was denied on July 21, and he gave notice that day to the court reporter to prepare the transcript of the evidence. The sixty days in which the transcript of the evidence should have been *832 filed with the circuit clerk expired on September 19, and it was not so filed until September 26. However, within thirty days from September 19, the defendant-appellant asked for an extension of time to cover the overage of seven days. The Court of Criminal Appeals held that he had shown good cause for the delay and the extension should have been granted by the trial court. This was proper under the cases of Johnson v. State, 269 Ala. 1, 111 So. 2d 610, and Johnson v. State, 40 Ala.App. 39, 111 So. 2d 614, and the Court of Criminal Appeals correctly denied the State's motion to strike the transcript of the evidence because it was not timely filed in the circuit court.
But we agree with the State's contention that one sentence in the opinion is contrary to the holding of both our cases and cases of the former Court of Appeals. The sentence is: "It is only after the circuit clerk completes the record, including the evidence, that the duty of counsel (for the appellant) to get the record to the appellate court begins."
That sentence is too broad and is not in accord with the holdings which we now cite.
The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court. Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So. 2d 674; Graham v. State, 30 Ala.App. 179, 2 So. 2d 463; Dorough v. State, 30 Ala.App. 181, 2 So. 2d 465.
In Seals v. State, 282 Ala. 586, 213 So. 2d 645, we said:
In Hayes v. State, 39 Ala.App. 202, 99 So. 2d 703, the Court of Appeals, speaking through Presiding Judge (now Justice) Harwood, said:
It follows that the sentence in the opinion of the Court of Criminal Appeals which reads, "It is only after the circuit clerk completes the record, including the evidence, that the duty of counsel (for the appellant) to get the record to the appellate court begins," is not the law.
However, this incorrect statement did not prejudice or injuriously affect the substantial rights of the parties and the same result could be reached without reference to it.
Writ denied.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | February 25, 1971 |
76c6045b-46ac-447a-a7dc-b373e2179c99 | Pardue v. Citizens Bank & Trust Company | 247 So. 2d 368 | N/A | Alabama | Alabama Supreme Court | 247 So. 2d 368 (1971)
J. Bruce PARDUE et al.
v.
CITIZENS BANK & TRUST COMPANY, a Corporation, et al.
2 Div. 535.
Supreme Court of Alabama.
March 25, 1971.
Rehearing Denied May 13, 1971.
*369 S. P. Keith, Jr., Birmingham, for appellants.
Hill, Hill, Stovall, Carter & Franco, Montgomery, for appellees.
*370 MERRILL, Justice.
This appeal is from a decree granting, in part, the prayer for relief of the appellees, Citizens Bank & Trust Company, hereinafter referred to as the Bank, and its directors, and denying the cross bill of appellants, J. Bruce Pardue, hereinafter referred to as appellant, and Citizens Development Corporation.
The bill, as amended, alleged that the Bank was organized in Selma in 1959 with appellant as president and chairman of the board of directors. He continued in that capacity until he was discharged on March 23, 1966. When organized, the Bank acquired a building and lot fronting east on Broad Street and a fifteen-foot alley easement along the north side of the building for ingress and egress. Later, this fifteen-foot alley easement was extended westward through the block to connect with the next street to the west, Lauderdale Street. The next lot south of the Bank lot was a corner lot, facing 100 feet on Broad Street and 115 feet on Jeff Davis Avenue. With the approval of the board of directors, appellant proceeded to remodel and alter the building to make it suitable to bank use. He installed on the north wall of the building a drive-in teller window, metal canopy, night depository, downspouts, electrical conduits, and similar installations which encroached a few inches into the alley easement. The shed over the drive-in window encroached 4.78 feet. Two or three years later, he raised the elevation of the alley approximately eight inches to bring drivers of automobiles to a convenient level with the drive-in window.
Appellant then undertook the promotion of a shopping center within the block of which the Bank was a part. He represented to the officials and directors that the shopping center would complement the services of the Bank and would provide parking which would be for the mutual benefit of the Bank and the stores in the center. With his active participation, Mid-Selma Land Company, Inc., a private corporation, was organized by all of the directors of the Bank to acquire, and it did acquire, properties within the block. Appellant, with the sanction of the board of directors, and some of them joining with him, organized Citizens Development Corporation to develop and own the shopping center. On the basis of representation by appellant, Mid-Selma Land Company on December 23, 1963, conveyed to the Bank for expansion a parcel of land contiguous to the Bank at its west end, identified on the map as Tract B. On the same date, it conveyed to Citizens Development Corporation contiguous land which was later developed as a part of the shopping center parking lot. Parking easements for the Bank were not expressly reserved. However, appellant, acting for Citizens Development Corporation, had prepared an overall plan for the development of the complex. The evidence later reflected this plan, dated September 7, 1963, and a copy is attached to the court's decree.
In 1968, appellee Bank, at a cost in excess of $50,000.00, constructed an addition on Tract B of its property following the plan of development prepared by the appellant for Citizens Development Corporation. No objection was made to the construction until it was substantially completed. At that time, appellant owned all the stock of Citizens Development Corporation.
Following completion of the bank addition, appellant conducted harassment tactics designed to hinder the use by the Bank of its facilities, particularly those in the alley. Intermittent repairs to the alley surface hindered the use of the drive-in window. The area next to the window was lowered eight inches to its original grade. Likewise, over the protest of the Bank, appellant caused to be constructed a brick wall around the bank addition to a height of six to eight feet, preventing access of vehicles and pedestrians to the addition from Jeff Davis Avenue as had been planned in the development scheme.
The complaint sought an injunction against harassment and limitations on the *371 use of the bank facilities, the removal of the wall, and a declaratory judgment that the Bank was not indebted to appellant for unearned salary in 1966.
The appellants filed a cross bill in which they sought an adjudication of substantially the same issues which were raised in the original bill. The cross bill also claimed payment for a year's salary from the Bank to appellant. For answer to this aspect, the appellees included defenses that (1) there was no contract of employment and appellant Pardue was subject to release at any time, (2) that his discharge was "by reason of misfeasance and non-feasance in office" which was detrimental to the best interest of the Bank, and (3) that there was an accord and satisfaction by the payment to Pardue of $2,750.00 as severance pay.
The trial was begun on September 8, 1969, and consumed twelve full working days over a period of three weeks. The transcript consists of five separate volumes totaling 1,131 pages.
The trial judge was personally familiar with the block where the Bank and shopping center were located and, with the consent of all the parties, he made a special trip to the area and personally inspected the premises.
A decree was rendered on February 23, 1970, which granted:
1. An injunction prohibiting appellants from obstructing the Bank's ingress and egress of the fifteen-foot alley easement or changing traffic pattern.
2. The right to the Bank to change grade in alley at drive-in window about eight inches.
3. An injunction requiring appellants to demolish wall around west and south end of Tract B.
4. An injunction from changing the design of parking area and vehicular passageway between Tract B and Jeff Davis Avenue or obstructing such lane of traffic.
5. An injunction from denying to complainants and customers and employees of the Bank the right to freely park anywhere in parking area of shopping center, and denying the prayer of cross bill.
The trial court's very studied and comprehensive decree covers nine pages of the transcript, and gives a much more detailed history of the controversy and findings of fact than we state in this opinion, and anyone desiring to fully comprehend the reasoning of the court is referred to that opinion. We refer only to the decree as is necessary in discussing the various assignments of error.
We quote from the trial court's opinion:
The assignments of error are grouped for disposition. It is well to note that appellant Pardue testified that he owned one hundred per cent of the stock in appellant Citizens Development Corporation and that he spoke for the Corporation. The trial court found that Pardue was the alter ego of the corporation after he acquired all the stock in 1966.
Assignments 1, 2, 6, 7, 84 and 85 are concerned with the alley rights, and relate to the encroachments along the north wall of appellees' property and the eight-inch raise in elevation of the alley at the drive-in teller window.
The finding as to the encroachments is as follows:
Some of the testimony supporting the finding of the trial court was that appellant, while serving as president of the Bank, caused the encroachments to be constructed in the alley, and caused the grade in the alley near the teller's drive-in window to be raised eight inches. He acknowledged that he knew the items were encroachments when he directed the contractor to place them there. He also arranged for the deed conveying the underlying fee to Citizens Development Corporation in 1963. The deed to his corporation was made "subject * * * to encroachments." Appellant testified that had he been the grantor he also would have made the deed subject to the existing encroachments.
The words "subject to" have been construed by this and other courts. In Blackwell v. Burketts, 251 Ala. 233, 36 So. 2d 326, where the court, in construing the words "subject to the stipulations hereinafter set forth" in a testamentary bequest, said "The natural and legitimate office of such proviso is to indicate that subsequent provisions would qualify these bequests."
In McCarter v. Crawford, 245 N.Y. 43, 156 N.E. 90, where the contract of sale was made "subject to such a state of facts as an accurate survey would show," the Court of Appeals said:
In Texaco, Inc. v. Pigott, D.C., 235 F. Supp. 458, aff'd 358 F.2d 723 (5th Cir.), it was held that the words "subject to" as used in a deed mean "subservient to" or "limited by" and are "words of qualification showing the grantor's intent not to grant an absolute title."
Appellants argue that the trial court "in its decree is enlarging the rights granted by deed giving the easement and is attempting to do so by estoppel." We treat the question of estoppel in the next group of assignments, but it is sufficient here to say that the trial court's finding was not solely on estoppel but, as shown in the two paragraphs of its opinion quoted supra, the title of appellant's corporation "is subject to such encroachments." The assignments relating to the encroachments on, and the grade of, the alley present no errors requiring a reversal.
*373 Assignments of error 3, 4, 5, 8, 86, 87 and 88 charge that the court erred in ordering the demolition of the wall built by appellants on the west and south sides of Tract B, in giving the right of parking for bank customers in the parking lot, and in granting the right of access through the bank addition on Tract B between Jeff Davis Avenue on the south and the alley easement on the north.
The trial court found that when Mid-Selma Land Company (organized by the directors of the Bank) conveyed its interest to Citizens Development Corporation, the conveyance and the option preceding it were made on the verbal assurances of Pardue "that the entire shopping center development was for the primary benefit of the bank which among other benefits would enjoy unrestricted parking privileges in the parking area of the shopping center. The assurance to the directors of advantages to be derived by the bank, including parking privileges, was a major factor inducing the directors to approve the conveyance by Mid-Selma Land Company, Inc. to respondent Citizens Development Corporation." Also, that while acting as president of the Bank, appellant planned and caused to be prepared a map for the development of the shopping center as a whole, and to correlate its facilities with those being planned for the Bank, including the Jeff Davis Avenue-alley passageway with bank offices in the second story above it, parking for banking customers and employees in certain spaces in the general parking area, and the passageway and parking according to the plan was used during, and subsequent to, appellant's presidency of the Bank. This same map or plan "was approved by the A & P Tea Company and the Elmore Stores, the two major tenants of the shopping center and incorporated in the leases of each." Also, that the parking areas and ways were continuously used by the Bank and others between 1966, when appellant was dismissed as president of the Bank, "until the substantial completion by the bank in 1968 of its facilities on Tract B of its property. The respondent Pardue registered no objection to this use but on the contrary tacitly acquiesced in the same."
We now quote at length from the trial court's opinion and decree:
"In the year 1968, the complainant bank, using the concept which had previously been formulated by respondent Pardue and incorporated in plans for the development of the entire shopping center, undertook the construction of its addition on Tract B. The ground floor area of the addition was left open for vehicular traffic running north and south between the alley and Jeff Davis Avenue. The concept was further followed by the construction of bank offices on the second floor of this addition. The placement of a teller window in Tract B was left open for further implementation. The Court is convinced from the evidence that the respondent Pardue was aware of the construction of this addition and that it followed in essential details the concept which he had formulated for correlating the facilities of the bank with those of the shopping center. He watched it as it progressed and until in the final stages of completion, making no objection to the construction nor did he in any way bring to the attention of the board that he would repudiate the plan of development of which he was the author. When this bank addition was substantially completed, and the bank had expended or became obligated for over $50,000 for its construction, he for the first time brought to the attention of the bank board his contention that parking for the bank was limited to an area in proximity to the A & P and Elmore stores, i. e., the area on which an easement for parking had been legally reserved.
"The Court finds in summary of the evidence that the directors of complainant bank in causing the construction of the bank addition on Tract B of its property relied upon assurances given by respondent Pardue that parking for bank purposes was unrestricted throughout the area designated *374 for parking. They relied upon a policy which respondent Pardue had put into effect while president of the bank reserving to its customers the lane of parking nearest the western boundary of Tract B and requiring bank employees to park in the area just beyond, both lanes being in an area of the parking lot on which no written easement for parking was reserved. The directors generally were not aware that parking privileges did not extend throughout the shopping center. They relied upon continued unrestricted parking to which respondent Pardue made no objection for more than two years after the dismissal of respondent Pardue as president. They relied upon a development concept which had been planned by respondent Pardue and drafted by an engineer employed by him and under his direction. The directors of the bank relied upon the fact that the shopping center and the parking lot had been constructed to conform specifically to the development plan which offered obvious advantages to both shopping center and to the bank. In reliance upon all these factors and a course of conduct by respondent Pardue extending over a period of more than five years which was implicit in the testimony of the witnesses throughout the lengthy trial of this cause, the directors were led to believe and did believe that the bank had the right to construct upon Tract B of its property a building following the concept of the development plan and to utilize such building when completed for bank purposes in accordance with that plan. The Court is convinced from all the testimony and evidence that respondent Pardue was aware of the construction of this addition as it progressed and in the view of this Court elemental justice required him to speak and make known his contention that the bank could not use its facilities in the manner he himself had planned for such facilities to be constructed and used. He wholly failed to do so. On the contrary he stood by in silence until the bank had expended over $50,000 on a plan of which he was the author, and then in April of 1969 respondent Pardue constructed a brick wall of the height of some six to eight feet, enclosing the west and south sides of the bank building which had been constructed on Tract B. The effect of this wall was to prevent the movement of vehicular traffic to and through the bank addition between the alley and Jeff Davis Avenue; likewise to hinder the movement of pedestrians between adjacent parking areas and the bank facilities. The Court is impressed with the maxim of equity that `he who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent.' Dunn v. Fletcher, 266 Ala. 273, 96 So. 2d 257 (261). As elsewhere stated: `Every additional brick added to the structure was an argument against the defendant's silence and each stroke of the carpenter's hammer a voice commanding him to speak.' Forney v. Calhoun County, 86 Ala. 463 [5 So. 750]; Thompson v. Page, 255 Ala. 29, 49 So. 2d 910; Ala. Great Southern RR v. South & North Ala. RR, 84 Ala. 570, [3 So. 286]; Burleson v. Mays, 189 Ala. 107, 66 So. 36. This Court concludes that in this court of equity the respondent Pardue and the respondent Citizens Development Corporation, and their respective heirs, successors and assigns are and were estopped to repudiate a development plan which they had authored and on which complainant bank had relied, by altering in any material way the physical characteristics of that part of the shopping center which provides an open passageway for vehicular and pedestrian traffic south from Tract B of the property of the bank to the north side of Jeff Davis Avenue or in any other way to obstruct the free flow of traffic, vehicular or pedestrian, over and along such area-way; and further that the wall erected by respondents around Tract B over the written protest of complainant bank was constructed in derogation of equitable rights of complainant bank and should be removed and the grade level of the area on which the wall was constructed should be restored to its natural grade; further that the respondents Pardue and *375 Citizens Development Corporation, and their heirs, successors and assigns are estopped from preventing, objecting to or unduly restricting the equitable rights of the complainant bank through its officers, directors, employees and customers to park freely upon the areas designated for parking throughout the shopping center. * * *"
The main thrust of appellants' argument is that the basis of this part of the trial court's decree was equitable estoppel, that an easement cannot be created by equitable estoppel, that "there is no equity in this cause," and absent equity, then neither estoppel nor injunction is available; also that estoppel has not been proved and there was no foundation for the court's decree.
We think the legal questions raised by appellants are answered by the case of Dunn v. Fletcher, 266 Ala. 273, 96 So. 2d 257, where the complainant had legal title to property on which the respondent had erected a building and respondent had not acquired title by deed, by prescription or by adverse possession for the statutory period. The following statements and quotations are from cases cited with approval and followed in the Dunn case.
Estoppels in pais cannot affect the title to land in a court of law, but in equity a different rule prevails. Earnest v. Fite, 211 Ala. 363, 100 So. 637.
"Resting in parol, at law the estoppel was not available to appellee; but in a court of equity it has full operation." Hendricks v. Kelly, 64 Ala. 388.
"The contrary doctrine is so well settled in this state that, notwithstanding the requirements of the statute of frauds, declaring void certain contracts for the sale of land, unless evidenced by writing subscribed by the party to be charged, an equitable interest may be acquired in lands, without any written transfer of title, by conduct or declaration of the owner, which would create an estoppel in pais on his part." Alabama Great Southern R. R. Co. v. South & North Ala. R. Co., 84 Ala. 570, 3 So. 286.
"The doctrine of estoppel is founded upon the primary and ultimate aims of the lawthe redress of wrong, the prevention of fraud, and the promotion of the ends of justice. Having its origin in good morals and in consideration of good faith, its operation and effect are useful and beneficent, when its application is confined to cases, where it is manifest that the acts or statements on which another has relied and acted cannot be retracted `without a breach of faith on the one hand, and injury on the other.' The underlying principle is that declarations or admissions, express or implied, made for the purpose of influencing the conduct of another, if the designed effect ensues, are conclusive upon the party making them. What one person has induced another to believe and act on to his detriment will, as between them, be regarded as true." Adler v. Pin, 80 Ala. 351.
"It is a sound and honest rule of equity, supported by principles of justice as well as of public policy, that if one knowingly though passively, suffers another to purchase and spend money on land, under circumstances which induce an erroneous opinion or mistaken belief of title, without making known his claim, he shall not afterwards, in a court of conscience at least, be permitted to successfully assert any right or title against the purchaser. (Citations omitted)." Burleson v. Mays, 189 Ala. 107, 66 So. 36.
"When the owner of land has knowledge of the fact that a railroad is proceeding to construct its road on his land, and allows it to expend large sums of money for this purpose, and for subsequent improvements upon said roadbed and right of way, without interfering or forbidding the company to proceed, such owner is estopped from evicting the railroad company by action of ejectment." Hendrix v. Southern Railway Co., 130 Ala. 205, 30 So. 596, Headnote 1.
"It is alleged in effect that in 1945 and 1946 Hugh F. Thompson stood by and saw *376 John C. Page erect valuable improvements on the lot sued for and by silence acquiesced in the making of valuable improvements on the lot by John C. Page, knowing all the time that John C. Page was acting under the assumption that he himself had title and that appellant had no interest in the parcel of land sued for. If true, this situation works an estoppel against Hugh F. Thompson. (Citations omitted) `Every additional brick added to the structure was an argument against the defendant's silence [and each stroke of the carpenter's hammer] a voice commanding him to speak.' Forney v. Calhoun County, 86 Ala. 463, 5 So. 750, 752." (Emphasis supplied.) Thompson v. Page, 255 Ala. 29, 49 So. 2d 910.
While there was some conflict in the evidence, there is evidence to support the findings of the trial court. The bill did contain equity and the doctrine of equitable estoppel was correctly applied.
Assignment of error 9 charges that the court erred in denying appellant's cross bill claiming a full year's salary inasmuch as appellant "was fired without just cause."
The trial court's finding on this aspect of the case follows:
We agree that generally the power of appointment includes the power of amotion. The right to remove officers of a private corporation is inherent and exists in the absence of statutory authorization. Badger Oil & Gas Co. v. Preston, 49 Okl. 270, 153 P. 383; and in New Founded Industrial Missionary Baptist Ass'n v. Anderson, La.App., 49 So. 2d 342, it was said: "Under the general law, the power of amotion of officers is inherent in every private corporation as an incident of its very being, and may be expressly conferred by *377 statute or by charter. 19 C.J.S. Corporations § 738, p. 71."
While the trial court did not pass on the evidence relating to the removal of appellant for cause, we note that it seems to be generally held that an officer of a corporation may be discharged for cause, whether or not under contract. 2 Fletcher on Corporations, § 351, 19 C.J.S. Corporations § 738(3).
We find no reversible error in the trial court's denial of the salary claim under the cross bill.
We come now to rulings on objections to evidence. The trial court could have heard the evidence without making a ruling, and the decree affirmatively shows that the court "considered only evidence which is relevant, material, competent and legal," under the 1943 Act which is listed in the pocket parts of the 1940 Code and the 1958 Recompilation as Tit. 7, § 372(1). But specific objections were made and, in some instances, the court did rule on them.
Assignment of error 31 reads:
"The Court erred in overruling objection to the following question:
Objection was made and the court overruled the objection. But there was no answer by the witness. Then another question was asked and answered without objection:
"A No, sir, I would not have."
The question made the subject of assignment 31 was not answered and no reversible error could have resulted in the court's ruling on it. Wallace v. Phenix City, 268 Ala. 413, 108 So. 2d 173; State v. Hodge, 280 Ala. 422, 194 So. 2d 827.
We have also held that where an objection to a question has been ruled on by the court, but is repeated in a slightly different form, objection must be made again to the question or the answer. State v. Hodge, supra; Marbury Lumber Co. v. Heinege, 204 Ala. 241, 85 So. 453.
Here, no objection was made to the second question or answer, and it follows that even if the question had been inadmissible on proper objection and subject to exclusion on proper motion (which we do not here decide), the evidence was before the court for consideration in the absence of any objection. State v. Hodge, supra; Vinyard v. Duck, 278 Ala. 687, 180 So. 2d 522.
One or more of the above stated principles apply to similar questions asked other directors made the subject of assignments 34, 43, 44, 45 and 61. On two more of the same group, and 47 and 54, the trial judge stated that he allowed the questions and answers because they went to the question of estoppel, and on 61, the objection to the question was overruled, but when the witness answered, the court stated: "Sustain. That is out."
Although not connected with the question of estoppel, the same principles applied to assignment 31, supra, apply to the rulings made the subjects of assignments of error 23 and 41.
Assignments 24, 32, 36, 41, 46, 47, 59, 64 and 65 are argued together under the argument that the questions "are based on conclusions as to facts in issue." Assignment 36 charges error in overruling the objection to the following question asked director Jones, "Did you reach in your mind what was a considered and informed *378 opinion?" This question, of itself, was admissible, and coming on redirect examination, after a cross-examination when practically the same question had been asked and answered it was clearly admissible, and there is no merit in assignment of error 36. Assignment 41, charging error in the overruling of an objection to the question, "But did he give you assurance that you could have a free flow of traffic through this Tract B?," has already been treated and it is not related in any way to assignment 36.
It follows that we apply the rule that where unrelated assignments of error are grouped and argued together, and one is found to be without merit, others in the group will not be considered. Associates Investment Co. v. Hamm, 284 Ala. 332, 224 So. 2d 880; Brooks v. Everett, 271 Ala. 354, 124 So. 2d 105. This disposes of this group of assignments of error.
The same rule disposes of assignments 39, 75, 76 and 77. Assignment 39 charged error in sustaining objection to records of approved loans to Rex Moore in 1961, which were not the basis of any action in this case. Assignment 76 was totally unrelated, charging error in refusing to admit in evidence the bank earnings and dividend reports for the years 1967, 1968 and 1969, periods after appellant had left the Bank in 1966. These reports were obviously inadmissible.
Assignments 71, 72 and 73 relate to questions asked bank director Hobbs. The only argument in brief in support of them are that the questions "asked for a conclusion explicitly and were therefore objectionable." An example is the question made the subject of assignment 71:
Assuming, only for the sake of argument, that the question was objectionable, all the questions and rulings made the subject of assignments 71, 72 and 73 were concerned with the alleged reasons why the directors may have had cause to discharge appellant. But the trial court specifically stated that it was "unnecessary for the Court to make a finding of fact on the great volume of evidence relating to the removal of the respondent Pardue for cause." In view of this posture of the case, the rulings on the admissibility of this feature of the evidence did not probably injuriously affect the substantial rights of appellant. Supreme Court Rule 45.
We are convinced that the trial court's findings were supported by the evidence. Moreover, the findings and conclusions of fact made by a trial court, based on testimony taken ore tenus, are presumed to be correct, and such findings and conclusions carry with them the force of a jury verdict. Unless such findings and conclusions are plainly wrong or without supporting evidence, or are manifestly unjust, which we do not find to be the case, the final decree is due to be affirmed. Renfroe v. Weaver, 285 Ala. 1, 228 So. 2d 764, and cases there cited.
Moreover, as already noted, the trial court, with the consent of the parties, personally inspected the premises before making its findings of fact, and, hence, there is this additional reason why the decree here is reviewed as if it were a verdict of a jury. Miles v. Moore, 262 Ala. 441, 79 So. 2d 432; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160; Crawford v. Tucker, 258 Ala. 658, 64 So. 2d 411.
No reversible error has been presented.
Affirmed.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | March 25, 1971 |
d22696e6-2859-490e-82e8-a36564c1e382 | INTERNATIONAL BRO. OF TEAMSTERS, ETC. v. Hatas | 252 So. 2d 7 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 7 (1971)
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, an Unincorporated Labor Organization or Association,
v.
Mary B. HATAS, as Special Administratrix of the Estate of William Andrew Hatas.
2 Div. 506.
Supreme Court of Alabama.
August 5, 1971.
Rehearing Denied September 9, 1971.
*11 Beddow, Embry & Beddow, Birmingham, Pruitt & Pruitt, Livingston, Raymond W. Bergan, Washington, D. C., for appellant.
Robert S. Vance, Roscoe B. Hogan, Birmingham, and Marcus McConnell, Jr., Livingston, for appellee.
LAWSON, Justice.
This suit was filed in the Circuit Court of Sumter County on May 24, 1963, by Mrs. Mary B. Hatas against Edward Grady Partin; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 5, an unincorporated labor organization or association, hereinafter referred to as Local No. 5 (The correct name of Local No. 5 appears to be General Truck Drivers, Warehousemen and Helpers, Local Union No. 5.); and against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, an unincorporated labor organization or association, hereinafter referred to as International.
The suit is a wrongful death action brought under the authority of § 123, Title 7, Code 1940, and plaintiff sues as special administratrix of the estate of William Andrew Hatas, her deceased son.
The case went to the jury on behalf of the plaintiff on an amended complaint consisting of Counts One-A and One-B. In both counts plaintiff sought to recover damages for the death of her son, which occurred on Christmas morning, 1961, at about one o'clock when an automobile in which he was riding as a passenger was struck by another automobile on U. S. Highway 80 in Sumter County. Count One-A charges negligence against all defendants. Count One-B is a wanton count against a servant defendant, Partin, and his alleged masters, the other defendants.
International filed three pleas: not guilty, denial of agency, and denial of the trial court's jurisdiction over the subject matter of the suit. As will hereafter appear, there is no reason to refer to the pleas filed by the other defendants.
The trial began on September 27, 1965. On September 30, 1965, the jury returned a general verdict for the plaintiff against all of the defendants and assessed the plaintiff's damages at $150,000. Judgment was entered on the verdict on the same day that it was returned.
On or about October 14, 1965, the Courthouse of Marengo County, where the official court reporter of the Seventeenth Judicial Circuit maintained her office, was destroyed by fire. All shorthand notes and electronic recordings made by the official court reporter during the course of the trial were consumed by the fire. Marengo and Sumter Counties are both in the Seventeenth Judicial Circuit.
Of the three defendants, only International timely filed a motion for new trial. That motion was duly continued by the trial court from time to time. It was argued and taken under submission on March 4, 1966. On November 10, 1966, the motion for new trial was overruled and denied.
A supersedeas bond was filed by International on March 14, 1967, and was approved by the Circuit Clerk of Sumter County on that day. That bond is so conditioned as to be sufficient as a bond to secure costs of appeal.Dortch Baking Co. *12 v. Schoel, 239 Ala. 266, 194 So. 807; Bedwell v. Dean, 221 Ala. 224, 128 So. 389; Greenfield v. Powell, 220 Ala. 690, 127 So. 171. Cf. Ralston Purina Co. v. Pierce, 265 Ala. 365, 90 So. 2d 922.
The cause was submitted here on March 18, 1968, on motions and on merits.
International, apparently out of an abundance of precaution, prior to submission, moved this court "to make and enter an order of severance permitting this Appellant to make separate assignments of error in this cause and ratifying and confirming the separate assignments of error heretofore filed in said cause by Appellant."
That motion is denied because there is no need for an order of severance of the assignments of error. As indicated, International alone appealed. Notice was given to the other defendants in accordance with the provisions of § 804, Title 7, Code 1940, to appear before this court and unite in the appeal if they so desired. They have not appeared. The assignments of error made by International complain of error prejudicial to it. See Pennington v. Birmingham Baseball Club, Inc., 277 Ala. 336, 170 So. 2d 410; Maya Corp. v. Smith, 240 Ala. 371, 199 So. 549.
The appellee, Mrs. Hatas, prior to submission, filed her "Motion to Strike Purported Succinct Statement of the Evidence in Lieu of Court Reporter's Transcript; Motion to Dismiss Appeal or In the Alternative to Affirm Judgment of the Court Below," to which we will refer hereinafter as appellee's motion.
The transcript of the record does not contain a complete transcript of the evidence because, as noted above, all of the court reporter's shorthand notes and electronic recordings were destroyed by fire before some of them could be transcribed.
The record does contain certificates of the trial judge to the effect that certain designated parts of the transcript of the record were approved by him as a "Succinct Statement of the Evidence in Lieu of a Transcript of the Evidence * * *," to which we will refer sometimes hereinafter as the succinct statement of the evidence.
A succinct statement of the evidence in lieu of a transcript of the evidence is authorized, "If the court reporter be deceased, or for any other reason cannot transcribe the evidence, * * *"§ 5 of Act 80, approved June 10, 1953, Acts of Alabama 1953, Vol. 1, p. 122, which Act is amendatory of Act 461, approved July 12, 1943, as amended by Act 886, approved September 12, 1951. Section 5 of Act 80, supra, with a few immaterial changes, is carried in the 1955 Cumulative Pocket Part to Vol. Two of the 1940 Code of Alabama and in the 1958 Recompiled Code of Alabama (unofficial) as § 827(3), Title 7, and we will refer sometimes hereinafter to the provisions of § 5 of Act 80, supra, as § 827(3).
Grounds of appellee's motion which attack the succinct statement of the evidence are to the effect that it does not meet the requirements of § 827(3), supra.
In brief filed in support of appellee's motion it is said, in effect, that International did not attempt to present a succinct statement of the evidence in compliance with § 827(3), supra; that the transcript of the record does not contain a "single succinct statement as authorized by the statute"; that "the evidence contained in the mass of different sections" is unintelligible.
International did present a proposed succinct statement of the evidence to the trial judge, which met with his approval but not with the approval of appellee, who filed objections as authorized by § 2 of Act 886, approved September 12, 1951, supra. See 1955 Cumulative Pocket Part *13 to Vol. Two of the 1940 Code of Alabama and the 1958 Recompiled Code of Alabama (unofficial), where the provisions of § 2, Act 886, supra, are carried as § 827 (1a), Title 7.
After a succinct statement of the evidence is presented to a trial judge, he "shall hear the same and make such corrections in and additions to it as may be proper and shall approve the same as a transcript of the evidence."§ 827(3), supra. The trial judge conducted hearings on several occasions in an effort to arrive at a succinct statement of the evidence satisfactory to both parties. It is perhaps unnecessary to observe that neither party to this appeal is altogether satisfied with the end result, but we entertain the view that the trial judge exercised not only good judgment in his rulings, but demonstrated commendable patience in a difficult situation. Appellee has not pointed out any instance where the succinct statement of the evidence as incorporated in the transcript of the record works to her disadvantage.
Appellee is correct in pointing out that the transcript of the record does not contain "a single succinct statement" in that it is not like a bill of exceptions or a transcript of the evidence which usually begins on a certain page of the transcript of the record and continues on successive pages until completed. But that difference should not deprive International of a right of review.
But appellee, as we have shown, asserts that "the evidence contained in the mass of different sections" is unintelligible. By "sections" appellee has reference to the fact that the succinct statement of the evidence as finally approved consists of several different parts of the transcript of the record scattered, so to speak, throughout that transcript.
The end result of the several hearings was an order approving the original succinct statement of the evidence except as it was corrected, changed, or added to by virtue of certain rulings made by the court during the several hearings.
The format of the succinct statement of the evidence incorporated in the transcript of the record has proven to be burdensome to us, but we believe we understand it and the rulings of the trial court incorporated in it, as well as the rulings which resulted in its composition.
While the format of the succinct statement of the evidence has presented some problems to us in disposing of this appeal, we are unwilling to say that the succinct statement of the evidence is so unintelligible as to require us to strike it or to dismiss the appeal or to affirm the judgment below.
There is a ground in appellee's motion to the effect that the appeal should be dismissed because it was not taken within six months from the date of the original judgment (§ 788, Title 7, Code 1940) and that while the transcript of the record showed that a motion for new trial was timely presented to the trial judge, it did not reflect that such motion was filed.
The transcript of the record as filed here originally did not show that the motion for new trial was filed. But that deficiency was corrected prior to submission by a return to a writ of certiorari wherein it is made to appear that the motion for new trial was timely filed.
Appellee's motion is denied.
There are fifty-one assignments of error, many of which are repetitious in nature or related. Consequently, we will not deal separately with each assignment, but will treat them as they are grouped for argument in the original brief filed here by the appellant, International. As far as practicable, we will consider the assignments of error in the order in which they are argued in that brief.
*14 International argues its assignments of error to the effect that the trial court erred in overruling those grounds of International's demurrer which took the point that neither count of the complaint which went to the jury (Counts One-A and One-B) stated a cause of action in that they failed to allege that suit was brought within two years of the date of death of plaintiff's intestate.
The last sentence of § 123, Title 7, supra, under which this suit was brought, reads: "Such action must be brought within two years from and after the death of the testator or intestate."
It is not averred in Count One-A or in Count One-B that suit was brought within two years from and after the death of plaintiff's intestate, nor is the day on which suit was brought (filed) mentioned in either of those counts.
In both counts, however, it is alleged that plaintiff's intestate died on December 25, 1961, and an endorsement on the complaint shows that it was filed in the office of the Circuit Clerk of Sumter County on May 24, 1963, so it appears from the complaint, that is, from averments in each count and from the endorsement as to the date of filing, that the action was brought within two years "from and after the death" of plaintiff's intestate.
International apparently takes the position that the endorsement as to the date of filing of the complaint cannot be considered in connection with the averments of the complaint to determine whether the action was brought timely, saying in its brief:
International has cited no case which expressly so holds and no such case has come to our attention. International places much emphasis upon the following quotation from Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So. 2d 13, 15: "The statute [§ 123, Title 7] requires suit brought within two years after death. This is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof. (Authorities cited)" (Emphasis supplied)
Apparently the words which we have italicized above in the quotation from Parker v. Fies & Sons, supra, have been of some concern to counsel in the past because there are cases wherein the complaint contains the following averment: "The plaintiff avers this suit is brought and filed in court having jurisdiction thereof within two years after the death of plaintiff's said intestate." The original transcript in Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586, and Black Diamond Coal Mining Co. v. Ellis, Adm'x, 256 Ala. 72, 53 So. 2d 593, disclose such averments.
The language which we last quoted above is but a conclusion of the pleader and if the time of filing as endorsed on the complaint was in conflict therewith, the date of the filing as endorsed, while not conclusive, would prevail over a conflict in the averments of the complaint until shown to be incorrect.
In this case the trial court had before it a complaint containing two counts, in both of which the date of the death of the plaintiff's intestate was alleged and on which complaint was endorsed the date of filing. So it affirmatively appears from the complaint that the action was brought within two years from and after the death of plaintiff's intestate. Aside from the fact that the date of the filing of the complaint was shown on its face, we have held that courts take judicial notice of their own records.Ex parte Hacker, 250 Ala. 64, 33 So. 2d 324; Badham v. Badham, 244 Ala. 622, 14 So. 2d 730. In Parker v. Bedwell, *15 243 Ala. 221, 222, 8 So. 2d 893, 894, we said as follows:
If a court can take judicial knowledge of the fact that a transcript had not been filed at a given time, it can also take judicial knowledge of the time in which a pleading or record is filed.
We have said that matters of fact of which judicial notice is taken need not be alleged.City Council of Montgomery v. Wright, 72 Ala. 411; Alabama Gr. Sou. R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; Moon v. Hines, 205 Ala. 355, 87 So. 603; Louisville & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Alabama Power Co. v. Henson, 238 Ala. 348, 191 So. 379. In Statham v. Statham, 282 Ala. 322, 325, 211 So. 2d 456, 459, appears the following: "Judicial notice is a matter of evidence, and not pleading. 31 C.J.S. Evidence § 6, p. 822." The statement is not fully supported by the authority cited in that it is not stated therein that judicial notice is not a matter of pleading.
We hold that the trial court did not err in overruling the grounds of International's demurrer which took the point that neither count of the complaint which went to the jury stated a cause of action in that they failed to allege that suit was brought within two years from and after the date of the death of plaintiff's intestate.
International argues jointly its Assignments of Error 9 and 11. They read:
We have said that a general assignment of error grounded on the refusal of the trial court to grant a motion for a new trial is sufficient to invite a review of any ground well stated in the motion for new trial and properly argued by appellant, that is, when the motion for a new trial is sufficient to specify the precise error alleged to have occurred, a general assignment of error on appeal for denying the motion is sufficient to bring up for review those matters so precisely set out in the motion. However, grounds of the motion for a new trial relied upon must sufficiently specify the precise error alleged to have occurred. In other words, a ground of a motion for a new trial is to be considered the same as if it were a separate assignment.Boudrow v. H. & R. Construction Co., 284 Ala. 60, 222 So. 2d 152, and cases cited. Cf. Starnes v. Brassell, 286 Ala. 437, 241 So. 2d 109, an equity case.
No ground of the motion for new trial is referred to in appellant's argument made in support of Assignment 9 and we are not certain that we have correctly related that argument to the grounds of the motion for new trial which counsel for appellant intended the argument to be directed.
Perhaps a part of the argument was intended to be considered by us as being in support of Ground 32 of the motion for new trial, which ground reads:
*16 Both parties to this appeal concede that there was a demand for a struck jury. Consequently, under our holding in Holman v. Baker, 277 Ala. 310, 169 So. 2d 429, the trial court did not err in refusing International's four peremptory challenges, pursuant to § 53, Title 30, Code 1940, which section reads: "Each party has the right to challenge four of the jury peremptorily in civil causes."
Perhaps a part of the argument is made in support of Ground 48 of the motion for new trial, which ground reads:
Ground 48 of the motion for new trial and Assignment of Error 11 were apparently drafted to raise the same point. They appear to complain about the fact that they did not get enough strikes from the venire. But there is no argument in support of such a contention. The argument seems to be that the court erred in requiring the parties to strike from a list of twenty-seven jurors rather than from a list of twenty-four jurors.
As previously shown, this case was tried in the Seventeenth Judicial Circuit, which did not have more than three circuit judges. Consequently, under the provisions of § 54, Title 30, Code 1940, as amended, the trial court did not err in requiring the parties to strike from a list containing more than twenty-four jurors. See Act 273, approved August 10, 1965, Acts of Alabama 1965, p. 386, and Act 679, approved September 1, 1965, Acts of Alabama 1965, p. 1241. Section 54, Title 30, supra, was amended again in 1967 after this case was tried, so, of course, we are not concerned here with the 1967 amendment. But see Act 113, approved May 3, 1967, Acts of Alabama 1967, p. 155. Also see Rosenbush Feed Co. v. Garrison, 251 Ala. 245, 37 So. 2d 106; Hall v. Dexter Gas Co., 277 Ala. 360, 170 So. 2d 796. The language in Holman v. Baker, supra, to the effect that it is in judicial circuits having not more than two (now three) judges that parties must strike from a list containing no more than twenty-four jurors was used inadvertently and is hereby disapproved. There is other language in Holman v. Baker, supra, which recognizes the correct rule.
We hold that the trial court did not err in overruling Grounds 32 and 48 of the motion for new trial or requiring the parties to strike from a list containing more than twenty-four jurors.
Assignments of Error 3 through 6 charge error on the part of the trial court in refusing to give at International's request six affirmative instructions in varying language, but all in favor of International.
We need to consider only International's written requested Charge 1-3, the refusal of which is the basis of Assignment of Error 5. Charge 1-3 reads:
International contends that the trial court erred in refusing its requested Charge 1-3 because the plaintiff failed to comply with the provisions of § 153, Title 61, which reads:
The plaintiff, a foreign administratrix of the estate of a person who was not at the time of his death an inhabitant of this state, on September 16, 1965, filed in the office of the Judge of Probate of Sumter County a duly authenticated copy of her letters of administration issued to her by the Milwaukee County Court, Milwaukee, Wisconsin, on May 7, 1963. The plaintiff having given bond with two good and sufficient sureties, payable to and in such amount as fixed by the Judge of Probate, that official on September 22, 1965, approved the bond and ordered that the bond and the letters of administration be recorded. They were recorded.
A certificate of the Judge of Probate showing the facts delineated in the preceding paragraph was offered by plaintiff's counsel while examining plaintiff. The Circuit Clerk stamped the certificate "filed in open court 9/28/65 J. C. Scales Circuit Clerk."
International argues that since the circuit clerk stamped the certificate as shown above and did not mark the certificate as an exhibit, the certificate was not in evidence and therefore the plaintiff failed to prove that she complied in all respects with the provisions of § 151, Title 61, supra.
We lay aside the insistence of appellee, the plaintiff below, to the effect that there was no need for her to prove a compliance with the provisions of § 151, Title 61, supra, since International did not file a plea of "ne unques administrator [administratrix]." In fact, we lay aside all insistences of appellee, plaintiff below, made in opposition to International's contention that it was entitled to the affirmative instruction because of the failure of the proof required by § 153, Title 61, supra, except the insistence that the transcript of the record shows that there was a substantial compliance with the requirements of that section. It would be altogether unrealistic to hold that there was a failure of proof within the meaning of § 153, Title 61, because of the manner in which the Circuit Clerk labeled the certificate of the Judge of Probate.
International next insists that it was entitled to have the trial court give its written requested Charge 1-3, as well as the other affirmative charges which it requested, because the plaintiff failed "to prove that suit was filed within the two-year period prescribed by the Homicide Act, Tit. 7, Section 123."
The date of the death of plaintiff's intestate was proved as well as alleged. Plaintiff did not call a witness to testify as to the date on which the action was brought nor did she introduce in evidence the complaint on which appeared the date of its filing. It was not necessary for plaintiff to offer such proof. As we have pointed out above, courts take judicial notice of their own records, so on the face of the record it is made to appear that the action was brought within two years from *18 the date of the death of plaintiff's intestate.
For the purposes of this appeal, International does not question the sufficiency of the evidence to support a finding that plaintiff's intestate died as the proximate result of the negligent and wanton manner in which the defendant Partin drove an automobile into the rear end of an automobile in which plaintiff's intestate was riding at the time and place referred to in the third paragraph of this opinion.
But International strenuously insists that there was not a scintilla of evidence tending to show that at the time of the collision Partin was an agent, servant or employee of International, acting within the line and scope of his employment. Consequently, International argues that the trial court erred in refusing to give its written requested Charge 1-3 and similar charges. We do not agree.
We refer to oft-stated rules of review. Where the affirmative charge is refused a defendant, the appellate court in reviewing the ruling must accept as true the evidence favorable to the plaintiff and look to the strongest tendencies of the testimony in his behalf.Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322; Redmond v. Self, 265 Ala. 155, 90 So. 2d 238; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696; Hall v. Dexter Gas Co., 277 Ala. 360, 170 So. 2d 796; Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So. 2d 472. 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, a scintilla, in support of the theory of the complaint.Alabama Gr. Sou. R. Co. v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A. L.R.2d 1190; Alabama Power Co. v. Scholz, 283 Ala. 232, 215 So. 2d 447.
The defendant Partin was called as a witness by the plaintiff, Mrs. Hatas. Partin's testimony tends to show that in 1961 he was a resident of Baton Rouge, Louisiana, where he was "business manager, secretary-treasurer for Local Five on [sic] the Teamsters Union," which position at the time of the trial he had held for approximately fifteen years; that in the fall of 1961 he received telephone calls which originated in Birmingham and came from a "gentleman" or from "somebody" or from Mr. Webb, wherein the caller requested that he, Partin, come to Birmingham and render assistance in carrying on a strike against Bowman Transportation Company, which was in progress in the State of Alabama; that after receiving such calls he called Mr. James Hoffa, the General President of International, for instructions as to whether he should go up and assist Mr. Webb; that Mr. Hoffa instructed him to go to the assistance of Mr. Webb and Local 612; that all locals worked under the actual direction of International, so he complied with Mr. Hoffa's instructions and went to Birmingham a few days prior to Christmas of 1961; that after arriving in Alabama he was "in and around a radius of a hundred miles of Birmingham," working on the Bowman Transportation Company strike, which was "pretty well state-wide;" that he, along with others, followed the trucks of Bowman Transportation Company in order to get information relative to the strike; that while following the Bowman Transportation Company trucks, "We'd write down the names of the trucks, who was behind them, how many cars were behind them, and calling the number of the truck, which way they were going, what route, and whether cars were following them or not"; that such activities were carried on under instructions from Mr. Hoffa; that on the morning of December 24, 1961, he and others followed Bowman Transportation Company trucks "around" Anniston, Alabama, and then returned to Birmingham, where he met with some of the people "involved in following the trucks"; that after the meeting he made calls to "people in connection with the strike"; that he could not say "who all the people involved in the *19 strike were"; that, "We had certain people we called. Without a list of the numbers, I couldn't say who all it was"; that after his business in Birmingham he reported to Mr. Hoffa in regard to the Bowman strike, advising him "whether they was winning or losing it, how the people were standing up under the strike, etc."
The record shows that the "Mr. Webb" to whom Partin referred was, in December, 1961, the President of International's Local 612 with headquarters in Birmingham, which local was then directly involved in the Bowman Transportation Company strike.
Partin further testified that he left Birmingham after dark on Christmas Eve in 1961 en route to his home in Baton Rouge; that he drove in a westward direction through Sumter County, Alabama, on U. S. Highway 80 during the early hours of Christmas morning of 1961; that the automobile which he was driving was in the "union's" name but his name was stenciled on the side of the automobile in that he was an officer of the union; that a week or two after his return to Baton Rouge he reported to Mr. Hoffa concerning his activities in Alabama; that he was reimbursed by Mr. Hoffa for the expenses which he incurred in making the trip to Alabama.
Partin did not admit that the car which he was driving collided with the car in which plaintiff's intestate was riding but he did not deny that fact and his testimony, along with other evidence, is certainly sufficient to support a finding that he did drive his automobile into the rear of the automobile in which plaintiff's intestate was riding. We say again, however, that International does not contend on this appeal that Partin's automobile did not collide with the automobile in which plaintiff's intestate was riding or that such collision did not result from a negligent or wanton act on the part of Partin.
International insists that it was entitled to have the trial court give its requested affirmative instructions because at the time of the collision Partin was en route to his home in Baton Rouge, Louisiana, and was not then engaged within the line and scope of his employment as a servant, agent or employee of International.
International cites Thomas v. Hubbert, 280 Ala. 302, 193 So. 2d 746; Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So. 2d 464; Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So. 2d 490, in support of the general rule that an employee using an automobile, whether belonging to his master or to himself, in going to and from his place of work, is not at such times regarded as engaged in work for his master but is acting solely for his own purposes.
There is an exception to the rule, the general rule, as stated in the cases cited by International. In 5 Blashfield's Cyc. of Automobile Law and Practice, § 3041, the statement of the general rule is followed by this language:
We entertain the view that the facts of this case bring it within the purview of the exception. Where the expenses of the trip were paid by International through Mr. Hoffa and Partin's return to Baton Rouge was not only beneficial to him, but to International as well as to Local No. 5, we think the following statement in Atlanta Life Ins. Co. et al. v. *20 Stanley et al., 276 Ala. 642, 647, 165 So. 2d 731, 735, is applicable to the facts of this case:
International advances the argument that the trial court erred in not giving International's requested affirmative charges because, aside from Partin's testimony, there was no evidence tending to show that Partin was an agent, servant or employee acting within the line and scope of his employment at the time of the collision and Partin's testimony should have been excluded on International's motion.
We will hereinafter deal with the trial court's refusal to exclude Partin's testimony, but we will not consider that ruling in connection with the refusal of the trial court to give the affirmative instructions requested by International.
We hold that reversible error is not made to appear in connection with the trial court's refusal to give the affirmative instructions requested by International.
Assignments of Error 12, 15, and 47, which are argued in bulk in International's brief, read:
Assignments of Error 12 and 47, as worded, are insufficient in that they do not challenge any action or ruling by the trial court. There was no request made of the trial court to require the witness Partin to answer the questions. See King v. Jackson, 264 Ala. 339, 87 So. 2d 623.
Although Assignments of Error 12, 15 and 47 are argued in bulk and Assignments 12 and 47 are inefficacious, we will consider Assignment 15 in that it properly raises a question kindred to the questions sought to be presented by Assignments 12 and 47.White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812, and cases cited; Auto-Owners Ins. Co. v. Stokes, 284 Ala. 537, 226 So. 2d 320.
Assignment of Error 15 complains of a specific ruling of the trial court, the sustaining of an objection to a question propounded to Partin on cross-examination on the ground that the question called for an answer which might tend to incriminate Partin.
International asserts in its brief that the trial court's action in sustaining the objection resulted in a denial of its right to a thorough and sifting cross-examination of the witness Partin.
In answer to International's contention, the appellee, Mrs. Hatas, says in brief that the action of the trial court in sustaining the objection cannot work a reversal of the judgment below because the ruling of *21 the trial court merely upheld "Partin's constitutional guarantees against self-incrimination."
Appellee advances another reason in support of the trial court's action made the basis of Assignment of Error 15. Appellee says in effect that the relevancy of the answer called for by the question to which the objection was sustained does not appear from the record. We will consider this contention before we deal with the self-incrimination question.
It is interesting to note that the trial court evidently thought that the question called for relevant testimony because the record shows that he overruled the first objection interposed to the question and did not sustain an objection until it was made to appear that Partin claimed the privilege against self-incrimination.
We entertain the view that the question called for an answer which was altogether relevant in view of Partin's previous testimony, both on direct and cross-examination. As previously shown, Partin testified that he was requested to come to Birmingham to assist in the Bowman Transportation Company strike by Mr. Webb, who was the President of Local 612. Despite such testimony, Partin stated on cross-examination that after reaching Birmingham he did not talk with Mr. Webb because "I wasn't dealing with Mr. Webb." It was then that counsel for International asked Partin on further cross-examination: "Did you talk to Mr. Pierce of Local 612?" "Did you talk to any officer of Local 612 during the time you were in Birmingham?"
International's defense was grounded on the claim that Partin was not in Birmingham in December of 1961 as an agent, servant or employee of International or of its Local 612, nor was he at that time representing either International or Local 612 in furthering the strike against Bowman Transportation Company. Consequently, the question asked Partin as to whether he had talked to any officer of Local 612 during the time he was in Birmingham called for testimony which we think was highly relevant and material to International's defense.
In Coward et al. v. McKinney et al., 277 Ala. 513, 516, 172 So. 2d 538, 540, it was said:
Section 443, Title 7, Code 1940, must be reasonably construed so as not to deprive the trial judge of discretion reasonably exercised to limit the range of cross-examination in respect to collateral and irrelevant matter.Powell v. Powell, 285 Ala. 230, 231 So. 2d 103.
The question to which the objection was sustained did not call for collateral or irrelevant matter and we do not think that the action of the trial court in sustaining the objection to the question can be rested on an exercise of discretion on the part of the trial court to limit cross-examination.
International was entitled to a thorough and sifting cross-examination of Partin on matters about which he could be legally questioned.
So we come to a consideration of the self-incrimination question.
The privilege against self-incrimination afforded by § 6 of the 1901 Constitution of Alabama has been held available to a party in a civil action.Morris v. McClellan, *22 154 Ala. 639, 45 So. 641; McElroy's The Law of Evidence in Alabama, 2d Ed., Vol. 3, § 373.01. See Ex parte Rice, 259 Ala. 570, 67 So. 2d 825. On June 14, 1964, the Supreme Court of the United States in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653, held that the privilege against self-incrimination afforded by the Fifth Amendment to the Constitution of the United States applies to state actions. That privilege is available to witnesses in civil lawsuits. See McCarthy v. Arndstein, 266 U.S. 34, 45 S. Ct. 16, 69 L. Ed. 158.
In Ex parte Blakey, 240 Ala. 517, 522, 199 So. 857, 861, it was said:
In sustaining the objection, it can be said that the trial court exercised its prerogative to decide that a direct answer to the question would "implicate" the witness, Partin.
But the question remains, why did the trial court so decide? As we view the record, the only possible theory which could be advanced for saying that it was apparent from the record that a direct answer to the question would have been incriminating is that such an answer might ultimately lead to other testimony which might tend to connect Partin with criminal acts which might have been committed by officers of Local 612 in connection with the Bowman Transportation Company strike.
Partin, however, had already tied himself to the activities of Local 612 in connection with that strike. He did so without any protest or any claim of the privilege against self-incrimination.
The weight of authority seems to support the broad view that a witness who discloses a fact or transaction, without invoking his privilege against self-incrimination, thereby waives that privilege with respect to details and particulars of such fact or transaction.147 A.L.R. 256. See Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344.
International cites Lockett v. State, 63 Ala. 5. Lockett and one Gantt were jointly indicted for burning the Talladega County jail. Lockett was tried alone. One Richard Cox, who had been confined in a jail cell with Lockett and Gantt, was a State's witness. He gave an account of a "scheme" which had been contrived by several prisoners, including Lockett, Gantt and himself, to burn the jail in order to escape. Cox stated that Gantt actually set fire to the jail and that Lockett did not take any part in the burning except "to hand Gantt some splinters" at Gantt's request, which splinters Gantt used in kindling the fire. On cross-examination Lockett's counsel asked the witness Cox if he did not assist Gantt in kindling the fire which burned the jail.
The trial court thereupon stated to the witness "that he was not bound to answer that question, unless he chose to do so." Cox refused to answer the question.
*23 Lockett was convicted. He appealed to this court, which reversed the judgment of conviction "* * * for the error of informing the witness and holding that he was not bound to answer a relevant question, the answer to which might tend to incriminate him, * * *"
We quote from the opinion in the Lockett case as follows:
This cause is between an individual as plaintiff and an individual and unincorporated labor organizations as defendants. The State was not a party. The individual defendant, Partin, was a witness for the plaintiff. He was obviously aware of the constitutional guarantees against self-incrimination. As previously noted, he testified without protest or objection of any kind as to his activities in connection with the Bowman Transportation Company strike. If he said anything during the course of his entire testimony which might incriminate him, it was that part of his testimony which related to his participation in that strike.
Consequently, we do not think that Partin was entitled to refuse to answer questions directed to him on cross-examination relative to his connection, if any, with officers of Local 612, the local which was on strike and which had, according to Partin, through its president solicited his services.
To uphold Partin's claim to privilege in the instance here under consideration would open the way to the withholding of relevant, material facts by permitting a witness to select any stopping place in his testimony. The privilege against self-incrimination presupposes a real danger of legal detriment arising from disclosures. A witness cannot invoke the privilege where the response to a specific question would only disclose details of facts already related without protest. See Rogers v. United States, supra, and Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819.
In our opinion the fact that Partin did or did not talk with officers of Local 612 would have been of substantial evidentiary value to International, particularly after he denied dealing with the president of that local while in Birmingham. We entertain the view that International was entitled to test on the anvil of cross-examination *24 the details of Partin's actions while in Birmingham. Such actions might tend to prove or disprove his claim that he was in Birmingham and that he helped in the strike at the request of Local 612 and of Mr. Hoffa.
Appellee cites in support of the trial court's ruling the following cases: Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692; Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997; Smith v. United States, 337 U.S. 137, 69 S. Ct. 1000, 93 L. Ed. 1264. Our holding in this case does not, in our opinion, run counter to anything said in any of those cases.
We hold that Assignment of Error 15 is well taken and that the trial court erred to a reversal in sustaining the objection to the following question propounded to Partin on cross-examination: "Did you talk to any officer of Local 612 during the time you were in Birmingham?"
Related in kind to Assignment of Error 15, but involving slightly different subject matter, is Assignment of Error 16, which reads: "For that the trial court erred in sustaining an objection to the following question propounded to the witness, Partin: `Did you talk to any general organizer of the International Union during that period of time." The "period of time" to which the question refers is that which Partin claims he spent in and around Birmingham during the course of the Bowman Transportation Company strike. We entertain the view that in sustaining an objection to the question set out in Assignment 16, the trial court deprived International of its right to thoroughly cross-examine Partin, upon whose testimony the plaintiff had to rest her claim that Partin at the time of the accident was an agent, servant or employee of International acting within the line and scope of his employment. In our opinion Partin should not have been permitted to evade answering the question on the ground that an answer to the question might tend to incriminate him. The views which we expressed in treating Assignment 15 are applicable to Assignment 16 and we hold that Assignment of Error 16 is well taken and that the ruling made the basis of that assignment constitutes reversible error.
In holding that the rulings of the trial court made the basis of Assignments 15 and 16 were erroneous and constitute reversible error, we have not overlooked the fact that Partin was called to testify by the plaintiff. But in our opinion he was an adverse witness in only a technical sense. He was, indeed, a most willing witness for plaintiff and during his direct examination he did not in a single instance seek to invoke the privilege against self-incrimination. Under the circumstances of this case, we do not think it can be correctly said that Partin was forced to testify in the sense that we should follow the waiver rule sometimes applied to parties who are forced to testify rather than the broader rule applied in some cases where the party testifies of his own volition. See 52 Va.Law Review, No. 2, pp. 322, 328. Also see 14 Stanford Law Review, No. 4, pp. 811-826.
Assignment of Error 17 relates to the action of the trial court in sustaining a general objection to a question propounded to the witness Partin on cross-examination. Partin was asked if it was not "fairly close in time to the time" he went to Birmingham that he placed a call to International's president and allegedly received instructions to go to Birmingham and help out on the strike. We think the trial court might well have allowed the question to be answered, but in view of the extensive examination of the witness on the point, both on direct and cross, we cannot say that the trial court abused its discretion in sustaining the objection.Seals v. State, 282 Ala. 586, 213 So. 2d 645.
Assignment of Error 34 reads: "For that the trial court erred in sustaining objection to the following question propounded to the witness, Partin: `Who was *25 with you in that car?'" and Assignment 36 reads: "For that the trial court erred in sustaining objection to the following question propounded to the witness, Partin: `Two or three days prior to Christmas, in 1961, while you were in Birmingham, I want you to tell me, sir, the names of any officer of any Teamsters local union with whom you talked personally or by telephone on those days?'"
Both assignments relate to rulings made during International's cross-examination of Partin. The assignments are argued separately in International's brief, but we will treat them together in that they are related and the argument made in support of them is substantially the same, that the trial court erred in denying to International the right to a thorough and sifting cross-examination of plaintiff's key witness, Partin.
We have often said that the range of cross-examination rests largely in the trial court's discretion and its rulings thereon will not be revised unless prejudicial error is clearly made to appear.Davis v. Radney, 251 Ala. 629, 38 So. 2d 867, and cases cited; Howell v. Greyhound Corp., 257 Ala. 492, 59 So. 2d 587.
But after a careful review of the entire cause, we are constrained to the conclusion that the rulings here presently under consideration limiting the cross-examination of the one witness whose testimony could place liability on International was so prejudicial as to justify a reversal of the judgment of the trial court.
The questions to which the objections were sustained constituted an effort by International to probe the testimony of a damaging and hostile witness concerning the vital issue in International's defense, the validity vel non of the claim made by Partin that he acted as an agent for International while he was in and around Birmingham. We feel that International was entitled to wide latitude in its attempt to determine if Partin had any contact during his stay in Birmingham with anyone who could be tied to International or could give credence to or detract from Partin's assertion that at the time in question he was in Birmingham, working on a strike at the request of Local 612 and International's president, Mr. Hoffa.
We hold that Assignments of Error 34 and 36 are well taken.
Assignments of Error 13, 14, 39 and 46 are all to the effect that the trial court erred in refusing to grant International's motion to strike, exclude or suppress all of Partin's testimony on the ground that rulings of the trial court had deprived International of its right to a thorough and sifting cross-examination of Partin.
We have held that the trial court erred to a reversal in permitting Partin to refuse to answer certain questions propounded to him on cross-examination by counsel for International on the ground that answers to those questions might tend to incriminate him. Consequently, we see no need to consider Assignments of Error 13, 14, 39 and 46.
International sought to show that in 1962 Partin made statements to Hon. Roderick Beddow, Jr., to the effect that in December, 1961, he was in Birmingham on business of a personal nature and was not there on business of Local 612 or of International, as Partin had testified.
When questioned by his counsel outside the presence of the jury, Partin without objection testified that in 1962 he went to the office of Mr. Beddow in Birmingham, where he talked with Mr. Beddow, Jr.; that he was accompanied by a Miss Kelly; that the reason for his visit to Mr. Beddow's office was that the F. B. I. "were trying to establish the fact that I had an accident in Alabama on that date, and they had been to see her to see if I had been in Alabama."
Immediately after the admission of the foregoing testimony of Partin, the following occurred:
International's Assignment of Error 44 asserts error of the trial court in overruling its objection to the question, "Did you go there for professional service and advice?" and its Assignment 45 charges the trial court with error in overruling objection to the question last set out above.
In its brief International argues that the questions called for conclusions of the witness and hence the trial court erred to a reversal in overruling the general objections interposed to the questions. We cannot agree. The questions, in our opinion, called for facts, not for legal conclusions. Partin, a mature and worldly individual, was altogether capable of knowing why he went to see Mr. Beddow and of knowing whether he had received from Mr. Beddow that which he said he sought, professional service and advice.
We hold that Assignments of Error 44 and 45 are without merit. In so holding, we have given no consideration to the fact that the questions were asked and answered outside the presence of the jury.
Assignments of Error 40, 41 and 43 are argued together.
Assignments 40 and 41 read:
The trial court made several rulings concerning the admissibility of evidence during the course of the examination of Mr. Beddow, Jr., and Partin outside the presence of the jury in regard to whether an attorney-client relationship existed at the time Partin made certain statements to Mr. Beddow, Jr. None of those rulings are separately assigned as error. Apparently they have been lumped together in Assignments 40 and 41. Those assignments are too general to invite review. In Anderson v. Smith, 274 Ala. 302, 303, 148 So. 2d 243, 244, it is said:
In American Casualty Co. of Reading, Pa., v. Devine, 275 Ala. 628, 634, 157 So. 2d 661, 666, this court, citing the Anderson *27 case, supra, and Supreme Court Rule 1, said:
Assignment of Error 43 reads:
The objection was sustained on the ground that to require the witness to answer the question would constitute a violation of the attorney-client privileged communication rule.
Section 438, Title 7, Code 1940, reads:
International contends that any statement made by Partin on the occasion of his visit to the office of Mr. Beddow, Jr., to which we referred above, is not within the attorney-client privilege because Miss Kelly, not Partin, was the client of Mr. Beddow, Jr., and contends further that even if Partin was the client he waived the privilege as to the statements about which he was questioned because such statements were made in the presence of a third party.
In Cotton v. State, 87 Ala. 75, 6 So. 396, and Fuller v. State, 34 Ala.App. 211, 39 So. 2d 24, it was held, in effect, that a third person who was present at a conference between an attorney and his client may testify as to facts which came to his knowledge during the conference.
But the holdings in those cases are not apposite to the facts of this case. Here, International was not seeking to elicit from a third person statements made by Partin. International was questioning Partin in regard to statements allegedly made by him to the attorney, Mr. Beddow, Jr., in the presence of the third party.
The rationale behind such cases as Cotton v. State, supra, and Fuller v. State, supra, is that since a third person is not involved in the relationship between the attorney and his client, the presence of such third party defeats the confidential nature of the conference and thereby the privilege. See Wigmore on Evidence, McNaughton Revision, Vol. VIII, § 2311, p. 599.
Neither that rationale nor the rule which it supports applies when the third person is also a client as to the subject matter discussed in the conference or has a common interest in the matters discussed. The majority rule applicable where such a relationship existed at the time of the conference *28 is stated thusly in 141 A.L.R. at p. 562:
See McElroy, Law of Evidence in Alabama, 2d Ed., Vol. 3, § 392.03, at p. 208, and the Alabama cases there cited.
Partin and Miss Kelly were both interested in a legal sense in the subject matter discussed at the conference with Mr. Beddow, Jr.; hence, the matters discussed at that conference were correctly held by the trial court to be confidential and accordingly constituted privileged communications as to strangers to the conference.
We hold that Assignment of Error 43 is without merit.
Assignments of Error 18 through 26 are argued in bulk.
International says in brief that "Each of these assignments of error relates to the same subject matter: That the plaintiff's witness, defendant, Partin, had been indicted for first degree manslaughter and leaving the scene of an accident on the basis of the identical transaction made the basis of this action and those indictments had been dismissed a few days prior to his testimony in behalf of plaintiff in the trial of this cause."
We do not think that Assignments of Error 18 through 26 are so related that this court can treat the questions presented in them by applying the same argument to each of the assignments.
Some of those assignments are clearly not well taken and we will not undertake a discussion of the others which, if argued separately, would be treated.
But in view of another trial we make the following observations.
We have cases which hold that a question propounded to a witness on cross-examination which sought to affect the credibility of the witness by showing his indictment for, not conviction of, an offense involving moral turpitude were properly disallowed.Campbell v. State, 182 Ala. 18, 62 So. 57; Watson v. State, 155 Ala. 9, 46 So. 232. See Dean v. Johnston, 281 Ala. 602, 206 So. 2d 610; Ross v. State, 139 Ala. 144, 36 So. 718.
But we have held that such evidence is admissible under some circumstances to show bias on the part of the witness. Wilkerson v. State, 140 Ala. 165, 37 So. 265; Ray v. State, 248 Ala. 425, 27 So. 2d 872. See Stephens v. State, 252 Ala. 183, 40 So. 2d 90; George v. State, 27 Ala. App. 196, 169 So. 325.
The existence of the indictment, the fact that it was dismissed or nol prossed, and the circumstances leading up to such action seem to us to be matters which International is entitled to show.
As pointed out in Louisville & N. R. Co. v. Martin, 240 Ala. 124, 198 So. 141, it is not required in every case, as a condition precedent to any question on cross-examination to show bias, that the witness must first be asked about the state of his feelings. See Adams v. State, 280 Ala. 678, 198 So. 2d 255; Nichols v. State, 276 Ala. 209, 160 So. 2d 619. We see no reason why such a question had to be asked of Partin as a condition precedent to a question or questions propounded to him on cross-examination to show bias. Cf. Adams v. State, supra.
*29 We do not feel that the rulings made the basis of Assignments of Error 48 and 49 should work a reversal of the judgment below. Assignment 48 complains of the trial court's action in refusing to admit into evidence certain long-distance telephone bills sent to Local 612 and Assignment 49 asserts error in the sustaining of an objection to a question asked of witness John T. Pierce by International as to whether during November or December, 1961, there were any long-distance calls from Local 612 to Baton Rouge or any other place in Louisiana.
The evidence which would have been afforded by the admission of the telephone bills and a negative answer to the question asked the witness John T. Pierce is so remote and of such small probative value that error, if any, in not admitting such evidence would not justify a reversal. See McElroy, The Law of Evidence in Alabama, 2d Ed., Vol. 1, § 21.01(3), at pp. 16-17; Supreme Court Rule 45.
Assignment of Error 32 complains of the refusal of the trial court on motion of International to require Mr. Bradley, one of Partin's attorneys, to answer this question: "We ask Mr. Bradley if, on or subsequent to the 21st day of September, 1965, he was advised and informed and in turn he advised and informed Mr. Partin that the two indictments referred to had been nol prossed or dismissed?"
When objection was first interposed the trial court stated: "I don't see any objection to that question because that is a matter of fact," meaning, no doubt, that the fact that the indictments had been nol prossed was a matter of record; hence Mr. Bradley could not refuse to answer the question in its entirety because the question included the inquiry as to whether Mr. Bradley had advised and informed Partin that the two indictments had been nol prossed or dismissed.
Later when the witness refused to answer that part of the question "as to whether or not I made communication to Mr. Partin," on the ground that "it comes within the purview of privilege between attorney and client," International moved to require the witness to answer. In response to that motion the trial court responded:
Later the trial court stated: "The question is a proper question, and the answer that he gave is a proper answer, but the court sustains the objection to the admission of that evidence because it is immaterial."
We do not think that the question called for an answer in violation of the attorney-client privilege because the fact that the indictments were nol prossed was a matter of public record. See generally 97 C.J.S. Witnesses § 284, at p. 810; 58 Am. Jur., Witnesses, § 490, p. 274.
It was not incumbent upon International to show by direct evidence that Partin's testimony was influenced by the fact that the indictments were nol prossed. That fact was a circumstance which the jury was entitled to weigh along with other evidence in evaluating Partin's testimony.
We entertain the view that the question here under consideration called for competent, legal and material testimony and that the trial court erred to a reversal in refusing to grant International's motion to require the witness to answer.
Assignment of Error 27 raises a question very similar to that raised by Assignment 32 and we hold that the trial court erred to a reversal in sustaining objection to the following question asked Partin by International on cross-examination: "Were you informed or advised that the two indictment *30 [sic], which you heard me refer to and which you have seen me handle, had been dismissed or nol prossed?"
Since the fact that the indictments had been nol prossed was a matter of public record, we feel that the trial court erred to a reversal in sustaining objection to this question asked Partin by International on cross-examination: "Did Mr. William C. Bradley, attorney in this case, advise you of this or to this effect last week?" (Assignment of Error 29)
We have dealt with most of the argued assignments of error. In view of what we have said above, we see no reason to further encumber this long opinion.
Because of the errors noted above, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
SIMPSON, MERRILL, HARWOOD and McCALL, JJ., concur.
BLOODWORTH, J., concurs in the result.
HEFLIN, C. J., and MADDOX, J., dissent.
COLEMAN, J., not sitting.
MADDOX, Justice (dissenting).
I would affirm the trial court in this cause. First, I cannot agree that the trial court committed reversible error in refusing to compel the witness, Partin, on cross-examination, to answer questions which Partin claimed might tend to incriminate him. As the majority concedes, the trial court has the right in the first instance to decide whether any direct answer to a question would implicate the witness. While the right of the trial judge to make the determination is not absolute, it would appear to me that the trial judge in this case did not abuse his discretion, especially in view of the fact that we do not have a complete transcript of the proceedings and the trial judge was more aware than we of attending circumstances.
It is my opinion that the majority has made the right of an individual not to accuse himself, a right which was placed in our first Constitution, and which has been placed in each successive Constitution, secondary to the right of a party to make a searching cross-examination.
This right not to accuse one's self, as the majority recognizes, is available to a witness in a civil proceeding. It is also available to a witness who is also a party. In Calhoun v. Thompson, 56 Ala. 166 (1876), this Court said among other things:
In Ex parte Blakey, 240 Ala. 517, 199 So. 857 (1941), cited by the majority, there is a good compilation of the law of this state and other jurisdictions concerning the right of a witness to refuse to answer questions in a civil proceeding when the witness makes claim that the answer to the question might tend to incriminate him.
I think Lockett v. State, 63 Ala. 5 (1879), cited by the majority for the principle that the right of a witness not to accuse himself can be waived is distinguishable. The witness in Lockett was an accomplice and had voluntarily testified for the state about matters, which without question, had implicated the witness. I believe this Court was very careful to point out in Lockett that the rule that a witness waives his right not to accuse himself extends only to questions concerning matters about which the witness has already testified. This Court there said, "For the witness is an accomplice, who is allowed to give evidence in favor of the state, with the express understanding *31 that he is to disclose his own guilt."
The narrative of Partin's testimony which is set out in the majority opinion, in my judgment, does not necessarily show that Partin might be guilty of any crime. Therefore, since he had given no evidence on direct which might tend to incriminate him, the question of waiver does not arise, as I view it. As I understand the testimony of Partin, it tended to establish that he was in Birmingham and vicinity to assist in a strike at the request of appellant's president and "other gentlemen" in Birmingham. I agree that it is difficult to see how, having admitted that he was in Birmingham at the request of individuals, Partin declined to answer questions seeking the names of individuals he talked to in Birmingham, (he did admit talking to a Mr. Webb of the Birmingham Local over the telephone), but I think we engage in speculation when we assume that the answers would not tend to incriminate Partin.
I respectfully feel the majority engages in speculation when it asks, "Why did the trial court so decide," that an answer would implicate Partin and further states, "If he (Partin) said anything during the course of his entire testimony which might incriminate him, it was that part of his testimony which related to his participation in that strike." How do we know this is a fact? The right to claim the privilege first rests with the witness who should know better than anyone else whether the answer to a specific question might tend to implicate him with some criminal charge. When the trial court refuses to compel a witness to testify, as it did here, I think our cases say that this is the prerogative (right) of the court. If Partin had voluntarily testified that he and "other men" in Birmingham had entered into a conspiracy to commit some crime, without question, Lockett, supra, would apply and he could not refuse to name people he had talked to, having waived his right to claim the privilege by reason of the fact that he had testified without protest to facts which would have obviously been incriminating. But those are not the facts of this case. They were the facts of the Lockett case, and that is the reason I think Lockett disinguishable.
In view of what I have said, I do not believe reversible error is shown by the action of the trial court in refusing to compel Partin to answer questions to which Partin claimed a right not to incriminate himself.
The majority also predicates reversible error upon the trial court's action in sustaining objection to questions propounded to Partin which sought to determine who was in the car with him, and "the names of any officer of any Teamster's local union" with whom he had talked while in Birmingham. The majority correctly states the rule that the range of cross-examination rests largely in the trial court's discretion and its rulings thereon will not be revised unless prejudicial error is clearly made to appear, but then concludes that prejudicial error clearly appears in this case. The question, "who was in the car" is certainly quite general and is not limited to time and place. The question asked Partin about the names of individuals in any local union he had talked to was obviously repetitious.[1] Therefore, I fail to see how prejudicial error clearly appears as a result of the trial court's action in sustaining objections to the two questions.
*32 Neither do I feel that the trial court committed reversible error in refusing to require Mr. Bradley, one of Partin's attorneys, to testify that he had advised and informed Partin that two indictments against Partin had been nol prossed.
Appellant states in brief:
Appellee states in brief:
Appellee's statement seems to be a fair assertion of what happened.
Without setting out extensive portions of the record and unduly lengthening this dissenting opinion, I would point out that during the trial of the case and during argument on motion for new trial, it affirmatively appears that the trial judge told appellant's attorneys that they would be permitted to question Partin "whether it is not a fact that he was told that, if he did not come to Livingston to testify in this case, those indictments would be reinstated or that another indictment would be returned by the Grand Jury against him." The record before us, insofar as I can determine, does not show that this question which the Court told counsel was permissible was ever asked. On motion for new trial the appellant argued that it determined after the trial that the plaintiff Hatas had written a letter to the Circuit Solicitor before the trial of the case requesting that the indictments against Partin be dismissed. There is no evidence in the record to which our attention had been directed which shows that appellant's counsel asked Hatas if there was any agreement between her and Partin that if Partin would testify in the case she would request that the indictments be dismissed. In any event, the record shows that the trial judge stated at the hearing on the motion for new trial that evidence that the indictments had been dismissed was before the jury and that appellant's attorneys argued to the jury that Partin testified in the case for the plaintiff because the indictments against him had been dismissed. I think, therefore, appellant had the benefit of what it now claims to be error to reverse. Consequently, I fail to see how error, if any, sufficient to cause a reversal is made to appear. Error to reverse must be prejudicial.
Additionally, as I understand the law of Alabama, communications between attorneys and their clients are privileged. The majority says that when the attorney advises his client about a matter which is a matter of public record that the privilege must fall. Our statutory mandate is to the effect that no attorney shall be competent to testify about "advice or counsel" given to his clients. Title 7, § 438, Code of Alabama, 1940 (Recomp.1958). It is interesting to note that the question objected to asked the attorney if he had "advised and informed" Partin that the indictments had been dismissed. I would give force to the statute as, in my judgment, it is written.
The majority, as I understand the opinion, further says that the fact that an indictment had been returned and nol prossed against Partin was admissible in this proceeding to show interest, bias or prejudice on the part of Partin. I do not necessarily disagree with this holding, but I think it completely inapplicable in this case. As already pointed out, the trial judge stated at the hearing on the motion for new trial *33 that evidence of the dismissal of the indictments was before the jury and unquestionably counsel admitted that argument was made before the jury that Partin testified as he did because the indictments against him had been dismissed.
Summarizing and concluding, I do not believe that reversible error has been shown by the appellant and I would affirm the judgment of the lower court.
HEFLIN, C. J., concurs.
BLOODWORTH, Justice (dissenting):
At the general conference of the court when the opinion of Mr. Justice Lawson was presented, I concurred in the result. I did not indicate the reason for my concurrence. I wish to do so now since I have decided to dissent.
I concurred in the result of reversal solely because I believed that the trial court committed reversible error in refusing to compel witness Partin on cross-examination (after he claimed the privilege against self-incrimination) to answer questions concerning whether he had talked "* * * to Mr. Pierce [or] * * * to any officer of Local 612 during the time you were in Birmingham?"
I have now become convinced that there was no reversible error in this ruling by the trial court and I would grant the application for rehearing, withdraw the original opinion, and render a decision affirming the judgment of the trial court.
The opinion of the majority authored by Mr. Justice Lawson is, in the words of a recent writer, "brilliantly written. It demonstrates laborious and penetrating research. It is most persuasive." (This writer was previously persuaded.) But, I cannot concur in its conclusion as I have stated.
I most respectfully dissent.
[1] "Q. Two or three days prior to Christmas, in 1961, while you were in Birmingham, I want you to tell me, sir, the names of any officer of any Teamsters local union with whom you talked personally or by telephone on those days?
"MR. BRADLEY: May it please your Honor, I object to that. It is repetitious. I can recall having gone over it at least twice by Mr. Bergan, and it has no bearing on this particular case.
THE COURT: Sustain the objection.
MR. PRUITT: We except.
MR. BERGAN: I apologize; I'm not sure I asked this question. If I have asked it, if somebody will refresh my recollection, I will withdraw it." | August 5, 1971 |
0606c34d-3fac-43f4-a599-18bc43e39f88 | Donahay v. State | 255 So. 2d 599 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 599 (1971)
In re Thomas Gere DONAHAY, alias
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
3 Div. 483.
Supreme Court of Alabama.
June 10, 1971.
William J. Baxley, Atty. Gen., and Charles H. Barnes, Asst. Atty. Gen., for petitioner, State of Alabama.
Frank W. Riggs, III, Montgomery, for respondent-appellant.
McCALL, Justice.
On petition of the State of Alabama, we granted a writ of certiorari to review the judgment of the Court of Criminal Appeals which reversed the circuit court. The ground for the petition is that a material question of first impression in the appellate courts of Alabama was incorrectly decided by the Court of Criminal Appeals.
The defendant was convicted by a jury of violating Tit. 14, § 174(a), Code of Alabama, 1940, as amended, which provides as follows:
*600 He was sentenced to three years in the penitentiary. On appeal the Court of Criminal Appeals held that proof of "* * * compliance with Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [93 A.L.R.2d 733], in the former conviction is now a mandatory ingredient of the corpus delicti of the offense sub judice [before the court]." Gideon v. Wainwright, supra, holds that where an indigent defendant is charged with a noncapital felony, his right to counsel is deemed fundamental and essential to a fair trial, because the right to be heard comprehends the right to be heard by counsel.
The Court of Criminal Appeals found: "To prove conviction the State, without any predicate to comply with the best evidence rule, used the oral evidence of the Identification Officer of Montgomery County. See Goodwin v. State, 46 Ala.App. 149, 239 So. 2d 221. However, no objection was interposed to this mode of proof. * * *" Consequently, the defendant may not complain of this action. Caughlan v. State, 22 Ala.App. 220, 114 So. 280. Our courts are committed to the rule stated in Knight v. State, 273 Ala. 480, 487, 142 So. 2d 899, 906:
The testimony of the identification officer was therefore in evidence. The Court of Criminal Appeals recognized this, but held that this type of proof of another conviction is not enough without proving that the defendant had a lawyer or validly waived one, citing Burgett v. Texas, 389 U.S. 109, at 114-115, 88 S. Ct. 258, 19 L. Ed. 319.
We construe Burgett v. Texas, supra, to hold that in felony cases, certified copies of judgments of convictions which are silent on their face as to the defendant's representation by counsel raise a presumption that the defendant was denied his right to counsel, and therefore his conviction is void. There the court said: "Presuming waiver of counsel from a silent record is impermissible."
However, there was more to evidence conviction in the present case than the testimony given by the identification officer. The opinion of the Court of Criminal Appeals contains an additional finding of fact which, we think, is significant, because it bears upon whether or not there was any supplementary proof pointing to a valid prior conviction. The Court of Criminal Appeals also said in its opinion: "* * * Indeed, defense counsel conceded that Donahay had been convicted." This finding by the court standing alone in the opinion, does not inform us of what prior crime the defendant had been convicted, or, for that matter, that he had been convicted of a crime of violence. Nonetheless, it is undisputed that the defendant's conviction is conceded. The finding however leaves the nature of the crime of conviction and the manner and circumstances under which the defendant conceded the conviction hidden in the pages of the record.
Through a long line of decisions, we have held that where there is no dispute about the facts, the Supreme Court may examine the record for a more complete understanding of those features of the record which have been treated in the opinion of the Court of Appeals. Johnson v. State, 277 Ala. 655, 173 So. 2d 824; Helms v. State, 270 Ala. 603, 121 So. 2d 106; Southern Railway Co. v. Terry, 268 Ala. 510, 109 So. 2d 919; Vardaman v. Benefit Ass'n of Railway Employees, 263 Ala. 236, 82 So. 2d 272; Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721; Hood v. State, 230 Ala. 343, 162 So. 543. The record here shows that the defendant's *601 counsel freely admitted, at approximately a dozen separate stages in the course of the trial, that the defendant had been convicted of robbery, and counsel remonstrated with the State's attorney, and with the court, when the State undertook to prove this conviction, stating: "Now, Your Honor, if they are calling Mr. Gafford to prove that he was convicted of a robbery, I admit that. I admit that for the record." Since the defendant admitted his prior conviction, there was no necessity for the State to prove the conviction by a certified copy of the records of the court, showing such under the best evidence rule, Bosarge v. State, 273 Ala. 329, 139 So. 2d 302; Harbin v. State, 210 Ala. 667, 99 So. 100, or to otherwise offer proof of the admitted fact.
In our opinion, when a defendant, through his own counsel, freely admits his conviction of a crime, unless he qualifies his admission, he admits all of the ingredients needed to prove the conviction of the crime. In People v. Niles, 227 Cal. App. 2d 749, 39 Cal. Rptr. 11, the court made this pertinent statement:
By his act of admitting the prior conviction, we think the defendant relieved the State from the burden of proving any of the matters that ordinarily would attend establishing the prior conviction. Webster's Third New International Dictionary defines "admit" "* * * b: to accept as true or valid: ACKNOWLEDGE * * *."
As pointed out in Wigmore on Evidence, Third Edition, 1940, at § 1058, the true admission is a formal act, done in the course of judicial proceedings, which waives or dispenses with the production of evidence, by conceding for the purposes of litigation that the proposition of fact alleged by the opponent is true; it concerns a method of escaping from the necessity of offering any evidence at all, and is a waiver relieving the opposing party from the need of any evidence, and is conclusive in the sense that it formally waives all right to deny, for the purposes of the trial; it removes the proposition in question from the field of disputed issues. See also Wigmore on Evidence, Third Edition, 1940, §§ 2588, 2590 and 2591.
Were it otherwise, an admission of prior conviction, made with undisclosed qualifications, would result in the nullification of the admission. The action would be pointless, unless designed to ensnare the opposition, which proposition we do not entertain in this case. We think there is a difference between there being a deficiency in the required preliminary proof as a foundation for the introduction of a certified copy of a record of conviction, as where the record is silent as to the presence of legal counsel, and an admission by the defendant of the fact of his prior conviction. The admission would seem to us to supply all of the necessary requirements for this area of proof in the case.
For the reasons stated, we think the judgment of the Court of Criminal Appeals should be reversed, with direction to reconsider the case in conformity with the opinion here rendered.
Reversed and remanded with directions.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD and BLOODWORTH, JJ., concur. | June 10, 1971 |
cef272bb-b9f7-4179-a279-58f438d75dfb | Aland v. Graham | 250 So. 2d 677 | N/A | Alabama | Alabama Supreme Court | 250 So. 2d 677 (1971)
Leon ALAND
v.
Joe W. GRAHAM, etc. et al.
7 Div. 892.
Supreme Court of Alabama.
July 8, 1971.
Rehearing Denied August 5, 1971.
*678 Samuel Tenenbaum and John N. Randolph, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Robert A. Macrory, William G. O'Rear and Wayne P. Turner, Asst. Attys. Gen., for appellees.
MERRILL, Justice.
This is an appeal in a declaratory judgment proceeding in which the trial court dismissed complainant's bill of complaint. No evidence was presented as the cause was dismissed after an argument and hearing on a plea styled a plea in abatement.
The bill showed that appellant owns 120 acres in the northwest corner of Section 19, Township 19, Range 1 West, that his property adjoins Oak Mountain State Park and that his property "is landlocked and that it has no access, except through said public park." It is not contended that appellant's land is surrounded on all sides by Oak Mountain State Park, but on the sides of his property not adjacent to the park, the topography of appellant's land would make it very difficult for him to get to and from his property without going through the park. The desired road in the park property is in the SE ¼ of the SE ¼ of Section 13, Township 19 South, Range 2 West. It would start at the point where the properties touch each other at the northwest corner of Section 19 and the southeast corner of Section 13.
It is alleged that all the properties once belonged to Alabama Mineral Land Company, that it was sold to various owners, that various owners sold the park land in Section 13 to the United States and the United States conveyed same to the State of Alabama for use as a public park retaining reversionary rights. Other facts and the prayer of the bill appear later in the opinion.
The main question to be decided is whether complainant's suit is a suit against the State. If so, is it in violation of Sec. 14 of the Constitution of 1901 which provides: "That the State of Alabama shall never be made a defendant in any court of law or equity."
The question of whether a suit is against the State has been raised by demurrer Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383; by motionState v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342, and by brief of counsel for the first time on appealAlabama Industrial School v. Adler, 144 Ala. 555, 42 So. 116.
We have held that the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution. J. R. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560. And this court has said that it will take notice of the question of jurisdiction at any time or even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So. 2d 11; Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273. Therefore, it appears that a trial court or an appellate court should, at any stage of the proceedings, dismiss a suit when it becomes convinced that it is a suit against the State and contrary to Sec. 14 of the Constitution.
On oral argument both sides to this controversy asked us to overlook any technical omissions in pleading and nomenclature and decide the main question as to whether this is a suit against the State. Here, the question of a suit against the State was first raised in a pleading denominated "Plea in Abatement" which, prior to a ruling thereon, was later amended to contain a plea in bar. This ordinarily would have waived the subject of the plea in abatementproper venuebecause by pleading in bar before the plea in abatement *679 is determined by the trial court, or attempting to plead in abatement and in bar together amounts to a waiver of the plea in abatement. Rhode Island Ins. Co. of Providence, R. I. v. Holley, 226 Ala. 320, 146 So. 817; Jones v. Baker, 34 Ala.App. 108, 41 So. 2d 191.
But acceding to the requests of the parties, and because it is not material how the question of jurisdiction is raised, we treat the action of the trial court in sustaining the plea in abatement and dismissing the cause as being predicated solely on its decision that the instant case was a suit against the State.
In determining whether an action against a State officer is a suit against the State in violation of the constitutional prohibition, the court considers the nature of the suit or the relief demanded. State v. Norman Tobacco Co., 273 Ala. 420, 142 So. 2d 873; Wallace v. Board of Education, 280 Ala. 635, 197 So. 2d 428.
In Southall v. Stricos Corporation, 275 Ala. 156, 153 So. 2d 234, the court said:
Without professing to cover every situation that has arisen, there are four general categories of actions that we have held do not come within the prohibition of Sec. 14. (1) Actions brought to compel State officials to perform their legal duties. Department of Industrial Relations v. West Boylston Manufacturing Co., 253 Ala. 67, 42 So. 2d 787; Metcalf v. Department of Industrial Relations, 245 Ala. 299, 16 So. 2d 787. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So. 2d 13; Southall v. Stricos Corp., supra. (3) Actions to compel State officials to perform ministerial acts. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479, and cases there cited. (4) Actions brought under the Declaratory Judgments Act, Tit. 7, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. Curry v. Woodstock Slag Corp., supra, and cases there cited.
We do not think this suit for declaratory judgment fits any category that we have listed or follows any case we have found in our reports.
The relief demanded is copied from the prayer of the bill, where the court was asked to decree:
Referring to (1) supra, the common law "way of necessity" cannot apply here. One of the requirements is that it be founded on a grant between the grantor and grantee. In Hamby v. Stepleton, 221 Ala. 536, 130 So. 76, the grant was from the respondent to the complainant and the court said: "Since the right of way is founded on a grant, it can arise only between grantor and grantee." This principle was applied in McCurdy v. Samples, 262 Ala. 485, 80 So. 2d 224, where Samples was seeking a right of way over McCurdy's property. A reason for denying relief was that there was "nothing in the record to show that the title to the Sample property was secured from L. L. McCurdy." Actually, Samples' deed came from Gordon Davis and wife. Here, the State of Alabama secured the property from the United States and was not the grantor to any grant to appellant. We think this is dispositive of the "way of necessity" theory in the bill.
Demand (2) is conditioned upon the acquisition of the "way of necessity" which has already been considered.
Demand (3) is based upon the revocation by the Department of Conservation of a gratuitous and revocable right of way granted to C. G. Gaines, who sold the land to appellant. The grant was in the form of a letter (Exhibit B to the bill) dated August 17, 1965, signed by the State Director of Conservation, which granted to Gaines, his successors or assigns a permit to use a 300-foot strip of land, wide enough for oneway traffic between Gaines' land in Section 19 and the park lands in Section 13, which are adjacent. Four conditions were imposed, one of which was: "if there is any objection from any parties having a reversionary interest in the property owned by the State."
The bill alleges that this right was assigned to appellant by Gaines when he sold to appellant in November, 1965, but that on June 15, 1966, the Director of Conservation canceled the right of way, stating in writing, that the ground was "objection by the United States Department of the Interior as being `in violation of the terms of the deed by which these lands were conveyed to the State.'" (The United States has a reversionary interest in the park property.)
Title 8, § 6, Code 1940 gives the Director of Conservation the "power and authority necessary or convenient to carry out the functions and duties of the department," and § 180 places on him the duty "to preserve, improve, protect, and maintain all parks, parkways * * * now owned or hereafter acquired or established by the State of Alabama." There was no abuse of discretion or anything illegal in the revocation of the permit by the Director of Conservation when objection had been made by the United States, grantor and reversioner in the deed to the State of Alabama.
Appellant attached as Exhibit C to his bill a letter from the U. S. Department of The Interior, dated July 30, 1968, to appellant's counsel advising that counsel's client should apply to the "appropriate authorities over Oak Mountain State Park for a permit for ingress and egress over the road" and it also contained the following statement:
We do not know whether that constitutes bureaucratic buck-passing, an attempt to place the total responsibility on the State *681 authorities, or having been made with the prior knowledge that the State authorities would understand that no permit would be given in the light of the Department of The Interior's former objection to the use of the road.
But we are convinced that no statute, no legal duty and no ministerial act is involved in the failure to reinstate the revocable permit sought by appellant.
Demand (4) seeks, in one aspect, to have the equity court condemn a right of way under Tit. 19, § 56, Code 1940. This aspect is answered in the following statement in McCurdy v. Samples, 262 Ala. 485, 80 So.2d 224:
As to the second aspect of demand (4), we agree that the circuit court has no jurisdiction to entertain an original condemnation proceeding, but in view of our holding that this is a suit against the State, it would avail nothing to transfer the cause to the probate court.
Appellant has cited no case which has held that Tit. 19, § 56 applies to Stateowned park property. We think the obvious reason is that such a suit would be in violation of Sec. 14 of the Constitution of 1901, and this court has held that Sec. 14 "wholly withdraws from the Legislature, or any other state authority, the power to give consent to a suit against the state," Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383, and no individual has authority to waive this immunity. State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31.
Finally, there can be no doubt about this suit involving a property right of the State, and Sec. 14 of the Constitution "not only prevents a suit against the State, but against its officers and agents in their official capacity, when a result favorable to the plaintiff or complainant would directly affect a contract or property right of the State." Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234.
We are not to be understood as holding that a declaratory judgment proceeding is improper in an appropriate case. The facts alleged in the bill, together with the exhibits, show that appellant has no legal right which can be enforced against the State of Alabama other than by bringing a suit against the State or its officials and that result is contrary to Sec. 14 of the Constitution of 1901. No official duty has been unperformed, no ministerial act is involved, the constitutionality of no statute is involved, and no legal duty by any official is shown to be owed appellant.
The trial court correctly dismissed the action when it became apparent that it was a suit against the State.
Affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur. | July 8, 1971 |
74a412ba-dc05-42dd-8ca5-455b487ea296 | Brown v. State | 264 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 264 So. 2d 549 (1971)
In re Samuel BROWN
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
6 Div. 858.
Supreme Court of Alabama.
June 10, 1971.
*550 William J. Baxley, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.
Michael J. Romeo, Billy L. Church, Birmingham, for respondent.
MERRILL, Justice.
The decision of the Court of Criminal Appeals has been presented to us for review on the ground that it involves a question of first impression in the appellate courts of this state.
We cannot agree with the majority opinion of that court in the holding that the death sentence of the defendant, Samuel Brown, and by implication, similar sentences of other living defendants can be commuted to life sentences by that court, or that the failure of the legislature to change the place of execution from Kilby Prison, which was abandoned in January, 1970, to the new Holman Prison at Atmore, constitutes "psychological cruelty." No matters arising out of the trial of the case are presented to us.
The Constitution of Alabama of 1901, Amendment 38, provides in its opening sentence: "The Governor shall have power to grant reprieves and commutations to persons under sentence of death." In Montgomery v. State, 231 Ala. 1, 163 So. 365, this court had held that the power to grant reprieves, paroles, commutations of sentence, and pardons lay wholly within the power of the governor under Section 124 of the Constitution of 1901, and the legislature had no power to transfer or delegate that power to the courts. Amendment 38 retained the power in the governor to grant reprieves and commutations to persons under a death sentence, but did grant to the legislature the power to authorize the courts to exercise probation power. In re Upshaw, 247 Ala. 221, 23 So. 2d 861.
As Judge Almon points out in his excellent dissenting opinion, neither the trial courts nor the appellate courts of this state have any authority to modify or commute a death sentence properly imposed. Wilson v. State, 268 Ala. 86, 105 So. 2d 66; Scott v. State, 247 Ala. 62, 22 So. 2d 529. The Court of Criminal Appeals erred in attempting to commute the sentence in the instant case.
We cannot agree that the failure of the legislature to substitute the name of another prison for Kilby Prison as the place of execution constitutes psychological cruelty by any branch of state government in the case of the defendant or of the other persons now on "Death Row."
According to the records, the last execution in Kilby Prison was on January 15, 1965, when a white male was electrocuted as punishment set by a jury on the charge of murder in the first degree.
It is common knowledge in both lay and legal circles that cases have been working their way up through the federal courts and have been pending in the Supreme Court of the United States on the question of whether a death sentence is cruel and unusual punishment.
*551 It is also common knowledge that governors, or the appropriate authorities in every state which allows a death sentence, have granted reprieves while these cases have been making their way through the federal courts, and there have been no executions in any of the states or by the federal government since 1967.
No final commuting authority, be it a president, governor or other, cares to be faced with the possibility that he permitted an execution while the Supreme Court of the United States had cases before it presenting the question as to whether the death penalty be unconstitutional. For that single reason, we are confident that there will be no electrocutions in this or other states until the Federal Supreme Court has settled the question.
The "Death Rows" of practically all of the states which permit death sentences are full, 641 men and 7 women,[1] but if there is any psychological cruelty, it results in the failure of the Supreme Court of the United States to decide the federal constitutionality question rather than the failure of a legislature to designate a suitable place of execution in any particular state. We reject the application of the doctrine of psychological cruelty in this case.
We cannot agree that the legislature has, to this point, been too dilatory in this matter. The opinion of the lower court shows that the last inmates left Kilby Prison on January 21, 1970. The first regular session of the legislature since that abandonment convened on May 3, 1971 and recessed for three weeks. Bills amending Tit. 15, § 348, Code 1940 have already been introduced.[2] In view of the real reason why there have been no executions at Kilby or anywhere else since 1967, we do not agree that the legislature has been negligent in handling the question.
We do not agree that the legislative intent in designating, in 1923, that "The execution shall take place inside the walls of Kilby Prison at Montgomery" was or is so mandatory that when there is no Kilby Prison, there is an implied repeal of the death penalty in Alabama.
In 1923, the new Kilby Prison was reputed to be one of the finest in the nation, and it was the principal prison in Alabama. It was the first and only prison in this state to be equipped with an electric chair. We think it was named in the act because it was the name and location of the principal prison in the state, and we cannot give the words "Kilby Prison at Montgomery" some magical power to repeal the death penalty in Alabama.
Having reached the conclusion that our appellate courts cannot commute a death sentence, and the doctrine of psychological cruelty has no application in this case, we see no reason to decide the question of ex post facto or bills of attainder which are discussed in the majority and minority opinions of the Court of Criminal Appeals because no question involving a change in the law is before us at this time, nor was that question before the Court of Criminal Appeals. In view of the fact that the Court of Criminal Appeals has seen fit to write to the ex post facto question, we do note, in addition to the authorities cited by Judge Almon in his dissenting opinion, three cases implicitly or expressly bearing on that subject.
In Bachelor v. State, 216 Ala. 356, 113 So. 67, this court affirmed that electrocution was a valid punishment to a defendant, if resentenced, who had been sentenced to "be hanged by the neck until he is dead."
In Malloy v. South Carolina, 237 U.S. 180, 35 S. Ct. 507, 59 L. Ed. 905, it was argued that the act changing punishment *552 from hanging to electrocution was ex post facto because of a change of place and an increased number of witnesses were required. The court said, in part: "The statute under consideration did not change the penaltydeathfor murder, but only the mode of producing this, together with certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated."
And in State ex rel. Pierre v. Jones, 200 La. 808, 9 So. 2d 42, cert. denied 317 U.S. 633, 63 S. Ct. 64, 87 L. Ed. 510, an act providing that every sentence of death should be inflicted by electrocution was held not to be an ex post facto law because of its retrospective effect.
The judgment of the Court of Criminal Appeals is reversed insofar as it is in conflict with this opinion and the cause is remanded to that court.
Reversed in part and remanded.
All the Justices concur except HEFLIN, C. J., who does not participate for reasons herein stated.
HEFLIN, Chief Justice, did not participate in this opinion and decision, stating his reasons as follows:
At the present time, there is no effective statutory provision concerning the execution of a death sentence since Kilby Prison has been razed and the Legislature of Alabama has not authorized another place for such execution. Until the legislature acts, the prisoner in this case and others who have been sentenced to death cannot be electrocuted. Under such circumstances, I feel that the determination of the matters before this Court should be withheld pending the opportunity for the legislature to take some action. Should the legislature fail to act, many of the matters in this Court's foregoing decision may turn out to be interim decisions, and this Court may be confronted with problems and alternatives which could materially affect the matters decided in the foregoing opinion.
Since no useful purpose will be served by a speedy premature decision of this Court, I neither concur nor dissent. In my opinion, the better course of action is to withhold a decision on these matters until either the legislature acts or until, at least, the present regular session of the legislature ends, should it fail to take action.
[1] As of May 14, 1971
Source: Citizens Against Legalized Murder
[2] A bill passed the H. of R. on June 3, 1971 | June 10, 1971 |
d30f720e-6275-4fdb-a952-15d9abb9464f | Vander Wielen v. State | 251 So. 2d 246 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 246 (1971)
In re Louise VANDER WIELEN
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
1 Div. 682.
Supreme Court of Alabama.
July 22, 1971.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for petitioner.
C. Wayne Loudermilch, Mobile, opposed.
HARWOOD, Justice.
Petition of the State, by its Attorney General, for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Vander Wielen v. State, 251 So. 2d 240 (1 Div. 58).
Writ denied.
LAWSON, SIMPSON, MERRILL, MADDOX and McCALL, JJ., concur. | July 22, 1971 |
8ea4ca3d-d5d1-4dae-a961-300f3e08afdc | Kittrell v. Scarborough | 249 So. 2d 814 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 814 (1971)
J. E. KITTRELL et al.
v.
Nicholas Eugene Stallworth SCARBOROUGH et al.
1 Div. 670.
Supreme Court of Alabama.
June 24, 1971.
*815 Collins, Galloway & Murphy and Robert H. Smith, Mobile, for appellants.
Hamilton, Butler, Riddick & Latour, Mobile, for appellees.
MERRILL, Justice.
This appeal is from a decree fixing a disputed boundary line at the plat or map line between the coterminous owners. We affirm.
The appellees, residents of South Carolina, filed a bill of complaint against J. E. Kittrell and wife, charging that the respondents had placed four house trailers partially on their land; that this constituted a continual nuisance, encroachment and trespass, and that same should be abated or discontinued.
Respondents' answer claimed the property occupied under adverse possession for ten years, or by prescription of twenty years.
It is conceded by all parties that they are coterminous owners, that their record titles show that the south line of respondents' property is the north line of complainants' property and that the trailers do extend from a few feet up to more than twenty feet south over the surveyed map or plat line of the described lot owned by the respondents. There is no contest of the record title of the parties.
The trial court declared the true line to be the surveyed line between the lots according to the recorded plat or map and ordered respondents to remove the trailers from complainants' property and to discontinue any encroachment or trespass.
Appellants say in brief that "the only question to be decided on this appeal is whether or not the Kittrells through adverse possession by prescription of twenty (20) years, or by adverse possession of ten (10) years under Title 7, Section 828 are the owners of the disputed strip of land in question."
Appellees say in brief that the sole issue is whether or not the appellants-respondents in this case sustained the burden of proof which is imposed upon them to establish adverse possession.
The evidence stressed by appellants in the argument section of their brief would tend to support their contention. But there is other evidence which supports the finding of the trial court.
In Barbaree v. Flowers, 239 Ala. 510, 196 So. 111, this court said:
*816 In Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423, we said:
This "under claim of right" requirement appears in both Lay and McNeil cited supra.
Here, the complainants first learned of the possible encroachment in 1966 and they had the property surveyed by J. W. Rowe, a registered land surveyor, who testified at the trial. Another witness, Harold Ellis, testified that he was handling complainants' property in 1966, and after surveyor Rowe's survey, he talked to the respondents about it more than once; that on one occasion, Mr. Kittrell said that if necessary he would move the trailers off if the present tenant or a future owner needed the property; and on another occasion, Mr. Kittrell suggested that he get a price on the additional fifteen or twenty feet occupied by the trailers. He further testified that at no time did Mr. Kittrell ever claim to own the property; and that he wrote the tenant on complainants' property, who had an option to purchase, that Mr. and Mrs. Kittrell had indicated a desire to buy the small strip of land on which the trailers rested, particularly since permanent plumbing and wiring had been installed in the trailers.
Mrs. Kittrell did not testify, but Mr. Kittrell, on cross examination, when pressed as to his conversation with Mr. Ellis, did admit that he asked Ellis how much he would take for the property, and the following occurred:
In view of this positive evidence that the Kittrells' possession was not under a claim of right, we are convinced that the trial court did not err in finding that "the evidence adduced at the trial is insufficient to establish title in them by adverse possession, or by adverse possession for said prescriptive period, to any portion of Complainants' said property."
In Jones v. Wise, 282 Ala. 707, 213 So. 2d 914, we said:
Affirmed.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | June 24, 1971 |
96ce3370-6375-4319-a826-a304e6a4ed0d | Barnett v. Millis | 246 So. 2d 78 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 78 (1971)
Herman BARNETT et al.
v.
Jessie Mae MILLIS et al.
6 Div. 628.
Supreme Court of Alabama.
March 11, 1971.
*79 Asa C. Hartwig and James E. Thompson, Cullman, for appellants.
Knight & Knight, Cullman, for appellees.
LAWSON, Justice.
This is an appeal from a decree of the Circuit Court of Cullman County, in Equity, which established a boundary line between lands of appellants on the east and lands of appellees on the west, which lands are situated in the Southwest Quarter of the Southeast Quarter of Section 10, Township 10 South, Range 2 West, Cullman County, Alabama.
The complainants below, in their amended bill, alleged that they and the respondents below are coterminous landowners.
Paragraph 7a of the amended bill of complaint reads:
Appellants, respondents below, filed their answer admitting coterminous ownership; denying that the true line is as claimed by appellees; and alleging as follows:
Following a hearing at which the testimony was taken ore tenus, the trial court established a boundary line substantially as claimed by the complainants, appellees.
From that decree the respondents below appealed to this court.
We will allude to certain principles which have been established or recognized *80 in our cases which have dealt with boundary line disputes.
Equity has jurisdiction to determine disputed boundary lines.§ 2, Title 47, Code 1940; § 129, Title 13, Code 1940; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Smith v. Cook, 220 Ala. 338, 124 So. 898.
A boundary line between adjacent landowners which is not controlled by a government survey or subsectional lines located on the basis of a government survey may be changed by adverse possession. Morgan v. Larde, 282 Ala. 426, 212 So. 2d 594; Stokes v. Hart, 273 Ala. 279, 139 So. 2d 300; Whiddon v. White, 285 Ala. 109, 229 So. 2d 498; Sims v. Sims, 273 Ala. 103, 134 So. 2d 757.
The provisions of § 828, Title 7, Code 1940, to the effect that adverse possession cannot confer or defeat title to land unless the party claiming adverse possession shall show that a deed or other color of title has been recorded for ten years, or unless such party or those through whom he claims has assessed the land for taxation for a period of ten years, if the land is subject to taxation, have no application to cases involving a question as to boundaries between coterminous owners. Section 828, Title 7, supra, expressly so provides.Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845; Stokes v. Hart, supra; Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423; Smith v. Brown, 282 Ala. 528, 213 So. 2d 374.
In a boundary line suit the trial court should establish the true boundary line whether or not it is the one contended for by either party.Deese v. Odom, 283 Ala. 420, 218 So. 2d 134.
If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Sylvest v. Flowers, supra; Smith v. Brown, supra.
The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts and the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.Butts v. Lancaster, 279 Ala. 589, 188 So. 2d 548; Morgan v. Larde, supra.
The reason frequently given for that rule is that the trial court can better judge the credibility of witnesses by seeing and hearing them testify. That rule is particularly appropriate in this case because most of the witnesses were questioned about lines, locations, distances, monuments, culverts, fences and the like which appeared on a diagram which had been drawn on a blackboard.
The answers of the witnesses given in response to questions so propounded are meaningless to us, since we do not have the pointing finger or any information which enables us to determine the particular line, location, distance, monument, culvert or fence to which the witness referred. The trial court was not so limited. See Christian v. Reed, 265 Ala. 533, 92 So. 2d 881; Garrett v. Kirksey, 279 Ala. 10, 181 So. 2d 80; Williams v. Davis, 280 Ala. 631, 197 So. 2d 285.
We set out below a question which is typical of innumerable questions propounded to most of the witnesses who testified in this case:
After answering the last sentence of that question in the affirmative, the witness, upon being questioned in regard to the diagram, gave the following testimony:
The trial court at the request of counsel for the litigants made a personal inspection of the property of the complainants and respondents during the course of the trial. Following that inspection, the trial court interrupted the examination of several witnesses to ask questions which were clearly based on the court's familiarity with the lands of the parties litigant. Obviously, we are not positioned to evaluate the answers to those questions as was the trial court. See Fuller v. Blackwell, 246 Ala. 476, 21 So. 2d 617; Monroe Bond & Mortgage Co. v. State, 254 Ala. 278, 48 So. 2d 431; Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So. 2d 770. In view of the personal inspection of the premises by the trial court, the decree is reviewed here as if it were a verdict of a jury.McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160.
As we construe the record, several deeds were introduced in evidence by the respondents which are not included in the record sent to this court. We have said many times that where there was evidence before the trial court which is not before us, which may have influenced it in arriving at the conclusion it reached, we do not disturb that finding.Eaton v. Shene, 282 Ala. 429, 212 So. 2d 596, and cases cited.
It is apparent that the boundary line fixed in the decree under review was based on a finding by the trial court from the evidence adduced that the complainants acquired title to the strip of land in dispute by adverse possession.
It follows that the only question for our determination is whether the trial court erred to a reversal in so finding.
In view of the presumptions in favor of the trial court's findings of fact, to which we have alluded to above, and the absence from the record of evidence which was apparently before the trial court, we certainly cannot say that there is a clear, decided preponderance of the evidence against the conclusion reached by the trial court based on its findings from the evidence.Edwards v. Farmer, 285 Ala. 118, 229 So. 2d 507.
*82 A detailed discussion of the evidence would serve no useful purpose.§ 66, Title 13, Code 1940; Rowell v. McCollough, 270 Ala. 576, 120 So. 2d 729.
The decree under review is due to be affirmed. It is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, COLEMAN and MADDOX, JJ., concur. | March 11, 1971 |
b5a28801-58a6-4103-ba28-e91088d94976 | First National Bank of Birmingham v. Brown | 251 So. 2d 204 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 204 (1971)
The FIRST NATIONAL BANK OF BIRMINGHAM, Alabama, a National Banking Association
v.
Martha H. BROWN, as Executrix of the Estate of James Mitchell Brown, Deceased, et al.
6 Div. 828.
Supreme Court of Alabama.
July 29, 1971.
*205 John Self, Hamilton, for appellant.
Fite, Davis & Fite, Hamilton, for appellee Martha H. Brown, as Executrix of Estate of James Mitchell Brown, deceased.
Tweedy, Jackson & Beech, Jasper, for appellee Hamilton United Methodist Church, an Unincorporated Association.
McCALL, Justice.
The First National Bank of Birmingham, as executor and testamentary trustee, under the last will and testament of Ella Brown, deceased, appeals from a decree entered *206 by the circuit court, in equity, in a suit to contest the decedent's will.
Ella Brown's only heirs at law were two nephews, Rex Johnson Brown and James Mitchell Brown. By the terms of a trust created in her will, the testatrix directs the trustee Bank to distribute from the trust equal amounts of money in annual installments to each of her two nephews for life. Upon the death, respectively, of each nephew and that of his immediate heir or heirs, as the case may be, the trustee is directed to distribute that income to the Hamilton United Methodist Church of Hamilton, Marion County, Alabama.
James Mitchell Brown filed this suit in equity to contest Ella Brown's will on the grounds of mental incapacity and undue influence exercised over her, when she executed the instrument. In its answer, the Bank denied that the will was invalid, and denied each and every allegation of the grounds of contest.
After the contestant, James Mitchell Brown's death, his wife, Martha H. Brown, revived the pending suit in her name, as executrix under her deceased husband's will. General Acts Alabama, 1947, p. 543; Tit. 7, § 153(1), Code of Alabama, Recompiled 1958. Before a trial of the will contest, the court entertained Mrs. Brown's written petition, entitled "Petition of Consent to Settle Will Contest," to which she attached a proposed compromise, entered into by all parties interested in the decedent's estate, except the executor-trustee Bank. After hearing evidence ore tenus in open court, the court approved and adopted the proposed compromise and decreed, (a) the will of Ella Brown is null and void, (b) ordered the assets of the decedent's estate equally divided among the following: Martha H. Brown, as executrix of the estate of James Mitchell Brown, deceased, Rex Johnson Brown and Hamilton United Methodist Church of Hamilton, Marion County, Alabama, and (c) directed the expenses of the estate, including taxes, to be borne equally by the parties to the agreement, and to be paid prior to the distribution of the assets of the estate. The decree further ordered and directed the executor-trustee Bank to be discharged and to pay over to an administrator of Ella Brown's estate, yet to be appointed, all assets and all things of value. It further ordered an accounting by the Bank of its actions to be had within fifteen days from being furnished a certified copy of letters of administration, by a person, qualified as the administrator of the decedent's estate.
The court sanctioned compromise agreement also states that the parties considered the expenses of the pending litigation, the time involved in its disposition, the uncertainty of its outcome, and the question of the mental competence of Ella Brown to make a will, and that in consideration of those variables and their mutual covenants, they agreed and consented to adjust by compromise the pending suit, and further, that the parties felt that the court's approval of the compromise would be in the best interest of the estate and those interested in it.
There are a total of forty-one assignments of error. The appellant's argument, as we understand it, is that the contest of a will in chancery is in the nature of a proceeding in rem. It is to determine the status of the res; that is, whether there is a will or not, and not the rights of the parties. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Ex parte Walter, 202 Ala. 281, 283, 80 So. 119; Nesmith v. Vines, 248 Ala. 72, 26 So. 2d 265. With such a statement of law, we find no fault, but such neither disposes of nor conflicts with the issue here of the right of the parties to a will contest to settle and compromise the contest suit and thereby avoid protracted and expensive litigation.
Assignments of Error No. 16, 37, 38, 39, and 40. The case of Harris v. Harris, 211 Ala. 144, 99 So. 913, involved the settlement and compromise of a proceeding to contest a will in the probate court wherein the complainant *207 in equity sought to have annulled and vacated for fraud the order of the probate court which denied the probate of the decedent's will. The order was entered upon summary proof following a compromise during a second trial of the will contest. This court stated that there was no cause for complaint that the case was compromised. Extended and costly litigation was in progress. The Supreme Court observed:
This court also stated in Burleson v. Mays, 189 Ala. 107, 111, 66 So. 36, 38, a will contest case:
Again in Hodge v. Joy, 207 Ala. 198, 203, 92 So. 171, 176, we find this pertinent language in the court's opinion:
Although the above cases involve "family settlement" situations, the policy of fostering compromises is likewise applicable to nonfamily parties, if they would share in the estate under the will. Harris v. Harris, supra. Assignment of Error 18.
The termination of a trust by court approval of a compromise agreement proposed by the parties to the litigation is commented on in Bogert, Trusts and Trustees, 2d Ed., § 1009, p. 567 in the following language:
Attention is also given this subject in American Law Institute, Restatement (Second) of Trusts, § 337, p. 158 in the following comment:
In the Reporter's Notes found in the Appendix to this same work, § 337, p. 547, it is said:
As to a material purpose, Restatement of Trusts, § 377f. comments:
While the present case involves the validity of a compromise of a contest of a will wherein a testamentary trust is provided for, and while the courts of some jurisdictions hold that agreements ordinarily are not given effect where there is a trust or specific restriction placed upon the property by the terms of the will, 37 Ind.L.J. 529; 29 A.L.R.3d 45, it also has been said that where the heirs of the testator are beneficiaries of the trust, all of the heirs, being competent to contract, may eliminate the trust by an agreement made to settle a controversy concerning the validity of the will. White v. Bourne, 151 Fla. 12, 9 So. 2d 170; Budin v. Levy, 343 Mass. 644, 180 N.E.2d 74; In re McLean's Estate, 138 Neb. 752, 295 N.W. 270.
We can see no reason why, on the one hand, the court should favor and encourage compromises in disputes between parties in interest in the absence of fraud and under conditions of a bona fide will contest, Harris v. Harris, supra; Burleson v. Mays, supra; Hodge v. Joy, supra, and on the other hand, decline to apply the same reasoning and rule in a similar kind of contest, where the will in question involves a non-spendthrift testamentary trust providing for mere successive beneficiaries, and no other material purposes.
With this background of authority to point the way, we are constrained to hold that these parties were at full liberty to settle their differences. We point out that the attorney for the beneficiary church sensed that the contestant's pending court suit posed a bona fide issue as to the validity of the will, and was of sufficient concern to cause him to recommend the proposed compromise agreement to his client, rather than to have the church risk losing all, should the contestants prevail and the will be held invalid. Further, there were the matters of expense of trial, time involved, uncertainty of outcome, testamentary capacity of the decedent, and laws favoring compromises. The trial court heard evidence, and apparently considered it sufficient to find reasonable ground for a controversy because it entered an order or decree approving the proposed compromise. We will not reverse the trial court's conclusion, after its hearing the testimony orally and determining that reasonable grounds for disputing the validity of the will existed, unless plainly and palpably wrong, which we do not find to be the *209 case. Orton v. Gay, 285 Ala. 270, 231 So. 2d 305; Garrison v. Grayson, 284 Ala. 247, 224 So. 2d 606; Skinner v. Todd, 283 Ala. 279, 215 So. 2d 721.
We conclude that the forbearance to continue the contest, constitutes a sufficient consideration for the compromise. It is thus stated in 29 A.L.R.3d 37 that where one or more members of a testator's family believe that they have a good ground for contesting his will, and they will benefit financially if they defeat the will and receive their intestate shares of the estate, ordinarily they may lawfully agree to forbear a contest in consideration of a transfer or payment to them of a portion of the decedent's estate or a larger portion than is given to them by the will.
In Allen v. Prater, 30 Ala. 458, the court said that forbearance by a party to a pending suit to prosecute a right asserted therein, and the yielding up of the right, thus asserted, are a sufficient consideration for a verbal promise by the adverse party to pay a certain amount of money.
In Alabama, a disputed claim, for which there is a reasonable ground, is held to be sufficient consideration to support an agreement as to such subject, without regard to the fact that the claim would prevail at law. Allen v. Prater, 30 Ala. 458; Burleson v. Mays, 189 Ala. 107, 66 So. 36; Hodge v. Joy, 207 Ala. 198, 203, 92 So. 171. There must be some reasonable ground for the existence of the controversy in the settlement of which it was made. Allen and Wife v. Prater, 35 Ala. 169, 174; Allen v. Prater, 30 Ala. 458, 459; Prater v. Miller, 25 Ala. 320; Crawford v. Engram, 157 Ala. 314, 47 So. 712.
In Hodge v. Joy, supra, the husband claimed under the laws of descent and distribution, while the son and daughter of the decedent claimed under a lost will, proof of the existence of which was offered. By the will the father, son and daughter were each given an undivided third. To settle their difference and their dispute amicably they executed a written agreement that the father was entitled to a half and the children each a fourth interest in the decedent's properties. Commenting on the effect of the agreement, the court said that it was an extinguishment and surrender of all of the son's and daughter's rights under the will, taking in lieu thereof, by the writing subscribed by them.
Our conclusion and opinion is that once the compromise agreement is validly established among the parties in interest, those who would otherwise take under the will, relinquish their rights thereunder and they take in lieu thereof under the compromise agreement. Hodge v. Joy, supra. Harris v. Harris, supra, is to the same effect and further holds that the form of judgment or decree to be entered in such a case may itself be matter of agreement and compromise between parties sui generis properly represented. Such being the law's expression, and both the will and compromise agreement being incapable of effectual co-existence, one necessarily must prevail over the other. We see no reason why the court could not, as it did, declare the inevitable results, that the will becomes null and void, when the parties in interest enter upon a validly executed compromise agreement which is in lieu of the will.
The court's approval of the compromise agreement was sought in this case by way of a Petition of Consent to Settle Will Contest. We find in Bogert, Trusts and Trustees, 2d Ed., § 994, p. 437, the following statement on the power of the court to approve an agreement:
*210 Appellant's demurrer to the Petition of Consent to Settle Will Contest assigns several grounds most of which vary in form, but are general in nature and effect in that they go to test the general equity of the petition. For the reasons heretofore stated, we think that the petitioner as a party, interested under the compromise agreement, has a right to have determined any question of construction or validity, arising under that agreement, and that the court has the power to declare the rights, status and other legal relations of the parties under that agreement. These matters give the petition equity, when filed in an equity proceeding. As to any other criticisms of the petition, raised by the demurrer, we do not find them mentioned in appellant's brief. There was no error in overruling the demurrer. Assignment of Error 5.
Other than serving as a fiduciary, the trustee Bank has no interest in the decedent's estate. It was not a devisee or legatee under the will, or the owner of any interest in her estate. As a trustee and personal representative, the Bank has the duty of defending the integrity of the trust, if it has reasonable ground for believing that the attack is unjustified or if it is reasonably in doubt on that subject, Bogert, Trusts and Trustees, 2nd Ed., p. 207, and the authority to administer the decedent's estate according to the will, not to participate by sharing in it. The Bank was already a party respondent to the bill to contest, in which proceeding the petition was filed, and such fact was averred in the Consent to Settle Will Contest. It was duly served with a copy of the petition to compromise the contest. On this, there was a court hearing, participated in by the Bank. The Bank's rights as trustee were protected, but it had no such interest as made it necessary for it to sign the compromise agreement, entered into by the beneficiaries and heirs. Assignment of Error 12.
Although the appellant made no objection to the introduction and admission in evidence of the compromise agreement, entitled "Consent to Settle Will Contest," it contends now, as it did in the trial court, that the Board of Trustees was without power and authority to execute the agreement unless directed by the Charge Conference of the church. We have consulted the pertinent parts of the Church Discipline, found in the record, and conclude therefrom that while the Charge Conference is vested with power and authority to direct the Board of Trustees in such a matter as is presented, its direction is discretionary and not mandatory toward the trustees' acting. There was testimony that the Board of Trustees had full authority to act in behalf of the church in such matters, and further the Discipline of the church provides that the trustees of the church have the same authority as a board of directors of a corporation. Such entity has statutory authority to manage the business and affairs of the corporation, except as may be otherwise provided in the certificate of incorporation. Tit. 10, § 21 (24), Code of Alabama, Recompiled 1958. Under this evidence, the question of the authority of the Board of Trustees to act was one of fact for the court to decide, and there being evidence to support the court's holding that the Board had such power and authority, we will not interfere with its action. Assignments of Error 31, 32.
The appellant objected to a question asked Mrs. Brown, a witness, as to whether or not she had examined the Consent to Settle the Will Contest. While the objection was overruled, the question went unanswered by the witness. No error resulted from this ruling. Plott v. Foster, 7 Ala.App. 402, 62 So. 299, Cravey v. Covington County Bank, 17 Ala.App. 113, 82 So. 561; 4A C.J.S. Appeal and Error § 1169a(3), p. 1277. Assignment of Error 27.
The appellant's Assignment of Error 19 is that the Consent to Settle Contest of Will fails to set forth the interest of *211 each of the parties to the settlement. We have examined the petition to which the Consent to Settle Contest of Will is attached and made a part. We find that the interest of each party is clearly stated. If the compromise agreement includes parties that are not parties under the will, such would not be objectionable, because the very purpose of the proceeding before the court is to obtain approval of the compromise agreement in lieu of the will. There is no merit in Assignments of Error 20, 21, 22, 23.
The witness, Leon Raley, was asked on direct examination whether or not there were present at the church meeting more than half the number that were given notice to attend. The appellant's contentions are that the question calls for a conclusion of the witness, a self serving answer and is leading. We do not think that the question was subject to any of these grounds of objection. (Assignment of Error 28.) Appellant's objection to the introduction of the minutes of the church meeting did not come until sometime after they had been admitted and was too late. Salter v. Cobb, 264 Ala. 609, 614, 88 So. 2d 845; Gilbreath v. Gilbreath, 278 Ala. 289, 294, 177 So. 2d 915; Strickland v. Strickland, 285 Ala. 693, 235 So. 2d 833. Assignment of Error No. 29. The testimony of the witness Ballard that some additional stewards came in after the meeting began was not objectionable on the ground of being a conclusion of the witness. It was a statement as to an express fact about which the witness professed knowledge. Assignment of Error 30.
There is no merit in appellant's assignment that Martha H. Brown was without authority to sign her daughter's name to the compromise agreement under the power of attorney, which was admitted in evidence without objection. In pursuance of this power, the mother executed the compromise agreement as the act of her daughter, and no objection was interposed to the mother's signing the agreement for her daughter, when it was admitted in evidence. Assignment of Error 41.
At the conclusion of the appellee Martha H. Brown's case, the appellant made an oral motion to dismiss the Petition to Settle the Will Contest on the grounds that the petition had not been proved, the validity or the invalidity of the will had not been decided, and an actual existing controversy between the parties had not been shown. In view of what we have said in the foregoing, we find no merit in any of the grounds of this motion, and we conclude that the trial court did not err in denying it. Assignments of Errors 6, 7, 10, 11.
The appellant's Assignment of Error No. 13 reads as follows:
Appellant's argument presented in his brief on this assignment is: "Propositions No. 11 and 13 affirmatively show that the petitioner must prove the allegations of the Petition of Consent to Settle Will Contest." Proposition No. 11 states: "To authorize relief in equity the allegations and proof must correspond, and no matter how just the demand established by the proof, if it does not harmonize with the allegations of the bill, the complainant is not entitled to relief. W. T. Smith Lumber Co. v. Foshee, 277 Ala. 71, 167 So.(2d) 154." Proposition No. 13 states: "To put complainant to proof of averments of bill, they must be denied. P[r]owell v. Wilson, 219 Ala. 645, 123 So. 38. Sylvest v. Stowers, [276 Ala. 695,] 166 So. (2d) 423." Appellant's argument is no more than a statement that the allegations and proof must correspond, and that they fail to do so. Assuming without deciding the sufficiency *212 of this assignment of error, the appellant has not substantially argued the assignment of error as required by Supreme Court Rule 9. Holley v. Josey, 263 Ala. 349, 82 So. 2d 328; Morgan v. Cherokee Co. Bd. of Educ., 257 Ala. 201, 58 So. 2d 134; Alsup v. Southern Mfg. Co., 248 Ala. 405, 27 So. 2d 781. The assignment of error likewise alleged a failure to prove each and every allegation of Aspect Four. The appellant has not pointed out wherein the evidence was insufficient or lacking in harmony with the allegations of paragraph number four of the bill. While we do not purpose to impose an unduly strict construction of Supreme Court Rule 9, there must be a substantial argument of the assigned error, so that the court may ascertain from the brief the point relied on for a reversal. Wilson v. McClendon, 259 Ala. 382, 66 So. 2d 924; Propst v. Brown, 250 Ala. 282, 34 So. 2d 497; Wetzel v. Hobbs, 249 Ala. 434, 31 So. 2d 639. The same insufficiency of argument exists with respect to Assignments of Error 14 and 15 where each argument adopts the so-called argument offered under Assignment of Error No. 13.
Assignments of Error No. 1, No. 2, and No. 3 are, respectively: "For that the decree and judgment is contrary to the law," "* * * contrary to the facts in the case," and "* * * contrary to public policy." Such assignments of error have been held to be too general and will not be considered on appeal. Jones v. Wise, 282 Ala. 707, 213 So. 2d 914; Franklin v. State, 275 Ala. 92, 152 So. 2d 158; N.A.A.C.P. v. State, 274 Ala. 544, 150 So. 2d 677, rev'd on other grounds, 377 U.S. 285, 84 S. Ct. 1302, 12 L. Ed. 2d 325. For the same reasons Assignment of Error No. 4 is too general. It charges: "For that the decree and judgment is not sustained by the great preponderance of evidence and is contrary to both the law and the facts." Department of Pensions and Security v. Simms, 275 Ala. 61, 152 So. 2d 126; Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So. 2d 255; Thornton v. Tutt, 283 Ala. 72, 214 So. 2d 425.
Assignments of Error No. 26 and No. 33 are not argued and are therefore waived, Supreme Court Rule 9. Valley Heating, Cooling & Elec. Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So. 2d 470.
Assignment of Error No. 8 is as follows:
The three foregoing assignments are defective, if for no other reason, because the assignments are not predicated on adverse rulings of the trial court. When an assignment is not so predicated on an adverse ruling of the trial court, it will not be considered. State v. Dempsey, 286 Ala. 397, 240 So. 2d 361; Tyson v. U. S. Pipe & Foundry Co., 286 Ala. 425, 240 So. 2d 674; Biddy v. Biddy, 284 Ala. 68, 222 So. 2d 162. The same objection may be said of Assignments of Error 34 and 35.
In the case of Hubbard v. Cornutt, 278 Ala. 512, 514, 179 So. 2d 90, 93, the opinion states:
Assignments of Error 24 and 25 are to the effect that the court erred in failing to recognize that certain parties to the settlement should be estopped from entering into the settlement. We think these two assignments fall within the category of assignments disapproved above and therefore will not be considered.
Assignment of Error 36 is to the effect that the court's decree is not sustained by the great weight of the evidence and facts in the case. Unless the decree is plainly and palpably contrary to the weight of the evidence, it will not be disturbed. Deese v. Odom, 283 Ala. 420, 218 So. 2d 134; Butts v. Lancaster, 279 Ala. 589, 188 So. 2d 548; Talbot v. Braswell, 266 Ala. 578, 98 So. 2d 7; Lovelace v. McMillan, 265 Ala. 290, 90 So. 2d 822. If under any reasonable aspect of the case, the decree is supported by credible evidence, then it is due to be affirmed. Rodgers v. Thornton, 254 Ala. 66, 46 So. 2d 809; Lott v. Keith, 286 Ala. 431, 241 So. 2d 104.
We have considered this case carefully and conclude that there is no error in the record. The decree of the trial court is due to be and hereby is affirmed.
Affirmed.
HEFLIN, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | July 29, 1971 |
a5690f77-b687-4e2e-b2f2-2304f55b0c39 | Rogers v. Smith | 248 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 248 So. 2d 713 (1971)
Henry ROGERS
v.
Alfred SMITH et al.
4 Div. 386.
Supreme Court of Alabama.
May 27, 1971.
*714 W. H. Albritton, J. Fletcher Jones, Andalusia, for appellant.
James M. Prestwood, Andalusia, for appellees.
HEFLIN, Chief Justice.
The question involved in this appeal is the following: Where a deed reformation suit has a jurisdictional defect due to the absence of necessary parties, can this defect be first raised in an appeal from a final decree involving a bill in the nature of a bill of review which seeks to review the final decree in said deed reformation suit on other grounds? This Court says yes.
This is an appeal from a final decree of the Circuit Court of Covington County, Alabama, in Equity, denying relief to Henry Rogers (appellant-complainant) on his "bill in the nature of a bill of review" which sought to review the final decree in Case No. 6840 which reformed a deed from Henry Rogers to Alfred Smith (one of the appellees, a respondent in the review case below, and the complainant in the deed reformation case).
The essential facts in sequence follow.
On January 9, 1963, Henry Rogers conveyed an undivided one-half (½) interest to Alfred Smith in fee and an undivided one-half (½) interest to John Fisher, for and during his natural life, and on his death, in fee to the children of said John Fisher and wife, Teressa Fisher (Joseph, John and Joyce Fisher) in the following described real property located in Covington County, Alabama:
On December 20, 1963, Alfred Smith conveyed the remainder interest to Warren Lee Smith and wife, Pearl Smith, reserving a life estate interest to himself in his undivided one-half (½) interest to the heretofore described real estate.
On September 30, 1966, Alfred Smith filed said Case No. 6840 on the equity side of the Covington County Circuit Court against Henry Rogers, praying that the deed which Henry Rogers had given him be reformed so that there be conveyed to him an undivided one-half (½) interest in Lots One (1), Two (2), Three (3) and Four (4) in said Block 53, contending this was the intent of grantor Rogers. It should be noted that Lot One (1) was not mentioned in said deeds. The bill of complaint averred that respondent Rogers was a nonresident whose address at that time could not be ascertained. Service of process on Henry Rogers was obtained by publication.
On December 9, 1966, Alfred Smith moved for and was granted a decree pro confesso.
On January 26, 1967, Alfred Smith amended his bill averring that Henry Rogers had intended to convey the North *715 One-Half of Lots One (1), Two (2), Three (3) and Four (4) in said Block 53 instead of the description contained in the original deed from Henry Rogers to Alfred Smith and prayed relief accordingly. On the same date, the lower court entered a decree reforming the description in the deed to conform with the complainant's prayer in his amended bill of complaint. John Fisher, Joseph Fisher, John Fisher, Jr., and Joyce Fisher were not made parties to the deed reformation suit and neither were Warren Lee Smith nor his wife, Pearl Smith.
On June 30, 1967, Alfred Smith conveyed to Fred Smiley the North One-Half of Lots 1, 2, 3 and 4 in said Block. On August 11, 1967, Fred Smiley and wife, Jean Smiley, mortgaged the North One-Half of Lots 1, 2, 3 and 4 in said Block to the First Federal Savings & Loan Association of Andalusia.
The bill in the nature of a bill of review was filed by Henry Rogers on May 29, 1968, naming as respondents Alfred Smith, his wife, Annie Mae Smith, Fred Smiley, Jean Smiley and First Federal Savings & Loan Association of Andalusia. The said bill sought to set aside and hold for naught the final decree of the Circuit Court of Covington County, Alabama, in the deed reformation suit (Case No. 6840) alleging fraud in the procurement of service upon Henry Rogers. Demurrers by the respondent (appellees here) were overruled. The Alfred Smiths and Smileys thereupon answered by a general denial. The answer filed by First Federal Savings & Loan Association of Andalusia was amended to disclaim any interest as mortgagee in the North One-Half of Lots 2, 3 and 4 because, by virtue of an instrument which it had executed, it had released said lots from its mortgage. First Federal through its amended answer claimed a mortgagee's interest in the North One-Half of Lot One (1).
On June 30, 1969, the trial court on pleadings and proof taken ore tenus entered its final decree from which the instant appeal was perfected. In said decree, it was found that the appellee-respondent Alfred Smith could have and should have attempted service on Henry Rogers in Case No. 6840 by registered mail before resorting to service by publication (holding, in effect, that Alfred Smith knew the whereabouts of Henry Rogers at the time service was obtained by publication); that the final decree entered in said Case No. 6840 (deed reformation suit) accomplished the intent of Henry Rogers at the time of the execution of the deeds on January 9, 1963, in so far as said deeds related to respondent Alfred Smith; that "since the decree entered in Case No. 6840 apparently accomplished the intent of respondent, Henry Rogers, in that case and the complainant in this case, the court found that any fraud on the part of Alfred Smith was not done to knowingly and actually defraud Henry Rogers." Based on these findings, the lower court determined that appellant Henry Rogers was not entitled to have the final decree entered in the deed reformation suit set aside.
During the trial in the lower court, no issue was presented to the learned trial judge pertaining to the absence of Warren Lee Smith, Pearl Smith and the Fishers as necessary parties in the deed reformation suit.
Appellant assigns as error, among other things, the absence of John Fisher, Joseph Fisher, John Fisher, Jr., Joyce Fisher, Warren Lee Smith and Pearl Smith, as necessary parties in the deed reformation suit (Case No. 6840).
Although there were no allegations in the bill in the nature of a bill of review pertaining to the absence of necessary parties in the deed reformation suit (Case No. 6840), the record shows that a deed was offered and received in evidence in the trial below by which Alfred Smith, on December 20, 1963, conveyed an undivided one-half (½) interest in and to Lots 2, 3 and 4 of said Block 53 to Warren Lee *716 Smith and Pearl Smith reserving unto himself a life estate in said property. Evidence pertaining to the deed to the Fishers was also introduced. It is by virtue of such evidence that the failure to join said Warren Smiths and said Fishers as necessary parties in the deed reformation suit is noticed.
This Court, as then constituted, in Rollan v. Posey, 271 Ala. 640, 645, 126 So. 2d 464, 465, stated the law of this state pertaining to the absence of parties in the following language:
In McMaken et al. v. McMaken, supra, the contention was made that the issue of the absence of a necessary party could not be made in the Supreme Court, when the issue was not raised in the lower court. In answer thereto, the court stated:
In the case of Harris v. Johnson, 176 Ala. 445, 448, 58 So. 426, this Court, as then constituted, held that the absence of indispensable parties necessitated the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment, even though no notice was taken in the court below of the omission of parties. The recent case of Board of Trustees of Employees' Retirement System of the City of Montgomery, Alabama, v. Talley, 286 Ala. 661, 244 So. 2d 791, 1971, is to the same effect.
*717 This Court has previously ruled that the absence of necessary parties in a deed reformation suit is cause for ex mero motu reversal action by the appellate court. See O'Rear v. O'Rear, 219 Ala. 419, 122 So. 645. All parties whose interest in the subject matter, legal or equitable, will be immediately or consequently affected by the decree are necessary parties to a suit for reformation of an instrument. Leigeber v. Scott, 263 Ala. 507, 83 So. 2d 246.
On January 9, 1963, when Henry Rogers deeded an undivided one-half (½) interest in said property to Alfred Smith, he, by another deed, vested a life estate interest in John Fisher and the remainder interest in Joseph Fisher, John Fisher and Joyce Fisher to the other undivided one-half (½) interest in Lots 2, 3 and 4 in said Block 53. It is inescapable that under the last above-stated rule the Fishers are necessary or indispensable parties to the deed reformation suit. The same is true of Warren Lee Smith and wife, Pearl Smith. Therefore, a decree reforming a deed which affects the interests of such parties should not be allowed to stand where these necessary parties had no opportunity to appear and let their positions be known. It is clear that proper disposition of the cause on its merits could not be made without their presence.
In Holland v. Flinn, 239 Ala. 390, 195 So. 265, this Court stated that the absence of necessary parties under the Declaratory Judgment Act was a jurisdictional defect, and further that regardless of such statute the presence of necessary parties is jurisdictional. This holding was quoted with approval in the case of City of Mobile et al. v. Gulf Development Co., Inc., 277 Ala. 431, 440, 171 So. 2d 247.
A judgment or decree is not binding on anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause. See Farrell v. Farrell, 243 Ala. 389, 10 So. 2d 153. The decree of a trial court which has not obtained jurisdiction over necessary parties is void. Board of Trustees of Employees' Retirement System of the City of Montgomery, Alabama, v. Dorothy Carr Talley, supra.
Thus the absence of necessary or indispensable parties in the deed reformation suit is a jurisdictional defect and this Court holds that such defect can be brought to the attention of an appellate court on appeal from a decree involving a bill in the nature of a bill of review even when it was not called to the attention of the trial court.
Since this cause must be reversed, it is not necessary to determine the issue pertaining to the alleged fraud in the matter of service of process by publication and the effect of such alleged fraud under the findings of the final decree.
This cause is reversed and remanded with directions to the trial judge to set aside and hold for naught the decree of the court in the deed reformation case (Case No. 6840) but without prejudice.
Reversed and remanded with directions.
SIMPSON, COLEMAN, BLOODWORTH and McCALL, JJ., concur. | May 27, 1971 |
a7828add-7f94-4aa0-90e8-94462343faab | Beasley v. MacDonald Engineering Co. | 249 So. 2d 844 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 844 (1971)
Joseph Riley BEASLEY
v.
MacDONALD ENGINEERING CO., a Corp., et al.
6 Div. 709.
Supreme Court of Alabama.
June 30, 1971.
*845 William M. Acker, Jr., Francis H. Hare, and Edward L. Hardin, Jr., Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, Birmingham, for appellee MacDonald Engineering Co.
Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee Liberty Mut. Ins. Co.
James E. Simpson, Birmingham, for appellee Alabama Gas Co.
C. A. Stewart, Jr., and Robert B. Huie, Birmingham, for appellee Raybestos Manhattan, Inc.
London, Yancey, Clark & Allen and Braxton W. Ashe, Birmingham, for appellee Band-It Co., Inc.
Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellees Mason & Dulion Co., Inc. of Alabama and Sullivan, Long & Hagerty. Inc.
SIMPSON, Justice.
On rehearing, the original opinion is withdrawn and the following is substituted therefor as the opinion of the court.
This appeal is from a final judgment of nonsuit entered by the Circuit Court for the Tenth Judicial Circuit on April 18, 1969.
The appellant (plaintiff) filed suit in the Circuit Court for the Tenth Judicial Circuit against MacDonald Engineering Company; F. L. Smidth Company; Raybestos-Manhattan, Inc.; Sullivan, Long & Hagerty, Inc.; Mason & Dulion Co., Inc. of Alabama; Band-It Company, Inc.; Alabama Gas Corporation; and Liberty Mutual Insurance Company, seeking to recover damages for injuries which he sustained in an explosion of natural gas occurring near the lime kiln where he was working at the Powderly plant of Alpha-Portland Cement Company in Birmingham, Alabama.
The plaintiff was not an employee of any of the named defendants. Each defendant was charged with a particular act of negligence, alleged to have combined and concurred to proximately cause plaintiff's injuries. Basically, the allegations were that a section of defective rubber hose contained within a badly designed fuel injection system became disconnected, causing the natural gas to suddenly escape and explode. F. L. Smidth & Company is out of the case on a motion to quash service, the plaintiff not complaining here of that ruling. Stated generally the claims against the defendants, MacDonald Engineering; F. L. Smidth; Raybestos-Manhattan; Sullivan, Long & Hagerty; Mason & Dulion; and Band-It Company are all based upon a theory of manufacturer's liability. The claim against Liberty Mutual is based upon its undertaking to provide safety engineering at the Alpha-Portland premises. The claim against Alabama Gas is based on allegations of its failure to warn of an obvious defect after direct access to the defect by an expert employee of Alabama Gas.
I. We look first to the Liberty Mutual case.
Resolution of the issues with respect to Liberty Mutual requires two determinations:
First, whether the plaintiff has stated a valid common-law action against Liberty Mutual in this case; second, if so, whether the plaintiff's cause of action against Liberty Mutual had been taken from him by the Alabama Workmen's Compensation Act.
We see no occasion to refer to the averments of each of the four counts of the *846 amended complaint. Plaintiff's cause of action against Liberty Mutual is stated in Count Four of the amended complaint in the following language:
It is the contention of Liberty Mutual, as raised by its demurrer, that the complaint herein is defective in that it does not allege any common-law or statutory duty owed by Liberty Mutual to the plaintiff in these circumstances. The question is, as we see it, whether or not the complaint states a cause of action under the common law arising from the negligent performance of a voluntary undertaking.
This theory originated with the case of Coggs v. Bernard, 2 Lord Raymond 909. Since then it has come to be recognized that liability can arise from the negligent performance of a voluntary undertaking. This state, at least as early as 1911, recognized that "`when a person undertakes an employment, which requires care and skill, whether for reward or not, a failure to exert the measure of care and skill appropriate to the measure of such employment is negligence for which an action will lie.'" Parker & Bro. v. Hodgson, 172 Ala. 632, 635, 55 So. 818, 819. There it was held that while an excavator on an adjoining lot was not under a duty "`to brace, underpin or otherwise protect the walls of buildings on adjoining lands' * * * yet if he `undertakes to do this, *847 he is liable for failure to use reasonable skill and care in the performance of the work.'" Citing 18 Cyc. 550; City of Covington, etc. v. Geyler, etc., 93 Ky. 275, 281, 19 S.W. 741. To like effect is Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932), where a count was held good against demurrer where the "gravamen of the count is the negligence of the defendants in performing the work which they voluntarily undertook, and as a proximate consequence of such negligence the plaintiff suffered injuries." This court went on to say,
This rule has been stated by the American Law Institute, Restatement of the Law, Second, Torts 2d, § 324(a), as follows:
In this case it is not questioned that the employer, Alpha-Portland, owes a duty to its employees to provide a reasonably safe place to work. It is not disputed that Liberty Mutual was not under any obligation to undertake this duty itself. However, it is alleged that Liberty Mutual did undertake to inspect the premises for safety and to provide safety inspections. Having done so, under the common law as expressed in our cases, Liberty Mutual was under a duty to use due care in the performance of this undertaking. As Justice Cardozo said, "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425.
It was in recognition of this common-law theory of liabilityi. e., that one who volunteers to act though under no duty to do so, is thereafter charged with the duty of acting carefullythat legislatures have passed the so-called Good Samaritan statutes abrogating the common law in certain circumstances. These statutes immunize volunteers acting gratuitously from any common-law liability for their acts or omissions at the scenes of accidents or in emergencies. See Title 7, § 121(1). Were there no common-law liability, there would be no need for such legislation.
It is agreed that Alabama has not heretofore had occasion to apply these principles in a case like the present one. Other jurisdictions have. In Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N.E.2d 769 (1964), the Supreme Court of Illinois considered the question in a case where the complaint alleged that American Mutual Insurance Company (the Workmen's Compensation carrier) had gratuitously undertaken to make safety inspections of the practices and equipment of its insured (plaintiff's employer) and had carelessly and negligently performed the inspections, as a proximate consequence of which the *848 plaintiffs were injured and killed. The court said:
Cases so holding include: Smith v. American Employers' Insurance Co., 102 N.H. 530, 163 A.2d 564; Hartford Steam Boiler Inspection & Insurance Co. v. Pabst Brewing Co. (7th Cir.) 201 F. 617; Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472; Sheridan v. Aetna Casualty & Surety Co., 3 Wash. 2d 423, 100 P.2d 1024; Bollin v. Elevator Construction & Repair Co., 361 Pa. 7, 63 A.2d 19, 6 A.L.R. 2d 277; Fabricius v. Montgomery Elevator Company, 254 Iowa 1319, 121 N.W.2d 361.
As stated by Judge Godbold of the U. S. Court of Appeals for the 5th Circuit, "There is no doubt but that a private corporation is liable when it undertakes a duty of inspection, negligently performs that inspection, and the negligent performance causes injury to another." Hill v. U. S. F. & G., (5 Cir. 1970) 428 F.2d 112 (Ms.).
We believe these cases are consistent with Alabama law on the question of common-law liability. Some courts, as did the Illinois Court in Nelson, supra, have discussed the ancient distinction between misfeasance and non-feasance, a generally discredited distinction and one which does not concern us here. The allegation is that of misfeasance in this case. Here, as in Nelson, the theory is that the defendant, Liberty Mutual gratuitously undertook to make safety inspections at the plant of Alpha-Portland, and that it negligently performed these inspections, so that plaintiff was injured. This allegation charges misfeasance.
Nor need we tarry on the question of whether plaintiff must allege reliance. He has done so here. Any discussion of whether such an allegation is necessary would be mere dictum.
This brings us to the consideration of the next issue with respect to Liberty Mutual:
B. Has the Alabama legislature abrogated this common-law action by enacting the Alabama Workmen's Compensation Act?
The common law of England is the rule of decision in Alabama except as it may be altered or repealed by the legislature. Title 1, § 3, Code of Alabama.
It is earnestly insisted by Liberty Mutual that the Alabama statute by its language has immunized Liberty Mutual from liability in a suit by an employee injured in the course of his employment, because the employer, Liberty Mutual's insured, is no longer liable for that liability. In other words, Liberty Mutual's contention is that it stands in the shoes of Alpha-Portland in this case. Of necessity this compels a construction of this statute. So viewed, the action taken by other courts faced with the same question under other statutes, though helpful, is not overly persuasive.
To begin, it is contended by Liberty Mutual that the Alabama statute disposes of the issue because its language unmistakably identifies the carrier with the employer. Title 26, § 262(d), the definition portion of our statute, provides
Section 272, the exclusive remedy section, is as follows:
Section 312:
If the plaintiff's common-law remedy against Liberty Mutual has been legislated away, it is because § 262(d) requires the conclusion that "employer" as used in § 272 and § 312 includes the insurer. We are not persuaded that such a construction of § 272 or § 312 is dictated by § 262(d).
The first court faced with the question in a case involving alleged negligence in safety inspections was New Hampshire in Smith v. American Employers' Insurance Co., 102 N.H. 530, 163 A.2d 564 (1960). There the defendant insurer had conducted monthly inspections of the employer's plant, including the tank which exploded causing plaintiff's injuries. It was conceded that a common-law action had been stated, the court stating "* * * it is a basic principle of our jurisprudence that one who undertakes to act, even gratuitously, may be liable to persons injured by his failure to use due care". The defendant, however, contended that the New Hampshire Workmen's Compensation statute deprived the plaintiff of her right to proceed at common law against it. The New Hampshire statute, like ours, allowed the employee to proceed with any common-law remedy against "some person other than the employer". The court held that the insurance carrier was a person "other than the employer" and that the suit would lie. The court failed to find any legislative intent to abrogate the common-law remedy against the insurance company.
Following Smith, the Iowa Court considered in Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.W.2d 361 (1963) the same questionan action against the insurer for negligent inspection gratuitously undertaken.
There the court said:
The Iowa Court found the Iowa statute deficient in expressing clearly an intention to take away a common-law right and sustained the cause of action under the familiar rule of statutory construction admonishing against construing a statute to abrogate the common law unless that result is required by its language. Not all Workmen's Compensation statutes are unclear in this regard. Among those that virtually dispose of the issue are the following:
There are a number of statutes which define employer in the same manner as the Alabama one, viz., "The term `employer' * * * shall if the employer is insured, include his insurer as far as applicable", e. g., Delaware [Del.Code Ann., Title 19, § 2301 (1953)]; Georgia [Ga.Code Ann., § 114-101 (1956)]; Virginia [Va.Code Ann., § 65.1-3 (1950)]. Virginia courts, however, have limited the third party suits in cases like this to "a stranger to the business".
The Nelson case, supra, was decided by the Illinois Court in 1964. After concluding that a common-law remedy existed, the court then turned to the insurer's contention that Florida's (under whose law the case was tried) Workmen's Compensation Act gave it immunity from suit as a third-party tort-feasor. It was observed that the question depended on whether there was anything in the Florida Act which deprived plaintiffs of their rights. The Florida statute expressly preserved (like ours) to an injured employee a concurrent remedy against a third-party tort-feasor, without defining who was a "third party". The court concluded that under ordinary rules of statutory construction, it could not read into the statute a provision which was in derogation of the common law. The court said:
The court went on to note that in some sections of the act the alternative phrase "employer or his insured" was used, including the section preserving an action against third parties (the section equivalent to our § 312). The court found a lack of legislative intent to equate the employer and insurer for all purposessince the alternative phrase was not used in the exclusive remedy section, nor the definition section.
Here it is urged that since § 262(d) of our statute defines "employer" to include his insurer insofar as applicable, this evinces a legislative intent to extend the exclusive remedy to the insurer. We cannot agree. If the legislature had intended § 262(d) to require reading the word "employer" to include "his insurer" for all purposes wherever the word employer was used in the Alabama Act, there would have been absolutely no necessity for amending § 312, extending to the insurer subrogation rights which had been given to the "employer" to begin with. In other words, it took an amendment to the statute to make "employer" include insurer in this section, notwithstanding the definition of that word in the original enactment in § 262(d) (1939 amendment).
In Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27, the insurer argued for immunity under the Pennsylvania Act providing:
A majority of the court interpreted the act to mean that the definition of the act in the quoted provision extended throughout the act, including the employer immunity section. The majority admitted, however, "that the question is not free from doubt on the face of the statute".
The question is not free from doubt on the face of the Alabama statute. But it is because of that doubt that we are not free to adopt the construction urged by Liberty Mutual. There is a presumption that the legislature did not intend to make any alteration in the law beyond what it declares either expressly or by unmistakable implication. Ala.Dig., Statutes, 222.
The majority opinion in the Brown case was impressed by the fact that several jurisdictions had reached a similar result, i. e., finding immunity under various statutes. As noted in the dissenting opinion in Brown "that argument [counting jurisdictions] is never a particularly powerful one and is even less so in this case where a particular state's statute must be construed".
Perhaps the numerical majority of courts considering this question have found a legislative intent to equate the employer and insurer for purposes of immunity from common-law liability. The cases are of limited value to us in construing our own statute, and most of them take what has been called a "conceptual" approach to the problem, as we have done. That is, these cases turn on the language of the statutes and the court's conclusion that the carrier was meant to be assimilated with the employer. See Larson, Workmen's Compensation Insurer as Suable Third Party, 1969 Duke Law Journal 1117. Other courts have reached a different result according to this author by taking a functional approach, deciding the case on the basis of the function performed by the carrierwhether it is a duty imposed by the statute or not.
We are impressed with the reasoning of Prof. Larson. The role of the insurance company in the workmen's compensation scheme is to provide financial responsibility in exchange for a stated premium. Its basic role says Larson is paying:
The same reasoning applies to performing safety engineering services. The role of the carrier is to respond financially in case of injury to employees of its insured. If safety engineering is negligently performed by one "other than the employer" and the employee is injured, he can proceed against the safety engineer.
Larson concludes therefore that:
* * * * * *
*852 We find this logic compelling. Here Liberty Mutual is wearing two hats and performing two roles. In its role of supplying of the financial responsibility required of the employer under the act, it is entitled to all of the rights of its insured under the act. In its role of safety engineer it is entitled to no more protection than the law would give to any other in that role. It certainly would have a competitive advantage over other safety engineers if it would claim immunity from common-law liability simply because it also writes the workmen's compensation coverage for the employer.
In most, if not all, of the cases in other jurisdictions a policy argument was advanced which not infrequently was the basis for decision. That is that safety inspections by insurance carriers will be discontinued if they are to be held liable for negligence in making them and employees and their families will be the ultimate losers. Matthews v. Liberty Mutual Insurance Co., 354 Mass. 470, 238 N.E.2d 348 (1968). Several courts have responded to this argument in varying ways. See Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3rd Cir., 1963). In Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.W.2d 361 (1963), the court dispensed with this contention by saying that no inspection at all is preferable to a negligent inspection. Most, however, in every case where it was considered, have viewed it as we doquestions of public policy are for the legislature. In this connection appellee points out that at least four states have amended their statutes to provide for immunity for insurance carriers since decisions on the subject have been rendered. This strengthens the plaintiff's contentions that a common-law remedy exists and that in the absence of express language to that effect, it is not abrogated by the workmen's compensation statutes.
Our conclusion is that the trial court erroneously sustained Liberty Mutual's demurrer to Count Four of the complaint as last amended.
II. The Alabama Gas Case.
The allegations with respect to Alabama Gas are as follows:
We believe the above allegations fail to state facts necessary to show any duty owed by Alabama Gas to the plaintiff. The allegations that the "employee entered the premises", was "physically present in the plant" and "within eyesight of the hose" are insufficient to show any undertaking on the part of Alabama Gas to inspect. We think Triplett v. Alabama Power Co., 213 Ala. 190, 104 So. 248 dispositive. There the holding was that although an employee of the gas company connected a service pipe to a heater, lit the heater, and stated that it was all right, the gas company was not liable for injuries from asphyxiation resulting from a defect in the heater. The court based its conclusion on the fact that no duty to inspect was shown. As we *853 view the complaint here, we find it defective for the same reason, absent an allegation that an inspection was actually undertaken and negligently performed. It is that feature which distinguishes the present case from Alabama Utilities Service Co. v. Hammond, 225 Ala. 657, 144 So. 822, on which plaintiff relies. In that case the allegation was that the gas company "undertook to adjust said heater * * * and did said adjusting in so careless and negligent a manner * * * [etc.]."
It was held that the complaint alleged a duty. But there was an undertaking here to adjust and an allegation of negligent performance of that duty. There is no analogous allegation here.
The case as to Alabama Gas is affirmed.
III. All other defendants.
Appellees MacDonald Engineering; Band-It; Sullivan, Long & Hagerty; Raybestos-Manhattan, Inc.; and Mason & Dulion have filed motions to affirm the judgment of the trial court sustaining demurrers to the complaint as it relates to them. The motions raise the point that the judgment should be affirmed because Supreme Court Rule 9 has not been complied with. We agree. We think the assignments of error as to these appellees were insufficiently argued to invite review. See cases collated at 2-A Ala.Dig., Appeal & Error.
In conclusion the judgment appealed from is reversed as to Liberty Mutual and affirmed as to all other defendants.
Affirmed in part, and in part reversed and remanded.
MERRILL, COLEMAN, BLOODWORTH and McCALL, JJ., concur.
LAWSON, HARWOOD and MADDOX, JJ., dissent.
MADDOX, Justice (dissenting).
I concur in the opinion in all respects except that portion which holds that Liberty Mutual Insurance Company as the compensation carrier is not immune from a third-party suit. I, therefore, respectfully dissent from the conclusion reached by the majority that the trial court erroneously sustained Liberty Mutual's demurrer to Count Four of the Complaint as last amended.
Under our Workmen's Compensation laws, I think Liberty Mutual, as the compensation carrier, is not a "third person" for the purpose of a tort suit based upon its alleged negligence in conducting a safety inspection. We need not decide under what circumstances a compensation carrier could be liable as a third party tortfeasor.
I recognize that there has been a dramatic and fast-moving development in the law of third party liability since the first decision was reached in another jurisdiction that the compensation carrier could be sued as a third-party tortfeasor. This is the first time we have been asked to add our thinking, and I feel that the majority has made a mistake on this our first case. As I view the issue, we need only interpret our statute, which I think is materially different from the statutes being interpreted in the opinions cited by the majority in reaching their conclusion.
In any event, an analysis of the views of the other courts shows that the law in this area is still in the formative stage, and there is widespread disagreement, not only between different jurisdictions but also among judges on the same court. In some states the Legislatures have enacted statutes to reverse or confirm judicial holdings.
The majority has set out many of the decisions from other jurisdictions which have considered the question. There are decisions both wayssome holding the compensation carrier to be subject to a third-party suit, others holding the contrary.[1]*854 The majority of these decisions would probably support Liberty Mutual's position of immunity from suit, but I think it unnecessary, and probably unwise, to "count jurisdictions" because in some of them statutory backgrounds vary so widely that no meaningful comparison can be made. Courts construing statutes similar to ours appear to reach the same conclusion I would reach in this case.[2]
Our Workmen's Compensation Act, it seems to me, clearly shows that the compensation carrier is meant to be assimilated to the employer. Title 26, § 262(d), Code of Alabama, 1940, in pertinent parts, reads:
I believe that the majority specifically fell into error when they concluded that:
I think the provisions of § 312 relating to subrogation claims to which the majority attaches great significance are purely procedural and in no way limit, restrict or modify the definition of "employer" contained in § 262(d). As a matter of fact, Professor Larson, who is quoted extensively by the majority, thinks that our statutory definition of "employer" virtually disposes of the question of immunity of the compensation carrier. He writes:
See also: Comments, The Workmen's Compensation Insurance Carrier as a Third Party Tortfeasor, 1 Conn.L.Rev. 183, 185.
*855 The language of both § 262(d) and § 272[4] of Title 26, in my judgment, excludes all rights and remedies of the employee injured in the course of his employment other than those remedies granted under the Workmen's Compensation Act. In view of this, I feel that my brothers in the majority have failed to give force to our statutes and as a consequence have unwittingly amended our Workmen's Compensation laws. I, therefore, respectfully dissent.
LAWSON, and HARWOOD, JJ., concur.
[1] See collection of cases, Larson's Workmen's Compensation Law, Vol. 2, Section 72.90, p. 226.28.
[2] Illustrative cases are Williams v. U. S. F. & G., 358 F.2d 799 (4 Cir., 1966) and Brown v. Travelers Ins. Co., 434 Pa. 507, 254 A.2d 27 (1969).
[3] The portion of § 312 to which the majority refers reads:
"* * * In the event the injured employee, or in case of his death, his dependents, do not file suit against such other party to recover damages within the time allowed by law, the employer or the insurance carrier for the employer shall be allowed an additional period of six months within which to bring suit against such other party * * *." (Emphasis added.)
[4] "The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of services or death; and except as herein provided in article 1 and article 2 (as the case may be) of this chapter, no employer included within the terms of this chapter, shall be held civilly liable for any personal injury to or death of any workman due to accident while engaged in the service or business of the employer, the cause of which accident originates in the employment; but nothing in this section shall be construed to relieve any employer from criminal prosecution for failure or neglect to perform any duty imposed by law." | June 30, 1971 |
777a9d94-9dc2-48fa-b54c-844fe16d4057 | Cooper v. State | 252 So. 2d 108 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 108 (1971)
O. L. COOPER, Sr., alias
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
4 Div. 426.
Supreme Court of Alabama.
August 26, 1971.
William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for the State.
No brief from defendant.
HEFLIN, Chief Justice.
Petition of State of Alabama for writ of certiorari to the Court of Criminal Appeals to review and revise judgment and decision of that court in Cooper v. State of Alabama, 47 Ala.App. ___, 252 So. 2d 104 (1971) is denied.
In denying the petition for writ of certiorari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Criminal Appeals. See Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829, and Opelika Coca-Cola Bottling Co., Inc. v. Johnson, 286 Ala. 460, 241 So. 2d 331.
Writ denied.
SIMPSON, COLEMAN, BLOODWORTH and McCALL, JJ., concur. | August 26, 1971 |
6d84e6b3-8b10-4bee-8ad1-4aa87909e175 | State Farm Mutual Automobile Ins. Co. v. Cahoon | 252 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 619 (1971)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Patrick P. CAHOON.
1 Div. 646.
Supreme Court of Alabama.
May 13, 1971.
*620 Richard W. Vollmer, Jr., and Geary A. Gaston, Mobile, for appellant.
Caffey, Gallalee & Edington, Mobile, for appellee.
HARWOOD, Justice.
Patrick P. Cahoon was an employee of the White Swan Linen Rental. While driving a truck in the course of his employment, Cahoon was involved in a collision with an automobile driven by an uninsured motorist, one Norman Patrick.
Cahoon thereafter filed a suit against State Farm Mutual Automobile Insurance Company claiming the sum of $10,000 allegedly due under a policy issued to Cahoon by State Farm on his personal automobile. This policy provided coverage to the extent of $10,000 for damages or bodily injury caused by an uninsured motorist.
The hearing was before the court and after the hearing the court entered a judgment in favor of the plaintiff and assessed damages at $12,270. Of this amount $2,270 represents interest.
The case was presented to the court on a stipulation of facts and the testimony of Cahoon. Cahoon's testimony was directed toward the circumstances of the collision, the nature of his injuries, hospitalization, and medical treatments. Cahoon's injuries were serious and grievous. At the conclusion of Cahoon's testimony, it was stated for the record that his testimony was intended only to supplement the stipulation, and not to contradict or change it.
In parts pertinent to this review the stipulation was to the effect that Cahoon's policy covering his personal automobile was in effect on the date of the accident and that such policy contained an uninsured motorist provision as mentioned above, and it was further stipulated:
1. That Cahoon's injuries were caused through the negligence of the uninsured motorist Patrick, and for the basis of the stipulation only, it was agreed that Cahoon's damages were $33,800;
2. That White Swan Linen Rental provided coverage to Cahoon under the Alabama Workmen's Compensation Act, and that as of 11 May 1970, Cahoon has been paid $7,600 compensation, and $2,400 medical expenses by White Swan's workmen's compensation insurance carrier, and will receive by future compensation payments a total of at least $10,000, but not more than $11,400, not including the medical benefit payments;
3. That the truck operated by Cahoon at the time of the collision and owned by White Swan was an insured vehicle under a policy carried by White Swan with the American Mutual Liability Insurance Company, which policy contained uninsured motorist coverage to the extent of $10,000. Such truck was not owned by Cahoon, and was not insured by State Farm;
4. That as of the date of trial Cahoon has not filed suit against American Mutual Liability Insurance Company under the uninsured motorist provision in American Mutual's policy, and no monies have been paid him by American Mutual;
5. That if the Workmen's Compensation provisions in the State Farm and American Mutual policies (to be referred to) are held by the court not to preclude Cahoon's recovery under the uninsured motorist provisions of either policy, then Cahoon could recover $10,000 from American Mutual under the uninsured motorist provision in that policy, although a law suit would be necessary to accomplish such result.
*621 Therefore the parties agreed that except for the necessity of a law suit, and subject to a holding by the court that the Workmen's Compensation provisions do not preclude Cahoon's recovery, the $10,000 uninsured motorist coverage contained in American Mutual's policy was "available" to the plaintiff as such term is used in the uninsured motorist coverage provisions of State Farm's policy. It was further stipulated, however, that Cahoon did not admit that the Workmen's Compensation, or other provisions, in either policy, are valid and effective.
Appellant's assignments of error 4 and 8 respectively assert error on the part of the court in sustaining the plaintiff's (appellee's) demurrers to pleas 5 and 9 respectively. These pleas are substantially of the same tenor, and set up as a defense the "excess escape clause" and "other insurance provisions" set forth in that portion of State Farm's policy which reads as follows:
Pending the submission of this case on the call of the First Division, this court rendered its decision in Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736. Therein we considered the validity of a provision of virtually the same import as that set out above. We held that under our Uninsured Motorist Act (Act No. 866, Acts of Alabama 1965, Vol. 2, p. 1614, found in 1958 Recompilation as Title 36, Section 74 (62a)), an insurer cannot avoid the liability imposed by our Uninsured Motorist Act by inserting into a policy a liability limiting clause restricting an insured from recovering actual damages suffered, within the limits of a policy, where premiums have been paid for such uninsured motorist coverage, even though an insured has other similar insurance available to him.
The Safeco opinion was written by Justice Merrill. It contains a full and thorough discussion of the point involved in assignments 4 and 8, and an extensive discussion of authorities from other jurisdictions.
We see no need to reiterate what was written in Safeco other than to observe that the contention of the appellant was not accepted, but a contrary conclusion was reached. We do wish, however, to call attention to the following statement in Safeco:
Assignments of error 4 and 8, we deem to be without merit.
Assignments 5 and 9 relate to the action of the court in sustaining plaintiff's demurrers to pleas 6 and 10 respectively.
These pleas set up as a defense the specific pro rata part of the "other insurance" provision in the State Farm policy, which part reads:
We can see no basis of distinction between the effect of this clause and the "excess-escape" clause held invalid in Safeco. The effect of giving recognition to either clause would be to avoid or reduce State Farm's statutory liability imposed by our Uninsured Motorist Act for coverage for which premiums have been paid and damages suffered. We hold assignments of error 5 and 9 to be without merit.
Assignments of error 3 and 7 assert error in the court's action in sustaining plaintiff's demurrers to pleas 4 and 8 respectively. These pleas assert that Cahoon's benefits under the Workmen's Compensation Law will be equal to or exceed the $10,000 claimed by him in this suit, and as a result Cahoon ought not to recover in this suit because of the Insuring Agreement clause III, which is the uninsured motorist coverage, which clause provides:
State Farm, by pleas 4 and 8, is seeking to have its liability reduced or set off by any benefits paid Cahoon as workmen's compensation. Assuming Cahoon receives the full $11,400 workmen's compensation benefits, plus the $2,400 medical benefits, and the $10,000 "available" under American Mutual's policy, the total of all these sums would be $23,800, some $10,000 less than Cahoon's stipulated damages of $33,800.
Thus if pleas 4 and 8 be considered valid, State Farm would owe Cahoon nothing under its policy even though the policy contained a provision insuring Cahoon to the extent of $10,000 for damages inflicted by an uninsured motorist, and for which coverage Cahoon has paid premiums and has suffered the full amount of such damages.
While this court has not considered specifically provisions to the effect that any loss payable under an uninsured motorist provision shall be reduced by an amount paid under any workmen's compensation law, such provisions have been before the courts of our sister states. We copy the following as illustrative of the views of two of the jurisdictions considering the question.
In Stephens v. Allied Mutual Insurance Company, 182 Neb. 562, 156 N.W.2d 133, the governing rule was stated as follows:
The Florida Supreme Court in Southeast Title Ins. Co. v. Austin (Fla.), 202 So. 2d 179, considered a claim by the insurer to set off the amount of a workmen's compensation award received by an insured in connection with the same accident out of which arose the insurer's liability under an uninsured motorist provision in insurer's policy. The policy also contained a provision that "any loss payable * * * shall be reduced by the amount paid * * * under any workmen's compensation law." In holding such *623 set off impermissible, the Florida Supreme Court wrote:
To like effect see also Standard Accident Ins. Co. v. Gavin (Fla.App.), 184 So. 2d 229, cert. dismissed with an opinion by Florida Supreme Court, 196 So. 2d 440; Peterson v. State Farm, 238 Or. 106, 393 Pac.2d 651; Michigan Mutual Liability Co. v. Mesner 2 Mich.App. 350, 139 N.W.2d 913.
Even without the doctrines of the cases cited above, it would appear that the provision now being considered was well within the influence of the enunciations in Safeco, and that such enunciations would have compelled a conclusion in harmony with the results reached in such cited cases.
Assignments of error 6 and 10 assert error on the part of the court in sustaining the plaintiff's demurrer to pleas 7 and 11 respectively.
These pleas assert in effect that any recovery by Cahoon on his State Farm policy would inure indirectly to the benefit of the workmen's compensation carrier of White Swan, and therefore contrary to the Exclusion-Insuring provision of the policy which reads:
"Insuring Agreement III does not apply:
Counsel for State Farm argue that our Workmen's Compensation Law, particularly that part which for convenience will be cited as Sec. 312, Tit. 26, Code of Alabama 1940 (pocket part), supports their contentions under these assignments of error. This section, in parts pertinent to this review, reads:
The statutory right of subrogation created by the above provision is in favor of the employer when compensation is due an injured employee, and the injury is caused to the employee under circumstances also creating a legal liability for damages on the part of any party other than the employer.
The only action for recovery of damages for personal injuries proximately resulting from the negligence of a party *624 other than the employer is an action on the case. In such action the basis of the liability of any party other than the employer rests in tort for negligently injuring the workman. Metropolitan Casualty Ins. Co. of New York v. Sloss-Sheffield Steel & Iron Co., 241 Ala. 545, 3 So. 2d 306, and cases cited therein.
Thus, if Cahoon could recover anything from the uninsured motorist, Patrick, it would be on a tort basis because of Patrick's negligence.
The present judgment was rendered in a suit by Cahoon in an action in contract based on the insurance contract entered into between Cahoon and State Farm.
In Horne v. Superior Life Ins. Co., 203 Va. 282, 123 S.E.2d 401, the Virginia court was considering a question which in all material respects was highly similar to the one we now are considering. That court disposed of the question by concluding in effect that subrogation of the employer is against the person who was driving the other car, but not against the employee's insurance company, since the insurance company's liability arises from contract.
To the same effect are the conclusions reached in Motors Ins. Corp. v. Surety Ins. Co., 243 S.C. 487, 134 S.E.2d 631; Lumbermens Mutual Casualty Co. v. Harleysville Mutual Casualty Co., 4 Cir., 367 F.2d 250; and Southeast Furniture Co. v. Barrett, 24 Utah 2d 24, 465 P.2d 346.
In the last case just cited, the Utah Supreme Court refused to permit the subrogation provision in that state's Workmen's Compensation Act, Sec. 35-1-62, U. C.A. 1953, to cause a diminution of uninsured motorist coverage, and set forth its conclusion in this regard as follows:
"We think that under the language of 35-1-62, U.C.A., 1953 (footnote 2, supra), a breadwinner has the right to supplement any benefits to which he may be entitled under the workmen's compensation act, by procuring and paying whatever premium he can squeeze out of his budget for an independent policy with an independent carrier in as large an amount as he can afford, without giving up any workmen's compensation benefits."
In argument in support of assignments 6 and 10, counsel for appellants have cited and relied upon two cases, Hackman v. American Mutual Liability Ins. Co., 110 N.H. 87, 261 A.2d 433, and Ullman v. Wolverine Ins. Co., 105 Ill.App.2d 408, 244 N.E.2d 827.
Both New Hampshire and Illinois are among those jurisdictions construing their uninsured motorists statutes as limiting recovery to the statutory limit provided in their uninsured motorists statutes. (See Safeco.) We therefore consider these two cases inapposite. This for the reason that in Safeco such limitation on recovery was repudiated, and the opinion of the Court of Civil Appeals which had adopted such view was reversed.
The judgment of the lower court is due to be affirmed, and it is so ordered.
Affirmed.
HEFLIN, C. J., and LAWSON, MERRILL and MADDOX, JJ., concur. | May 13, 1971 |
d49928a2-093e-4df5-99fa-c2a92445ff96 | Rochester v. Hamrick Const. Co. | 481 So. 2d 881 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 881 (1985)
Nathaniel H. ROCHESTER d/b/a Rochester Plumbing Company
v.
HAMRICK CONSTRUCTION COMPANY, et al.
82-900.
Supreme Court of Alabama.
December 20, 1985.
*882 Thomas J. Knight, Anniston, for appellant.
Herbert D. Jones, Jr. and Patrick S. Burnham of Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, for appellee.
JONES, Justice.
This case evolves from a dispute over a construction subcontract. Separate suits were filed in different counties, and the second suit filed was transferred to the county of the first suit, where the two suits were consolidated for trial. Appellant was the plaintiff in the second suit and defendant in the first.
Hamrick Construction Company (Hamrick) was the general contractor for two municipal housing projects in DeKalb County. As general contractor, Hamrick subcontracted with Rochester Plumbing Company (Rochester) to provide the labor associated with supplying plumbing to the units. The dispute between these two centers around a provision of the general contract that was not explicitly made a part of the subcontract. That provision concerned additional payments to cover costs of excavating through rock, if rock was encountered at the construction site.
This dispute arose when Rochester claimed that it should receive some payment, in addition to its subcontract payment, for excavating rock. Hamrick refused, claiming that Rochester was not entitled to any such payment, and that only Hamrick was responsible for the excavation of rock at the site. Rochester, then, refused to complete the project until some payment was made.[1]
*883 As a result, Hamrick filed suit in DeKalb Circuit Court. Subsequently, but prior to being served in connection with that suit, Rochester filed his own action in Calhoun Circuit Court. The Calhoun Circuit Court transferred Rochester's suit to DeKalb County, where it was consolidated with Hamrick's suit. The matter proceeded to trial, and the jury returned its verdict disallowing either party's recovery from the other. Rochester appeals from the judgment on this verdict, citing four alleged errors:
In transferring the case to DeKalb County, the Calhoun Circuit Court noted that the prior action in DeKalb County would act as a bar to the suit as against those defendants who were also parties in the DeKalb County suit. As to those parties, Rochester's claims would be relegated to compulsory counterclaims. The Calhoun Circuit Court then noted that the suit against the remaining defendants should not stand separate and apart from the DeKalb County suit.
Instead of granting the Defendants' motion to dismiss, the court transferred the case to DeKalb County in an effort to allow Rochester to avoid the added delay and expense of joining the additional parties to that suit and having them properly served. Venue would have been proper in either county.
Rochester objected to the change of venue, but did not seek appellate review at that time. Now, he seeks to raise the issue in this appeal. He cannot.
Both of Rochester's first two issues can be dealt with rather summarily by noting that the disposition of a motion for change of venue, whether a motion by one of the parties or the court's own motion, as here, may not be reviewed by appeal after final judgment. The proper procedure is to seek appellate review by means of extraordinary writ, i.e., to file a petition for the writ of mandamus. Davis v. Marshall, 404 So. 2d 642 (Ala.1981).
As an aside, we note that in Davis the appellant did not object to the change of venue, as Rochester did, prior to raising it on appeal. That is not a material point of difference. Consequently, we cannot now review the first two issues relating to change of venue.
The trial court ruled that Rochester could not recover under the rock excavation clause, which was contained only in the general contract. The court, however, after allowing Rochester to go forward with proof that he excavated rock, appropriately did instruct the jury on the law of damages under the theory of quantum meruit.
Rochester contends that the trial judge erred in not finding the rock excavation clause of the general contract to have been incorporated by reference into the subcontract, because, he argues, the subcontract made specific provision for incorporation of the terms of the general contract. Specifically, Rochester points to the language within the subcontract providing that the architect's "specifications, schedules and drawings are made a part of said general contract, and ... are now made a part of this subcontract." We note, however, that that language was limited in its scope by the concluding clause "insofar as they apply and the parties hereto desire to contract *884 with reference to a part of said work."
Additionally, Rochester points to the language of the subcontract which explained his duties to "furnish all labor and materials and perform all work necessary to complete the following ... namely: Plumbing and site utilities complete...." Rochester here contends that this work could not have been completed without excavation of the rock; and, he says, because he was to perform all labor required, his subcontract necessarily incorporated by reference the rock excavation clause of the general contract.
Rochester concedes, however, that neither he personally, nor anyone under his employ, is trained or licensed to perform the blasting work required for the excavation. Thus, a qualified third party was required to perform this work. Rochester counters this fact by stating that he could have located (and in fact did locate) someone who was qualified to do the job.
The otherwise persuasive nature of Rochester's contention is overcome by the application of the concepts of nondelegable duty and strict liability. It is well understood that a general contractor cannot escape all potential civil liability by subcontracting extra-hazardous activities. The normally applicable "independent contractor" defense does not, necessarily and of itself, shield the general contractor from liability in this kind of case. Knight v. Burns, Kirkley & Williams Const. Co., 295 Ala. 477, 331 So. 2d 651 (1976); and, for a discussion of strict liability, see Harper v. Regency Development Co., 399 So. 2d 248 (Ala.1981).
When this nondelegable duty concept is coupled with the strict liability doctrine applicable to extra-hazardous activities, the concomitant right of control of such activities by the general contractor dictates a strict construction of contract language, in the context of a subcontractor's claim of a right to conduct blasting operations by way of incorporation by reference.
This is not to say that a general contractor is legally precluded from authorizing a subcontractor to perform extra-hazardous activities contemplated by the general contract. It is to say, however, that the subcontract language must be clear and unequivocal before the general contractor will be legally required to forgo its right of direct control over such activities.
Furthermore, state law abundantly supports the general proposition that "it is the province of the court to construe written instruments, and declare their legal effect." Boykin v. Bank of Mobile, 72 Ala. 262, 269 (1882). Also, "[i]t is, of course, fundamental in our law that it is the duty of the court and not the jury to `analyze and determine the meaning of a contract... when its terms are clear and certain, and also [to] ascertain whether or not it is ambiguous....'" C.F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, at 649, 320 So. 2d 657, at 661 (1975).
The trial judge here looked at the documents and found no ambiguity. After scrutinizing the documents and hearing from the parties, he determined that the subcontract did not incorporate by reference the rock excavation clause of the general contract. Applying the principles discussed above, we hold that the trial court was correct in its rejection of Rochester's claim of merger of contract. Likewise, the trial court correctly accorded Rochester the benefit of submitting for the jury's consideration the quantum meruit theory of recovery.
The final issue presented is the validity vel non of the verdict reached by the jury. In this case, involving claims and counterclaims, the jury determined that neither party should recover from the other. Rochester claims that such a verdict is inconsistent with the evidence presented at trial and is the product of great confusion on the part of the jury. Rochester contends that the jury was constrained to believe either one party or the other.
*885 This argument, to some extent, discounts the fundamental function of the jury. While the function of the jury has been more eloquently defended elsewhere, we take this opportunity to reiterate that it is the jury's function to listen to the evidence presented and to credit each piece of evidence and each witness's testimony with the weight which it believes to be appropriate.
It is inherent in this system that jurors will give greater weight and credibility to some evidence than they will to other evidence. Likewise, the jury may believe certain testimony offered by a witness while disbelieving certain other testimony given by that same witness. Doing so, of itself, does not render the jury's findings of fact inconsistent. When the jury has completed its deliberations and agreed upon a verdict, that verdict, if supported by any credible evidence, will not be disturbed unless it is so clearly against the great weight and preponderance of the evidence as to be unjust.
Finding no error, we hold that the judgment appealed from is due to be, and it hereby is, affirmed.
AFFIRMED.
All the Justices concur.
[1] It is not clear from the record whether Rochester personally performed any of the rock excavation. In view of this, as we understand it, Rochester's claim is based upon his alleged right to proceed on the rock excavation work and to be paid therefor at the price fixed in the general contract. Apparently, the trial court's jury instruction on the quantum meruit theory of damages was based on the supposition that the jury was free to find that either Rochester, or someone under contract with Rochester, had in fact performed rock excavation before the dispute arose between Rochester and Hamrick. | December 20, 1985 |
1ec8659e-7efb-444d-8f41-132b041e3611 | Baggett v. Webb | 248 So. 2d 284 | N/A | Alabama | Alabama Supreme Court | 248 So. 2d 284 (1971)
In re J. B. BAGGETT, d/b/a Baggett's 82 Truck Stop and United States Fidelity and Guaranty Co.
v.
Barbara Ann Barger WEBB et al.
Ex parte J. B. BAGGETT, d/b/a Baggett's 82 Truck Stop and United States Fidelity and Guaranty Co.
6 Div. 862.
Supreme Court of Alabama.
April 29, 1971.
Robert B. Harwood, Jr., Rosen, Wright & Harwood, Tuscaloosa, for petitioners.
Paul E. Skidmore, Skidmore, Crownover, & Mountain, Tuscaloosa, opposed.
BLOODWORTH, Justice.
Petition of J. B. Baggett d/b/a Baggett's 82 Truck Stop and United States Fidelity and Guaranty Co. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Baggett v. Webb et al., 46 Ala. App. 666, 248 So. 2d 275.
Writ denied.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | April 29, 1971 |
c77be135-4a11-4c60-b5f2-72d9cbee7ef0 | Pihakis v. Cottrell | 243 So. 2d 685 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 685 (1971)
Louis PIHAKIS and Alabama Equity Corporation of Birmingham, a Corp.
v.
Elizabeth COTTRELL.
8 Div. 384.
Supreme Court of Alabama.
February 4, 1971.
*686 F. Eugene Wirwahn, Birmingham, for appellants.
Brewer & Lentz, Decatur, for appellee.
COLEMAN, Justice.
The defendants appeal from a judgment for plaintiff in an action to recover damages for fraud and deceit.
In outline, the case for plaintiff is that she inquired of one Mason about obtaining a loan to be secured by a mortgage on certain real estate owned by plaintiff. Mason drove plaintiff to Birmingham where she saw defendant Louis Pihakis who was president of the defendant corporation. The result of her meeting with Pihakis was an understanding that the defendant corporation would lend her $7,500.00 to be secured by a mortgage on her property. Subsequently, on January 12, 1968, Pihakis went to Decatur and met plaintiff at her home. Pihakis had an instrument which he represented to be a mortgage; and plaintiff, relying on that representation, signed the instrument without reading it and delivered it to Pihakis. The instrument was a deed to two persons, husband and wife, who are not parties to this lawsuit. Approximately two weeks after she had signed *687 the deed, plaintiff learned that the instrument was a deed and had been filed for record in the office of the judge of probate by Pihakis. Plaintiff called Pihakis on the telephone and told him to "drop" the loan and it has never been closed.
The case for defendants, in outline, is that Pihakis did not misrepresent the character of the instrument to plaintiff; that she read it, and knew what she was signing; that because of plaintiff's age, a ten-year loan such as she desired was not available; that the deed was made to grantees who were younger and could obtain the loan; that on closing of the loan, the real estate would be conveyed back to plaintiff by a conditional sale contract; and that plaintiff was informed of the procedure and agreed to it.
As hereinafter discussed under Assignment 2, subsequent to the telephone conversation in which plaintiff told Pihakis to "drop" the loan, Pihakis sent to plaintiff by mail a quitclaim deed. In the quitclaim deed, plaintiff is the grantee, and the quitclaim deed purports to have been executed by the grantees named in the deed signed by plaintiff. The complaint was filed February 1, 1968. Subsequently, Pihakis sent to plaintiff a warranty deed in which plaintiff is the grantee. The warranty deed purports to have been executed by the same grantees named in the deed signed by plaintiff. The warranty deed appears to have been acknowledged by the grantors named therein on May 23, 1968. Pihakis sent to plaintiff a check for $8.00 together with the quitclaim deed, and also a second check for $8.00 together with the warranty deed. The checks were to pay the cost of recording the respective deeds.
Defendants assign as error the trial court's action in overruling defendants' demurrer to the amended complaint which recites:
"The plaintiff further alleges that the aforesaid reporesentation (sic) made by the defendant Pihakis was made by him as the agent, servant or employee of the defendant Alabama Equity Corporation of Birmingham, acting within the line and scope of his authority as such agent, servant or employee, and was willfully made, knowing the same to be false, and was made for the purpose of deceiving the plaintiff and did deceive the plaintiff, for which the plaintiff claims damages, and the plaintiff also claims punitive damages."
Defendants argue that the complaint is defective because it ". . . . does not allege the manner in which the plaintiff was damaged or the extent of any damage."
The only grounds of demurrer, which appear to point out either of the defects upon which defendants now rely in argument, are grounds 4 and 10 which recite:
Grounds 4 and 10 do assert that the complaint fails to show that plaintiff sustained any damage as the result of the fraud charged against defendants, and we will consider whether the allegations of the complaint sufficiently show that plaintiff was damaged as a result of the fraud.
As to the second defect now urged by defendants that the complaint fails to show the "extent" of plaintiff's damage, or the "amount" of the damages to plaintiff, the second defect does not appear to be pointed out by any ground of the demurrer and will not be considered. Defendants cite Bates v. Turney, 26 Ala.App. 98, 153 So. 782, to support their argument with respect to failure to allege "the amount of damages to plaintiff," but further consideration of Bates is unnecessary since the defect with respect to the amount of damages is not pointed out by the demurrer.
Damage to plaintiff being an essential element of actionable fraud, the inquiry here is whether the facts alleged in the complaint support the conclusion that plaintiff did suffer injury as a result of the fraud alleged.
The facts alleged are that defendant Pihakis represented to plaintiff that a certain *689 instrument was a mortgage and requested that plaintiff execute the instrument; that the instrument was a deed and not a mortgage; that the false representation was wilfully made with intent to deceive the plaintiff; that plaintiff, relying on the representation and ignorant of the contents of the instrument, signed it and delivered it to defendant Pihakis; that plaintiff has not received any consideration for execution of the instrument; and that defendant Pihakis filed the instrument for record in the office of the judge of probate.
The alleged facts show that by plaintiff's action in reliance on the alleged false representation and the subsequent recording of the deed by one of the defendants, a cloud has been cast on plaintiff's title of record. This court has said:
In a suit to cancel an option as a cloud on the title of complainants, who had granted the option, this court said:
Under the facts alleged, the deed executed by plaintiff purports, on its face, to convey title to the grantees named therein, although the deed conveyed nothing when all the alleged facts are known. Under the authorities last quoted, such a recorded deed is a cloud on plaintiff's title, obstructs plaintiff's alienation of her property, and tends to depreciate its value. The cases quoted are cases in equity, but the quotations illustrate the nature and effect of the facts alleged in the complaint and lead to the conclusion that the facts so pleaded do show that plaintiff has sustained injury as the result of her action in reliance on the false representations allegedly made by defendants. Accordingly, the court did not err in overruling the grounds of demurrer to the amended complaint on which defendants rely, and Assignment 1 is without merit.
Assignment 2 recites:
Defendants say in brief:
Defendants are correct in saying that plaintiff did not prove that she had paid, or become obligated to pay, any specific sum of money as a proximate result of the alleged fraud. As hereinafter stated, however, we are of opinion that the evidence does show that plaintiff is entitled to recover nominal damages and that the right of plaintiff to recover nominal damages is sufficient to sustain the recovery of punitive damages.
The testimony shows that plaintiff first applied to the defendant corporation through Mason in 1967 for a loan. On this first application, plaintiff paid a fee of $25.00, part of which went to the defendant corporation to pay the cost of processing plaintiff's application. This first application, however, lapsed or was abandoned by plaintiff. Several months later, plaintiff again sought a loan from the defendant corporation in either late 1967 or early 1968. She was not required to pay a second application fee. In the course of events which followed, the alleged misrepresentation was made on January 12, 1968. We wish to make it clear that the $25.00 payment made by plaintiff in 1967 as a loan application fee does not constitute injury or damage to plaintiff resulting from the misrepresentation allegedly made on January 12, 1968. Plaintiff's payment of the $25.00 fee in 1967 cannot be the result of a misrepresentation which was not made until the following year, 1968, and had no existence whatever until several months after the payment was made.
Defendants contend further that the undisputed evidence shows that plaintiff had received the two deeds executed by the grantees named in the deed executed by plaintiff and also a check for $8.00 with each of the two deeds, which checks were sufficient to pay all costs of recording the two deeds. Defendants argue that, without any cost to plaintiff, she can record the two deeds and thus be placed in the same position in which she was prior to January 12, 1968.
Some years ago, in reviewing the trial of an action for breach of contract, the Supreme Court of the United States said:
The evidence showing the delivery of the two deeds and checks to plaintiff appears to have been admissible to reduce the amount of plaintiff's recovery but not to defeat plaintiff's right to recover. The evidence supports a finding that plaintiff signed the deed as alleged and that defendant Pihakis recorded the deed. As stated above under Assignment 1, if plaintiff's evidence be believed by the jury, the events occurring January 12, 1968, gave rise to a cause of action and plaintiff became entitled to recover at least nominal damages.
Maring-Crawford was an action for fraud and deceit in which this court affirmed judgment for plaintiff and in consideration of Assignments 35 and 6 held that it was not error to refuse a requested charge to effect that punitive damages cannot be awarded where no actual or compensatory damages have been shown by plaintiff. This court said:
In Maring-Crawford, this court explained Mobile Building & Loan Ass'n v. Odom, 232 Ala. 19, 166 So. 698, and Oates v. Glover, 228 Ala. 656, 154 So. 786, both of which are cited by the instant appellant. The explanation in Maring-Crawford appears to be adequate and will not be repeated here.
This court has said:
*692 The rules in Alabama appear to be as follows:
To recover compensatory damages for fraud and deceit, plaintiff must show that he has suffered an actual pecuniary loss as the result of the fraud.
To recover punitive damages for fraud and deceit, plaintiff must show that the fraud is of the character described in Alabama Great Southern Railroad Co. v. Sellers, supra, as justifying punitive damages, and that plaintiff has suffered actual damages as the proximate result of the fraud; but, as the terms actual and nominal are here used, nominal damages are actual damages, and punitive damages may be awarded although plaintiff's actual damage is purely nominal.
The evidence of plaintiff squarely contradicts the evidence for defendants. The jury apparently believed the plaintiff's evidence which supports an inference that defendant Pihakis wilfully and knowingly misrepresented to plaintiff the nature of the instrument with intent to deceive plaintiff; that plaintiff relied on the false representation and as a result a cloud was placed on her title which gave her a right to recover at least nominal damages, which right is sufficient to sustain an award of punitive damages.
The action of defendants in sending to plaintiff the two deeds and checks does not defeat plaintiff's cause of action.
In an action for fraud in plaintiff's purchase of shares of stock of a corporation, where defendants allegedly falsely represented that the corporation was solvent, this court said:
In an action for deceit in the sale of land, the Court of Appeals held that it was not error to refuse the following charge requested by defendant:
The Court of Appeals said:
In the instant case, defendants could not, by tender of the two deeds and checks, defeat plaintiff's cause of action after the right of action had accrued. Assignment 2 is without merit.
Assignments 3 and 4 raise the same points considered under Assignment 2 and are without merit for the same reasons.
Defendants assign as error the action of the court in overruling those grounds of the motion for new trial which assert that the verdict for $22,500.00 is excessive and is the result of bias, malice, and prejudice on the part of the jury.
*693 What this court has previously said seems appropriate here:
". . . . . . . . . . . .
Defendants assign as error the refusal of their requested Charge No. Six, which is to effect that the jury cannot find for plaintiff unless the jury is reasonably satisfied that plaintiff was caused to sign the paper by reason of the misrepresentations of defendants. Charge 6 appears to be adequately covered by the oral charge and error is not shown. Title 7, § 273.
Defendants' refused Charge 8 was adequately covered by defendants' given Charge Nine and the court's oral charge.
Defendants' refused Charges 1 and 2 are affirmative with hypothesis instructing the jury to find for defendants and were refused without error.
Plaintiff testified that on the occasion she and Mason went to the office of defendant Pihakis, Pihakis and Mason had a conversation. Plaintiff testified as follows:
"Q Was that in his office in your presence?
"Q Did he say how they was making all those millions of dollars?
"A Profits."
It is noted that defendant made no objection.
On direct examination of defendant Pihakis, the following occurred:
"Q What type of business organization is Alabama Equity Corporation?
"THE COURT: Overrule.
"Q (BY MR. POWELL) Go ahead, Mr. Louis.
"MR. LENTZ: I am going to move to strike that, its not responsive.
"A In mortgage loans on land or homes only.
"Q In what geographic areas does the company operate its business?
"A Throughout the State of Alabama.
"Q How long has it been in existence?
"A A little better than three years.
"MR. LENTZ: I object to that, its immaterial.
"THE COURT: I sustain that."
Defendants assign the last quoted ruling of the court as error. Defendants argue that the court erred in sustaining objection to the last question under the doctrine of curative admissibility stated as follows:
We think it apparent that whether the defendant, Alabama Equity Corporation, was making millions of dollars or not is irrelevant to the issues in this case. What defendant Pihakis said in the presence of plaintiff may or may not have been relevant, but that question is not presented because defendants did not object. As plaintiff argues, after plaintiff had gone into what Pihakis said in the presence of plaintiff, the defendants were then entitled to go into the entire conversation and defendants were also entitled to prove that Pihakis did not make the statement which plaintiff said he had made. We are not altogether persuaded that defendants were entitled to go into details as to how much money the corporation was making, but even if defendants were so entitled, the question to which objection was sustained did not have to do with the amount of money the corporation was making. The inquiry to which the court sustained objection was whether the corporation was set up with a capital endowment and how the corporation got the money it operated on. Answer to such an inquiry on its face does not appear relevant to the issue of how much money the corporation was making.
We are of opinion that objection to the question was sustained without error.
Affirmed.
HEFLIN, C.J., and SIMPSON, BLOODWORTH, and McCALL, JJ., concur. | February 4, 1971 |
1ebf79f3-cdd8-4901-a07c-64efd5527481 | Foster v. Martin | 246 So. 2d 435 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 435 (1971)
Sue FOSTER
v.
Thomas MARTIN.
8 Div. 387.
Supreme Court of Alabama.
March 25, 1971.
*436 Clark E. Johnson, Jr., Albertville, for appellant.
Edward N. Scruggs, Jr., and John W. Starnes, Guntersville, for appellee.
HARWOOD, Justice.
Brit Birdwell died on 10 October 1967. John Brookshire was appointed administrator of his estate on 16 February 1968. Later Thomas Martin, the appellee here, offered a document purporting to be the last will and testament of Birdwell for probate in the Probate Court of Marshall County.
On 12 March 1968, this document was admitted to probate, Martin being named as executor of the will. On this same day the administration of Birdwell's estate was removed to the Circuit Court of Marshall County, in Equity. Brookshire was later discharged as administrator.
After removal of the administration to the Circuit Court, in Equity, the appellant here filed a petition setting forth that she was the heir at law of Brit Birdwell by virtue of her legitimation upon the marriage of her mother and Birdwell, her reputed father, and recognition of her by Birdwell as his child.
Appellant prayed that she be declared the lawful heir of Birdwell, and further prayed that the court decree that Thomas Martin was not entitled to any part of the estate of Brit Birdwell as a beneficiary under the purported will of Birdwell because of the invalidity of such instrument.
No question is raised in this review as to any pleading or procedural steps in the proceedings below.
At the hearing below the undisputed evidence shows that the appellant was born out of wedlock in 1935. Birdwell was her reputed father.
On 6 September 1955, Birdwell executed the will now in question. Paragraph 2 of the will is as follows:
In August 1958, the appellant's mother and Birdwell were married, and the appellant was recognized by Birdwell as his child. However, this marriage was terminated by divorce in January 1966.
We note here that the effect of the marriage between Birdwell and appellant's mother, and the recognition of the appellant by Birdwell as his child, was to render the appellant legitimate. Section 10, Title 27, Code of Alabama 1940.
*437 After an extended hearing, the Chancellor adjudged and decreed:
Appellant has made 15 assignments of error. These assignments are properly placed in three groups in brief, and raise three points.
First, counsel for appellant contends that the court erred as a matter of law in not decreeing that the legitimation of appellant by the marriage of Birdwell and appellant's mother in 1958, and Birdwell's recognition of her as his child, resulted in making her a pretermitted heir of her father despite the execution of the purported will by Birdwell in 1955. In other words, appellant contends that her legitimation after execution of Birdwell's will, places her in the same status as a child born or adopted after the making of a will by the parent.
Such contention, of course, depends upon an interpretation of our commonly called "pretermitted heir" statute, Section 10, Title 61, Code of Alabama 1940, which reads:
This codal provision originated in the 1806 Acts of the Mississippi Territory, and has been carried forward unchanged in substance in every succeeding Code of Alabama, except that in 1956 the section was amended to include children adopted post will as well as natural born children.
As stated by De Graffenried, J., in Woodliff v. Dunlap, 187 Ala. 255, 65 So. 936:
Counsel for appellant refers to the pretermission statute as being a remedial statute, and contends that by amending the statute the legislature "has demonstrated that it is the public policy of this State to treat liberally children who are born, adopted or legitimated after a will has been made." (Emphasis ours.)
We think counsel's certitude as to the legislative intent is unfounded. We can deduce no such manifest legislative intent resulting merely from the amendment of the statute. In fact by resorting to the rule of construction, that the expression of one thing in a statute is the exclusion *438 of another, one is led to the conclusion that having included only natural born children and adopted children, it was the intent of the legislature not to place legitimated children in the same category as natural born and adopted children. Hall v. Blan, 227 Ala. 64, 148 So. 601; City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305; Champion v. McLean, 266 Ala. 103, 95 So. 2d 82.
Further, the pretermission statute is one of substance rather than remedial. It creates and confers upon natural born and adopted children a right to property which would not be theirs without the statute. It is in derogation of the common law, and must therefore be strictly construed, and it will not be extended further than is required by the letter of the statute. Pappas v. City of Eufaula, 282 Ala. 242, 210 So. 2d 802; Mobile Battle House, Inc. v. Wolf, 271 Ala. 632, 126 So. 2d 486.
The lower court correctly held that the appellant, although an heir at law of Brit Birdwell by virtue of her subsequent legitimation, was not within the influence of our pretermission statute as to revoke Birdwell's will to the extent that she could take a share of Birdwell's estate as though he had died intestate.
The appellant having become an heir at law of Birdwell by legitimation would, of course, be entitled to inherit her share of his estate provided Birdwell had not otherwise disposed of his estate by a valid will.
Birdwell did execute a document purporting to be his last will and testament. Therein he devised all his property to the appellee Martin.
It is appellant's contention that such document is invalid as a will because Birdwell was incompetent through drink at the time the will was executed.
Appellant further contends that the provision devising all of Birdwell's property to Martin was rendered void because of Martin's failure to fulfill the conditions upon which the devise was made, i. e., to help, give comfort, and look out after Birdwell during his declining years.
Each of these two contentions involve essentially questions of fact, and the sufficiency of the evidence to support the court's conclusions reached upon consideration of the facts and evidence. The transcript of the evidence runs over 300 pages. A number of witnesses were presented by each side.
Counsel for appellant has not set out in brief in the statement of facts a condensed recital of the evidence given by each witness in narrative form. Such is required if the sufficiency of the evidence to sustain a verdict or finding, in fact or law, is assigned as error. Supreme Court Rule 9. In fact little or no evidence presented by the appellee was set forth in appellant counsel's statement of the facts. On the other hand, counsel for appellee, after suggesting that consideration of these last two points should be pretermitted on this review because of the above mentioned defect in appellant's brief, does go forward and set out evidence presented in the hearing below which tends to support the Chancellor's conclusions and decree.
Under these circumstances we pretermit consideration of the two points above mentioned.
Affirmed.
HEFLIN, C. J., and LAWSON, MERRILL, and MADDOX, JJ., concur. | March 25, 1971 |
62214735-fc59-495b-8b88-52deeb370796 | Coker v. Ryder Truck Lines | 249 So. 2d 810 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 810 (1971)
Robert J. COKER
v.
RYDER TRUCK LINES, a Corporation, et al.
2 Div. 536.
Supreme Court of Alabama.
June 17, 1971.
*811 Roberts & Davidson, and Frank Parker, Tuscaloosa, for appellant.
Hubbard & Waldrop and James J. Jenkins, Tuscaloosa, for appellees.
BLOODWORTH, Justice.
Plaintiff appeals from a judgment for defendants after a jury verdict was rendered in favor of defendants.
The basis for the suit is an accident which occurred on September 5, 1968 on U.S. Highway 11, a two lane road, at a point between Tuscaloosa, Alabama and Eutaw, Alabama, approximately 2.8 miles north of Eutaw as both vehicles were proceeding towards Eutaw. The complaint charged the defendant Ryder Truck Lines and its driver, Wilfred Sonnier, with negligence in the operation of Ryder's tractor trailer causing it to collide with plaintiff's automobile proximately resulting in his injuries. Plaintiff's personal injuries consisted of a cut nose, dislocated toe, and a fractured leg. He also claimed expenses incurred in treating these injuries, property damage to his automobile, and decrease in the value of his business.
There are eight assignments of error. All, save one, deal with evidentiary questions. That one complains of plaintiff's being deprived of a fair trial. Since it is not argued, it is deemed waived. Supreme Court Rule 9, Revised Rules of the Supreme Court, 279 Ala. XXI, XXVI; Thornton v. Tutt, 283 Ala. 72, 214 So. 2d 425 (1968). After a careful consideration of the other assignments of error, we have concluded that the judgment of the trial court ought to be affirmed. Our reasons will hereinafter appear.
Assignments of error 1, 2 and 3 are as follows:
The context in which these three assignments of error arose is contained in the transcript during the examination of Moses Finch, viz:
"A. I had been behind the truck almost from Tuscaloosa. I'd say from the bridge up there. I came up on it at the bridge going into Tuscaloosa.
*812 "Q. What were the weather conditions at this time, Moses?
"A. Well it was raining a little, and the road was wet.
"Q. As you were traveling along there coming down the road, did you make any attempt to pass this Ryder Truck Line truck?
"Q. You say that you followed the truck from a point somewhere after you left Tuscaloosa?
"Q. All right, and did you stay behind the truck all the way?
"A. Yes sir. I made several attempts to pass it.
"Q. Now when you came on down to got down close to the area where the wreck happened * * *
"Q. When you got down to an area which I believe you said was a straightaway, that's when Mr. Coker passed you?
"Q. And from the time that Mr. Coker passed you, tell us in your own words what you saw happen.
"A. Well, from the timethe reason he passed me, I slowed down real slow, because there was a car behind me, so that he could pass me since I had decided not to try to pass any more. I stayed a distance back, and when I saw them again, they'd had the wreck.
"Q. All right, I'll ask you this, Moses. After you decided to drop back at whatever point that was did you attempt to pass that truck?
[Emphasis supplied]
Plaintiff contends that reversible error was committed by the trial court in sustaining the objections to questions to witness Finch as to his "attempt" to pass the truck since this would show the manner (and particularly the speed) in which the defendant Ryder's truck was being operated prior to the accident.
Defendants argue that the trial court's rulings were correct since the questions were not clear as to what point in time or distance prior to the accident the answers were sought. We agree. Our decisions are to the effect that such evidence to be admissible must not be too remote from the scene of the accident and that its admissibility is largely in the discretion of the trial court. Townsend v. Adair, 223 Ala. 150, 134 So. 637 (1931); Swindall v. Speigner, 283 Ala. 84, 214 So. 2d 436 (1968). Here, the question may well have been addressed to a time and place anywhere between Tuscaloosa and the scene of the accident, a distance of approximately thirty miles. The objections to these questions were properly sustained by the *813 trial court. We find no abuse of that court's discretion. We might add there may be other reasons why sustaining objection to the questions posed is not reversible error.
Neither do we think that sustaining objection to the very general question, "What happened?" was reversible error. What happened where? If the question sought to determine what happened when the witness "attempted" to pass the truck, we are again constrained to comment that there is no showing as to what time or place with reference to the point of accident the question is directed. As we have already pointed out the admission of such evidence is largely discretionary. See authorities, supra. Moreover, if the question sought to determine what happened when plaintiff passed the witness just before the accident, the witness answered this question subsequently.
Assignments of error 4, 5 and 6 are:
Plaintiff's argument as to these assignments of error is to the effect that plaintiff was unable to devote full time to his business after the accident as a result of his injuries and it depreciated in value. Plaintiff says he should have been permitted to testify he did not receive as much money for it at the time he sold it as he would have received before the accident.
As defendants aptly observe, this evidence only goes to the extent of damage allegedly suffered by plaintiff. But, the verdict and judgment absolved the defendants from liability. Thus, error, if any, in sustaining objection to such testimony cannot be made the basis for a reversal of such ruling. Sexton v. Jonnson, 278 Ala. 384, 178 So. 2d 541 (1965); Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277 (1960); Salvation Army v. Security Roofing Co., 255 Ala. 349, 51 So. 2d 513 (1951).
There may be other reasons why there was no reversible error in excluding this proferred testimony, as suggested by defendants. We note that subsequent testimony by plaintiff was offered to show that he was unable to devote full time to his business after the accident and that the difference in the fair market value of his business on the day of the wreck ($250,000), and the day when his business was taken over by the buyer ($200,000), was shown to be $50,000.
That assignment of error arose in the following context, viz:
Plaintiff contends in brief that our recent decision Britton v. Dohring, 286 Ala. 498, 242 So. 2d 666 (1970), "is in point and which the Appellant respectfully submits answers to [sic] the question raised by Appellant in his Assignment of Error 7." Plaintiff argues it was error to overrule his objection to the question because, under our holding in Britton v. Doehring, such proof would be inadmissible to mitigate damages and, under that case's rationale, it would also be inadmissible to show contributory negligence.
We did hold in Britton v. Doehring, supra, inter alia, that evidence of "nonuse of an available seat belt is inadmissible to mitigate the damages." We expressed no opinion as to whether nonuse of seat belts may constitute contributory negligence, nor did we express an opinion as to the effect of failure to wear seat belts in wrongful death cases.
However, we need not be concerned with these contentions because we think the trial judge committed no reversible error in overruling the objection to the question put to the plaintiff. It is clear from the record that the first objection (which the court did not rule on) came after the answer. Therefore, that objection came too late. Alabama Power Company v. Sellers, 283 Ala. 137, 214 So. 2d 833 (1968). The answer was in without legal objection.
The rule is that overruling objections to questions already received without objection is not reversible error. T. L. Farrow Mercantile Co. v. Davidson, 200 Ala. 671, 77 So. 45 (1917); Mobile City Lines, Inc. v. Hardy, 264 Ala. 247, 86 So. 2d 393 (1956). We suggest the result is the same whether no objection is made or objection is made too late, so far as application of this rule is concerned. We find no prejudicial or reversible error in the trial court's overruling the objection.
Affirmed.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | June 17, 1971 |
b78b9076-7216-46a8-a355-17a1be2689fe | McCullar v. Conner | 252 So. 2d 422 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 422 (1971)
Kate Wann McCULLAR
v.
Lynn CONNER.
8 Div. 416.
Supreme Court of Alabama.
August 19, 1971.
Rehearing Denied September 30, 1971.
*423 Pitts & Hamby, Tuscumbia, for appellant.
Norman W. Harris, Decatur, for appellee.
MADDOX, Justice.
Complainant Lynn Conner, as owner of a five acre tract of land, brought an action in the Equity Division of the Circuit Court of Lawrence County, claiming that Kate
*424 Wann McCullar and others, including Alfred C. Harrison, as Adjutant General of the State of Alabama, were blocking or obstructing a right of way to his property. A drawing, not to scale, of the property involved is as follows:
Conner contended that the five acre tract he owned and the McCullar property at one time were held by a common grantor and that a right of way to his property along *425 what was described as Burden's Alley was reserved in each deed given transferring the property shown on the drawing as the McCullar property. Conner also claimed a right of way over the Courtland Air Base property, saying he had used it for more than twenty years. McCullar barricaded what Conner claimed was a public road which had not been abandoned and when the Adjutant General barricaded the road which Conner had been using on the Air Base to get to his property, he filed this action claiming that he was entitled to get to his property by what he said was the public road or that he was entitled to a right of way across the Air Base property by reason of the fact that he had used it for more than twenty years.
The trial judge heard the evidence ore tenus and also viewed the property personally, and directed a survey to be made. In his final decree he found that a public road existed from the property of the complainant Conner eastward along what was described as Burden's Alley to a public road which ran north and south along the half section line of Section 34 (the perimeter of Courtland Air Base). He made no finding with regard to Conner's claim that a right of way across the Air Base existed by virtue of usage and possession for more than twenty years. The trial judge ordered Kate Wann McCullar to remove the obstruction from what he determined to be a public road. McCullar then perfected this appeal.
McCullar claims here in Assignment of Error number 1 as follows:
We have checked each page of the record to which our attention has been directed by Assignment of Error number 1, and fail to find on either of these pages a ruling of the trial court which the appellant claims to be erroneous. There was a motion to exclude the evidence made during the trial but our attention has not been directed to any ruling by the trial court on this motion to exclude.
The appellant refers our attention to portions of the record which contain a discussion between appellant's attorney and the trial court on the question of whether there was a variance between the allegations and proof in that the complainant alleged he owned the five acre tract, but the evidence showed that the heirs or next of kin of the late Frances T. Conner were necessary and indispensable parties to the cause since they were remaindermen in her one-half interest which she held as a tenant in common with her husband, the complainant. The appellant also made a motion to exclude the evidence but our attention has not been called to the page of the transcript where the court ruled on the motion to exclude the evidence. This Court has held that where there is reference to certain record pages following an assignment of error and we fail to find any such ruling on the page or pages referred to, no question is presented for our determination. Henry v. Jackson, 279 Ala. 225, 184 So. 2d 133 (1966). This Court has also held that an assignment of error which does not specify any ruling of the trial court which is claimed as error presents nothing for review. Doughty v. City of Fayette, 278 Ala. 121, 176 So. 2d 481 (1965). But even assuming the validity of the assignment of error, it would avail appellant nothing. Appellant contends that Conner owned only one-half of the property and held a life estate in the other half and that the remaindermen were indispensable parties and a decree could not be rendered without their presence. Conner sought to *426 remove an obstruction of a public road. The trial court found in his favor and ordered the obstruction removed. In Purvis v. Busey, 260 Ala. 373, 71 So. 2d 18 (1954), the Court said:
Under the facts of this case, the trial court found a public road existed along the perimeter of the Courtland Air Base and that the appellant had obstructed this road. Conner, showing sufficient special damages from that suffered by the public at large, could maintain such an action without joining the remaindermen. The interest of the remaindermen in the property could not in any wise be affected by the decree. If and when they get possession of the property they may not object to the obstruction of the public road leading to the property but that possibility in no wise affects Conner's present right to sue in his individual capacity and as holder of the life estate in the property.
Appellant's Assignments of Error numbers 2 and 3 are as follows:
The two assignments of error are deficient in that they do not specify any ruling of the trial court on any page of the record referred to in the assignments of error. There are references made to the record but our attention is called to no ruling of the trial court which is alleged to be erroneous. Furthermore, the court did not commit error in assuming jurisdiction. The appellant apparently complains that the trial court erred in not denying relief to the complainant because the cause of action was barred by the statute of limitations or by laches. We pretermit discussion of the point that the trial court should have denied relief because the claim was barred by limitations or laches.
In Assignments of Error numbers 4, 5, 6, 7, 8, and 9, the appellant claims the court erred in appointing a surveyor, and failed to follow the requirements of law contained in Title 47, Sections 5, 6, 7 and 8, Code of Alabama, 1940. Before final decree, the trial judge entered an order in which he found "that a survey of the North-South half-section line of Section 34, Township 4 South, Range 8 West is essential in order that the ends of justice be met." He directed the Register to appoint a surveyor by order dated June 19, 1970. By order dated June 23, 1970, the Register directed a survey to be made on June 26, 1970. Our attention has not been directed to any objection to the entry of these orders before or after final decree. Appellant claims that under the statute, the trial court should have given at least 10 days' notice of the appointment and set a date for hearing objections to the appointment. Appellant is correct in asserting that the provisions of Title 47, Sections 5, 6, 7 and 8 are to the effect that the court decree should fix a date on which to hear objections and to direct the parties to show cause why such a survey should not be made as proposed in the decree. The notice to *427 show cause shall be for not less than ten days.
Even admitting the irregularity of the decree for failing to set a date for hearing objections and to order the parties to show cause why the survey should not be made, the question is whether such failure here constitutes prejudicial error to reverse. We think that the proper remedy for testing the decree of the court appointing the surveyor [an interlocutory order and subject to alteration at any time before a final decree under this Court's decisions in Stansell v. Tharp, 245 Ala. 270, 16 So. 2d 857 (1944), and Tanner v. Dobbins, 251 Ala. 392, 37 So. 2d 520 (1948)] would have been to file a motion in court to set it aside and allow objections to be filed. The rulings on such motion, if adverse, would be subject to review in an appropriate manner. See State v. Woodroof, 253 Ala. 620, 46 So. 2d 553 (1950), and cases there cited.
This Court has commended the appointment by courts of competent surveyors pursuant to Title 47, § 5, in disputed boundary line cases. See Deese v. Odom, 283 Ala. 420, 218 So. 2d 134 (1969). See also Stansell v. Tharp, supra, where this Court said:
We are not to be understood as condoning the appointment of a surveyor without affording notice and an opportunity to object as provided for by statute. Objection to such irregularities should not be made for the first time on appeal.
Appellant's Assignment of Error number 10 is that the trial court erred in the final decree in that the State of Alabama was a necessary or indispensable party in order for a public road to be declared by virtue of Title 7, § 960. The assignment is without merit. In the first place, it does not specify any ruling of the court which is claimed as error and Title 7, § 960, has no application to this action which was one to cause the removal of an obstruction on a public road.
Appellant's Assignment of Error number 11 is as follows:
The two exhibits were minutes of the Board of County Commissioners of Lawrence County pertaining to action the Board took in connection with the roads or right of ways in question. In short, the Board found that a public road existed and was located substantially, if not exactly, where the trial court also found a public road to exist.
We do not know whether the trial judge considered these exhibits as evidence or not. The record to which our attention has been directed does not show any ruling of the trial court on the admissibility of the evidence. Since our attention is not directed to any ruling by the trial court on the admissibility of the two exhibits, *428 we must presume that the trial court considered only the evidence which was properly admissible and since there was sufficient legal evidence to support the court's findings, we will sustain the decree as if it were a verdict of a jury. Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692 (1957). In Dougherty v. Hood, 262 Ala. 311, 78 So. 2d 324 (1954), this Court said:
Act No. 101, approved June 8, 1943, Acts 1943, p. 106, carried in Title 7, § 372 (1), Code of Alabama, 1940 (Recompiled, 1958).
Appellant's Assignment of Error number 12 is as follows:
This assignment of error is similar to the assignment of error found insufficient in Morris v. Yancey, 272 Ala. 549, 132 So. 2d 754 (1961). We reach the same conclusion with regard to Assignment of Error number 12 on this appeal.
Having carefully considered all argued assignments of error, we find no prejudicial error is made to appear. We affirm the judgment of the trial court.
Affirmed.
MERRILL, HARWOOD and McCALL, JJ., concur.
LAWSON, J., concurs in the result. | August 19, 1971 |
f2eb5239-9f7f-47dd-bfd7-2e4b9fdba170 | In Re Carroll | 247 So. 2d 350 | N/A | Alabama | Alabama Supreme Court | 247 So. 2d 350 (1971)
In the Matter of J. D. CARROLL, Jr.
In re J. D. Carroll, Jr.
8 Div. 403.
Supreme Court of Alabama.
April 8, 1971.
Rehearing Denied May 6, 1971.
*351 Rogers, Howard, Redden & Mills, Birmingham, for petitioner.
William H. Morrow, Jr., Montgomery, for The Alabama State Bar.
McCALL, Justice.
This is a review of a disciplinary proceeding on a petition, filed in this court by the accused attorney, hereafter called the defendant. Such is provided for under Rule 28 of Section B of the Amended Rules Governing the Conduct of Attorneys in Alabama. These rules are found in 239 Ala. XXIII et seq. as amended in 272 Ala. XXI, XXII. The charges were preferred in a written complaint filed by the Grievance Committee of the State Bar.
Initially, the complaint contained four charges. These are to the effect that the defendant, a duly licensed and practicing attorney in Huntsville, Alabama, did, from October 24, 1961, to the date of the filing of the complaint, which was on May 20, 1964, while serving as referring or forwarding attorney for the complainant, in association with other attorneys, submit in the Inferior Court of Geneva County, Alabama, seventy-four divorce cases, wherein the bill of complaint represented to the court that either the complainant or the respondent was a bona fide resident of Alabama, when in truth and in fact, he knew or had reasonable cause to believe that neither party was a bona fide resident of this State.
Charges 1 and 3 of this group allege in substance that the defendant's conduct in this respect was in violation of amended Rule 25 of Section A, while charges 2 and 4 allege that such conduct was a violation of Rule 36 of Section A of the Rules, supra, which is as follows:
An amendment to the complaint on December 28, 1964, added charge 5, which alleges in substance that from January 1, 1962, to the filing of the original complaint in this matter, the defendant submitted to the Inferior Court of Geneva County, Albama, approximately sixty-seven divorce cases, and, that in an effort to conceal his identity and participation in these cases, with the exception of two of them, he did not sign the pleadings, nor require the complainant to do so and to sign an address, in willful violation of Equity Rule 115 of Alabama Equity Rules, Tit. 7, p. 1204 et seq., Code of Alabama, 1940, as amended. The charge sums up that the defendant, in doing these alleged acts, was guilty of conduct unbecoming an attorney at law, in violation of Rule 36, Section A, supra.
Charge 6, filed January 15, 1965, relates to an alleged additional and similar type violation of Amended Rule 25 of Section A, supra, with respect to four divorce cases, submitted to the Circuit Court of Marion County, Alabama, and one case to the Superior Court of Marion County, Alabama. Charge 7, filed the same date, alleges that by doing these acts, the defendant was guilty of conduct unbecoming an attorney at law in violation of Rule 36 of Section A, supra.
On January 10, 1969, the Grievance Committee further amended the complaint by adding charges 8, 9, 10 and 11.
Charge 8 avers the defendant's alleged misconduct in suppressing or stifling the evidence or testimony of one Manfried Eschle, a witness in the pending disciplinary proceeding, in violation of Rule 12 of Section A of the Rules, supra, which provides:
"12. Suppress or stifle any evidence or testimony."
Charge 10 alleges a similar violation of Rule 12 of Section A, supra, with respect to suppressing or stifling the evidence or testimony of one Yolande Eschle, another witness in this proceeding.
Charges 9 and 11, respectively, allege that the defendant's conduct in each separate charge, 8 and 10, was that which is unbecoming an attorney at law, in violation of Rule 36 of Section A of the Rules, supra.
The Board of Commissioners, in a final decision declared the defendant guilty under charges 1, 2, 4, 5 and 11, and not guilty under charges 3, 6, 7, 8, 9 and 10. The Board resolved that the defendant be suspended for one year on each of the charges 1, 2, 5 and 11, separately and severally, such period of suspension as to all such charges to run concurrently. The Board resolved and imposed no measure of discipline against the defendant under charge 4, although it found him guilty thereunder.
Charge 3 sets forth the facts constituting the defendant's alleged misconduct. These facts are characterized as a violation of Rule 25 of Section A. The same facts are adopted in charge 4, and there, they are characterized as a violation of Rule 36. The defendant was found not guilty under charge 3 and guilty under charge 4. A similar situation exists with respect to charge 10 and charge 11. Charge 10 under which the defendant was found not guilty alleges that he suppressed or stifled the testimony of Yolande Eschle in violation of Rule 12. Charge 11 adopts these same facts, but characterizes them as violating Rule 36, prohibiting conduct unbecoming an attorney. The defendant contends that the finding of guilt presents an incompatible result, and that he should not have been found guilty of violating Rule 36 in either situation.
In our opinion, where the facts, constituting the offense in two separate charges against an attorney, are alleged in the same language, and one charge characterizes these facts as a violation of Rule 25, while the other characterizes the same facts as a violation of Rule 36, a failure to prove the facts to support the first charge is likewise a failure to prove the facts to support the second charge. The same would be true with respect to charges 10 and 11. We think that a finding of not guilty in one instance, because of a lack of proof, works a similar finding in the second instance. It would be contradictory to say "you have failed to prove the allegations, which you allege violate Rule 25 and Rule 12, but you have proved the same allegations where you allege them to violate Rule 36." We view it as axiomatic that if there is a lack of necessary proof to meet the allegations in one instance, there is also a lack on the other instance. For the reasons stated, we find the defendant not guilty under charge 4 and charge 11. In Smith v. Board of Com'rs of Alabama State Bar, 284 Ala. 420, 430-431, 225 So. 2d 829, 838, we said:
Assignment of error 6 is that the Board erred in finding the defendant guilty under charge 5. Charge 5 alleges a willful violation of Equity Rule 115 for that the defendant submitted sixty-seven divorce cases to the Inferior Court of Geneva County, Alabama, in which he did not sign the pleadings or did not require the complainant to do so and to sign an address, all in an effort to conceal his identity *353 and participation in the stated cases. From the evidence in the record the defendant did not file any pleadings in the Inferior Court of Geneva County; nor does the evidence show that he forwarded pleadings to the attorney in Geneva with instructions to file them for his representation. One or the other of these acts, we think, is preliminary to finding an attorney in contravention of Equity Rule 115, wherein it requires the signing of pleadings by at least one of the attorneys of record in his individual name. On the contrary, each of the affidavits, offered in evidence by the Grievance Committee, recites in part that the affiant-complainant appoints the Geneva lawyer as the affiant's attorney to file the bill of complaint. In view of this, we fail to see any obligation on the defendant to sign the pleadings which he forwarded to the Geneva attorney. Therefore the absence of his signing does not satisfy us of an effort to conceal his identity and participation in the cases.
There was no duty under Equity Rule 115 that required the defendant to have the complainant sign her pleadings and state her address. It is only when a party is not represented by an attorney that Equity Rule 115 requires the party himself to do this. It is our opinion therefore that the Board's resolution of guilt under charge 5 should be disapproved.
Our conclusion in the premise that Equity Rule 115 did not require the defendant to sign the pleadings renders it unnecessary for us to pass on the admission in evidence, over the defendant's objection, of the sixty-seven related court files, offered in those cases. This disposes of the defendant's assignment of error 14.
The defendant's assignment of error 9 raises the admission in evidence, over timely objection, of the defendant's evidence, taken on March 15, 1966. Assignment 10 likewise raises the admission, over objection, of his evidence taken on March 22, 1969. The objection in both instances was that the evidence was not submitted to the witness (defendant) for signature and was not signed by him, and that the signing of this evidence by the witness was not waived by him and by the parties. As authority to support these two assignments of error, the defendant cites Tit. 7, § 474(13), Code of Alabama, 1940, as amended (Act No. 375, § 13, 1955 Legislature, approved September 8, 1955); Amended Rules Governing the Conduct of Attorneys in Alabama, Section B, 19, 22; In re Fite, 285 Ala. 666, 235 So. 2d 809.
It appears to us that the evidence of the accused attorney in each instance was taken pursuant to Rules 12 through 16, Section B, of the Rules Governing the Conduct of Attorneys in Alabama before a Commissioner, designated by the President of the Board of Commissioners, in the county wherein the defendant attorney resided. Rule 16, supra, provides in part that when the evidence is so taken down: "It shall not be necessary for the transcript of evidence to be signed by the witnesses." Since Rule 16, supra, does not require the witnesses to sign the evidence, and since this is the only matter argued as to its admissibility, we find no error in admitting it.
The subject of the defendant's assignment of error 11 is the admission in evidence of the deposition of Yolande L. Singe, over his objection that the witness had not signed her deposition and that she had not waived her signing it. The witness did not sign her deposition, however her interrogation, in the deposition, is prefaced by the following stipulation, between the parties, which is stated in writing on the record, namely:
The defendant acknowledges this stipulation, but contends that the statute, Tit. 7, § 474(13), Code of Alabama, 1940, (Recompiled *354 1958), requires that both the parties and the witness waive the signing by the witness in order for the deposition to be in proper form without the witness' signature.
The deposition was taken under authority of Act No. 375, 1955 Acts, Vol. II, p. 901; see 1958 Recompiled Code, Tit. 7, § 474(1)-(18). Section 13 of Act No. 375 [§ 474(13)], recites:
The statute states that the deposition shall be signed by the witness, unless the parties by stipulation waive the signing. The parties did by stipulation waive the signing by the witness. The language in the quoted statute does not require the witness to also waive her signing of the deposition. The statute requires the parties alone to waive the witness' signing, not the witness also. The deposition was admitted without error.
Next we consider the admissibility of Manfried R. Eschle's deposition under the defendant's assignment of error 12. The stipulation, hereinabove quoted, appears in the deposition, containing the testimony of the two witnesses, Yolande L. Singe and Manfried R. Eschle, as a preface to the former's testimony. The waiver as stated applies to "the deposition by the witness." Where the plain, clear and unambiguous language of an instrument is susceptible to a single interpretation, courts will not undertake to substitute a different meaning from that which the parties have themselves given expression to. We will not enlarge upon their words, nor dwell on conjecture and surmise as to what they might have meant or intended, but will decide the issue on what the parties have said. The rules pertaining to the construction of contracts are generally applicable to the construction of stipulations. 83 C. J.S. Stipulations § 11a, p. 26. Unambiguous words in a contract will be given their ordinary meaning. Fite v. Pearson, 215 Ala. 521, 111 So. 15. Here the parties use the singular "witness." Therefore, we will apply the stipulation only to the deposition of Yolande L. Singe, and, since the parties did not waive Manfried R. Eschle's signing his deposition, we hold that it was inadmissible.
All of the charges,1, 2, 4, 5, and 11, under which the Board resolved the defendant guilty, except charges 1 and 2, already have been considered and disposed of by us in his favor. The two charges, 1 and 2, allege that the defendant served as a referring or forwarding attorney for the complainant in one or more of seventy-four divorce proceedings with knowledge or reasonable cause to believe that neither party to the suit, at the time of filing, was a bona fide resident of Alabama.
In all but one of the seventy-four cases, alluded to, we fail to find evidence in the record tending to show that the complainants were not bona fide residents of this State. The burden of proving this rested on the Grievance Committee, and *355 such evidence not being disclosed, we must perforce disapprove of any finding of guilt as to this group of seventy-three cases. Smith v. Board of Com'rs of Alabama State Bar, 284 Ala. 420, 225 So. 2d 829.
With respect to the testimony offered to show the defendant's guilt in the one remaining case, that of Eschle v. Eschle, we first point out that the defendant has denied the charges preferred against him and has stoutly maintained his innocence of any wrong doing throughout this entire case, claiming that he had no intention of violating the rules of this court or the laws of the State. His general reputation and that for truth and veracity in Huntsville where he lived were good. He is presumed innocent, until his guilt is established, Thornton on Attorneys at Law, § 888, p. 1309, and the burden of proving his guilt, as in civil cases, Rule 22 of Section B, is on the Grievance Committee. The Grievance Committee, having the affirmative of the issue, must sustain it by proof. Ex parte Acton, 283 Ala. 121, 214 So. 2d 685; In re Fite, 285 Ala. 666, 235 So. 2d 809; Smith v. Board of Com'rs of Alabama State Bar, 284 Ala. 420, 225 So. 2d 829. While this court will refrain from a detailed discussion of the evidence, Tit. 13, § 66, Code of Alabama, 1940, we would comment generally on the weight and credibility of that which the Grievance Committee argues to prove the defendant's guilt of violating Rule 25 and Rule 36, supra. The evidence tending to prove knowledge by the defendant, or reasonable cause for him to believe that neither party to the suit was, at the time of its filing, a bona fide resident of the State of Alabama, came principally from the witness, Mrs. Eschle, now Mrs. Singe. The deposition of her former husband, Manfried R. Eschle, we have ruled inadmissible. Mrs. Singe's deposition was taken some seven and a half years after the occurrence of her interview with the defendant and she could not recollect with reasonable certainty the events about which she undertook to testify to. We have carefully read the record and studied her testimony which we have considered in conference. In passing on excerpts from her statements, we have considered her entire testimony. American Ry. Express Co. v. Barnes, 18 Ala.App. 295, 91 So. 912. She repeatedly expressed doubt and uncertainty on material facts. Her recollection of her conversation with the defendant concerning her residence, or whether she ever had such a conversation is not clear. She contradicts herself on several material aspects of her testimony that might otherwise support a finding of guilt. At the close of her examination, she was asked if the papers dealing with her residency in Alabama were not explained to her by the defendant, and that she had to have the intention to remain (in Alabama) in order to file a divorce proceeding in Alabama. She answered in the affirmative, although she had previously negated this important issue. Her evidence leaves us in a state of doubt and uncertainty as to what actually transpired. Neither do we regard the defendant's own evidence, nor that of the witness Smith, of sufficiently specific and positive effect to add cumulative value to that of Mrs. Singe in order to show with a reasonable degree of certainty that the defendant had knowledge or reasonable cause to believe that the complainant was not domiciled in Alabama at the time the bill was filed. Smith testified as to how he operated generally in his office. He recalled the Eschle case, but from independent recollection, he was unable to state that the defendant had any connection with any specific case. We conclude that the Grievance Committee has not borne the burden of proof. In Ex parte Acton, 283 Ala. 121, 214 So. 2d 685, we stated in the original opinion, that when the burden of proving a fact rests upon a party, and the evidence leaves the fact in a state of doubt and uncertainty, it cannot be regarded as established, citing Brandon v. Cabiness, 10 Ala. 155; Garrett v. Garrett's Adm'r, 64 Ala. 263, 266. Thornton on Attorneys at Law, Vol. 2, § 886, p. 1307, states:
For the reasons stated we think the finding of guilt under charges 1 and 2 should be reversed and a judgment of not guilty, thereunder, entered. It is accordingly ordered by this court.
Reversed and rendered.
LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH and MADDOX, JJ., concur.
HEFLIN, C. J., not sitting. | April 8, 1971 |
c14236bb-7832-4356-bab3-4bad79299dfd | Benefield v. State | 246 So. 2d 483 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 483 (1971)
In re Earl BENEFIELD
v.
STATE.
Ex parte Earl Benefield.
5 Div. 903.
Supreme Court of Alabama.
February 4, 1971.
*484 Paul J. Hooton, Roanoke, for petitioner.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
McCALL, Justice.
The petitioner, Earl Benefield, was convicted of embezzling a 1966 Chevrolet pickup truck, the property of C. B. Alsobrook. In his petition to this court for a writ of certiorari to be directed to the Court of Criminal Appeals, he avers that the opinion of that court is in conflict with the opinions of this court, and that "the Court of Criminal Appeals erred in failing to follow the decision(s) of the Supreme Court on the same point of law." We granted the writ.
The indictment against the petitioner charges that he, with two other persons, as agents or servants of C. B. Alsobrook, the complaining witness, embezzled or converted the latter's 1966 Chevrolet pickup truck which had come into their possession by virtue of their agency or service in behalf of Alsobrook.
Embezzlement is a statutory criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585; Adams v. State, 43 Ala. App. 281, 189 So. 2d 354. The State proceeds on the theory that the petitioner violated Tit. 14, § 126, Code of Alabama, 1940, which provides:
To support a conviction for embezzlement, the burden is on the State to prove that, after acquiring possession of money, property or effects as the agent of the owner, the accused fraudulently converted it to his own use, or to the use of another. Reeves v. State, 95 Ala. 31, 11 So. 158; Eggleston v. State, 129 Ala. 80, 83, 30 So. 582; Knight v. State, 152 Ala. 56, 44 So. 585; Rogers v. State, 259 Ala. 124, 65 So. 2d 531; Boyd v. State, 41 Ala.App. 507, 511, 138 So. 2d 60; Hart v. State, 41 Ala.App. 221, 127 So. 2d 390. In order to justify the submission of the case to the jury, it is necessary that there should be proof of at least some act from which the jury can infer that the offense was committed. Rogers v. State, 259 Ala. 124, 65 So. 2d 531; Knight v. State, 152 Ala. 56, 60, 44 So. 585; Henderson v. State, 129 Ala. 104, 29 So. 799; Hurst v. State, 21 Ala.App. 361, 108 So. 398.
We must assume that the Court of Criminal Appeals, in quoting over six pages of testimony in its opinion, included it to show that it met the legal requirements to support a conviction of embezzlement.
We have examined that evidence carefully and do not think it sufficient *485 to support an affirmance of the conviction.
As stated by this court in Parker v. State, 280 Ala. 685, 198 So. 2d 261, no rule is more fundamental or better settled than that convictions cannot be predicated upon surmise, speculation, and suspicion to establish the accused's criminal agency in the offense charged. See Colley v. State, 41 Ala.App. 273, 128 So. 2d 525 and cases cited in 6 Ala.Dig., Criminal Law.
No matter what other liability or penalty the petitioner may have incurred, if any, he cannot be convicted of embezzling the truck under the facts in this case as set forth in the opinion of the Court of Criminal Appeals.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded thereto for its further consideration.
Reversed and remanded.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH and MADDOX, JJ., concur. | February 4, 1971 |
371ff816-558a-4989-af63-ab7ca83c1ab6 | Dixie Highway Express, Inc. v. Southern Railway Co. | 244 So. 2d 591 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 591 (1971)
DIXIE HIGHWAY EXPRESS, INC., Jack Cole Company and Howard H. Baskin
v.
SOUTHERN RAILWAY COMPANY, a Corporation.
6 Div. 759.
Supreme Court of Alabama.
January 14, 1971.
Rehearing Denied February 25, 1971.
Huie, Fernambucq & Stewart, Birmingham, for appellants.
Cabaniss, Johnston, Gardner & Clark, and Drayton Nabers, Jr., Birmingham, for appellee.
*592 HARWOOD, Justice.
When a trailer truck was observed partially blocking the railroad track at a crossing in York, Alabama, the engineer applied the emergency brakes. As a result of this drastic slowing of the train, several freight cars were derailed. The Southern Railroad filed suit for damages against the two trucking companies, and their employee, Baskin, the driver of the truck.
A verdict was returned in favor of the plaintiff railroad and damages were fixed at $20,000. Judgment was entered pursuant to the verdict. The defendants' motion for a new trial being overruled, they perfected this appeal.
Only two points are argued on this appeal. One relates to the refusal of a "falsus in uno, falsus in omnibus" charge requested by the defendants, and the second relates to the refusal of charges pertaining to contributory negligence.
The evidence tends to show that Baskin, the employee of the corporate trucking companies, had picked up a load of paper from a plant located south of the railroad. The road to the plant leads off from Highway 11, and after a short distance crosses the railroad, then turns at right angles and parallels the railroad tracks. As Baskin neared the crossing, he stopped and permitted an automobile and a pickup truck to proceed ahead of him. These two vehicles crossed the tracks but because of the heavy traffic on Highway 11, the automobile was unable to enter Highway 11. The pickup truck was stopped behind the automobile thus taking up most of the road between the track and the highway.
Baskin waited for some five minutes for the two preceding vehicles to proceed on. Then Baskin, because he "had a schedule to run" drove the truck up behind the pickup truck. In this position the rear part of the trailer of the truck, which was some fifty feet long, protruded some three to six feet over the railroad track. From the cab of the truck Baskin could see approximately one half mile down the track at which point it curved out of sight. The windows of the cab were up. He was familiar with this crossing, and knew that the track was a main line track of the railroad.
The truck remained in this position for two or three minutes when he noticed a woman in the pickup truck making a "face" at him. He looked up the tracks toward the curve and saw a train approaching, the train having then cleared the curve by approximately a quarter of a mile.
At this time the lead automobile entered Highway 11, the pickup truck moved forward, and Baskin, angling to the right of the pickup truck, was able to move the rear of the trailer off the track so that the train cleared it by one or two feet.
Leo S. Love, engineer of the train, testified that it was some 233 cars in length, each car being 50 feet long. As he entered the curve prior to reaching the crossing, he started blowing the whistle of the engine, and ringing the bell. The speed of the train in the curve was 48 miles per hour, the speed restriction on the curve being 55 to 60 miles per hour. When the engine was sufficiently around the curve to where he could see the straightaway, he saw a truck trailer on the track. The distance was some 35 car lengths, or 1750 feet. Before emerging from the curve, he had blown the prescribed road crossing whistle, and the bell had been started before the whistle was blown. The bell rings continuously when turned on. He observed the truck for approximately 10 car lengths, and it did not appear to move. He thereupon put the train on emergency brakes.
It appears when operating air brakes on trains the air pressure is raised in the braking system to around seventy-five pounds. This pressure releases the brakes on the wheels of each car. As the pressure is lowered the brakes begin to function. The rate of slowing is determined by the amount of air released in using the braking system. When the brakes are applied *593 in emergency the air is released instantaneously and full braking of the whole train results. The brakes cannot then be released until the train is stopped and sufficient air is again pumped into the system.
Mr. Love testified that emergency braking is not lightly employed, only in an emergency, as there is danger of the train jackknifing because of the slack action in a train of cars. In a normal braking such slack action is controlled by gradual braking and using the engine throttle. There is no more risk in using a service application of brakes in a long train than in a short one.
There is no quicker way of stopping a train than by the application of emergency brakes.
Mr. Love further testified that for the past five or six years the length of a train of 233 cars is usual, the length of a train being governed and limited only by the power of the engine.
Mr. Love was cross-examined extensively, as were the other members of the train crew, i.e., the fireman and the conductor. The testimony of the crewmen was materially the same as that of Mr. Love.
This cross-examination elicited testimony to the effect that there is greater slack action in a long train than in a short train; that had the train been slowed to 24 miles per hour instead of the 48 miles per hour it was traveling as it entered the curve, the train would not have been as apt to have a derailment from a bunching of the cars.
After applying the emergency brakes, Mr. Love left his seat and got onto the deck of the engine where he braced himself for a collision. The other crew members left the engine at this time going to units back of the engine. When he realized that the crossing had been passed without a collision, Mr. Love resumed his seat, and looked back. The truck was just off the track, and later drove off toward Meridian, Mississippi. The engine of the train went some 1100 feet beyond the crossing before it stopped.
J. E. Clelland, fireman on the train, testified that a part of his duties was to keep a lookout. He saw the trailer on the track as they came out of the curve. As he observed the truck it did not appear that there was room for it to get off the track. Due to his position in the engine, he could have seen the truck one or two seconds before the engineer would see it. There was no conversation between him and the engineer as to the truck. The engineer placed the engine in emergency brakes, and Mr. Clelland started for the rear units.
Assignment No. 8 asserts as error the refusal of charge No. 3 requested in writing by the appellants, defendants below. This charge reads:
The charge has been criticized, and its validity questioned in several of our opinions. See Williams v. Palmer, 277 Ala. 188, 168 So. 2d 220, though in Independent Life & Accident Ins. Co., etc. v. McGehee, 284 Ala. 394, 225 So. 2d 805, its refusal was one of the bases of reversal of the judgment involved in that case.
In Beavers v. Boykin, 273 Ala. 413, 142 So. 2d 10, this court stated that prevailing attitude of the courts towards "falsus in uno, falsus in omnibus" charges was one of tolerance and sufferance.
But no need arises to belabor the question of the inherent invalidity of a well stated "falsus in uno" charge. The charge herein involved is faulty on its face in that it is misleading.
In effect the charge instructs the jury that if they were reasonably satisfied that any of the witnesses or parties wilfully testified *594 falsely about a material fact then the jury could "disregard such testimony in whole or in part" within their sound discretion. In other words the jury might disregard (or regard) such false testimony in their sound discretion. No discretion should be allowed a jury to consider and give weight to wilfully false testimony on a material point, even in part.
The usual form of a falsus in uno charge is that if the jury is reasonably satisfied that a witness has wilfully testified falsely about a material fact, then the jury might, in its discretion, disregard such witness' testimony in its entirety.
No error therefore resulted from the refusal of defendants' written requested charge No. 3.
In support of the contention that the court erred in refusing the charges relative to contributory negligence, counsel argues that since the derailment was caused by bunching of the cars due to the sudden taking up of the slack action of the train upon the application of the emergency brakes, the railroad employees were negligent in (1) entering the curve at a speed of 48 miles per hour, when if they had entered the curve at a lesser speed, the train could probably have been stopped before reaching the crossing, (2) the railroad witnesses admitted that the slack action is greater in a train of 233 cars than in a shorter train of 100 cars, (3) the braking system on some of the cars has been the same since 1938, (4) that slack action is more severe when there are loaded cars behind empty cars, as was the situation with this train, and (5) a jury could well find negligence from the operation of a train of the length of the train herein involved.
As to the speed of the train entering the curve, the evidence shows that the limitation of the speed on this curve was 55 to 60 miles per hour. The evidence is undisputed that the train traveled on the curve at a speed of 48 miles per hour.
Railroads have the right to operate trains at any speed that is safe for passengers and freight, except where statutory limits are exacted. Cannon v. Louisville & N. R. Co., 252 Ala. 571, 42 So. 2d 340.
As to the fact that there is more slack action in a longer train than in a shorter one, and that slack action is severe when loaded cars are placed behind empty ones in a train, such facts merely state basic physical laws. We cannot see that any negligence can be inferred from a mere statement of such facts when evidence tending to demonstrate negligence from such conditions is totally lacking.
Nor can any negligence be inferred merely from the fact that the braking systems on some of the cars were the same as they had been since 1938. There was no showing by the appellant that such braking system was inefficient. In fact witnesses for the railroad testified that the braking systems placed on 1938 cars were the basic braking systems applied to cars today.
In the absence of evidence to the contrary, we do not think that negligence can be inferred merely from the length of a train. With the increase in the power of engines, it is customary to operate trains of the length of the train involved in this derailment. Mr. Love testified that in normal operations slack action is controlled by gradual braking and using the engine throttle, and that there is no more risk in using a service application of brakes on a long train than on a short one.
We find no basis from the evidence of inferring even a scintilla of negligence on the part of the railroad in the operation of this train. This in itself would justify a refusal of the contributory negligence charges.
We conclude further that error should not be cast upon the trial court in refusing the contributory negligence charges because of a colloquy between the court and appellants' counsel.
*595 The complaint as amended contained two counts based on the alleged negligence of the appellants.
In the trial below the plaintiff offered in evidence the deposition of Mr. Baskin, one of the defendants, and one of the appellants here. This deposition, some 43 pages in length, was read to the jury. The plaintiff then presented as a witness Mr. Love, the engineer. His direct examination was lengthy. The cross-examination was extensive and during this cross-examination the record shows the following:
The court's observation that "we have no plea of contributory negligence in this case" was not correct in that a plea of the general issue in short by consent, etc., would include a plea of contributory negligence since both counts sounded in negligence only. Wilhite v. Webb, 253 Ala. 606, 46 So. 2d 414; Barfield v. Wright, 286 Ala. 402, 240 So. 2d 593. However, we consider this probably inadvertent statement insignificant in considering the colloquy as a whole. We do not know why counsel for the appellants was loathe to pronounce the words "contributory negligence" and treated the term as though it might be obscene. Nevertheless, counsel's statements would reasonably indicate a disclaimer of contributory negligence as an issue in the case.
A party may not avail himself of error into which he has led or lulled the trial court. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So. 2d 89; Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So. 2d 178; Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So. 2d 306. Nor will a case be reviewed on a theory different from that on which it was tried. Ellerbee v. Atlantic Coast Line R. Co., supra, and cases cited therein.
Affirmed.
MERRILL, MADDOX and McCALL, JJ., concur.
LAWSON, J., concurs in result. | January 14, 1971 |
165a28e2-a770-433e-8e12-7a14a751a20c | MJM, INC. v. Cas. Indem. Exchange | 481 So. 2d 1136 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1136 (1985)
MJM, INC. and Aetna Casualty Insurance Company
v.
CASUALTY INDEMNITY EXCHANGE, et al.
83-1295.
Supreme Court of Alabama.
December 27, 1985.
*1137 Stephen K. Griffith for Knight & Griffith, and Martha E. Williams, Cullman, for appellants.
William A. Scott, Jr. and Amy K. Myers of Clark & Scott, Birmingham, for appellee Cas. Indem. Exchange.
Ralph Bland of Bland, Bland & Weldon, and Hayden R. Battles of Battles & Battles, *1138 Cullman, for appellees Waymon Rutherford and Rutherford Ins. Agency, Inc.
Stanley A. Cash of Huie, Fernambucq & Stewart, Birmingham, for appellee L.E. Rife, Inc.
John David Knight, and John Mark Sapp of Sapp, Sapp & Sapp, Cullman, for appellees R.H. Culpepper and Clyde White.
Thomas L. Stewart of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellees John S. Garner and Orleane H. Garner.
HOUSTON, Justice.
The issue before the Court in this case is whether the trial court erred in granting summary judgments in favor of defendants John Garner, Orleane Garner, Waymon Rutherford, Rutherford Insurance Agency, Inc., L.E. Rife, Inc., and Casualty Indemnity Exchange, Inc. We affirm.
The undisputed facts show the following: John Garner and his wife, Orleane Garner, purchased a cafe from MJM, Inc. George Blankenship represented MJM in the sale negotiations, in conjunction with Horace Culpepper, a real estate agent. Pursuant to the sale, the Garners assumed existing mortgages on the cafe which were held by Security Mutual Finance, Inc., and Cullman Savings and Loan Association. They executed two notes secured by two mortgages and a security interest to MJM for the balance of the purchase price. One of the notes was secured by a mortgage on real property which the Garners owned in Jefferson County. The other note was secured by a mortgage on the cafe. MJM received the security interest in the personal property sold in conjunction with the cafe.
Subsequent to the sale, Blankenship obtained a loan on behalf of MJM from Parker Bank and Trust company. As collateral securing this loan, MJM, through Blankenship, conditionally assigned the Garner notes and mortgages to Parker Bank and Trust Company. Culpepper and Clyde White also signed as guarantors on this loan. According to its terms, the assignment was to become absolute and irrevocable without notice to MJM if it defaulted.
Culpepper contacted Waymon Rutherford (of Rutherford Insurance Agency, Inc.) to secure insurance on the cafe for the Garners. Rutherford acts as a general agent for several insurance companies and also brokers coverage with other companies. Rutherford arranged coverage for the Garners with Casualty Indemnity Exchange (C.I.E.) through L.E. Rife, the general agent for C.I.E. Rutherford had no authority to bind C.I.E., in contract. L.E. Rife bound coverage for the Garners on April 22, 1981. In early May, Rutherford received the policy of insurance on the cafe. Cullman Savings and Loan was the only loss-payee listed on it. When Blankenship discovered that MJM had not been listed on the policy as a loss-payee, he obtained partial coverage for MJM through Aetna Casualty and Surety Company.
On May 18, 1981, Rutherford contacted L.E. Rife concerning the mortgages held by Security Mutual Finance, Inc., and MJM and also concerning the fact that he had not been able to locate the Garners to deliver the policy. Prior to this time, neither L.E. Rife or C.I.E. had had any notification of the existence of these two additional mortgages. L.E. Rife initiated cancellation of the policy. Prior thereto, the Garners had indicated to Blankenship that they were dissatisfied with the purchase of the cafe and were closing it. On June 7, 1981, the cafe was damaged by fire and Aetna paid MJM's claim. When its note with Parker Bank and Trust came due, MJM used a portion of the Aetna proceeds to pay back approximately one-half of its loan and renewed the note for the balance. When the note again fell due, MJM defaulted. Culpepper and White, as guarantors, paid the note upon demand and took the Garner notes and mortgages by way of assignment from Parker Bank and Trust.
The procedural history of this case is somewhat involved. For purposes of our determination, however, suffice it to say that MJM intervened in a suit previously *1139 brought by the Garners against Rutherford, Rutherford Insurance Agency, L.E. Rife, and C.I.E. claiming breach of an insurance contract and bad faith refusal to pay. In its complaint in intervention, MJM alleged breach of contract against the Garners, as well as breach of contract, fraud, and bad faith refusal to pay against the remaining defendants. Aetna intervened as a subrogee to any recovery by MJM on the basis of its payment of MJM's claim for fire loss pursuant to its policy.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
MJM contends that the trial court erred in granting a summary judgment on its claims against the Garners for breach of contract. It first argues that the Garners are in breach of contract by failing to pay the two notes which they executed in connection with the purchase of the cafe. We disagree.
The undisputed facts in this case show that MJM conditionally assigned the Garner notes to Parker Bank and Trust as collateral for a loan. According to its terms, the assignment became absolute and irrevocable upon MJM's default. Culpepper and White, the guarantors of that loan, repaid it and took the Garner notes by way of assignment from Parker Bank and Trust. Section 8-3-2, Code 1975, reads as follows:
The term "surety," as used in this section, means one who has been forced to pay a debt which was the primary obligation of another and which the latter ought to have paid in exoneration of the former. Bradley v. Bentley, 231 Ala. 28, 163 So. 351 (1935).
As a result of its default on the note to Parker Bank and Trust and the subsequent assignment of the Garner notes to Culpepper and White, MJM lost its interest in the cafe. Therefore, it has no right to enforce payment of the Garner notes. Culpepper and White became subrogated to that right and the Garners' obligation to pay that debt is to them, not MJM.
MJM insists that a question of fact was presented in Blankenship's affidavit submitted in opposition to the various motions for summary judgment, namely a question as to whether Culpepper was acting as its agent when he paid the note to Parker Bank and Trust and accepted the assignment of the Garner notes for MJM in that capacity. Again we disagree.
That affidavit, in pertinent part, reads as follows:
Under Rule 56(e), Ala.R.Civ.P., an opposing affidavit must be made on personal knowledge, and must set forth facts that would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated. In Day v. Merchants National Bank of Mobile, 431 So. 2d 1254 (Ala.1983), the Court, quoting from Butler v. Michigan Mutual Insurance Company, 402 So. 2d 949 (Ala.1981), stated:
In the present case, Blankenship states in his affidavit that he "thought," was "under the impression" or it was his "understanding" that Culpepper was acting as MJM's agent when he paid the note to Parker Bank and Trust and accepted the assignment of the Garner notes. Subjective beliefs, such as these, no matter how sincere, are not the equivalent of personal knowledge and such statements relating thereto do not satisfy the requirements of Rule 56(e), supra. Oliver v. Brock, 342 So. 2d 1 (Ala.1976).
Having reviewed the record, and finding no genuine issue of material fact in this regard, we hold that the trial court properly granted the Garners' motion for summary judgment.
MJM next argues that the Garners breached their agreement to obtain hazard insurance on the cafe for the purpose of protecting its mortgage and security interests.
The mortgage executed by the Garners to MJM securing one of the notes expressly obligated the Garners to procure hazard insurance on the cafe sufficient to protect MJM's interests. All of the oral negotiations concerning this obligation would have merged into the mortgage upon its execution, Guilford v. Spartan Food Systems, Inc., 372 So. 2d 7 (Ala.1978). Therefore, MJM's cause of action against the Garners for failure to procure the hazard insurance arises out of the mortgage.
A cause of action arising out of a breach of contract is assignable in Alabama. Section 8-5-20, Code 1975, reads as follows:
See also Crawford v. Chattanooga Savings Bank, 201 Ala. 282, 78 So. 58 (1917).
MJM assigned its mortgage by endorsement thereon to Parker Bank and Trust. The endorsement reads:
Because of MJM's default, the assignment to Parker Bank and Trust became absolute and irrevocable. Consequently, MJM lost its right of action under the mortgage and, thus, the trial court did not err in granting the Garners' motion for summary judgment.
MJM's claim of fraud against the remaining defendants is based upon alleged willful or reckless misrepresentations of coverage by Rutherford. MJM contends that Rutherford was acting as an agent for L.E. Rife and C.I.E. and, in that capacity, made false assurances that MJM was covered under the policy as a loss-payee.
Under the allegations of its complaint, it is apparent that MJM is relying upon § 6-5-101, Code 1975:
A necessary element of fraud under this section is reasonable reliance. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala. 1981). Where a party has reason to doubt the truth of the representations or is informed of the truth before he acts, he has no right to act thereon. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983).
*1142 Blankenship's undisputed testimony on deposition was as follows:
The foregoing portions of Blankenship's deposition established that once he learned that MJM had been omitted from the policy, he did not reasonably rely upon any alleged misrepresentations by Rutherford.[1] Blankenship was fully aware that MJM was not designated on the insurance policy as a loss-payee and, consequently, he obtained other coverage through Aetna. This result is not altered by the fact that Blankenship failed to secure adequate coverage through Aetna. His failure in this regard resulted from a conscious decision to avoid the expense of full coverage. The summary judgments on the fraud claims were, therefore, proper.
Finally, the summary judgments were proper as to MJM's claim of damages for failure to pay on the insurance contract and bad faith against Rutherford, Rutherford Insurance Agency, L.E. Rife, and C.I.E. A party seeking to prove a bad faith refusal to pay on a contract of insurance must necessarily show that there was an insurance contract. National Security Fire and Casualty Co. v. Bowen, 417 So. 2d 179 (Ala.1982).
Our review of the record, in the instant case, reveals no evidence that a contract of insurance, naming MJM as a loss-payee, ever came into existence between either the Garners or MJM and C.I.E. Rutherford, acting as an independent insurance broker, was the sole intermediary when he arranged coverage for the Garners through L.E. Rife. The undisputed facts show that prior to May 18, 1981, neither L.E. Rife nor C.I.E. had had any notification as to MJM's mortgage interest. To the contrary, L.E. Rife initiated cancellation on that date upon learning of the additional mortgages and the fact that Rutherford could not locate the Garners to deliver the policy.[2]
Rutherford, acting as an independent broker, had no authority to bind C.I.E. in contract.[3]Washington National *1144 Insurance Company v. Strickland [MS. 84-483, December 20, 1985] (Ala.1985). Therefore, any alleged assurances of coverage which he might have made to Blankenship are not evidence of a contract between MJM and C.I.E., and, furthermore, there is no evidence of any communication between Blankenship and either L.E. Rife or C.I.E.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur.
[1] Although Blankenship alleges in his deposition that Rutherford made certain misrepresentations of coverage prior to the issuance of the policy by C.I.E., MJM cannot recover in fraud based upon those alleged misrepresentations because there is no evidence in the record that Blankenship relied on them to MJM's detriment. Earnest v. Pritchett-Moore, Inc., supra.
[2] This would preclude any recovery in contract against L.E. Rife and C.I.E. on the part of MJM under any third-party beneficiary theory.
[3] As an independent broker, Rutherford was, in fact, acting as agent for the Garners by soliciting coverage for them. Washington National Insurance Company v. Strickland [MS. 84-483, December 20, 1985] (Ala.1985). Consequently, he cannot be held personally liable for failure to pay on the insurance contract. See Highlands Underwriters Insurance Company v. Eleganté Inns, Inc., 361 So. 2d 1060 (Ala.1978), for a statement of law with regard to the duty that insurance agents or brokers owe to their principals, the insureds. | December 27, 1985 |
b6d59246-eb9a-4f2d-b083-dead29b84467 | Amer. Cast Iron Pipe Co. v. Commerce & Industry Ins. | 481 So. 2d 892 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 892 (1985)
AMERICAN CAST IRON PIPE COMPANY, a Georgia corporation
v.
COMMERCE & INDUSTRY INSURANCE COMPANY.
84-787.
Supreme Court of Alabama.
December 20, 1985.
Gary M. London of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellant.
*893 Mark W. Lee of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee.
BEATTY, Justice.
Appeal by American Cast Iron Pipe Company (ACIPCo), plaintiff, from summary judgment rendered in favor of Commerce & Industry Insurance Company (C & I) in ACIPCo's action for damages based upon an alleged breach of a contract of insurance. We reverse and remand.
The case was submitted to the trial court on the parties' motions for summary judgment, stipulation of fact, briefs, and arguments. The stipulation was as follows:
The policy referred to in the stipulation is a general liability policy under which C & I obligated itself to defend ACIPCo against all general liability claims, subject to a single limit of $50,000.00 and to a deductible amount of $5,000.00 for each occurrence. The failure to pay this amount was the gravamen of ACIPCo's complaint, which alleged causes of action in negligence, breach of contract, and bad faith refusal to pay an insurance claim.
According to the policy, the "named insured" is specifically described as:
The policy provided as follows:
The policy defines "occurrence" as: "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured."
The policy also contained an exclusion of coverage for bodily injury or property damage arising from "completed operations hazard and products hazard." "Completed operations hazard" was defined in the policy thusly:
In considering the parties' summary judgment motions, the trial court noted that the parties generally agreed upon three issues to be decided:
After consideration, the trial court decided Issue 1 and Issue 2 in favor of ACIPCo, and C & I did not appeal from those rulings. Regarding Issue 3, the trial court held:
The issue before this Court, then, is whether or not the trial court was correct in deciding that the "completed operations hazard" exclusion was applicable under these facts to support the denial of coverage by C & I. Put in another way, did O'Brien's bodily injury claim arising out of the conveyor located on American Valve's premises amount to a "completed operations hazard" under the policy?
"Completed operations" is a term referring to the liability of a business entity, generally a contractor, which arises after he has completed his work and after the subject matter has been accepted by a third party. Annot. 58 A.L.R.2d 12 at 19 (1958). Although there are a number of decisions in the literature applying the "completed *895 operations hazard," see, for example, Annot. 58 A.L.R.2d 12, and Employers Ins. Co. of Ala. v. Rives, 38 Ala.App. 411, 87 So. 2d 646 (1953), rev'd, 264 Ala. 310, 87 So. 2d 653 (1955), on remand, 38 Ala.App. 411, 87 So. 2d 646 (1956), cert. denied, 264 Ala. 696, 87 So. 2d 658 (1956), none has been cited to us, nor have we found a case, containing these particular facts. Defendant C & I makes much of the fact that O'Brien's injuries occurred upon American Valve's premises. C & I describes American Valve as "a separate and distinct corporation" which owned the premises on which the injuries to O'Brien occurred. Thus, C & I insists that the injury occurred "away from premises owned by ... the named insured." C & I discounts the effect of the "named insured" as also including American Valve, pointing to a severability clause contained in the policy:
C & I cites us to our decision in United States Fire Ins. Co. v. McCormick, 286 Ala. 531, 243 So. 2d 367 (1970), in which this Court discussed the effect of such a severability clause in a comprehensive general liability policy. That case dealt with a factual situation in which the policy of insurance named as "insured" a corporation and an individual who was president of the corporation. The policy contained an exclusion from any "obligation for which the insured ... may be held liable under any workmen's compensation ... law." The plaintiff in that case sued the president of the corporation, as provided by a statute which allowed the recovery of workmen's compensation and also an action against "any party other than the employer." The insurance company defended on the ground that the suit against the president of the company in reality was a suit against the employer. This Court rejected that position as not conforming to the intentions of the contracting parties.
The insurance company also contended that the policy's severability clause excluded coverage when the injured party was an employee of any insured, even though he might not have been an employee of the person committing the tort. This Court rejected that argument by adopting the reasoning of cases from other jurisdictions which held that the effect of the severability clause[1] was to broaden or extend coverage rather than to limit it:
With deference to defendant's argument, we point out that McCormick dealt with the applicability of the severability clause to a co-employee liability case arising under workmen's compensation law and did not pertain to the particular problem presented here. The question here deals with the effect of that clause in an insurance policy purchased by a corporation, a named insured, which wholly owns another named insured. It is stipulated that ACIPCo owns 100% of the stock of American Valve. For the purposes of applying the severability clause in C & I's policy, what did the parties intend? If the bodily injury occurred at American Valve's premises, were these premises "away from the premises owned *896 by ... the named insured," ACIPCo? Or, were American Valve's premises also ACIPCo's premises, so that the bodily injury occurred on ACIPCo's premises, with the result that the "completed operations hazard" exclusion did not apply?
By its language, the severability clause itself does not modify the term "named insured," nor does it limit the definition of "completed operations hazard." Therefore, we must use other means to ascertain ACIPCo's status vis-a-vis the additional insured, American Valve.
Admittedly, American Valve is a separate corporate entity. Nevertheless, ACIPCo owns 100% of the stock of American Valve and thus, as sole stockholder, has the ultimate voting authority and control over American Valve. In Alabama, shareholders are the equitable owners of corporate assets, including real property, to the extent of their interest, and thus exercise ultimate control over the corporation through their voting power to elect directors. Williams v. North Alabama Express, 263 Ala. 581, 83 So. 2d 330 (1955). As was more pointedly stated in Diebold v. Commissioner of Internal Revenue, 194 F.2d 266, 268 (3d Cir.1952):
See also Code of 1975, § 10-2A-185 (on dissolution).
Accordingly, we cannot conclude that ACIPCo's purchase of this policy and the naming of its subsidiary company as an insured effected a severance of insured interests. The "premises" upon which O'Brien's accident occurred were the "premises" of ACIPCo, and so the exclusion for "completed operations hazard" does not apply.
Thus, the trial court was in error in its finding to the contrary. Accordingly, the judgment predicated upon that finding must be, and it is, reversed, and this cause is remanded for further proceedings consistent with this opinion. It is so ordered.
REVERSED AND REMANDED.
FAULKNER, ALMON and HOUSTON, JJ., concur.
TORBERT, C.J., concurs in the result.
[1] "... The term `the insured' is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability." McCormick, 286 Ala. at 538, 243 So. 2d at 373. | December 20, 1985 |
bbb6a84f-c2b1-4c60-a7a1-35bc6e25a0d1 | Ex Parte Hilley | 484 So. 2d 485 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 485 (1985)
Ex parte Audrey Marie HILLEY.
(Re Audrey Marie Hilley v. State of Alabama).
84-987.
Supreme Court of Alabama.
December 20, 1985.
Rehearing Denied February 7, 1986.
*486 Wilford J. Lane and Thomas W. Harmon, Anniston, for petitioner.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
PER CURIAM.
The appellant, Audrey Marie Hilley, was convicted June 8, 1983, for the murder of her husband and the attempted murder of her daughter. She was sentenced to a term of life imprisonment for murder and a term of twenty years' imprisonment for attempted murder. On April 23, 1985, the Court of Criminal Appeals affirmed both convictions. See, Hilley v. State, 484 So. 2d 476 (Ala.Crim.App.1985). This Court granted appellant's petition for writ of certiorari, and we now affirm both convictions.
The bizarre facts of this case show that on May 19, 1975, Frank Hilley, who was the husband of the appellant, first consulted a doctor for nausea and tenderness of the abdomen. He was hospitalized on May 23, 1975, and died in the early morning hours of May 25, 1975. An autopsy revealed hepatitis, swelling of the kidneys and lungs, bilateral pneumonia, and an inflammation of the stomach and duodena. The cause of death was determined to be "infectious hepatitis." No test for arsenic poisoning was conducted at that time. The appellant collected over $31,000 of life insurance proceeds as a result of the death of her husband.
On July 27, 1978, the appellant purchased a life insurance policy on the life of Carol Hilley, the appellant's teenage daughter, and named herself as beneficiary. *487 The policy, with a $25,000 face value and $25,000 of accidental death coverage, became effective in August 1978.
In April 1979, Carol Hilley began experiencing severe nausea. She was treated numerous times between April and August of 1979, and was hospitalized on August 22, 1979. During the time of Carol's sickness, the appellant gave Carol at least three injections, supposedly to relieve her nausea and to help her legs. The appellant told Carol that she had acquired the medication from Doris Ford, a friend who was a registered nurse, and told Carol not to tell anyone about the injections because Doris Ford could lose her job if others learned about them. Doris Ford testified that she had never procured any medication for the appellant to give to Carol.
Carol's health grew steadily worse. The appellant took Carol out of Carraway Methodist Hospital on September 18, 1979, and had her admitted to UAB Hospital on September 19, 1979. By this time, Carol experienced severe nausea, numbness of the hands and feet, nerve palsy, and a loss of deep tendon reflexes.
At UAB, Dr. Brian Thompson diagnosed Carol's illness as arsenic poisoning. Subsequent tests revealed high levels of arsenic in her hair. Carol's health improved steadily after this date.
On September 19, 1979, the same day Carol had been admitted to UAB, and just before the arsenic was discovered in Carol, the appellant was arrested in Birmingham on "bad check" charges. She was transported to the Anniston City Jail and was incarcerated there for approximately the following two months.
On October 3, 1979, the body of Frank Hilley was exhumed so that tests for arsenic could be performed. High levels of arsenic were found in his body, and Dr. Joseph Embry of the Alabama Department of Forensic Sciences concluded that the cause of death was acute arsenic poisoning, and not hepatitis. Expert testimony at trial revealed that symptoms of hepatitis are similar to those of arsenic poisoning.
On October 6, 1979, Frieda Adcock, the sister of Frank Hilley, found a medicine vial in an open cosmetic case among certain of the appellant's belongings that had been left at the house of Adcock's mother. Adcock turned the bottle over to the Anniston police, who in turn transferred it for scientific analysis. The bottle, which was half full of a liquid, was analyzed as containing a 1.6% solution of arsenic trioxide.
On October 9, 1979, the appellant, while still in jail on "bad check" charges, was arrested, and she was later indicted for the attempted murder of Carol Hilley. On that same day, Anniston police removed a medicine vial from the appellant's purse, which had been inventoried and stored in a personal property locker at the police station. This vial was taken for testing, and the analysis indicated the presence of arsenic.
On October 21, 1979, Frieda Adcock searched through the appellant's items that had been left in Adcock's basement, and turned several items over to the police. Upon testing, one of these items was found to be rat poison, which contained a 1.5% concentration of arsenic trioxide.
On November 9, 1979, the appellant was released on bond from the Anniston jail, but soon disappeared from Alabama. A strange sequence of events, including travel under numerous identities, consumed her next three years, until she was located by the F.B.I. in Vermont on January 12, 1983.
Evidence revealed that soon after her release on bond, she checked into a Birmingham motel under the name of Emily Stephens. She then left a note and other evidence faking her own kidnapping, and traveled to Florida under the identity of Robbi Hannon. In Florida, she met, and moved in with, John Homan. In September 1980, the appellant and John Homan moved to New Hampshire, but moved back to Florida in May of 1981. In Florida, the appellant and John Homan were married, and the appellant consequently began using the name of Robbi Homan. Sometime later, they moved back to New Hampshire.
In the summer of 1982, the appellant left New Hampshire, and traveled alone to Texas *488 and to Florida under the alias of Teri Martin. She had previously told John Homan that she had a twin sister named Teri Martin. Sometime later, she called John Homan and informed him that Robbi Homan had died and that her body had been donated to medical science in Texas.
In November of 1982, after changing her hair color and losing weight, she returned to New Hampshire, posing as Teri Martin. She and John Homan began living together again, although she still used the name of Teri Martin. They placed an obituary in a New Hampshire newspaper for Robbi Homan, and it was this obituary that tipped off a detective and eventually led to her arrest. She was arrested while working in Vermont on January 12, 1983, and was returned to Alabama.
While housed in the Calhoun County Jail awaiting trial, the appellant shared a cell with Priscilla Lang. Lang testified at trial that the appellant told her that she had poisoned her husband and her daughter with arsenic.
On June 8, 1983, the appellant was convicted of both counts in a consolidated trial. On appeal she raises nine issues regarding alleged errors at trial, but only the first two issues will be discussed in detail here.
The appellant contends that the October 9, 1979, warrantless search of her purse, and the subsequent removal of items from the purse for testing, were in violation of the Fourth Amendment of the United States Constitution.
The purse was stored in a personal property locker at the Anniston Police Department on September 20, 1979, following Mrs. Hilley's transfer from Birmingham to the Anniston jail on "bad check" charges. At least one complete inventory search of the purse was conducted there, and a list of all of the contents of the purse was prepared before storage in the locker. The purse remained in the locker until its removal on October 9. The medicine vials contained therein were then removed and turned over to the forensic laboratory at Jacksonville State University to be tested for the presence of arsenic. No search warrant was ever obtained by the Anniston Police Department for any of these activities.
The Fourth Amendment is designed "to prevent arbitrary and oppressive interference by law enforcement officials with the privacy and personal security of individuals." INS v. Delgado, 466 U.S. 210, 1762, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 254 (1984), citing, United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074, 3081, 49 L. Ed. 2d 1116, 1126 (1976). A search warrant is the protective device established to shield a person from arbitrary and oppressive interference, and all searches without a warrant are deemed "per se unreasonable" unless they fall within certain recognized exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967); Dale v. State, 466 So. 2d 196, 198 (Ala.Crim.App.1985).
The recognized exceptions to the requirement of a warrant are: (1) plain view, (2) consent, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coupled with probable cause, and (6) stop and frisk situations. Dale v. State, 466 So. 2d at 198; Ballard v. State, 461 So. 2d 899, 903 (Ala.Crim.App. 1984); McClellan v. State, 415 So. 2d 1238, 1239 (Ala.Crim.App.1982).
Because the initial seizure of Mrs. Hilley's purse occurred during her arrest on "bad check" charges, it was valid as "incident to a lawful arrest." Consequently, the purse and its contents were in the lawful possession of the Anniston police during Mrs. Hilley's term in the Anniston jail on the "bad check" charges.
The inventory searches conducted after Mrs. Hilley's arrival at the Anniston jail were also legal. Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983).
But, while the initial seizure, the subsequent inventory search, and the continuous possession of the purse were all legal, we *489 are now faced with the issue of whether another search, conducted three weeks later because of new suspicions, was within the lawful scope of the initial search and seizure.[1] We believe that it was.
The Fourth Amendment protects only reasonable expectations of privacy. United States v. Davies, 768 F.2d 893, 902 (7th Cir.1985). A "search," within the meaning of the Fourth Amendment, occurs only when a reasonable expectation of privacy is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984); United States v. Knotts, 460 U.S. 276, 280-81, 103 S. Ct. 1081, 1084-85, 75 L. Ed. 2d 55, 61 (1983).
Once an item has been searched, the owner's expectation of privacy in that item is significantly reduced. United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.), cert. denied, 461 U.S. 936, 103 S. Ct. 2106, 77 L. Ed. 2d 312 (1983); United States v. Guevera, 589 F. Supp. 760, 762 (E.D.N.Y. 1984); Lightbourne v. State, 438 So. 2d 380, 387 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1330, 79 L. Ed. 2d 725 (1984); State v. Harden, 639 S.W.2d 90, 92 (Mo.Ct. App.1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); People v. Rivard, 59 Mich.App. 530, 533-34, 230 N.W.2d 6, 8 (1975). "The contents of an item previously searched are simply no longer private." Burnette, 698 F.2d at 1049.
Requiring a warrant for a subsequent search of an item which has already been lawfully searched would not provide any additional protection for an individual's privacy interests, Burnette, 698 F.2d at 1049, n. 25, and would be "a useless and meaningless formality." United States v. Oaxaca, 569 F.2d 518, 524 (9th Cir.), cert. denied, 439 U.S. 926, 99 S. Ct. 310, 58 L. Ed. 2d 319 (1978).
In Burnette, supra, a suspect was arrested for robbery of a federal savings and loan association's branch office. Upon the arrest, her purse was seized and the police conducted a contemporaneous search of the purse. Later, a more thorough search was conducted at the police station, and important additional evidence was discovered. Although this second search was made without a warrant, the court held it to be legal, because the contents of the purse had already been fully exposed to the police, and the defendant's expectation of privacy was significantly reduced by the first search.
The Supreme Court provided the original basis for this line of reasoning in United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974), and in that case analogized the situation to the "incident to a lawful arrest" exception. The case of United States v. Guevera, supra, follows this reasoning and further supports our position in the present case.
Likewise, in United States v. Grill, 484 F.2d 990 (5th Cir.1973), cert. denied, 416 U.S. 989, 94 S. Ct. 2396, 40 L. Ed. 2d 767 (1974), the defendant was arrested on drug trafficking charges and was placed in jail. All of his belongings were searched, listed on a printed receipt form, and then put away in a locker. One month later, the police searched these personal effects and removed a key from a sealed envelope, this being done without a warrant. The police then tried the key in a brass lock securing a duffel bag which had been found in the Bahamas. The key opened the lock, and the defendant was convicted on charges concerning this duffel bag.
The court held this warrantless search to be legal, and stated as follows:
*490 Therefore, on the basis of the Burnette and Grill rationale, we believe the initial seizure of the purse in Birmingham and the subsequent inventory search of the purse in Anniston, both of which were indisputably lawful, severely dissipated any reasonable expectation of privacy that Mrs. Hilley may have had in her purse. Consequently, no reasonable expectation of privacy was infringed, and the Fourth Amendment did not provide Mrs. Hilley with impenetrable protection from the subsequent search by the police. We find that the trial court did not err in allowing the results of this search into evidence.
The appellant contends that the search by the police into containers delivered to them by Frieda Adcock was in violation of the Fourth Amendment. The record reflects that Adcock found these items on her own and turned them over to the police for further analysis. Some of these items were found by Adcock in the basement of her own house, and others were found by Adcock in her mother's house. The record reveals that Frieda Adcock had her own set of keys to her mother's house and had complete and unlimited access to that house.
The Fourth Amendment proscribes only governmental action and does not apply to a search or seizureeven an unreasonable oneconducted by a private individual, unless that person is acting as an agent of the government or with the participation or knowledge of a governmental official. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921). Even "[a] wrongful search or seizure conducted by a private person does not violate the Fourth Amendment." United States v. Black, 767 F.2d 1334, 1339 (9th Cir.1985); Singleton v. State, 48 Ala.App. 157, 160, 262 So. 2d 772, 775 (1971), cert. denied, 288 Ala. 751, 262 So. 2d 776 (1972).
Mere antecedent contact between Frieda Adcock and the police did not make Adcock an agent of the police. United States v. Lambert, 771 F.2d 83, 89 (6th Cir.1985); United States v. Coleman, 628 F.2d 961, 965 (6th Cir.1980). Rather, to make a person an agent of the police in this context, two facts must be shown.
First, the police must have instigated, encouraged, or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigation. Lambert, 771 F.2d at 89; Black, 767 F.2d at 1339; United States v. Howard, 752 F.2d 220, 227 (6th Cir.1985).
The record in this case fails to show that the police, or any governmental agency, "instigated, encouraged, or participated in the search." Lambert, supra. It is, therefore, unnecessary to determine Frieda Adcock's intent in making her individual search. This search was conducted solely by a private individual and was not violative of the Fourth Amendment, and the police consequently gained lawful possession of the items in question.
Also, the scientific analysis of the items by the police was not a Fourth Amendment violation. It appears from the record that Frieda Adcock possessed "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974); United States v. Bilanzich, 771 F.2d 292, 296 (7th Cir.1985), citing Matlock; Ballard v. State, 461 So. 2d 899, 903 (Ala.Crim.App.1984), citing Matlock. If one subjects his property to the exclusive or joint control of another, he assumes the risk that consent will be granted by the other to a search of the property. Matlock, supra; United States v. Falcon, 766 F.2d 1469, 1474 (10th Cir. 1985).
Therefore, we hold that Frieda Adcock had the requisite authority to validly consent to the testing of these items. A search conducted pursuant to a valid consent *491 is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854, 860 (1974).
When a search is properly authorized by consent, its scope is governed by the terms of its authorization. Walter v. United States, 447 U.S. 649, 656-57, 100 S. Ct. 2395, 2401, 65 L. Ed. 2d 410, 417 (1980); United States v. Rackley, 742 F.2d 1266, 1271 (11th Cir.1984). Frieda Adcock plainly authorized and consented to a search of these items by means of a full scientific analysis.
This issue is strikingly similar to the major issue decided in the case of State v. von Bulow, ___ R.I. ___, ___, 475 A.2d 995, 1012-20, cert. denied, ___ U.S. ___, 105 S. Ct. 233, 83 L. Ed. 2d 162 (1984). While the holding in von Bulow seems to directly contradict the result we reach today, von Bulow was decided primarily on Rhode Island state law grounds and is in no way controlling in the present case. Furthermore, it involved a state search which not only exceeded the scope of the private search, but also exceeded the scope of the consent given for the state search.
The appellant argues that the plurality opinion in Walter v. United States, supra, precludes the finding that the state search was legal. However, the case at bar is distinguishable from the facts of Walter because "Walter did not involve a consent search and seizure." United States v. Falcon, 766 F.2d 1469, 1475 (10th Cir.1985). In the present case, Freida Adcock had the authority to possess and control the items and could rightfully consent to a complete scientific analysis, whereas, the third party in Walter never had rightful possession or control of the pornographic films involved in that case and could not properly consent to an expansive search of them.
Because the initial search and seizure by Adcock was a private one outside the realm of the Fourth Amendment, and because Adcock consented to a full scientific analysis of the items, the testing was legal. Accordingly, the subsequent admission of the results of the search and the scientific test was not error.
As to the other seven alleged errors, we believe the Court of Criminal Appeals has decided each issue correctly, and we adopt its holding on each of these issues. However, as to Issue VII, concerning the denial of the defendant's motion for discovery of her own recorded statement, we feel that we need to point out that Rule 18.1, Temporary Alabama Rules of Criminal Procedure, had not become effective as of the date of the denial of her motion. Therefore, Mrs. Hilley did not have the right to discovery of her statement, whereas she may have had the right if Temporary Rule 18.1 had been in effect at that time.
The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., not sitting.
[1] For excellent discussions of this issue and various case citations on the subject, see: 2 LaFave, Law of Search and Seizure, § 5.3(b) (1978); Note, The Inventory Search and the Arrestee's Privacy Expectation, 59 Ind.L.J. 321 (1984). | December 20, 1985 |
d26006b3-b17f-4e7f-9bec-2eda2b1f98fa | Holz v. Lyles | 251 So. 2d 583 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 583 (1971)
Alfred HOLZ et al.,
v.
O. W. LYLES.
1 Div. 645.
Supreme Court of Alabama.
May 6, 1971.
Rehearing Denied August 19, 1971.
*584 Arthur C. Epperson, Foley, for appellants.
No appearance for appellee.
PER CURIAM.
Appellee filed his original suit in the Circuit Court of Baldwin County, in Equity, to enjoin and restrain appellants from obstructing an area of public land and from maintaining structures and obstructions *585 thereon which interfere with complainant's (appellee's) free access from and to his property (lots allegedly adjoining a public road, Magnolia Street, on the south) to Palmetto Creek on the north side of the alleged public street or road. Demurrer to the complaint for want of equity and other grounds was overruled by the trial court. This court reversed the final decree for error in overruling the demurrer and remanded the cause.Holz v. Lyles, 280 Ala. 521, 195 So. 2d 897.
After remand complainant amended the original complaint by striking therefrom Paragraphs 4 and 5 and by substituting therefor Paragraphs 4 and 5 (using the same numbered paragraphs as in the original complaint). These amended paragraphs aver in effect that the obstructed area is a part of Magnolia Street. The amended complaint no longer contains the averment, as did the original Paragraph 5, that the involved area is public land. Because of this averment this court reversed the decree and remanded the cause on the first appeal. It was held that an individual, in his private capacity, could not enjoin the use of public land by which he suffers inconvenience or deprivation. Public land, we held, does not belong to the public in the sense that public highways or roads do.
It appears in the allegations of the original complaint and in the amended complaint that appellee (complainant below) is the owner of Lots 4 and 9 in a re-subdivision of Lot 7, in Block 43 in Perdido Beach, being a re-subdivision of Sections 18 and 19 in Township 8 South, Range 1 East, in Baldwin County. Exhibit 2 as contained in the record on former appeal will be set out in the report of the case. We take judicial knowledge of the record on former appeal. Aiken v. McMillan, 213 Ala. 494, 106 So. 150.
It is also averred in amended Paragraph 4 that Lot 4, owned by appellee, and other lots are bounded by Magnolia Street on the northerly edge; that Magnolia Street is bounded on one side (the south side) by these lots and on the other side (north side) by Palmetto Creek, a navigable body of water. It is averred that Magnolia Street has been dedicated to the public as a street or road.
We note here that an area of land lying on the north side of the alleged Magnolia Street is Lot 14 in Block 43 in Perdido Beach, being a re-subdivision of Sections 18 and 19 in Township 8 South, Range 6 East in Baldwin County. In other words, part of Lot 7 (which was re-subdivided) and Lot 14 (re-subdivided) lie on the opposite sides of the alleged Magnolia Street. Lot 7 is on the south side and Lot 14 of Lot 7 is on the north side. Lot 7 is subdivided to embrace Lots 1 to 13, inclusive. Lot 14 embraces Lots 1 to 5, inclusive. See Complainant's Exhibit 2 heretofore referred to and Complainant's Exhibit 3, which will also be set out in the report of the case.
Paragraph 5, as amended, supra, avers that since January 5, 1909, "by accretion and filling land has been built up on the North side of Lots 1, 2, 3, 4 and 5. That on April 7, 1953, George C. Randolph resubdivided lot 14 of the aforesaid subdivision into five lots * * *. That lots 1 and 2 of this re-subdivision are made up of accreted land and are being claimed by Respondents. These lots lay (sic) North of the North edge of Magnolia Street." It avers further that respondents (appellants) claim title to a triangular area (described in the complaint) that is adjacent to and east of Lot 1. It is also averred that this triangular area was conveyed to respondents on the 15th day of July, 1958. See Complainant's Exhibit 1, which will be set out in the report of this case.
Complainant avers in said amended complaint (Paragraph 5) that respondents have gone on the triangular area and are exercising dominion over it. Allegation is made that they have placed large timbers, mounds of dirt and a barbecue pit "between Magnolia Street and the edge of Palmetto Creek." It is charged "that this accreted and filled in land is in front of and adjoins Magnolia Street which was *586 dedicated to the public for a roadway and hence has become a part of Magnolia Street and is now a public roadway." Complaining further, the bill avers "that the acts of the Respondents have interfered with and are interfering with Complainant's access from his land to Palmetto Creek and from Palmetto Creek to his land."
The prayer of the original bill is not amended, but left intact. It prays for a temporary writ of injunction or restraining order which enjoins and restrains respondents from placing any further obstacles on the triangular area and from interfering with complainant's free access from his property to Palmetto Creek; that on final hearing the temporary writ or order be made final. There is a general prayer for relief.
The final decree, from which this (the second) appeal is taken, orders respondents (appellants) to cease and desist exercising dominion over Magnolia Street. Also the decree permanently enjoins respondents from interfering in any manner with complainant's access to and use of Magnolia Street.
As we understand the factual findings in the decree, the triangular area here involved is a part of Magnolia Street. There is also a finding that Alfred Holz and Anna Holz have no legal title or interest in Magnolia Street except that right and interest which flows to them as members of the general public.
Attached to the transcript of the evidence is Respondent's Exhibit 1, which is a photostatic copy of a platted area of land labeled "Perdido Beach." Embraced in this platted area is Lot 7 in Block 43. This plat preceded the subdivision of Lot 7 in December, 1908. Lot 7 on this original plat (prior to subdivision) embraces an area bordering on Palmetto Creek on the northwest side and six lots (not here involved) border said Lot 7 on the southeast side. This Lot 7 in the original map does not show any road or street over it. A rectangular strip extends in a northeasterly direction and lies between Lots 1-6, supra, and Palmetto Creek and is an arm of a peninsula-shaped area that borders on Palmetto Creek and Perdido Bay. This arm and the peninsula area comprise Lot 7, which was later subdivided (in 1908) into Lots 1 to 15, inclusive, with Magnolia Street extending from Decatur Avenue to Perdido Bay on the west. See Complainant's Exhibit 2, heretofore referred to.
The owner of Lot 7, supra, subdivided this lot so as to include therein Lots 1 to 15, inclusive. The owner set apart in this subdivision of Lot 7 a street, which he designated as Magnolia Street, extending as we have stated, supra. So we observe that it was formed and dedicated from and was originally a part of Lot 7 prior to its subdivision. This subdivision (Complainant's Exhibit 2) and dedication was signed by the owner and certified by a surveyor. The name of the owner on this subdivision is indistinct. But we think, as best we can tell from the plat, that there was a statutory subdivision pursuant to the laws of Alabama then obtaining; also, there was a lawful dedication of Magnolia Street. The street varies in width. Part of it is sixty feet wide and the remainder is thirty feet in width. We note in Complainant's Exhibit 3 there is a twenty-five-foot street in width running from the south side of Lot 5 in subdivided Lot 14, between Lots 3 and 4 on the west and Lot 2 on the east. This street opens into Magnolia Street.
It seems that Lot 14, in the subdivision of Lot 7, increased in size from accretion prior to the subdivision. The triangular area here under consideration (Exhibit 1) adjoins and lies east of Lot 1, in the subdivision of Lot 14, supra, and is the product of accretion over a period of years. It is shown on the subdivision of Lot 14, supra, but was not given a number.
A public highway is one under the control of the public, dedicated by the owner or used by the public for twenty years or established in a regular proceeding, and every public thoroughfare is a *587 highway.Dunn & Lallande Bros. v. Gunn, 149 Ala. 583, 42 So. 686.
The obstruction of a public highway and depriving the public of use of a public convenience is a "public nuisance." Alabama Great Southern R. Co. v. Denton, 239 Ala. 301, 195 So. 218.
We think that the relief which appellee sought and obtained is based on sound equity. We have held that equity has jurisdiction to abate a public nuisance in obstructing a highway.Still v. Lovelady, 218 Ala. 19, 117 So. 481; Hoole v. Attorney General, 22 Ala. 190; Alabama Great Southern R. Co. v. Denton, supra; Sandlin v. Blanchard, 250 Ala. 170, 33 So. 2d 472; Purvis v. Busey, 260 Ala. 373, 71 So. 2d 18; Ayers v. Stidham, 260 Ala. 390, 71 So. 2d 95.
There is evidence that Magnolia Street is no more than a trial and that its status is obscured by the lapse of time. But one maintaining a continuing public nuisance cannot defend against a suit to abate the nuisance because of lapse of time, and such rule applies to obstruction of public highways, of detriment to the public.Alabama Great Southern R. Co. v. Denton, supra.
The right of an individual to an injunction against obstructing a public street or highway depends on whether he has sustained damages different from that sustained by the public. If he sustains an additional specific damage, he may sue to have it abated if the remedy at law is inadequate.Alabama Great Southern R. Co. v. Barclay, 178 Ala. 124, 59 So. 169.
No private action will lie for the obstruction of a highway, unless plaintiff has suffered injury peculiar to himself and not that similar to that suffered by the public; for if the offense is against the public, the offender should be punished by indictment as for a common nuisance, or the nuisance should be abated by a bill in equity in the name of the state to avoid multiplicity of suits.Walls v. C. D. Smith & Co., 167 Ala. 138, 52 So. 320.
We observed in Jones et al. v. Bright, 140 Ala. 268, 273, 37 So. 79, 80:
We quote with approval from 93 C.J.S. Waters § 76, p. 751, as follows:
In Wetmore v. Atlantic White Lead Co., 37 Barb. 70, 97 (N.Y., 1862), it was said:
We hold that the accreted land here the subject of injunctive process became a part of Magnolia Street and subject to the same uses.
In the instant case, appellee owns two adjoining lots, one of which fronts on Magnolia *588 Street. Thus, he and the occupants of his lots have a convenient access to Palmetto Creek merely by crossing Magnolia Street. This access offers them a valuable right. Without the obstruction here involved, they would be privileged to go directly across Magnolia Street to Palmetto Creek. We do not think appellee or his occupants should be required to take a more circuitous route to reach the creek because of the arbitrary and unlawful acts of appellants. This inconvenience, we think, is peculiar and special to appellee in view of the proximity of his lots and premises to Palmetto Creek. He is entitled conveniently to enjoy the recreational advantages of his lots in their geographical proximity to Palmetto Creek. We hold that he is entitled to the injunction that the trial court granted him.
There was no error on the part of the trial court in overruling appellants' demurrer to the complaint as amended.
The final decree of the trial court is affirmed.
The foregoing opinion was prepared by Bowen W. Simmons, Supernumerary Circuit Judge, and adopted by the Court as its opinion.
Affirmed.
HEFLIN, C. J., and LAWSON, MERRILL, HARWOOD and MADDOX, JJ., concur.
*589
*590
*591 | May 6, 1971 |
1098c51b-d1f4-4e08-8290-13fc5b9a4b6c | City Stores Company v. Williams | 252 So. 2d 45 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 45 (1971)
CITY STORES COMPANY, a Corporation, et al.
v.
Mary Ellen WILLIAMS.
4 Div. 390.
Supreme Court of Alabama.
June 10, 1971.
Rehearing Denied September 9, 1971.
*46 Rushton, Stakely, Johnston & Garrett, Henry C. Chappell, Jr., Montgomery, for appellants.
Frank W. Riggs, III, Richard H. Gill, Montgomery, for appellee.
HARWOOD, Justice.
City Stores Company, a Delaware Corporation, operates a business in Montgomery under the name of Loveman's. The business so operated is the buying and selling of merchandise as a department store.
On 26 December 1967, an agent or agents of Loveman's procured the issuance of a warrant in the Municipal Court of the City of Montgomery charging the appellee here with grand larceny. The alleged offense occurred in Loveman's store. It is inferable from the record that a preliminary hearing on the charge was waived and the appellee was bound over to await the action *47 of the grand jury of Montgomery County. In May 1968, that body returned a "no bill."
Thereafter the appellee filed a complaint in the Circuit Court of Pike County naming City Stores, and three individuals, M. H. Brown, W. T. Thornton, and Ann Welch, as defendants. These three individuals worked as security guards for Loveman's.
It was stipulated that the individual defendants were not residents of Pike County, and had never done business therein.
It is therefore apparent that jurisdiction over the individual defendants was dependent upon whether venue of this cause was properly in Pike County as concerned Loveman's, the individual defendants having been brought in by branch summons as provided in Section 185, Title 7, Code of Alabama 1940. See also Ex parte Western Railway of Alabama, 283 Ala. 6, 214 So. 2d 284.
The complaint claimed damages for unlawful arrest and imprisonment for three hours (Count 1), and for malicious prosecution (Count 2).
All of the defendants filed pleas in abatement, which after hearing before the judge without a jury, were overruled.
Trial was then had on the merits and the jury returned a general verdict in favor of the plaintiff and assessed her damages at $32,000. Judgment was entered pursuant to the verdict.
The defendants filed motions for new trials which after hearing were overruled. Appeal from the judgment was then perfected by the defendants below. For convenience, we will hereinafter refer to the appellants as the defendants, and the appellee as the plaintiff, the positions they occupied in the proceedings below.
Defendants' assignment of error No. 11 asserts that the trial court erred in denying defendants' pleas in abatement, and assignment of error No. 23 asserts error in the action of the trial court in denying defendants' motions for a new trial. Grounds 1 and 2 of the motions for a new trial, brought forth and argued in defendants' brief, are:
We therefore will first consider the threshold question of the court's ruling on the pleas in abatement.
Section 232 of our Constitution of 1901 provides in parts pertinent to this review:
Section 60 of Title 7 is found in Article 1 of Chapter 3, Code of Alabama 1940. Chapter 3 is entitled "Venue," and Article 1 thereunder is entitled "Venue of Actions."
In parts pertinent to this review, Section 60 of Title 7, Code of Alabama 1940, provides:
In Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, the difficulties experienced by the courts in resolving the question of jurisdiction over foreign corporations doing business in the state, and the power of a court to render a valid *48 judgment against such corporations under such circumstances, prior to the enactment of constitutional and statutory provisions clarifying such jurisdictional questions, is thoroughly discussed, historically and procedurally. In that opinion the court appears to have considered the progenitor of Section 232 of our present Constitution, which progenitor was in verbiage the same as Section 232, as relating to jurisdiction.
In Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So. 2d 665, it was pointed out, however, that in a considerable number of our cases Section 232 has been treated as a venue provision and such connotation cannot now be questioned.
The court further observed:
In its broadest sense and considering its historical background, Section 232 in its origin would appear to be concerned primarily with jurisdiction over a foreign corporation rather than the venue of an action, though the inclusion of the words in Section 232, that a foreign corporation may be sued "in any county where it does business" partakes of venue.
The loose use of "venue" and "jurisdiction" appear to result from the fact that in many of the cases the foreign corporation had qualified to do business in the state, or unquestionably was doing business in the state without qualifying to do so. No question of jurisdiction was really involved, only that of venue.
Since City Stores (Loveman's) was qualified to do business in Alabama and had a principal place of business in Montgomery, there can be no question of jurisdiction over the corporation. We think, therefore, that the question here presented is one of venue rather than jurisdiction.
If it were a question of jurisdiction, federal authorities would be controlling on the question of what constitutes "doing business." Ford Motor Co. v. Hall Auto. Co., 226 Ala. 385, 147 So. 603; Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So. 2d 559. We are aware of the doctrines articulated in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223, to the effect that only a minimal contact or nexus by a foreign corporation with a state is sufficient to satisfy the due process requirements of the United States Constitution on the question of jurisdiction.
We pretermit consideration of whether Mulvaney's status with Loveman's and his single visit to Pike County under the hereinafter described conditions, were sufficient even under a jurisdictional concept, this for the reason that we are here concerned with venue. In other words, we deal with a problem arising under our venue statute, and not with a problem of constitutional import. See United States v. Scophony Corp., 333 U.S. 795, 68 S. Ct. 855, 92 L. Ed. 1091.
In Scophony, supra, the United States Supreme Court was considering a question of venue. The court pointed out that for venue purposes prior federal decisions had sloughed off the technical glosses surrounding the terms "found" and "carrying on business" and in their stead had substituted the practical and broader business conception of engaging in any substantial business operation.
We note here that even in those federal cases which seem to indicate a definite disposition to consider mere solicitation by a foreign corporation to be a sufficient connection with a state on which to base jurisdiction, such solicitation must *49 be sufficiently continuous as to amount to a course of business. See Steinway v. Majestic Amusement Co., (10 CCA) 179 F.2d 681.
At the hearing below in support of their pleas in abatement, the defendants presented three witnesses, Arnold D. Unger, manager of Loveman's in Montgomery, William Schuchman, manager of the home furnishings department of Loveman's in Montgomery, and Frazier C. Raines, a deliveryman for the company. The plaintiff presented one witness, Edgar J. Mulvaney.
Unger testified that his first association with Loveman's in Montgomery began as manager in March 1968. Loveman's has no store, outlet, or resident agent in Pike County. The business of Loveman's in Montgomery is the buying and selling of merchandise.
The company advertises in Montgomery newspapers and over a Montgomery television station. People from outside of Montgomery County trade at Loveman's.
Purchases are sent to out of town customers by parcel post and by Loveman's delivery trucks.
Through Unger, the records of Loveman's showing shipments by parcel post, and deliveries by Loveman's trucks of merchandise purchased in the Montgomery store and sent to Pike County, for the period September 1968 through February 1969, were received in evidence. There were 48 such parcel post shipments, and 8 deliveries by truck, and 2 "pick ups" of merchandise to be returned.
Plaintiff further showed that Loveman's advertised in Montgomery newspapers and over a Montgomery television station, and such medium reached surrounding counties.
Largely, however, plaintiff's efforts to show that Loveman's did business in Pike County by agent was concerned with the sale of carpeting.
In this connection Unger's testimony on direct and cross-examination tended to show that Loveman's records fail to show any sales of carpets in Pike County.
He further testified that in the sale of carpets, if a customer knows the measurements of carpeting desired, that measurement is accepted and the sale is made. If the customer does not know the measurements, a salesman will be sent to make the measurements, and thereafter when the customer comes back to the store and credit is approved, the sale is made in the store.
A salesman who goes out to measure for carpets has no authority to complete a sale in the customer's home, or do anything other than to make measurements. Should a salesman persuade a customer that a higher grade of carpet, or one of a different color should be used, he could do so, but all such sales are "finalized" in the store.
Loveman's does not install carpeting. However, the Jefferson Carpet Company in Montgomery specializes in laying carpets. Jefferson is in no way connected with Loveman's. If the customer desires, Loveman's will arrange with Jefferson to lay carpets. The customer pays Loveman's Jefferson's charges, and in turn Loveman's pays Jefferson. The customer himself can arrange for the installation of the carpet if he desires.
Jefferson is liable for its work, but if a mistake were made by it, the customer would call Loveman's who in turn would call Jefferson to take care of the problem. Jefferson does work for others than Loveman's.
As to delivermen, they are authorized only to deliver merchandise. In case of an appliance such as a refrigerator or stereo, the deliveryman will place the appliance in the location desired by the customer. If the customer requests, the deliveryman will plug in the appliance. In the event the appliance does not function properly, the deliveryman has no authority to make any *50 adjustments. In such a situation if the customer refuses to accept the appliance, the deliveryman can return it to the store.
Unger further testified that the operations of Loveman's were the same on the day the suit was filed as it had been during his connection with the store.
William Schuchman, manager of the home furnishings department of Loveman's since September 1967, which department handles the sales of carpets, draperies, furniture, and appliances, testified that in the sale of wall to wall carpeting a salesman will go to the home of the customer to measure. The price is agreed upon when the customer initially comes into the store, or sometimes after the measurements are made.
Because of the high cost of carpeting, sales are usually on a time basis. Also a waiting period of about three weeks is involved because the carpeting is obtained from the mill or the Loveman's store in Birmingham.
So far as Mr. Schuchman could remember there has never been, during his service with Loveman's, a cash sale of a carpet in Pike County, nor could he recall any instance where a salesman had gone to Pike County to measure for a carpet.
After a measurement is taken, the price quoted on a carpet includes installation costs, though if the customer desires that someone else install the carpet that is up to him.
Ordinarily Jefferson Carpet Service, which is in no way connected with Loveman's, will install the carpet. The remaining portion of Schuchman's testimony as to the installation of carpeting by Jefferson Carpet Company was in all material respects the same as Unger's.
Frazier C. Raines, a deliveryman for Loveman's testified that his duties consisted of delivering merchandise from Loveman's to a customer.
If the merchandise is in the condition the customer expects, the customer will receive and sign for it.
If the merchandise is in a carton, he will remove it, and in cases of furniture or an appliance, he will place the article where the customer requests. If an appliance, he will plug it in, but he does not service or adjust any appliance. If it should not work and the customer does not want to receive it, he will bring it back to the store.
In the course of his work he does not solicit orders or make any sales, nor could he recall ever being given any instructions as to his work other than merely to deliver merchandise.
On examination by the court, Raines testified that he has made C.O.D. deliveries out of Montgomery. In such event he gives the money to his supervisor who in turn takes it into the office where the payment is entered on the books.
He could not recall ever having made a C.O.D. delivery in Pike County.
For the plaintiff, Edgar J. Mulvaney testified that he was formerly employed by Loveman's as a salesman in the home furnishing department. His employment covered a period from December 1967 to July 1968, when he was discharged for cause, i. e., using a company vehicle for personal use. Mr. Schuchman was his immediate boss.
As to the sale of carpeting, normally "a person would come into the store and look at samples and then you would have to go to the home to measure * * * You would take measuring equipment and carpet samples into the home and measure for carpet and show them samples, and hopefully close the sale." He would take a sales contract with him, and hopefully write a sales contract in the home.
As to his activities in Pike County, Mulvaney testified:
Mulvaney did not remember the date he went to Pike County. A Loveman's truck was going to Troy to make deliveries and he caught a ride on it as he did not have other transportation. He then went to Brundidge and measured for a carpet. He did not remember the name of the people for whom this measurement was made. No one at Loveman's told him to make this trip, and no record was made of it other than a personal record.
When asked what was Loveman's policy as related to either sitting in the store and waiting for a customer to come in or if you "heard of somebody" going to see him, Mulvaney replied:
When again immediately asked what was Loveman's policy in this respect, Mulvaney replied:
Mulvaney further testified that he went to Prattville in Autauga County several times to see people about the sale of carpets. No one at Loveman's told him to make these trips to Prattville. "The customer would come in and look at carpets and I would set up an appointment with him and go out there and fulfill my appointment as doing my job. No one said to go." Most of Mulvaney's time was spent on duty in the store in Montgomery.
The testimony presented by the defendants in support of their pleas in abatement was ample in its tendencies to support the pleas.
The questions therefore arise as to whether the testimony of Mulvaney is of sufficient probative value to show that Loveman's was doing business in Pike County at the time suit was brought and service had, and whether Mulvaney was acting as Loveman's agent on his trip to Pike County.
The burden of proving agency rests upon the party asserting it. Warrant Warehouse Co. v. Cook, 209 Ala. 60, 95 So. 282; Capital Security Co. v. Owen, 196 Ala. 385, 72 So. 8.
The only reasonable inference that can be drawn from the evidence is that Mulvaney was employed as a salesman in the home appliance department of Loveman's store in Montgomery.
An agent employed for a specific purpose is a special agent and the fiduciary relationship of principal and agent applies only to the acts within the agreement. Caldwell v. Caffey, 269 Ala. 543, 114 So. 2d 560.
Mulvaney's trip to Pike County was not authorized by Loveman's. Since Loveman's apparently was not informed of Mulvaney's trip, there can be no question of ratification. To hold that under the facts as shown even by Mulvaney's testimony that he acted as agent for Loveman's in Pike County would be pressing beyond permissible limits any application of the doctrine of general agency.
Furthermore, the only evidence of any purported agency of Mulvaney in Pike County must be deduced solely from his testimony. There is no other evidence of probative value directed toward this point. As stated in Wilson & Co. v. Clark, 259 Ala. 619, 67 So.2d 898:
We can find nothing in Mulvaney's testimony tending in anywise to show his agency in the Pike County transaction. His testimony merely shows that he was employed by Loveman's as a salesman in the home appliance department of the store. Under the rules above stated, the testimony of Mulvaney tending to show his agency in Pike County, was incompetent and was not rendered competent by any other or additional evidence.
State v. West Point Wholesale Grocery Co., 284 Ala. 149, 223 So. 2d 269, dealt with the recovery of franchise taxes, a permit tax, and an admissions tax levied against the grocery company as a foreign corporation doing business in Alabama. This court held that subsequent delivery of ordered goods in company trucks from Georgia into Alabama, and mere collection by agents in Alabama for goods sold, was insufficient to supply a minimum connection between Alabama and the grocery company authorizing the assessment of the taxes. By analogy such activities by Loveman's were insufficient to create venue in Pike County for this suit. Nor was this deficiency remedied by the fact that Loveman's advertised in a Montgomery newspaper and over a Montgomery television station, which media reached surrounding counties. Such activities were nothing more than a communication to the general public seeking to have them trade at Loveman's. It was merely a solicitation of business to be consummated in Loveman's store in Montgomery. Such advertising without more did not constitute doing business in Pike County. See Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S. Ct. 535, 98 L. Ed. 744.
While a favorable presumption attends a trial judge's findings on disputed evidence heard orally, no such presumption attends the trial court's findings where his conclusion rests on facts indisputably established, nor where the trial court has taken an erroneous view of the law as applied to such facts. Smith v. McCain Boiler & Enginerring Co., 284 Ala. 618, 227 So. 2d 131.
Because of the reasons set forth above, we hold that the defendants' evidence supported their pleas in abatement, and the plaintiff's evidence on this question did not make a substantial conflict in the evidence, and was not sufficient on which to hang venue, in that it was not sufficient to show either that Mulvaney was Loveman's agent or that his activity in Pike County amounted to doing business therein.
Defendants' assignments of error 2 through 9 assert error in the action of the court in overruling defendants' objections to a number of specific questions relative to Mulvaney's sales attempt in Pike County.
Assignment of error 10 relates to the action of the court in denying defendants' motion to exclude Mulvaney's testimony made at the conclusion of his testimony.
The bases of the objections both to the questions, and in support of the motion to exclude, were that Mulvaney's activities related to his activities prior to the time of the filing of the suit.
At the outset of the series of questions to Mulvaney to which objections were interposed, the court stated:
And further, after counsel for defendants had again elucidated his grounds of objection:
*53 There was no testimony during Mulvaney's appearance as a witness that he had witnessed the doing of anything on Loveman's part in Pike County, other than might grow out of his one trip to Pike County.
In Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510, it is stated in reference to Section 232 of our Constitution:
Certainly in Bolton the activities of the corporation agents were far more substantial than in the present case on which venue is sought to be based.
To the same effect see also General Motors Acceptance Corp. v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165; May v. Strickland, 235 Ala. 482, 180 So. 93; Ex parte Kemp, 232 Ala. 434, 168 So. 147.
The present suit was filed on 23 December 1968. Actually no service of the complaint is shown by the record. Mulvaney's employment with Loveman's ceased in July 1968, some five months more or less prior to the filing of the suit.
If an unwarranted concession be indulged that Mulvaney was Loveman's agent on his trip to Pike County, and that he engaged in business for Loveman's on that trip, there yet remains a five month gap between Mulvaney's actions and the date of the suit.
Over defendants' objection Mr. Unger, who had been manager of Loveman's in Montgomery from March 1968, testified that the operations of Loveman's were the same on the day suit was filed as it had been since his first connection with Loveman's.
On this basis counsel would overcome the hiatus between the conclusion of Mulvaney's employment and the date of the filing of the suit by asserting that Unger's testimony as to Loveman's operations showed that Loveman's was doing business in Pike County on the date suit was filed.
The fallacy of counsel's argument is that Unger's testimony contradicted any conception that Loveman's operations at any time were such as to constitute doing business by agent in Pike County.
Under the rule stated in Bolton v. White, supra, and the other cases cited, the lower court erred in denying the defendants' motion to exclude Mulvaney's testimony.
Assignments of error 2 through 10 furnish additional reasons necessitating a reversal of this judgment.
Many additional errors are assigned by the defendants. Largely these errors relate to rulings occurring in the trial of this case on the merits. Since we are clear to the conclusion that this judgment must be reversed because of error permeating the lower court's ruling overruling defendants' pleas in abatement, we see no useful purpose in discussing these assignments.
Reversed and remanded.
SIMPSON, MERRILL, COLEMAN, BLOODWORTH, and McCALL, JJ., concur.
LAWSON, J., concurs in result.
HEFLIN, C. J., dissents.
HEFLIN, Chief Justice (dissenting).
In my opinion, the trial judge should not be reversed for overruling the plea in abatement concerning venue.
*54 A part of the testimony of the witnesses for Loveman's was directed towards the policy or operation of the company concerning its agents or employees selling outside of the store in Montgomery. Such witnesses testified that its salesmen, agents and employees had no authority to make sales or even to solicit or perform services outside of the store building with only a few rare exceptions. Mr. Unger, the manager of the store in Montgomery, stated that such policy or operation was the same throughout the entire time that he had been connected with the store. Mr. Mulvaney (the witness for the appellee-plaintiff) was employed during a period of four months while Mr. Unger was manager. Mr. Mulvaney's testimony about the policy or operation concerning salesmen outside the store and throughout South Alabama, including Pike County, was in direct conflict with the testimony of said manager of the store. This part of Mulvaney's testimony concerned the policy about salesmen, not what his individual authority was. It was also rebuttal evidence. Thus, the trier of facts had the right to determine the policy of the appellant-defendant corporation pertaining to its salesmen outside the Montgomery store and in Pike County.
Mulvaney testified that such policy was, in effect, the same as any good salesman policy; that if a salesman knew of a sale anywhere, he goes out and gets it; that a salesman would not necessarily be sitting around and waiting for customers to come into the store; that if a prospective customer came in the store and displayed an interest, the salesman could solicit the prospective customer outside the store. This testimony was in direct conflict with what Mr. Unger, the manager, had stated, pertaining to the policy. Mulvaney testified that there was no policy prohibiting a salesman from going outside the store and soliciting. Unger testified that there was. Mulvaney was asked if the company had any particular policy pertaining to salesmen's authority. He answered that he didn't know of it other than the fact that there was no policy against soliciting business outside of the store.
The matter of records should also be considered. The trier of facts could conclude from the testimony of Mulvaney that no company records of visits in prospective customers' homes were made pertaining to solicitations of sales where no sale was made. Such a conclusion is supported by inferences from the testimony of appellants' witnesses.
Mulvaney was employed in the Home Furnishings Department which involved the sale of carpets, draperies, furniture and appliances, including TV sets. In connection with the sale of carpets, Mr. Mulvaney testified that he would show carpet samples and measure for carpets in the prospective customer's home and hopefully close the sale at that time. He stated he carried written contract forms with him and that if the sale was made, the contract would be signed there in the home. This was in conflict with the testimony of the witnesses for appellants.
The manager of the Home Furnishings Department, William Schuchman, testified concerning the activities of salesmen in his department, among other things. He stated that salesmen would go into prospective customers' homes, make measurements, and give assistance as to information concerning color and grade of carpets. He testified that this would be true in Pike County and any other county where Loveman's did business. He also testified that the business of advising on the grade and color of carpets is part of a sale. He testified that it was the policy of Loveman's that if anyone came in from Troy and wanted assistance in the installation or selection of draperies and carpets that Loveman's would send someone down to Troy to assist him in the selection. He testified that this *55 would be true of any county in South Alabama.
Schuchman was asked if he had ever sent a salesman into Pike County to measure for carpet. He stated he couldn't answer that. The trial judge could have concluded that there was an absence of proof in this connection even in view of later testimony by Schuchman that he didn't remember sending a salesman into Pike County.
It is important to remember that the burden of proof on a plea raising the question of venue is upon the defendant corporation. Section 60, Title 7, Code of Alabama 1940; Southern Guardian Life Insurance Co. v. Freeman, 283 Ala. 429, 218 So. 2d 143; 16 Ala.Digest, Pleading. Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441, and cases cited therein.
In addition to the matters that we have set forth, there was testimony that an essential part of the business of selling merchandise was the delivery service. There was testimony that Loveman's had regular scheduled deliveries into Pike County on Wednesday of each week. Other activities of the appellants affecting Pike County are set out in the majority opinion.
The trial judge had the opportunity to observe the demeanor of the witnesses. Certainly a trier of facts had the right to determine the credibility of evidence including the testimony that the only thing a TV deliveryman did was to plug in the TV set and he could not make any adjustments on it.
Bearing in mind the conflicts in testimony, the absence of proof, the burden of proof, the evaluation of the creditability of the witnesses, and the evidence of the activities of the appellants in and affecting Pike County, I feel the trial judge did not abuse his discretion in overruling the plea in abatement. I would affirm on this issue. | June 10, 1971 |
d56f66c1-777c-4d3a-a306-376145921779 | Mason Corporation v. Kennedy | 244 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 585 (1971)
MASON CORPORATION, a Corporation
v.
John E. KENNEDY, Jr.
6 Div. 800.
Supreme Court of Alabama.
February 11, 1971.
*586 Kenneth Perrine, Birmingham, for appellant.
*587 Speaks & Burnett, Clanton, for appellee.
MADDOX, Justice.
Appellant, Mason Corporation, filed an original bill seeking temporary and permanent injunctive relief and damages against John E. Kennedy, Jr., the complaint charging that Kennedy had signed an employment contract containing a noncompetition clause and had violated his agreement by going to work with a competing firm within the restrictive period.
Upon presentation of the bill, the trial judge, pursuant to Title 7, § 1054, determined that no substantial injury would result to complainant Mason from delay and issued a fiat setting the cause for hearing on the temporary injunction on May 4, 1970. The date for hearing was reset for June 24, 1970, at which time the note of testimony shows that the cause was submitted in behalf of Mason upon the bill of complaint, as amended, the stipulations of the parties and oral testimony, and in behalf of Kennedy upon his answer, the stipulations of the parties and the oral testimony, with the minute entry in the record reading as follows: "On June 24, 1970, this cause is submitted for final decree upon pleadings and proof as noted."
On June 25, 1970, the court entered a final decree refusing to grant the temporary injunction and dismissed the bill. Mason appeals from this decree.
Appellant Mason, formerly Southeastern Tool and Die Co., is an Alabama corporation with its principal place of business in Birmingham. It is engaged in the manufacture, tooling and selling of hardware for aluminum and metal home improvement products which it distributes throughout the United States.
Appellee Kennedy was employed by Mason as the exclusive sales representative covering the Tennessee-Kentucky territory from January 5, 1959 to June 30, 1967.
In 1966 certain of Mason's employees left the firm and formed a competing company, Perfection Metal & Supply Company. Immediately thereafter, Mason entered into "noncompetition" employment agreements with its remaining salesmen, including Kennedy, whereby the salesmen agreed not to compete with Mason or solicit its customers, etc., in the territory covered for Mason for a period of five years after termination of employment with Mason.
Kennedy continued to work for Mason under the noncompetition agreement until 1967, when he was fired for his failure to produce adequate sales. Upon termination Kennedy received all salary and other benefits accrued to him with the exception of a certain portion of his reserve account in a Profit Sharing Trust held in escrow pending a legal action.
Kennedy received on June 11, 1968 a lump sum payment representing the amount in his reserve account to which he was entitled and at that time he signed another noncompetition agreement with Mason which prohibited him from competitive employment for three years from the date he was fired. It is clear from the evidence that Kennedy understood the provisions and obligations of both agreements.
After being terminated by Mason, Kennedy was employed by General Electric Supply Co. as a salesman in the Birmingham area. His salary was $600.00 per month plus commissions which during his first year amounted to $500.00 over his salary. Kennedy voluntarily left the Electric Company and on November 1, 1969, was employed by Perfection on a draw of $700.00 per month to be charged back to his commissions. At the time of trial his commissions had not equaled his draw and he was indebted to the company.
Kennedy was assigned to cover the Tennessee-Kentucky area for Perfection, the same area he had covered while employed by Mason. Other territories were *588 available, but Kennedy was not offered these. Between November 24, 1969 and the trial date Kennedy made sales totaling $12,445.94 to customers he had formerly contacted for Mason.
Mason argues that the trial court erred in: (1) rendering a final decree at the conclusion of the hearing set to determine whether a temporary injunction should issue; (2) abusing its discretion by refusing to enjoin Kennedy from violating the noncompetition agreements; and (3) attempting to use its discretion to rewrite the contract, declaring that Kennedy was absolved from further compliance because he had refrained from violating the agreement for a period of two years and four months.
As to appellant's first contention, we find no error.
We have been unable to find a decision which presents an answer to the exact question here presented, but in Reetz v. Ellis, 279 Ala. 453, 186 So. 2d 915 (1966), a similar, though not identical, factual situation existed. There, this Court held that it was error for the trial court to grant a permanent injunction upon application for a temporary injunction, citing Methvin v. Haynes, 254 Ala. 58, 46 So. 2d 815 (1950); and Persons v. Summers, 274 Ala. 673, 151 So. 2d 210 (1963).
In Reetz the court stated:
We note that the court in Reetz was careful to point out that the record contained nothing to indicate that the hearing there was for anything other than a temporary injunction. The trial court's order setting the cause down for a hearing in this cause is similar to the order in Reetz, but here we have a "Minute Entry" in the record which states unequivocably that on June 24, 1970 the cause was "submitted for final decree upon the pleadings and proof as noted." Therefore, we think Reetz, Methvin and Persons are distinguishable. However, we do not hold that a trial court in every instance may dismiss a cause after hearing on a request for a temporary injunction without committing error. Cf. Ex parte Baptist Tabernacle of Anniston, 242 Ala. 670, 8 So. 2d 170 (1942), where the case was submitted on the motion of respondents to dissolve the temporary injunction, not on the merits for final decree on pleadings and proof, and it was held that the trial court erred in dismissing the bill.
As to the appellant Mason's argument that the trial court abused its discretion by failing to grant the injunction prayed for, the general rule is that contracts in restraint of trade are looked upon with disfavor, and every presumption is to be indulged in favor of the findings of the trial judge where testimony is ore tenus, and his findings will not be disturbed unless palpably wrong. See White Dairy Co., Inc. v. Davidson, 283 Ala. 63, 214 So. 2d 416 (1968). Appellant very candidly admits that this is the rule of law but claims the undisputed evidence here shows abuse of the trial court's discretion.
*589 In determining whether the decree of the lower court was palpably wrong, it is necessary to look to the general principles concerning employment contracts. Alabama's policy respecting noncompetition agreements is set out in §§ 22, 23 and 24 of Tit. 9 of the Code.
Sections 22 and 23 read as follows:
Section 24 provides for further exceptions as to partnership agreements and is not here applicable.
The general rules applicable to noncompetition agreements are expressed in the following excerpts cited with approval in Parker v. Ebsco Industries, Inc., 282 Ala. 98, 209 So. 2d 383 (1968).
We do not set out all the tendencies of the evidence which would support the finding and conclusion by the court that the noncompetition agreement held by Mason was unreasonable. We have examined the evidence and think it sufficient to support the trial court's decree. From the decree it appears that the court was impressed by the fact that for two years and four months after Kennedy was fired he did not engage in a business competitive with Mason.
This court has said that in determining whether injunctive relief is appropriate, there should be taken into account such considerations as the nature or character of the employment, the size and condition of the locality to which the prohibition extends, the duration of the prohibition, and the consideration moving to the employee for his agreement to the restriction. Hill v. Rice, 259 Ala. 587, 67 So. 2d 789 (1953). Applying these general principles to the circumstances of this case, the nature and character of Kennedy's *590 employment was that of salesman; the size and condition of the locality was Tennessee and Kentucky and there was evidence that many other companies competed with Mason in this area besides Perfection, Kennedy's present employer; the duration of the restriction was for five years and the "consideration" moving to employee Kennedy is uncertain. The testimony in the record seems to indicate that all Mason's salesmen were required to sign noncompetition agreements in April, 1966, apparently because some of Mason's salesmen had left them to form a company which would be competitive. The record does not appear to indicate that Kennedy received any additional compensation or benefits for signing the agreement. The record also indicates that Mason required Kennedy to sign a second noncompetition agreement after he was terminated before he would be paid lump sum benefits under a Profit Sharing Trust.
While five year restrictions have been upheld in Alabama, (See Slay v. Hess, 252 Ala. 455, 41 So.2d 582), the reasonableness of such a restriction must depend on the facts of each case. There was evidence presented here that a new salesman could be trained in Kennedy's old territory within a year or a year and a half, and it is undisputed that Kennedy honored the noncompetition agreement for over two years.
After reviewing the evidence, we do not find that the trial court abused its discretion or that the court decree is palpably wrong.
This brings us to appellant's last argument that the lower court abused its discretion by stating: "Respondent's compliance with the crucial terms of the contract of employment for a period of more than two (2) years reasonably absolves and excuses him from any further compliance with the terms of the contract." Appellant argues that this was an attempt to rewrite the contract between the parties. Basically, this statement is a reiteration of the trial court's holding that the five year restriction here was unreasonable. Of course, this finding raises the question of whether the court could rewrite a restrictive contract, enforcing only that part which it considered reasonable.
This court apparently has not established the rule that a contract in restraint of trade in which the territory or time stipulated is unreasonably extensive may be divisible as to space and enforced in equity for a reasonable time and within a reasonable area, but in McNeel Marble Co. v. Robinette, 259 Ala. 66, 65 So. 2d 221 (1953), this Court indicated that a temporary injunction may be granted to be applicable only to a limited territory, notwithstanding that the contract embraced a much larger territory, which might be unreasonable and therefore unenforceable. Other jurisdictions have adopted such a procedure. See Ferrone v. Mucci, 335 Mass. 87, 138 N.E.2d 601 (1956); Wilson v. Century Papers, Inc., 397 S.W.2d 314 (Tex. Civ.App.1965); Credit Bureau Management Co. v. Huie, 2254 F. Supp. 547 (E.D. Ark.1966).
We hold that a court of equity has the power to enforce a contract against competition although the territory or period stipulated may be unreasonable, by granting an injunction restraining the respondent from competing for a reasonable time and within a reasonable area.
We cannot say that the trial court was palpably wrong here in finding that Kennedy, by not competing with Mason for two years and four months, had voluntarily restrained himself for a reasonable period of time, thereby making an injunction unnecessary.
Finding no reversible error based upon the argued assignments of error, the cause is due to be affirmed.
Affirmed.
HEFLIN, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur. | February 11, 1971 |
e36b87e6-4442-4a98-9eba-88f553bfc181 | Rosemont, Inc. v. Marshall | 481 So. 2d 1126 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1126 (1985)
ROSEMONT, INC.
v.
William G. MARSHALL, as executor of the estate of Emma B. Marshall, Deceased.
84-554.
Supreme Court of Alabama.
December 20, 1985.
Rehearing Denied January 10, 1986.
*1128 J. Connor Owens, Jr. of Owens, Latour & Simpson, Bay Minette, for appellant.
Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
HOUSTON, Justice.
Rosemont, Inc., a skilled and intermediate care nursing facility, appeals from the judgment of the trial court rendered pursuant to a jury verdict in favor of the plaintiff, William G. Marshall, as executor of the estate of his deceased mother, Emma B. Marshall, in this action to recover damages for her wrongful death. We reverse the judgment of the trial court and remand.
Mrs. Emma Marshall was in her mid seventies. Earlier in life, she had worked as a licensed practical nurse (LPN). She had reared two sons and had been a widow for forty years. Her life, as are so many of even the best and brightest, was an exception to Browning's "geriatric utopia": "Grow old along with me! The best is yet to be, the last of life, for which the first was made."
Although she was relatively healthy, physically, Mrs. Marshall suffered from depression and senile dementia. She took an overdose of nonprescription drugs and was hospitalized. A neuro-psychiatrist recommended that she be placed in the psychiatric unit of a medical center; however, Mrs. Marshall objected, and her regular attending physician recommended that she be placed in a nursing home. The plaintiff visited several nursing homes, including Rosemont. He was assured by the person in charge of administrative affairs at Rosemont that it was the best nursing facility for his mother and that she would receive professional nursing care there.
Mrs. Marshall was admitted to Rosemont, at which time the administrator was aware that she was confused and could not care for herself. The records from Rosemont show that, at the time of her admission, Mrs. Marshall was discontented, depressed, suffering from loss of memory, and that she desired to live at home and had been hospitalized for the preceding twelve days. Hospital records (showing an overdose of medication, depression, senility, and suicidal tendencies, and her physician's notes showing that she was to be observed closely) were attached to Mrs. Marshall's medical history and admission examination materials at Rosemont. During the time Mrs. Marshall was in Rosemont, she occasionally managed to leave the building where she lived;[1] the last time was only a few days prior to the final and fatal occasion. Although Mrs. Marshall was placed in a "posey" vest to prevent her from leaving, she was able to remove this restraint.
Rosemont was a one-story building from which there were five exits. Three of these exits had alarms on them so that when the door was opened from the inside, the alarms would sound. The front exit, and the exit by the south nursing station leading into a parking lot, did not have such alarms. No one was hired with the specific duty of watching these two exits. None of the doors were locked so as to prevent an exit from the building, and there were no fences surrounding the premises.
Mrs. Marshall's attending physician had indicated in his progress notes at Rosemont on April 26, 1982, that Mrs. Marshall needed total 24-hour nursing care. At trial, he *1129 explained what he meant by 24-hour nursing care:
On July 30, 1982, while a nurse was returning Mrs. Marshall's dinner tray to the dining room, she was left unobserved for approximately five minutes. During that period of time, and although her vest restraint had been in place, Mrs. Marshall managed to leave the building through one of the doors on which there was no alarm. She went across the street, down an embankment, fell and broke her right shoulder. Mrs. Marshall died at Rosemont on August 4, 1982. The forensic pathologist, who performed an autopsy the morning after her death, determined the cause of death to be blood clots in Mrs. Marshall's lungs which had originated from her broken shoulder.
Thereafter, the plaintiff filed a complaint in the Circuit Court of Baldwin County, alleging that Rosemont had negligently and/or wantonly caused or allowed Mrs. Marshall to be injured and that she died as a proximate consequence of her injuries. Rosemont appeals from the trial court's denial of its motion for a directed verdict on the negligence count. The trial court did not submit the wantonness count to the jury; however, the propriety of its determination in this respect is not before us.
Rosemont contends that this is a malpractice case requiring expert testimony. It argues that the plaintiff failed to establish the standard of care applicable to skilled and intermediate nursing care facilities and, therefore, failed to prove a prima facie case of negligence. We agree.
The Alabama Medical Liability Act (§§ 6-5-480 through 6-5-488, Code 1975) defines the term "hospital" as "Such institutions as are designated in § 22-21-21 as hospitals." The following is included within the definition of "hospital" in § 22-21-20: "Longterm care facilities such as, but not limited to, skilled nursing facilities, intermediate care facilities."
Rosemont is a skilled and intermediate care nursing facility and, therefore, a "hospital" under the Alabama Medical Liability Act.
Section 6-5-484(a), Code 1975, in pertinent part, reads:
A hospital is not an insurer of the successful issue of treatment or service to a patient. § 6-5-484(b), Code 1975.
Mrs. Marshall was a "patient" and Rosemont is a "hospital" within the meaning of § 6-5-484, supra. Therefore, the plaintiff can prevail only if he established at trial that Rosemont, in rendering or failing to render services to his mother, did not use that degree of care, skill and diligence used by skilled and intermediate care nursing facilities generally in the community.
To establish a hospital's negligence under the Alabama Medical Liability Act, ordinarily, the plaintiff must offer expert medical testimony as to what is or what is not the proper practice, treatment, and procedure. In such a case, the lack of expert medical testimony results in a lack of proof which is essential to establish a plaintiff's case. Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969); Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156 (Ala.1984).
An exception to the foregoing general rule has been recognized where the want of skill or lack of care is so apparent as to be within the comprehension of the *1130 average layman and thus requires only common knowledge and experience to understand it. Parrish v. Spink, supra; Tuscaloosa Orthopedic Appliance Co. v. Wyatt, supra. This exception has usually been applied under circumstances where the doctrine of res ipsa loquitur is applicable. (See Holt v. Godsil, 447 So. 2d 191 (Ala.1984), wherein the Court recognized that the exception applies where a foreign instrumentality is found in the plaintiff's body following surgery, citing Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), and where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment, citing Parrish v. Spink, supra. Another exception has been recognized where the plaintiff introduces a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, Holt v. Godsil, supra, citing Zills v. Brown, 382 So. 2d 528 (Ala.1980).[2]
Neither of these exceptions is applicable in the present case. Our review of the record indicates that the plaintiff failed to establish, by expert testimony, what degree of care, skill, and diligence is used by skilled and intermediate care nursing facilities generally in the community in rendering treatment and services to a patient such as Mrs. Marshall. Therefore, the jury was without a standard against which to evaluate Rosemont's practices and procedures. In our view, the degree of care, skill, and diligence which should have been exercised by Rosemont in caring for a patient such as Mrs. Marshall, is not so apparent as to be within the comprehension of the average layman, requiring only a common knowledge and understanding.
Mrs. Marshall's family and attending physician sought to confine her to Rosemont for the purpose of treating her deteriorating mental and physical conditions. Obviously, the medication and restraints prescribed by her physician, and the measures undertaken by the officials and staff at Rosemont, in the end, were not successful in so confining her. The mere fact that these efforts were not successful does not permit a finding of negligence by the jury on the part of Rosemont. § 6-5-484(b), Code 1975, supra; Berry v. Robertson, 285 Ala. 623, 235 So. 2d 657 (1970). Intermediate nursing care facilities, such as Rosemont, are not prisons or asylums. They exist primarily for those who are not only aged and mentally or physically incapacitated, but also for those who, by reason of having no immediate family capable of providing assistance, require additional care. It is, therefore, incumbent upon such facilities not only to care for their patients in the medical sense, but to provide some atmosphere of homelife for them also.
The plaintiff contends that Rosemont was negligent in its failure to station guards at, or install alarms on, all of the exits, and to give notice to the plaintiff of his mother's wandering propensities. Rosemont accepted Mrs. Marshall as a patient knowing that she was to be observed closely. It retained her as a patient knowing that she needed total 24-hour nursing care. There was no evidence by expert testimony, or authoritative text or treatise, as to the standard of care applicable to intermediate nursing care facilities such as Rosemont. Such a standard, by necessity, would be influenced by a number of considerations, inter alia, the applicable state and federal regulations governing such facilities, physician-imposed restrictions, and policy determinations within the industry. Accordingly, there is insufficient evidence in this case for the jury to conclude that Rosemont was understaffed, provided inadequate supervision, or misapplied the medication or restraint prescriptions of Mrs. Marshall's attending physician. There was *1131 also insufficient evidence for the jury to conclude that Rosemont was unique within the industry in not utilizing guards or alarms in the manner contended or in failing to closely observe Mrs. Marshall or failing to give her 24-hour nursing care. Concerning the issue of notification, the record does show that Dr. Rockwell, Mrs. Marshall's attending physician, testified, in pertinent part, as follows:
Mrs. Sandra Oldham, the director of nursing at Rosemont during the period of Mrs. Marshall's stay, also testified, in pertinent part, as follows:
We consider this testimony insufficient to establish negligence on the part of Rosemont, because the degree of care required of that facility, in this respect, is not that which persons of ordinary prudence would exercise under like conditions, but that which is ordinarily exercised by similar institutions and facilities under like conditions.
Because of the plaintiff's failure to establish, by expert testimony, the standard of care applicable to Rosemont, we hold that the plaintiff did not make out a prima facie case of negligence and, consequently, the trial court erred in not directing a verdict in favor of Rosemont.
The resolution of the foregoing issue precludes the necessity of our addressing the issue of proximate causation, which was also raised by Rosemont on appeal.
The judgment of the trial court is reversed and the cause is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
MADDOX, J., concurs specially.
JONES and FAULKNER, JJ., dissent.
JONES, Justice (dissenting).
Unfortunately, the restraints of time prevent a full-blown analysis of the basis for my disagreement with the majority opinion. A brief discussion will have to suffice.
Initially, if I were to accept the premise adopted by the majority opinion, I would have no difficulty in accepting its rationale and its conclusion. But it is precisely this premise with which I disagree. The majority opinion assumes that the applicable Medical Malpractice Act establishes the standard of care owed by the nursing home to the patient in this case; and then it proceeds to hold that the community standard of due care established by that Act must be proved by expert medical testimony. Ordinarily, this would be the case; but, here, through the contractual relationship of the parties, the nursing home had undertaken a higher duty of care.
The intestate's children sought out a nursing home that would agree to care for their mother under the circumstances of her grave condition, which required extraordinary attention. In its acceptance of Mrs. Marshall as a patient, Rosemont was fully aware that she required "continuous care." Then, after she had "escaped" on one occasion, Rosemont was again admonished *1132 by the family doctor to provide "twenty-four hour" care, which he described as "to have somebody eyeball [her] twenty-four hours a day."
Surely, it is beyond debate that the applicable Medical Malpractice Act does not preclude a health care provider from undertaking a higher degree of care than the reasonable care standard prescribed by the Act. The standard prescribed by the Act applies in the absence of any specific undertaking by the health care provider. Indeed, suppose Mrs. Marshall, instead of being a "problem" patient, had been in good general health, capable of attending to her personal needs, but in need of housing and a minimum of care. Suppose further that, in order to encourage Rosemont to accept her as a patient, the family agreed that something less than the usual "nursing care" was required. Under those circumstances, would Rosemont be held to the ordinary, reasonable care standard prescribed by the Act?[1]
I ask this rhetorical question as the preface to another one. Suppose the personal representative, by way of expert testimony, had proved the standard of reasonable care provided by nursing homes in the "medical community"? Doing so would have established a duty of a standard lower than that degree of care which Rosemont in this instance had undertaken to provide. The ultimate question, then, is: Can Rosemont undertake an extraordinary degree of care, and then defend an allegation of its breach on the basis of a lesser duty imposed by law? I submit that the question is self-answering.
Therefore, I would affirm the judgment, holding that the trial court did not err in rejecting, as irrelevant, Defendant's insistance on expert testimony to prove a lesser duty of care than that undertaken by Defendant.
[1] The evidence was disputed as to whether Rosemont had notified the plaintiff on these occasions.
[2] In Holt v. Godsil, supra, the Court also recognized an "exception" to the general rule where the plaintiff is himself or herself a medical expert qualified to evaluate the applicable standard of care, and degree of skill utilized. This, of course, is not actually an exception to the general rule requiring expert medical testimony, but merely a recognition that, under certain circumstances, the allegedly negligent conduct may be evaluated by the plaintiff. See also Lamont v. Brookwood Health Services, 446 So. 2d 1018 (Ala.1983).
[1] To be sure, the dictates of public policy would void any such agreement that lowered the standard of care to levels of indecency. I am merely suggesting that general tenets of tort law permit undertakings above and below the due-care standards otherwise prescribed by the Medical Malpractice Act. | December 20, 1985 |
836e2121-f787-4063-904a-1132aa8b14ad | Ex parte Edward Wrenn & David Wrenn. | N/A | 1190567 | Alabama | Alabama Supreme Court | Rel: April 30, 2021
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, 2020-2021
_________________________
1190567
_________________________
Ex parte Edward Wrenn and David Wrenn
PETITION FOR WRIT OF MANDAMUS
(In re: Jeffrey E. Wright
v.
A-1 Exterminating Company, Inc., et al.)
(Etowah Circuit Court, CV-12-900782)
SELLERS, Justice.1
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Sellers on March 17, 2021.
1190567
Edward Wrenn ("Edward") and David Wrenn ("David") petition this
Court for a writ of mandamus directing the Etowah Circuit Court to
vacate an order requiring Edward and David to disclose their personal
income-tax returns to plaintiff Jeffrey E. Wright and to enter a protective
order shielding the tax returns from production. We grant the petition
and issue the writ.
Wright alleges that he contracted with A-1 Exterminating Company,
Inc. ("A-1 Exterminating"), for periodic termite treatments of his house.
Over the course of several decades of treatments, Wright says, A-1
Exterminating used a "watered-down pesticide so weak that it may only
kill ants and 'maybe' spiders." A-1 Exterminating allegedly concealed this
practice from him until recently. As a result, Wright contends that his
house is infected by termites and has been damaged by termites. Wright
sued Edward, David, A-1 Exterminating, A-1 Insulating Company, Inc.,
and Wrenn Enterprises, Inc., alleging breach of warranty, breach of
contract, negligence, and wantonness.2
2Edward and David each own 50% of Wrenn Enterprises, Inc., which
in turn owns A-1 Exterminating. Wright alleged in his complaint that A-1
2
1190567
Wright sought to represent a class consisting of himself and other A-
1 Exterminating customers allegedly harmed by the defendants' actions.
In support of his request to certify a class, Wright alleged that a "limited
fund" existed that would support a class action under Rule 23(b)(1)(B),
Ala. R. Civ. P. That rule provides that a class action is appropriate when
"adjudications with respect to individual members of the class ... would as
a practical matter be dispositive of the interests of the other members not
parties to the adjudications or substantially impair or impede their ability
to protect their interests." According to Wright, the class he proposes fits
within the limited-fund framework because the total amount of potential
judgments against the defendants exceeds their ability to pay.
Accordingly, Wright says, adjudications in favor of individual members of
the proposed class would impair the other potential members' ability to
recover.
Insulating Company, Inc., "controls A-1 Exterminating." Wright also
sued Terry Buchanan, who apparently was an employee of A-1
Exterminating. The materials before the Court indicate that, after this
action was commenced, Buchanan died and all claims against him were
dismissed.
3
1190567
Wright sought production of several years' worth of Edward's and
David's personal income-tax returns, which Edward and David say they
filed jointly with their spouses. Wright sought the tax returns because,
he claims, they will help establish that the defendants' assets are
insufficient to satisfy the proposed class members' potential judgments
and will therefore support his assertion that a limited-fund class should
be certified.
The trial court initially entered an order ruling that Edward and
David would not be required to produce their tax returns. Later, however,
the trial court granted a motion to compel filed by Wright, which sought
production of tax returns and other materials. Edward and David moved
the trial court to enter a protective order. The trial court, however, denied
that motion, and Edward and David filed the instant mandamus petition.
"[M]andamus is a drastic and extraordinary writ" that will issue 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 Edgar, 543 So. 2d
4
1190567
682, 684 (Ala. 1989). This Court will review by mandamus petition a trial
court's discovery order that allegedly disregards a privilege. Ex parte
Action Auto Sales, Inc., 250 So. 3d 536, 539 (Ala. 2017).
In Action Auto Sales, this Court stated as follows regarding the
"qualified privilege" from discovery that tax returns enjoy:
"The Court in [Ex parte Morris, 530 So. 2d 785 (Ala.
1988),] noted that some federal courts had recognized a
'qualified privilege' for tax records, which 'impos[ed] high
standards of relevancy before parties will be ordered to reveal
such records.' 530 So. 2d at 788. Such a qualified privilege was,
according to those courts, justified by ' "the sensitive
information contained [in tax records] and the public interest
to encourage the filing by taxpayers of complete and accurate
returns." ' Id. (quoting Mitsui & Co. v. Puerto Rico Water Res.
Auth., 79 F.R.D. 72, 80 (D.P.R. 1978)). The Court also noted
that the United States Court of Appeals for the Third Circuit,
in reviewing an order compelling nonparties to disclose their
gross incomes, had observed:
" ' "It can scarcely be denied that public
exposure of one's wallet or purse is, in the abstract,
an invasion of privacy. Nor can it be denied that
private individuals have legitimate expectations of
privacy regarding the precise amount of their
incomes. Unless placed in issue, as in litigation, in
a loan application, or when a federal statute or
regulation may require publication of annual
compensation, for instance, individuals employed
in the private sector expect that the amount of
their income need be divulged only to the taxing
5
1190567
authorities, and to them with an expectation of
confidentiality." '
"530 So. 2d at 788 (quoting DeMasi v. Weiss, 669 F.2d 114, 119
(3d Cir. 1982))."
250 So. 3d at 539. Although the records sought in Action Auto Sales and
Ex parte Morris, 530 So. 2d 785 (Ala. 1988), were those of a nonparty to
the litigation, "the qualified privilege may extend, in appropriate cases,
to parties to a suit." Ex parte Alabama State Univ., 553 So. 2d 561, 562
(Ala. 1989).3
In Morris, the Court quoted Tele-Radio Systems Ltd. v. De Forest
Electronics, Inc., 92 F.R.D. 371, 375 (D. N.J. 1981), for the proposition
that, " '[u]nless "clearly required in the interests of justice, litigants ought
not to be required to submit [tax] returns as the price for bringing or
3It is certainly worth noting that the tax returns at issue in this case
do indeed affect the privacy interests of nonparties to the litigation,
namely, the wives of Edward and David, who filed tax returns jointly with
their spouses. See Van Westrienen v. Americontinental Collection Corp.,
189 F.R.D. 440, 441 (D. Or. 1999) (indicating that the production of joint
tax returns is particularly disfavored). Tax returns may also contain
information about other nonparties, such as minor children or employees
of the taxpayer.
6
1190567
defending a lawsuit." ' " 530 So. 2d at 788. The Court in Morris, again
quoting Tele-Radio Systems, 92 F.R.D. at 375, observed that, " '[w]here ...
the information sought is otherwise available, and [litigants] have not
made their income an issue in the case, the income tax returns are not
properly discoverable.' " Id. See also Ex parte Alabama State Univ., 553
So. 2d at 562 (noting that a litigant must "show a compelling need" for
income-tax records).
As Edward and David point out, income-tax returns identify the
source and amount of income for a particular tax year, as opposed to
assets and liabilities. They also contain significant personal and
confidential information wholly unrelated to assets and liabilities. Thus,
Edward's and David's tax returns are not "highly" relevant to Wright's
theory that a class should be certified because the defendants have limited
assets available to satisfy potential judgments. See generally Van
Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440, 441 (D.
Or. 1999) (indicating that tax returns contain confidential information
and suggesting that a litigant's ability to satisfy a judgment is better
demonstrated by financial statements).
7
1190567
Before directing the disclosure of tax returns, trial courts should
carefully consider the private nature of the information contained in the
returns, the specific information sought by a litigant, and whether that
information can be obtained from a different source. For tax returns to be
discoverable, they must be highly relevant, the litigant seeking their
disclosure must show a compelling need for them, and their disclosure
must be clearly required in the interests of justice. Action Auto Sales, 250
So. 3d at 539; Morris, 530 So. 2d at 788; Alabama State Univ., 553 So. 2d
at 562. Those standards have not been met in this case. Accordingly, we
grant the petition and issue a writ of mandamus directing the trial court
to vacate its order requiring disclosure of Edward's and David's tax
returns and to enter a protective order shielding those returns from
production.4
4The Court notes that Edward and David question the
appropriateness of using a limited-fund theory to certify a class in an
action alleging "unliquidated" tort claims. Thus, they say, Wright is not
entitled to the tax returns even if the returns could possibly be deemed
sufficiently relevant to, and necessary to support, a theory alleging that
there are limited funds available to satisfy potential judgments in favor
of class members. Because we conclude that Wright did not overcome the
qualified privilege applicable to tax returns and is therefore not entitled
8
1190567
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Wise, Bryan, and Stewart, JJ., concur.
Shaw, Mendheim, and Mitchell, JJ., dissent.
to their disclosure, we pretermit any discussion of the appropriateness of
certifying a class based on a limited-fund theory in this case.
9
1190567
MITCHELL, Justice (dissenting).
I respectfully dissent on two grounds.
A. The Majority Opinion Does Not Adhere to Our Court's
Mandamus Framework for Deciding Discovery Issues
A writ of mandamus is a "drastic and extraordinary remedy" to be
issued only when the petitioner has established a "clear legal right" to the
order it seeks. Ex parte Sanderson, 263 So. 3d 681, 688 (Ala. 2018)
(emphasis omitted). And it's especially tough to obtain a writ of
mandamus for a discovery order -- because trial courts have wide latitude
in overseeing discovery. See Ex parte Carlisle, 26 So. 3d 1202, 1205 (Ala.
2009) (" 'The utilization of a writ of mandamus to compel or prohibit
discovery is restricted because of the discretionary nature of a discovery
order. The right sought to be enforced by mandamus must be clear and
certain with no reasonable basis for controversy about the right to relief.' "
(citation omitted)); see also Ex parte Maple Chase Co., 840 So. 2d 147, 149
(Ala. 2002) (recognizing that trial courts have "broad discretion in ruling
on discovery matters"). Thus, mandamus relief is appropriate for a
discovery order only when the trial court " 'clearly exceed[s] its
10
1190567
discretion' " and the petitioner has no adequate remedy by appeal. Ex
parte Guaranty Pest Control, Inc., 21 So. 3d 1222, 1225 (Ala. 2009)
(citation omitted; emphasis added). That means we will consider whether
a trial court has clearly exceeded its discretion only in limited
circumstances, including when, as alleged here, the trial court has
disregarded a privilege or compelled the production of "patently
irrelevant" documents. See id. at 1226.
Given these principles, we should give a trial court a high degree of
deference when examining a discovery ruling on mandamus. And for good
reason -- " 'our judicial system cannot afford immediate mandamus review
of every discovery order.' " Id. (citation omitted). As an appellate court,
we are poorly positioned to micromanage discovery skirmishes. Here, for
example, Edward Wrenn and David Wrenn say they have produced
"thousands of pages" of asset-related discovery. Yet we are not privy to
that discovery -- we have only what was submitted to us with the
mandamus petition. Trial judges, on the other hand, are much closer to
the facts, parties, and discovery in each case. That's why " 'the trial court
is in a better position to make discovery determinations than we are.' " Ex
11
1
1190567
parte Alabama Dep't of Mental Health, 819 So. 2d 591, 594 (Ala. 2001)
(citation omitted).
The majority opinion gives little to no deference to the trial court.
Although it recites the general mandamus standard, it ignores the
principles that caution against issuing a writ of mandamus to override
discovery orders. Instead, the majority opinion puts this Court in the trial
court's shoes and considers the discovery request anew, giving no
consideration to whether the Wrenns have carried their heavy burden of
demonstrating that the trial court clearly exceeded its "very broad"
discretion in denying their proposed protective order. This encourages
litigants to view this Court not as a guardian against clear abuses of the
discovery process, but as a second bite at the apple. Our judicial system
should not have to bear that burden.
B. The Majority Opinion Holds that the Wrenns' Tax Returns Are
Irrelevant Without Fully Grappling With Why the Returns Were
Sought and How Confidentiality Concerns Could Be Addressed
For the tax returns to be discoverable, the majority opinion holds,
"they must be highly relevant, the litigant seeking their disclosure must
show a compelling need for them, and their disclosure must be clearly
12
2
1190567
required in the interests of justice." ___ So. 3d at ___. Additionally, the
majority opinion holds that trial courts must consider whether the
information sought in the tax returns "can be obtained from a different
source." ___ So. 3d at ___.
The majority opinion concludes that Jeffrey Wright's request for the
Wrenns' tax returns fails this test. It cites two reasons: (1) "income-tax
returns identify the source and amount of income for a particular tax year,
as opposed to assets and liabilities," ___ So. 3d at ___, and (2) the tax
returns potentially contain confidential and irrelevant information,
including potential information about the Wrenns' spouses and children.
Neither of these reasons is sufficient to issue a writ of mandamus.
First, Wright is not seeking the Wrenns' tax returns solely to
identify assets. Rather, he says he is seeking them because he believes
they could help "determine the veracity of the other financial information
produced in the case and could reveal the disposal of assets in anticipation
of litigation" (Wright's brief at 23) and that they can show "how much
money was diverted from [A-1 Exterminating Company, Inc.,] into the
individuals' pockets" (Wrenns' petition at exhibit 29). The majority
13
3
1190567
opinion does not explain how or where this information would otherwise
be discoverable or why the trial court clearly exceeded its discretion in
light of Wright's stated reasons.
Second, discovery material often contains irrelevant personal,
financial, and confidential information in documents that otherwise
contain relevant information. But that is no objection to the production
of that material. Litigators routinely balance relevancy and
confidentiality considerations by entering into agreements or by seeking
tailored discovery orders. These solutions can, for example, impose
penalties for disclosure of confidential information outside the case, limit
review of information to attorneys only (as opposed to the parties they
represent), provide for relevancy redactions, or incorporate in camera
review when necessary. There is no indication that the Wrenns sought
any of those protections for their tax returns, and they (along with the
majority opinion) fail to explain why those protections would be
insufficient here. See Hunt v. Windom, 604 So. 2d 395, 398 (Ala. 1992)
(holding that trial court, in entering protective order, "exercised its
discretion in a balanced way in permitting some discovery by the plaintiff"
14
4
1190567
of tax returns while "severely limiting access to them" to protect their
confidentiality); see also Ex parte Morris, 530 So. 2d 785, 793 (Ala. 1988)
(Beatty, J., dissenting) (noting that petitioner failed to seek any order
limiting use of the tax returns and that, if trial court believed production
of the tax returns would be prejudicial or burdensome, it could have
exercised its discretion to limit their use as necessary).
C. Conclusion
In sum, there is no basis to conclude that the trial court clearly
exceeded its discretion. Wright sought the Wrenns' tax returns for the
purpose of establishing a "limited fund" class action.5 He says that the tax
returns could help determine the veracity of other financial information
produced in discovery thus far, reveal the possible disposal of A-1
Exterminating's assets in anticipation of litigation, and show whether and
5The Wrenns argue that Wright's limited-fund theory, based on Ortiz
v. Fibreboard, 527 U.S. 815 (1999), is inapplicable because this case
involves unliquidated claims. But Ortiz did not resolve that issue, and
neither has this Court. Because it is neither necessary nor appropriate to
address that issue of first impression to resolve a discovery dispute --
especially when the trial court has not yet ruled on it -- I would not reach
that issue here.
15
5
1190567
how much money was diverted from A-1 Exterminating to the Wrenns.
Given the trial court's proximity to the facts, the parties, and the
"thousands of pages" of asset-related discovery in this case, it is in a far
better position than this Court to determine whether there is a compelling
need for the tax returns and whether their probative value outweighs any
prejudice or burden to the Wrenns. And given the materials before us and
the deference due to a trial court in a discovery dispute, I see no reason to
conclude that the trial court clearly exceeded its discretion.6 I would
therefore deny the petition for the writ of mandamus.
6Thus, I would also reject the Wrenns' argument that the trial court
erred because their tax returns are "patently irrelevant."
16
6 | April 30, 2021 |
0e28e083-b15a-48ac-9b39-74ffca1f5419 | Williams v. Jasper | 250 So. 2d 701 | N/A | Alabama | Alabama Supreme Court | 250 So. 2d 701 (1971)
Ronald WILLIAMS
v.
Joseph JASPER, Judge, etc.
Ex parte Ronald Williams.
Wayland BRYANT
v.
Joseph JASPER, Judge, etc.
Ex parte Wayland Bryant.
6 Div. 845, 846.
Supreme Court of Alabama.
April 29, 1971.
*702 Drake & Knowles, University, for petitioners.
William J. Baxley, Atty. Gen., for respondent.
SIMPSON, Justice.
Petitioners insist that, being indigents, they are entitled to a free copy of the proceedings on preliminary hearing. Petitioners rely on Roberts v. LaVallee, Warden, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967) where the Supreme Court of the United States held in a case coming to it from New York, that the State was compelled to furnish an indigent with a free copy of such transcript. It must be noted, however, that New York had a statute which provided that a transcript of the hearing would be furnished "`on payment of * * * fees at the rate of five cents for every hundred words.'" (N.Y.Code Crim.Proc. § 206).
The pertinent language of the decision is:
The real question is whether or not the above decision means that a state is constitutionally required to provide that transcripts of preliminary hearings be made and to furnish an indigent a free copy of such transcripts, or whether the constitutional requirement is that if a transcript of a preliminary hearing is provided for by statute (or otherwise), a free copy must be furnished indigents.
In 1969 the Legislature of Alabama repealed a statutory requirement that transcripts of preliminary hearings be made. (Title 15, § 135 et seq., repealed by Act 1106, September 12, 1969.) Under present Alabama Law, therefore, there is no statutory provision for such transcripts.
Various courts have interpreted Roberts v. LaVallee in various ways. Gardner v. United States, 132 U.S.App.D.C. 331, 407 F.2d 1266 (1969) will serve as an example of one view. There Chief Judge Bazelon interpreted the case to mean that a preliminary hearing transcript must be made, saying:
In People of State of Illinois v. Hubbard, 107 Ill.App.2d 79, 246 N.E.2d 44, Illinois in 1969 presents an opposite interpretation of LaVallee. There the defendant contended that he was denied a constitutional right when the court denied his motion for a copy of the transcript of the preliminary hearing at which he was bound over to the grand jury. The Illinois court said:
We agree with the Illinois Court that LaVallee is inapplicable in the present cases, because there is no longer any statutory requirement that a transcript of preliminary *704 hearings be made in Alabama. A court reporter was present at the request of the petitioners, not at the request of the State. (See also: Sharbor v. Gathright, D.C., 295 F. Supp. 386, where the court said the rule in Roberts v. LaVallee was inapplicable because "There is no similar statute in the State of Virginia.")
The view taken by the Illinois Court in People v. Morris, supra, apparently was that a free transcript must be supplied under Griffin in those states where the preliminary hearing is a "critical stage" in the criminal process. That court concluded that the preliminary hearing in Illinois was not a critical stage in the criminal process.
The decision of the Supreme Court of the United States in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970) seems clearly to say that the preliminary hearing is a critical stage of the criminal process in this state, requiring the appointment of counsel for indigent defendants. However, we do not read Griffin as apparently the Illinois Court did, to mean that that is a factor which determines whether the State must provide some means of preserving the testimony for distribution free to indigents upon request. Indeed, it was twice noted in the course of the various opinions in Coleman that no record of transcript of any kind was made of the preliminary hearing. The defect which the Supreme Court found there, however, was not in the State having failed to provide a transcript of the proceedings, but in having failed to appoint a lawyer on preliminary hearing.
We agree with the Court of Criminal Appeals that since Alabama has no statutory provision for the making of transcriptions of the proceedings had on preliminary hearing, Roberts v. LaVallee is inapplicable.
Petitions denied.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur. | April 29, 1971 |
9721452f-3b8f-44ba-8472-4840996a48d3 | White v. McDonald Ford Tractor Company | 248 So. 2d 121 | N/A | Alabama | Alabama Supreme Court | 248 So. 2d 121 (1971)
Howard L. WHITE, Jr.
v.
McDONALD FORD TRACTOR COMPANY, Inc.
3 Div. 478.
Supreme Court of Alabama.
May 6, 1971.
*122 Hill, Hill, Stovall, Carter & Franco and Robert C. Black, Montgomery, for appellant.
J. Paul Lowery and James D. Straiton, Montgomery, for appellee.
Herman H. Hamilton, Jr., Champ Lyons, Jr., Montgomery, James R. Solomon, Jr., amici curiae.
MADDOX, Justice.
The question presented by this appeal requires an interpretation of Alabama's Competitive Bid Law.
On October 19, 1970, the Division of Purchases and Stores of the Department of Finance issued an invitation to bid for sixty-five low center of gravity turf tractors with sleeve-type engines to be used by the Alabama Highway Department for mowing grass and brush from highway right-of-ways. The invitations, with specifications, were sent to 278 prospective bidders. Ten responses were received, including the bid by McDonald Ford Tractor Company, Inc., the appellee here. The bids were opened on October 29, 1970 and all parties admit that McDonald submitted the lowest bid of those responding. Five of the bidders, including McDonald, submitted bids on tractors which did not have sleeve-type engines and did not meet other specifications and were determined by State officials not to be suitable for the needs and purposes for which the tractors were required. Five bidders were determined to meet specifications, needs and purposes and upon recommendation of Highway Department personnel, concurred in by the State Purchasing Agent, Howard L. White, Jr., (Appellant) and Finance Director, Robert B. Ingram, the award of the contract was made to Booker Tractor Company, which had submitted the lowest bid of the five qualifying and conforming bids. McDonald had submitted the lowest bid of what state officials determined to be non-qualifying and non-conforming bids. Since the award was not made to the lowest bidder, reasons for the award were entered in the bid record.[1] Booker ordered *123 the tractors, delivered them to the State, but has not been paid therefor.
On December 23, 1970, McDonald filed its petition for injunctive relief in the Circuit Court of Montgomery County against Albert P. Brewer, Robert B. Ingram, Marion H. Wilkins, and Howard L. White, Jr.[2]
Booker Tractor Company, to whom the award was made, was not made a party.
A motion for a temporary restraining order was presented to Circuit Judge Richard P. Emmet on December 28, 1970, and on December 28, 1970, Judge Emmet ordered a hearing on the matter for December 31, 1970.
The cause was heard orally by the court and on January 8, 1971, Judge Emmet entered a decree in which he found that there was "no evidence of any impropriety whatsoever on the part of any state officials; elected, appointed or merit." He also found "no evidence of untruthfulness upon the part of any official's testimony."
Much of the testimony centered around the relative merits of the Massey-Ferguson tractor bid by Booker and a Ford tractor bid by McDonald. Unquestionably, the record shows that State Highway Department employees who initiated the requests for the sixty-five tractors preferred the Massey-Ferguson tractor. In fact, it is admitted that the specifications sent with the invitations to bid were drawn around the Massey-Ferguson turf tractor, but only after the division engineers of the Highway Department agreed that this type tractor was best suited for the purposes for which the tractors were required. The trial court, although finding "no evidence of any impropriety on the part of any state official; elected, appointed or merit", nevertheless restrained purchasing agent White from proceeding further with the bid. The justification for such relief, if appropriate, must come from the trial court's finding and conclusion as follows:
Therefore, as we view this appeal, there is one question involved:
"Under Alabama's Competitive Bid Law, can specifications be drawn to fit a particular article or piece of equipment which has been determined to be suitable for the needs and purposes required prior to the time the equipment is requisitioned?"
The question presented is not a simple one. The appellant says that our Competitive Bid Law authorizes the drawing of *124 specifications around a piece of equipment such as the Massey-Ferguson tractor in this case, especially since it was shown that the other bids were considered and that the bid accepted was the "lowest responsible bid." McDonald (Appellee) stoutly denies that our law so provides and contends that when specifications are so framed, free and full competition is precluded and the award made to Booker is void even though the state officials were found not to be guilty of any impropriety.
To answer the question, we must look at our Competitive Bid Law, especially Section 1 of Act No. 870, Acts of Alabama, 1961, p. 1365, which amends Section 9 of Act No. 343, approved August 20, 1957, (Title 55, § 502, Code of Alabama 1940, Recompiled 1958), and provides as follows:
All parties seem to agree that being the lowest bidder does not automatically entitle the bidder to the award in every instance. As a matter of fact, counsel for McDonald stated at oral argument in answer to a question from a member of the Court that if the specifications in this case had been written in more general terms, and had the identical bidders responded, as did respond here, then the Highway Department officials could have determined Booker to be the "lowest responsible bidder" on the ground that the Massey-Ferguson tractor would better meet their needs and no violation of the statute would have occurred. The position of McDonald on this point is not completely without merit. For instance, in this case, McDonald's bid was classified as non-qualifying and non-conforming, as were the other three Ford dealers' bids and the John Deere dealer's bid. Failure to meet specifications was always given as one of the reasons why the bid failed to conform. Also, Purchasing Agent White testified that specifications could be written so precise as to exclude other items, but denied that the specifications were so drawn in this instance or that the policy of the agents for the State was to draw specifications which would have this affect. In testimony:
According to the Purchasing Agent, the procedures used in this instance have been followed on many occasions since the passage of the State Competitive Bid Law in 1957, and the administrative interpretation placed on the law by the department charged with its operation over a period of time has some weight in determining the rightness of that interpretation. See Haden v. McCarty, 275 Ala. 76, 152 So. 2d 141 (1963). Without question, the legislature intended to require that competitive bidding be employed in the purchase by the State of equipment such as the turf tractors here. However, the legislature did not direct that the award must be made to the lowest bidder, but to the lowest responsible bidder, and specifically provided that in making the award to the lowest responsible bidder consideration could be given to the quality of the commodity proposed to be supplied, their conformity to specifications,[3] the purposes for which required, the terms of delivery, transportation charges, and the dates of delivery. The Competitive Bid Law specifically provides that if the award is not made to the lowest bidder, however, that the reasons must be stated why the award was not made to the lowest bidder and these records must be open to public inspection. Reasons for making the award to Booker were made a part of the record in this case in conformity with the law.
The practice of the purchasing division of using a piece of quality equipment as the criteria for the specifications, if the specifications were drawn too specific, could result in excluding all other makes or models of similar equipment, and if the specifications were intentionally drawn so as to exclude others in order to purchase from a favored bidder because of some bad or improper motive, on the part of State officials, then the practice could not be condoned. However, the trial court specifically found in this proceeding that there was no impropriety on the part of any State official and that each testified truthfully; therefore, in light of these findings and conclusions the only question remaining was the authority of the Purchasing Department to use manufacturer's specifications in his invitation to bid as was done in this case. In discussing this question we specifically do not wish to be understood as sanctioning every practice which might be used in writing "specifications." *126 but we find no violation of State law by the Purchasing Agent in this instance. In the invitation to bid, which was attached as an exhibit to McDonald's petition in the trial court, the following clauses appear:
These clauses on the invitation to bid form sent to all prospective bidders from the Purchasing Agent would seem to indicate to these bidders the "level of quality" desired, and that a bidder who wanted to offer comparable or better equipment should send this manufacturer's specifications to allow for such comparison. While the use of "specifications" of a particular brand of equipment might have some chilling effect upon competitors who do not deal in the specific product, the invitation to bid form specifies that brand names and catalog numbers are used only to indicate a "level of quality". The bid form does not encourage prospective bidders to submit bids on similar or comparable equipment, but on the other hand, it does not limit the amount of material which a prospective bidder might submit to support his claim and to persuade the State officials that he could furnish comparable or better equipment at a lower price. As a matter of fact, McDonald not only sent his literature which described in detail the merits of his Ford tractor, but he, his counsel, or a representative from Ford, talked to all the State officials involved with the purchase by the State of the sixty-five turf tractors. The State officials were not convinced apparently that McDonald's tractor was best suited for their purposes and were not persuaded sufficiently by his presentation to award the contract to him.
We have found no opinion which construes the provisions of the State Competitive Bid Law, but this Court has previously had occasion to interpret the meaning of the term "lowest responsible bidder" under a similar fact situation. In Mitchell, et al. v. Walden Motor Co., 235 Ala. 34, 177 So. 151 (1937), the question presented was whether county officials could buy a Chevrolet truck at a higher price when a bid for a Ford truck was lower. No bad faith was charged but the low bidder claimed that the Competitive Bid law required that the low bid be accepted. This Court said:
"* * * That the notice of purchase was posted and published the required length of time and by registered mail forwarded to three dealers in such material, as provided by the amended act, appears not to be controverted. And that the substance of the notice likewise meets the act's requirements we think quite clear. It called for sealed bids on `two one and one-half ton trucks, short wheel base, chasis with cab, with dual rear wheels, equipped with 30×5-8 ply tires on rear and 600-20 balloon tires on front.' Clearly, no provision of the act demanded that the notice name the manufacturer of the truck desired to be purchased as complainants argue. This the commissioners may well determine after receiving bids on various makes of trucks. In the instant case, the road supervisor by his affidavit discloses he favored the Chevrolet over the Ford, and gives his reasons as economy in operation and durability of service. The commissioners *127 evidently deferred to his judgment in the matter, and purchased the Chevrolet trucks at a cost of $179.50 more than the bid of the Ford dealer, one of these complainants, after first eliminating from consideration the bids of the Dodge and other dealers in trucks.
"Complainant Walden Motor Company was the Ford dealer offering the lowest bid, and it is insisted the statute was violated for the reason that its bid was not accepted and the Chevrolet bought for a higher price. To accept this contention would lead also to the conclusion that in advertising for bids the make of manufacture must be given and the purchase confined thereto, a theory which we have repudiated as not within any requirements of the act. In determining who is the lowest responsible bidder, the proper authorities may take into consideration the quality of the materials as well as their adaptability to the particular use required. 44 Corpus Juris 342. A very apt illustration is found in West v. City of Oakland, 30 Cal. App. 556, 159 P. 202, where was involved the purchase of a locking device for the jail; the court holding that: `The honest exercise of discretion of a city council, in considering the adaptability to the use required of goods offered, in determining who is the lowest responsible bidder under a charter calling for award of public works contract to such bidder, is not reviewable.'
"So far as here appears, there was such honest exercise of discretion in the instant case. There is no charge of bad faith. The county authorities merely preferred the one make of truck over the other, and were willing to pay the difference as they viewed it in the exercise of their honest judgment. Clearly, in the exercise of such discretion, the courts cannot interfere.
"The holding of this court in Inge v. Board of Public Works, 135 Ala. 187, 33 So. 678, 681, 93 Am.St.Rep. 20, was to like effect, wherein it was said that, `in the absence of fraud or gross abuse, the courts will not interfere with the exercise of discretion by administrative boards or officers in their determination of who is the lowest responsible bidder.' That authority is further to the effect that where it is charged the county authorities in violation of the statute did not let the contract to the lowest bidder, no presumption is to be indulged in the matter of exercise of their discretion. It then becomes defensive matter, just as in the instant case defendants, by their answer and affidavit of the road supervisor (all of which were properly considered in connection with the bill's averments on the motion to dissolve the temporary injunction), disclosed that in their judgment the lower bid was not for the same manufactured truck, but for a different make, and their preference for the one over the other, and reasons therefor.
"Under these circumstances, therefore, no fraud or improper conduct appearing, a court of equity should not interfere with the bona fide exercise of the judgment of the county authorities."
Appellee McDonald relies strongly on this Court's decision in Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937), and Diamond v. City of Mankato, 89 Minn. 48, 93 N.W. 911 (1903), to support its contention that "specifications" drawn around a particular product are violative of the intent and purpose of the Bid Law and therefore illegal.
The main thrust of appellee's argument to support the judgment of the trial court is that if the specifications are so framed as to preclude free and full competition, it does not matter if there are secret understandings or that State officials acted corruptly in the premises. In other words, appellee contends that the admission by the State that the Massey-Ferguson turf tractor was used to write the specifications is sufficient in and of itself to void the contract without reference to the intent with which the act was done. We cannot agree that our legislature intended such a result. The wording of the statute itself follows *128 very closely some of the language used by this Court in the Walden Motor Co. case, supra, wherein this Court said that in determining who is the lowest responsible bidder the proper authorities may take into consideration the quality of the materials as well as their adaptability to the particular use required.
Because of appellee's insistence on Poyner v. Whiddon, supra, we have examined the original record in that appeal, involving a competitive bid law applicable to Houston County. There, the county had properly advertised for bids on a piece of road machinery described in the advertisement as "one gasoline motor driven shovel with three-eighths cubic yards dipper, not less than three-quarters swing; length of boom not less than fifteen feet six inches; length of dipper stick not less than nine feet six inches; mounted on crawler-type track."
Seven responses were made to the advertisement for bids on the road machinery and the majority of the Board of Commissioners awarded the contract to the highest bidder, Austin Western Road Machinery Company. Young and Vann Supply Company of Birmingham was alleged in the bill to be the lowest responsible bidder for supplying the road machinery and the bill alleged that the road machinery bid by Young and Vann was approved and recommended by the county road foreman. An examination of the original record indicates that the bids submitted by Austin Western Road Machinery Company did not conform to the specifications which were set out in the newspaper advertisement for bids, in that the machinery offered by Austin Western had a boom which was only fifteen feet in length and the specifications called for a boom of not less than fifteen feet six inches. In Poyner v. Whiddon, supra, this court said:
The language in Poyner v. Whiddon, supra, to the effect that the county officials had no authority to modify the specifications to suit a single bidder would seem to indicate that once specifications are drawn for a particular piece of equipment, the awarding authority cannot then modify the specifications. Viewed in this perspective, Poyner v. Whiddon would not support the position taken by McDonald Ford in this matter. In Carson Cadillac Corporation v. City of Birmingham, 232 Ala. 312, 167 So. 794 (1936), cited approvingly in Poyner v. Whiddon, the Carson Corporation brought suit to compel the City of Birmingham to modify or change its specifications for water pipe couplings, claiming that if the specifications were allowed to stand, only one company could successfully bid and it would be prevented from bidding, in effect, because its product would not meet the specifications drawn, *129 but would do the job required as well or better than the pipe joints specifiedCarson's contention there being like McDonald's here. This Court held:
In an amicus curiae brief filed in this cause, Governor George C. Wallace and Finance Director Taylor Hardin state that they feel that the Competitive Bid Law is clear and unambiguous and that the purchasing procedures adopted and used by the State since the enactment of the bid law are in complete conformity with its requirements. They further state that the temporary injunction issued by the lower court in this cause has had the effect of disrupting the purchasing of services, equipment and supplies by the State.
We think that State authorities should have discretion in determining who is the lowest responsible bidder. This discretion should not be interfered with by any court unless it is exercised arbitrarily or capriciously, or unless it is based upon a misconception of the law or upon ignorance through lack of inquiry or in violation of law or is the result of improper influence. In reaching the decision which we reach in this case, we do not mean to imply that this Court or some other court would not have the authority to declare a contract as being void because the "specifications" were written in such a manner that full and fair competition were excluded. It is fair to say that the legislative intent in passing the Competitive Bid Law was to get the best quality equipment at the lowest possible price, and the executive authorities should carry out this intent of the legislature. These officials must have discretion, not an unbridled discretion, but one exercised within the bounds we have tried to delineate in this opinion. The single most important requirement of the Competitive Bid Law is the good faith of the officials charged in executing the requirements of the law. A bad motive, fraud or a gross abuse of discretion will vitiate an award whether made with specifications which are quite general or very precise. The trial court found that no bad faith, improper motive, fraud or gross abuse of *130 discretion was present here; hence, we think the court was without authority to interfere with the judgment and discretion of the State officials in determining that Booker was the "lowest responsible bidder" in this instance.
The temporary restraining order was improvidently issued and the judgment of the trial court is due to be reversed and rendered.
Having reached the decision we have in this appeal, we consider it unnecessary to pass on the petition for certiorari filed by Booker Tractor Company to bring up the record of the proceedings wherein Booker sought to intervene as a party after notice of appeal was filed by White in the trial court. In reaching the merits, we have intentionally not discussed the point that Booker, who was awarded the contract which the lower court declared illegal, was not made a party to the proceeding.
Reversed and rendered.
HEFLIN, C. J., and MERRILL, HARWOOD and McCALL, JJ., concur.
[1] Highway Director Marion H. Wilkins wrote Finance Director Ingram that the equipment bid by McDonald did not meet specifications on engine, transmission, parking brakes, clutch size, hydraulic system pump, tire size and weight. He also noted that the Ford tractor had a higher center of gravity than the equipment specified. The second, fourth and fifth lowest bidders each submitted a Ford tractor of the same type as had McDonald but had quoted a higher price. The Highway Department determined each to fail to meet specifications as had McDonald's. The third lowest bid was on a John Deere tractor which Wilkins stated failed to meet specifications on engine, transmission, parking brake, clutch size and stage, hydraulic system pump, tire size and weight. The Highway Department submitted a detailed analysis of the differences between the requisition specifications and the descriptive literature specifications submitted by the four Ford dealers and the John Deere dealer.
[2] Each respondent was sued in his individual capacity, but appellant during oral argument stated he would not seriously argue this pleading defect in order to get a decision on the merits.
[3] The purchasing agent is required by law to develop standard specifications for all property required by the State or any department thereof. Title 55, § 108, Code 1940. "Specification" has been defined as the act or process of identifying or making specific through the supplying of particularizing detail. Webster's Third New International Dictionary (Unabridged). | May 6, 1971 |
36a17e61-6eb0-4150-a6ad-78bd7726376c | Rust Engineering Co. v. State | 243 So. 2d 695 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 695 (1971)
The RUST ENGINEERING CO., a Corp.
v.
The STATE of Alabama.
3 Div. 401.
Supreme Court of Alabama.
February 4, 1971.
*696 Engel & Smith, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Willard W. Livingston, Counsel, Dept. of Revenue and Asst. Atty. Gen., and William H. Burton, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for the State of Alabama.
PER CURIAM.
This is an appeal from a final decree of the Circuit Court of Montgomery County, In Equity, upholding the final assessment of deficiency sales tax in the total amount of $26,425.39, which was made by the State Department of Revenue against appellant in this cause.
This case arises out of a contract which appellant had with the State Docks Department of Alabama to construct an export grain elevator in Mobile, Alabama. The provisions of the contract will be hereinafter set out in detail.
There are thirteen Assignments of Error.
Most of the argument in brief is directed to the finding and ruling of the court that "The Appellant, as an independent contractor, and not as an agent for the State Docks Department purchased the materials, etc., which it used to perform the contract in this case, and is the person on whom the sales tax fell." (Assignments of Error 1, 2, 3, 4, 5, and 11) Three of the assignments are not argued, 6, 7, and 8.
Assignments of Error 12 and 13 are based on an objection to portions of a deposition, offered by appellee and the court's refusal to exclude the same. We will consider these last two assignments. The deposition taken of J. B. Finley, the Secretary and Treasurer of Turner Supply Company of Mobile, Alabama, was offered by the state. Sales were made of the various items to Rust Engineering Company and delivered to the State Docks job. They were paid by the Rust Company for all of these sales. Thereafter, the witness was asked if any of the accounts for material sold by his company ever went bad. The objection to this question was overruled and the witness indicated that sales to Birmingham Maintenance and Mechanical Contractors, a subcontractor of Rust, failed to pay for purchases sold and delivered to it; also that the said subcontractor filed proceedings in voluntary bankruptcy. The witness, after filing its claim in the Bankruptcy Court, called one of the employees of the State Docks Department and requested payment of the account. It was refused.
Appellant made the objection to this part of the deposition that it was "incompetent, irrelevant and immaterial, and it is not shown that the materials furnished to were furnished on this particular contract. * *. The proper predicate has not been laid * * *." We hold the trial judge properly admitted the evidence and ruled without error in refusing to grant the motion to exclude. The sales company had sold and delivered the merchandise to the subcontractor. On receiving notice of the bankruptcy, a claim was filed. Thereafter, an effort was made to see if the State Docks Department would reimburse the supplier. Certainly, they knew where the goods were delivered. This was a collateral matter and no predicate was required. The evidence was clearly within the issues formulated by the pleadings. Moreover, the same, almost identical, evidence was offered in the second deposition. Deposition of Charlton M. Dukes was offered and read. He was the Secretary and Treasurer of a hardware dealer in Mobile. They had sold supplies to the Rust Company for use in the construction of the Docks project. Rust had paid the supplier. The witness then stated his company sold supplies to Birmingham Maintenance and Mechanical Contractors. He was then asked about the bankruptcy proceedings of this subcontractor. Also, the following:
"Q Did you make a demand on the State Docks for the account?
*697 "A Yes, I did but they wouldn't accept it.
"Q They would not pay it?
"A No."
Counsel for appellant then stated:
The Court stated:
"Unless it is shown the Court sustains it."
There were further questions and remarks between counsel and the court stated further:
The deposition was finally accepted as evidence and appellant's counsel excepted.
This ruling is in no way made a part of this appeal. There is no assignment of error in any way presenting this ruling, and no argument relating to the reception of the deposition.
While we have indicated that the rulings of the court on the admissibility of the first deposition (Finley) was without errorbut should it be assumed to be otherwiseit is harmless error for the trial court to exclude evidence when such evidence was admitted at another time and in another form. Supreme Court Rule 45.
Assignment of Error 9 recites:
This is another way of saying that the decree, holding to the contrary, was error. It will, therefore, be considered along with Assignments of Error 1 through 9 and 11.
Assignment of Error 10 is quite lengthy. Essentially, it questions the sufficiency of the evidence in certain particular aspects to support the decree. All of these matters are considered in the decree here appealed from which is hereinafter set out and approved by us. No need, therefore, arises to further consider this assignment.
We here set out the final decree which reads as follows:
"This cause came on to be heard and was submitted upon pleadings and proof, consisting of the oral testimony of several witnesses and a number of exhibits, as have been noted.
"It is an appeal taken by the Appellant to this court under the provisions of Title 51, Section 140, Code 1940, Recompiled 1958, from a final assessment of deficiency sales tax made by the State Department of Revenue against the Appellant on January 17, 1968, for the period August 1, 1964, through June 30, 1967, and in the total amount of $26,425.39, including tax, penalty and interest computed to the date of the assessment. Under the provisions of said appeal statute, the Appellant has filed a timely and proper appeal from said final assessment to this court.
*698 "Broadly stated, the Appellant contends that the State Sales Tax cannot be legally imposed upon it, inasmuch as it was allegedly the authorized agent of the Alabama State Docks Department, and in such capacity, it purchased and furnished the materials and supplies, which it used to construct a grain elevator for said Department at the State Docks in Mobile. This was contended to be true because, among other things, that the title to the materials and supplies was said to vest immediately in the Alabama State Docks Department, as an agency of the State of Alabama, upon the purchase thereof from the vendors. Thus, it was contended that the Alabama State Docks Department as an agency of the State of Alabama, was allegedly the real purchaser of the materials and supplies used in the construction of the grain elevator facilities, and it, not the Appellant, actually paid for or risked its credit in purchasing the materials, etc. from the suppliers. Therefore, under the sovereign immunity doctrine the Appellant was said not to be subject to the State Sales Tax. For said reasons, the Appellant insists that said final assessment was not lawfully and validly made and is void.
"On the other hand, the Appellee in answer to such contentions generally denies them. It also specifically denies that there was an agency relationship between the Alabama State Docks Department and the Appellant, and, to the contrary, asserts that the Appellant was an independent contractor and not an agent of the State in purchasing the materials and supplies from the vendors. This was said by the Appellee to be especially true as the actual facts are said to show that the Appellant paid for the materials with its own funds, and by checks drawn on its own private bank account, and as it took possession of them upon delivery, and used them in performing the contract and in earning the `lump sum' consideration thereunder. The Appellee also alleges that the tax was properly applied to the Appellant as an independent and private contractor, and that the final assessment of sales tax which is the subject of the appeal was validly, lawfully and correctly made against the Appellant.
"The situation here involved is not very different from many of the cases involving the same questions in regard to contractors performing cost-plus and other contracts with the Federal Government. Moreover, the decisions of both the State and the Federal Courts in resolving such questions as they relate to the Federal Contractors, would also appear to be very applicable here. See Associated Contractors v. Hamm, 277 Ala. 500, 172 So. (2d) 385, Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43, [86 L. Ed. 3] among others.
"The Appellant is very clearly a private corporation organized under laws of the State of Pennsylvania, and with its principle offices and place of business located in Pittsburgh, Pennsylvania. It has, however, a branch office and place of business located in Birmingham, Alabama. It is engaged primarily in the business of doing engineering and construction work throughout the United States, and has or has had several contracts for such work in Alabama. This particular case involves a contract which said corporation entered into with the State Docks Department for Alabama, on June 24, 1964, to construct an export grain elevator and to do certain expansion work at the Alabama State Docks in Mobile, Alabama. A copy of said contract together with certain supplements and letters purporting to make certain changes or revisions in the job covered by the contract were introduced in evidence in this cause as Appellant's Exhibit 1. When said contract is read together with the letters of June 8, 1964, and June 18, 1964, the Appellant, as the prime contractor was to perform the work called for under the contract for the `lump sum,' consideration of to wit, $3,764,272.00. By a letter dated June 30, 1964, and also under a so-called Contract for Special Management Services (Appellant's Exhibit No.
*699 (3) which was executed by the Appellant and the Alabama State Docks Department on July 8, 1964, said contract of June 24, 1964 was said to have been further altered and revised.
"Under Articles 1 and 3 of the contract of June 24, 1964 (Appellant's Exhibit 1) the Appellant as the contractor was required to furnish `all labor, tools, equipment, materials, transportation,' etc., in constructing the Export Grain Elevator and in doing the work called for under the contract. Article 8 of said contract provided that:
"Under the so-called Contract for Special Management Services (Appellant's Exhibit 3), which was entered into between the Appellant and the Alabama State Docks Department on July 8, 1964, and also through a letter between said parties dated June 30, 1964, the terms of said original contract made on June 24, 1964, which required the contractor to pay for and furnish the materials and supplies, was said to have been altered and changed by the State Docks Department appointing the Appellant as its agent for the limited purpose of the Appellant purchasing from the vendors the required materials, supplies and equipment for the performance of the work under the contract as the agent of the Alabama State Docks Department. It also was provided in said Contract for Special Management Services that the contractor, its agents and subcontractors, would advance funds and would pay the cost of the materials, etc., which they would purportly (sic) purchase for the State, and that the State would promptly reimburse the contractor or the subcontractors for all funds which they had advanced for the payment of said materials, etc., and that moreover the property purchased was to be the property of the State. However, under paragraph 2 of said Contract for Special Management Services it is provided that such provisions would not be construed to alter the terms and conditions of payment to the contractor as set forth in the original contract. Paragraph 4 of the Contract for Special Management Services also provided that such contract was not to alter the terms and conditions of the original contract.
"The terms of said two contracts as relating to who was obligated to purchase and furnish the materials, etc. which were to be used by the contractor in performing the work called for in erecting the grain elevator then paint a conflicting picture. In addition, the original contract requiring the contractor to furnish the materials, etc., and to be responsible for and to pay for them was executed by the State Docks Department and the contractor on June 24, 1964. Thus, it seems very apparent that it was some two weeks later before the matter of the State Sales and Use Taxes came to the forefront, and before means were attempted to be used to relieve the Appellant, as the contractor, from the payment of such taxes in purchasing the materials, etc., needed by the contractor to perform the work called for under the contract. The so-called Contract for Special Management Services was not executed until July 8, 1964, and it appears that it was also about the same time that the terminology contained in the purchase orders designating the Appellant as the agent of the State Docks Department was devised.
"It is, therefore, obvious from the evidence that the so-called Contract for Special Management Services as well as the recitals contained in the purchase orders purporting to designate the contractor as the agent of the State Docks Department in purchasing the materials, etc., to be used by the contractor in performing the contract, were devices whereby said Department sought to relieve the contractor from the payment of State Sales and Use Taxes, in order to reduce the overall or lump sum amount originally bid by the contractor for the job. Such steps were said to be taken by the Department in order to *700 assist in reducing the overall or lump sum amount originally bid by the contractor for the job, and as one of the means used in attempting to reduce the amount of the bid to the extent of fitting such amount into the amount appropriated for the job by the Legislature, which appropriation was said to be substantially less than the amount of the bid. As worthy as the end might appear to be in this regard, the means used in attempting to relieve the private contractor from state taxes in order to accomplish such result, does not appear to be within the powers of the State Docks Department, in absence of the authority to do so from the Legislature or from the Constitution.
"Exemption from state taxation is said to be lawfully conferred only by the Legislature or by the Constitution, and it is not within the competency of state officials to relieve private persons or others from such taxation by contract or otherwise, where the Legislature or the Constitution has not so authorized or provided. 51 Am. Jur., Taxation, Sees. 500 and 501, p. 506, and 84 C.J.S., Taxation, Sections 215 and 216, pp. 412, 414, and 417, and cases cited in the footnotes.
"Moreover, such terms as `Agent of the State' or similar expressions, when applied to a private contractor, as they have been in this case in the so-called Contract for Special Management Services and in the purchase orders, have been held to be nothing more than labels or nomenclature, and to have little or no meaning or effect, when, as here, they are inconsistent with what actually took place and the facts.
"The evidence clearly shows that the contract in this case provided a `lump sum' consideration of $3,764,272.00, as compensation to the contractor for doing the complete job. And as far as the materials and supplies which are involved in this case are concerned, the evidence fails to show that the State Docks Department ever reimbursed the contractor for the cost of any of said specific items of materials or supplies.
"Notwithstanding then what appears to be conflicts in the contracts themselves, the established rule, where taxes or the rights of third parties are concerned, is that the terms of the contract are not to be the controlling or governing factors, where they are in conflict with the actual facts and the way in which the contract was really carried out.
"(Emphasis Supplied)
"United States v. Boyd, (S.Ct. of Tenn.), 211 Tenn. 139, 363 S.W.2d 193, 200. See also Associated Contractors v. Hamm, 277 Ala. 500, 172 So. 2d 385, 387, Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43 [86 L. Ed. 3] and United States v. Boyd, 378 U.S. 39, 84 S. Ct. 1518, 1522, 1524, 1525. [12 L. Ed. 2d 713]
"For many years, the main stream of Federal Court decisions regarding matters of taxation has emphasized and re-emphasized the fact that substance, and not form, must govern the determination of tax matters:
"See:
"Knetsch v. U. S., 364 U.S. 361 [81 S. Ct. 132, 5 L. Ed. 2d 128] (1960);
"Bazley v. Comm'r, 331 U.S. 737 [67 S. Ct. 1489, 91 L. Ed. 1782] (1941)
"Higgins v. Smith, 308 U.S. 473 [60 S. Ct. 355, 84 L. Ed. 406] (1940);
"Boyce v. U. S., 190 F. Supp. 950 (D.C. La.1961);
"Gem, Inc. v. U. S., 192 F. Supp. 841 (D.C. Miss.1961).
"In Kern-Limerick v. Spurlock, [Scurlock] 374 [347] U.S. 110, 74 S. Ct. 403 [98 L. Ed. 546] (Sic: Kern-Limerick v. Scurlock, 347 U.S. 110, 74 S. Ct. 403 [74 S. Ct. 403, 98 L.Ed. 546]), the form of contract language in which the contractor was specifically designated an agent was supported by every element of substance present in the case, and it therefore was allowed to be determinative.
"The same is also true as to the very recent decision of the Alabama Supreme Court in Hamm, as Commissioner of Revenue v. The Boeing Company decided October 3, 1968, 3 ABR 18 [283 Ala. 310, 216 So.2d 288]", opinion extended and rehearing denied on November 7, 1968, 3 ABR 346. While the Alabama Court made the recital in the contract in that case that the contractor was `an independent contractor' one of the factors, as the United States Supreme Court did as to the recital as to agency in the contract in the Kern-Limerick case, it did so as such factor was also in full keeping with other factors in the case, which consisted of the circumstances and other evidence, which also tended to establish that Boeing was an independent contractor and not an agent of the government. This seems very apparent, in that the court in Boeing gave a comprehensive description of the facts involved, and relied mainly on Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43 [86 L. Ed. 3], and United States v. Boyd, 378 U.S. 39, 84 S. Ct. 1518, [12 L. Ed. 2d 713] in reaching its decision.
"The State Docks Department did from time to time make so-called progress payments to the contractor, but such payments as is shown from the evidence and also from representative copies of the progress billings which are in evidence as Appellee's Exhibits 1, 2 and 3, were nothing more than partial payments of the `lump sum' to be paid the contractor for the complete job. There were no payments made to the contractor by the State Docks Department for specific materials or supplies as such, or as reimbursements for the cost of such materials. The evidence also conclusively shows that the Department had no direct dealings at all with the vendors or suppliers.
"The only exception to this was in the case of a subcontractor under the Appellant who failed to pay two of the suppliers for certain materials and where the subcontractor bankrupted and where said suppliers made a demand on the Department that it pay for the materials. The Department is said to have disclaimed any liability for payment of said accounts, and to have refused to pay same. See Depositions, Appellee's Exhibits Nos. 10 and 11, pp. 17 and 18, and 9 and 10 respectively. This is of special significance, in that it appears to be the only instances where the State Docks Department was put to a test as to the contention that the Department's credit was risked in purchasing the materials, etc., from the suppliers.
"The provisions of paragraph number 2, page 2, of the so-called Contract for Special Management Services, while plainly inconsistent with the provisions of the original contract, or contract dated June 24, 1964, which required the contractor to pay for and furnish the `labor, tools, equipment, materials, etc., were never then as a matter of fact carried out by the State Docks Department and appear to be meaningless in the light of the facts and the substance.
*702 "The evidence also undisputedly shows that the Appellant paid the suppliers for the materials and supplies with its own funds, and with checks drawn on its own private bank account, and was never reimbursed for the cost of any of the specific materials or supplies by the State Docks Department, but was only paid in partial payments the lump sum consideration for the entire job. The Appellant took possession of the materials, etc., upon same being delivered to them at the State Docks by the suppliers, and remained in possession thereof, until it used them in performing the contract and for its own benefit in earning the consideration paid for the job under the original contract.
"These things being considered it appears that the factual situation here is very similar to those under consideration in Alabama v. King & Boozer, supra, and Associated Contractors v. Hamm, supra, and that those cases would be very applicable and persuasive here. The contention as to the title to the materials allegedly being in the State Docks Department appears, under the facts, to also have been resolved against the Appellant in King & Boozer and in Associated Contractors, where similar contentions as to the title were made. See particularly in this respect Associated Contractors v. Hamm, supra, 172 So.2d at pages 387, and 388.
"The foregoing being considered the court concludes as follows:
"1. The Appellant, as an independent contractor, and not as an agent for the State Docks Department purchased the materials, etc., which it used to perform the contract in this case, and is the person on whom the sales tax fell.
"2. Under the facts and the evidence the Appellant, in purchasing and paying for the materials with its own checks and by obligating its own funds, and using the materials for its own benefit in performing the contract, had sufficient title and ownership of the materials, etc., to invoke the Alabama Sales Tax Act, and for the tax to attach against it, as an independent contractor.
"3. The Appellant, as an independent contractor, and not as an agent of the State Docks Department, was the actual `purchaser' of the materials, etc., from the suppliers, and was, as such, liable for the payment of the State Sales Tax under the provisions of Section 1 et seq. of Act 100 of the Second Special Session of the Alabama Legislature of 1959, effective October 1, 1959, and said Act as amended.
"4. The final assessment of deficiency sales tax which was made by the State Department of Revenue against the Appellant in this cause on the 17th day of January 1967, in the total amount of $26,425.39, and which is the subject of this appeal, was lawfully, validly and correctly made against the Appellant, and is due to be affirmed.
"IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the court that the final assessment of deficiency sales tax made by the State Department of Revenue against the Appellant on the 17th day of January, 1967, and in the total amount of $26,425.39, and which is the subject of this appeal, be and is hereby in all respects affirmed, and the relief prayed for by the Appellant is denied, and the costs of said cause are taxed against the Appellant, and judgment is hereby entered accordingly against the Appellant and the sureties on its supersedeas bond on file herein, for all of which execution may issue against the Appellant and its said sureties.
"DONE and so ORDERED this the 27 day of November, 1968.
After a full and careful consideration of the above final decree and the briefs and argument of respective counsel, we are convinced that decree is correct in every respect and that any addition thereto by *703 us would be redundant. We, therefore, adopt the decree of the lower court as the opinion of this court. State v. Lane Bryant, Inc., 277 Ala. 385, 171 So. 2d 91.
The foregoing opinion was prepared by J. EDGAR BOWRON, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.
Affirmed.
HEFLIN, C. J., and SIMPSON, COLEMAN, BLOODWORTH, and McCALL, JJ., concur. | February 4, 1971 |
7b6bbbdd-30e8-42a9-a3a6-66a9c7177239 | Bank of Red Bay v. King | 482 So. 2d 274 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 274 (1985)
BANK OF RED BAY
v.
Paul D. KING, Diane King, Malcolm King and Jessie King.
Paul D. KING, Diane King, Malcolm King, and Jessie King
v.
BANK OF RED BAY.
84-323, 84-350.
Supreme Court of Alabama.
December 20, 1985.
*275 Bob Rogers of Bedford, Bedford & Rogers, Russellville, for appellant/cross-appellee.
Ernest N. Blasingame, Jr. of Potts, Young, Blasingame & Putnam, Florence, for appellees/cross-appellants.
BEATTY, Justice.
This is a fraud case in which the jury returned a verdict in favor of the plaintiffs/appellees (the Kings) and judgment was entered thereon. The appellant, Bank of Red Bay (the Bank), appeals from the trial court's order denying its post-judgment motion for judgment notwithstanding the verdict or in the alternative a new trial or in the alternative a remittitur. The appellees, Malcolm King, Jessie King, Paul King, and Diane King, cross-appeal, raising only damages issues.
The pertinent facts are as follows:
On July 28, 1980, Robert Winter, joined by his wife Melissa Winter, and Malcolm King,[1] joined by his wife Jessie King, executed a promissory note in favor of the Bank in the amount of $79,925.90 to finance *276 the purchase of the Vina Packing Company. As security for the note, a mortgage on the packing company property was executed in favor of the Bank. As additional security for the note, Malcolm and Jessie King gave the Bank a mortgage on their home and 40 acres of land situated in Colbert County, Alabama.
The Bank's loan officer with whom the Winters and the Kings dealt was Mr. Kelly Moore. At trial, Robert Winter testified that, during the initial financing negotiations, Moore informed him of the existence of some sort of "typographical error" in the legal description of the Vina Packing Company property. The Bank contends this error consists of a typographical or scrivener's error wherein, at some point in the chain of title, the symbol for "minutes" as used in a metes and bounds description was misinterpreted as the symbol for "feet." For example, rather than the metes and bounds description reading "South 7 degrees 10 minutes East," the description reads "South 7 degrees 10 feet East." The plaintiffs claim that in addition to the minutes/feet problem, there is a directional problem in that the description contains no direction after the words "52 degrees" in one part of the description.
Apparently, Robert Winter never told any of the Kings about the typographical error Moore had informed him of.
During the first year, the Winter-King promissory note was twice renewed, but, nevertheless, again became delinquent for nonpayment. In an attempt to collect payment on the note, Moore contacted Harold King, who is the son of Malcolm and Jessie King. According to the plaintiffs, Harold had only occasionally worked with his uncle, Robert Winter, in the packing company business. Winter testified, however, that a partnership existed between himself and Harold King. Harold King further testified that, when Moore contacted him regarding the delinquency, Moore suggested that he (Harold) purchase the Vina Packing Company from his uncle. Moore, however, testified that Harold approached him about buying the business.
In any event, Harold and his wife, Carol, did purchase the company; Robert Winter and his wife conveyed the packing company property by deed to Harold and his wife. Pursuant to the financing arrangement with Moore, Harold paid the Bank the interest (approximately $8,000) overdue on the first note (the Winter-(Malcolm) King note), and, on August 27, 1981, executed a new promissory note and mortgage in favor of the Bank in the amount of $75,117.50. Malcolm and Jessie King also joined in this new note and mortgage and continued to pledge as security their Colbert County realty. Harold and Malcolm then began operating the packing company as partners.
Thereafter, Malcolm King borrowed $45,000 from the Franklin Federal Savings & Loan Association in Russellville, Alabama (now Phenix Federal Savings & Loan Association). He used this money to reduce the balance due on the Bank's note on the Vina Packing Company, thereby obtaining a release of his Colbert County property from the mortgage held by the Bank.[2]
Subsequently, Malcolm's other son, Paul King, and Paul's wife, Diane, became involved in the operation of the Vina Packing Company, and, when Harold got a better job offer, Paul and Diane agreed to buy the company from Harold and Carol.
Thereafter, Paul and Diane went to Moore at the Bank to arrange the financing for their purchase of the Vina Packing Company. The Bank prepared the note and the mortgage. The plaintiffs allege that during the closing of this transaction Paul asked Moore whether or not he needed to obtain a new title opinion on the property. They further allege that Moore responded by saying that, since the Bank still had the title opinion prepared for Harold King's purchase of the company, they did not need to have a new one done.
*277 Moore, on the other hand, testified he told Paul King "that if he chose to get a title opinion, that was his own prerogative to do so, that [the Bank] had a commitment for title insurance which was what the bank needed for it to be satisfied.... [I]t was up to him if he chose to get one."
On October 5, 1982, Paul and Diane, joined by Malcolm and Jessie, gave the Bank a promissory note in the amount of $36,461.75. As security, Paul and Diane executed a mortgage on the packing company in favor of the Bank. On October 7, 1982, Harold and Carol King deeded the Vina Packing Company to Paul and Diane King.
The Bank maintains that it was not until after Paul and Diane had bought the business that Malcolm and Jessie "paid down" the note on the packing company in order to obtain a release of their Colbert County property from the mortgage. There is testimony to the contrary, however, and the amount borrowed by Paul and Diane ($34,461.75) to finance their purchase of the company indicates that a large portion of the balance of the previous loan ($75,117.50) had been paid.
Nevertheless, Paul and Diane King maintain that Malcolm and Jessie operated the Vina Packing Company with them as partners following their purchase of Harold and Carol's interest in the company.
In 1983, Paul and Diane attempted to borrow $40,000 from another lending institution known as Bank Independent, at an interest rate more favorable than the rate they were paying on their note with the Bank of Red Bay. Their plans were to pay off that note, and obtain further operating capital, giving Bank Independent a mortgage on the packing company property as security for the $40,000 loan. In connection with Bank Independent's preparation of the mortgage, Paul King had an abstract on the Vina Packing Company property updated. A Tuscumbia, Alabama, attorney examined the abstract and concluded that, due to certain deficiencies in the legal description of the property (described above), he was unable to issue a title opinion or title insurance on the property to Bank Independent. On that basis, Bank Independent could not approve Paul and Diane King's loan.
After being advised of the deficiencies in the description, Paul King took the abstract to Mr. Moore at the Bank, and inquired as to why Moore had not informed him of the problems in the description, since Moore had previously told him the Bank had a title opinion on the property. Paul King testified that it was then that Moore told him that the Bank had mortgagee title insurance on the packing company property rather than a title opinion.
Thereafter, Paul and Diane King made no further payments on their note, thereby defaulting on it. In due course, the Bank began its foreclosure proceedings on the packing company mortgage, giving notice by correspondence and publication. Prior to the foreclosure sale, however, Paul and Diane King commenced this action on October 5, 1983, in Franklin Circuit Court against the Bank. In their complaint, Paul and Diane alleged, among other things, that the foreclosure proceedings were invalid due to the erroneous and insufficient description of the Vina Packing Company property, and they sought a preliminary injunction to restrain the Bank from proceeding with the foreclosure sale. Paul and Diane also stated a claim in fraud alleging that, in response to their inquiry as to the sufficiency of the legal title to the packing company property, the Bank intentionally and fraudulently deceived them by failing to disclose the existence of the error in the legal description of the property. Paul and Diane claimed that they relied upon this deception by executing a mortgage in favor of the Bank.
Following a hearing on Paul and Diane's request for injunctive relief, the trial court issued an order enjoining any further foreclosure proceeding provided they furnished security in the amount of $30,000. Paul and Diane failed to file the required bond and the foreclosure sale was conducted, with the Bank being the highest and best bidder.
*278 Numerous pretrial motions were filed by each side, all of which were denied. However, in response to the Bank's motion for a more definite statement regarding the allegation of fraud, Paul and Diane King amended their complaint on September 11, 1984, adding Malcolm King and Jessie King as parties plaintiffs, and pleading more specifically as to the alleged fraudulent concealment. In effect, each of the Kings claimed that a fiduciary relationship existed between the Bank and the Kings, which obligated the Bank to disclose to the Kings the existence of the title defect in the legal description of the Vina Packing Company property. The Kings alleged that the Bank's failure to do so amounted to suppression of a material fact constituting fraud under Code of 1975, § 6-5-102, which provides:
The Kings also claimed that the Bank willfully or recklessly misrepresented a material fact under Code of 1975, § 6-5-101, which provides:
In due course, the case proceeded to trial before a jury, which returned a verdict in favor of Malcolm and Jessie King in the amount of $30,000 and in favor of Paul and Diane King in the amount of $10,000. Judgment on the verdict was entered and the Bank's post-judgment motions were denied. This appeal followed.
Essentially, four issues are presented for our review: (1) Was the Bank entitled to a directed verdict against Malcolm and Jessie King's fraud claim on the ground that their claims were time-barred under Code of 1975, § 6-2-3 and § 6-2-39, or did the amendment to Paul and Diane's complaint adding Malcolm and Jessie as plaintiffs relate back to the date the complaint was filed? (2) Did the plaintiffs adduce sufficient evidence to submit to the jury either of plaintiffs' fraud claims under § 6-5-101 or -102? (3) Did the trial court err in failing to give the jury charges requested by the Bank concerning the amount of damages recoverable by the Kings? (4) Should Malcolm and Jessie have been allowed to prove, as an element of their damages, the interest expense incurred by them on the loans made by other lending institutions, the proceeds of which were used to partially satisfy the note at the Bank?
The statute of limitations applicable to actions for fraud is found at Code of 1975, § 6-2-39.[3] Under this section, the applicable period is one year, subject to the exception found in § 6-2-3, which provides:
Thus, the statute does not begin to run until the fraud is discovered.
Papastefan v. B & L Construction Co., 385 So. 2d 966 (Ala.1980).
The Bank argues that, if Malcolm and Jessie King were defrauded as a result of its alleged breach of a fiduciary duty, that duty arose in July 1980 when Malcolm and Jessie and the Winters executed the first promissory note and mortgage on the packing company in favor of the Bank. The Bank also points to Malcolm King's testimony in which he stated that he obtained actual knowledge of the error in the property description and of the alleged misrepresentation in May 1983, the same time his son, Paul, discovered the problem with the title to the packing company property. Therefore, the Bank argues, viewing the facts most favorably to Malcolm and Jessie King, a reasonable person could conclude that Malcolm and Jessie were in possession of sufficient facts which would lead a reasonable person to investigate the possibility of fraud at least as early as May 1983 when Malcolm King became aware of the defect in title. Since the amendment adding Malcolm and Jessie as plaintiffs was not filed until September 11, 1984, some 16 months after Malcolm and Jessie learned of the title defect, the Bank asserts that their claim for fraud was time barred.
The Bank concedes that "the question of when a plaintiff discovered an alleged fraud is [generally] a question for the jury and is therefore not a proper matter for directed verdict." Osborn v. Johns, 468 So. 2d 103 (Ala.1985). Nevertheless, the Bank maintains that a directed verdict should have been granted based on the limitations defense because "there is no disputed issue of fact upon which reasonable men could differ." Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala. 1981).
With respect to the Bank's first argument that, as early as July 1980 Malcolm and Jessie were aware of facts that should have given rise to inquiry, we find the record totally devoid of any such facts of which they were aware prior to May 1983. Nor was there evidence adduced establishing that a partnership relationship existed between Malcolm King and Robert Winter from which Winter's knowledge could be imputed to Malcolm. Nevertheless, it was not until 16 months after they obtained actual notice of the defect that Malcolm and Jessie asserted their claims. Thus, the inquiry becomes whether the assertion of their claims by amendment related back to the date the original complaint was filed by Paul and Diane on October 5, 1983.
Relation back of amendments adding, changing, and substituting parties or names of parties in civil actions is governed by Rule 15(c), A.R.Civ.P., which provides:
In Manning v. Zapata, 350 So. 2d 1045 (Ala.Civ.App.1977), the Court of Civil Appeals followed Board of Water and Sewer Commissioners of City of Mobile v. McDonald, 56 Ala.App. 426, 322 So. 2d 717, cert. denied, 295 Ala. 392, 322 So. 2d 722 (1975), in concluding that Rule 15(c) can be *280 applied by analogy to amendments changing plaintiffs. That court explained:
350 So. 2d at 1047. The court in Manning went on to hold that, in a subrogation suit, an amendment, which substituted the insurer (Standard Fire Insurance Company) who actually paid the insured's claim for the insurer who initiated the proceedings (All Risk Insurance Company), related back. That court reasoned that because (1) there was the requisite "identity of interest," (2) the claim arose out of the same conduct, transaction, or occurrence as set forth in the original complaint, and (3) the defendant was given notice when the initial complaint was filed, the defendant was, therefore, not prejudiced by the amendment and it should relate back.
After a careful review of the record, we find that the above elements of that test have been met in this case, thereby resulting in the relation back of Malcolm and Jessie King's claims to the date the original complaint was filed. Here, their claims for fraud stem from the same conduct on the part of the Bank as that originally alleged by Paul and Diane, namely, the failure of the Bank's officer, Moore, to inform the Kings of the title defect he knew existed.
Furthermore, with respect to the "identity of interest" element, the evidence adduced at trial supports the conclusion that there is "a substantial relationship between the old [Paul and Diane King] and new parties [Malcolm and Jessie King] with regard to the litigation, as well as a sufficiently *281 analogous legal position within the lawsuit to preclude the assertion of a new cause of action." Manning v. Zapata, 350 So. 2d at 1047. In this case, there was evidence that, from the time Harold and his wife had bought the company, Malcolm and Jessie were active partners in the company. Moreover, at the time the original complaint was filed, Paul and Malcolm, along with their wives, operated the Vina Packing Company as partners, a fact of which the Bank was aware. Clearly then, there was a substantial relationship giving rise to the requisite "identity of interest." Finally, the amendment adding Malcolm and Jessie did not state a new cause of action; they merely asserted, in their own behalf, the same fraud claims Paul and Diane had originally asserted in their complaint.
The Bank purports to rely on the case of Holloway v. Jackson, 412 So. 2d 774 (Ala. 1982); however, a different factual situation was involved in Holloway. In that case, the plaintiffs attempted to amend their complaint alleging fraud, among other things, to add Jackson as a defendant after the statute of limitations had run. This Court concluded that the amendment did not relate back, and the fraud claim against Jackson was, therefore, barred because
Thus, in Holloway, this Court, following the plain language of the rule, determined that to allow relation back of the amendment in that case would be prejudicial to the defendant Jackson. The facts of the case sub judice call for a contrary result; therefore, we conclude that the amendment adding Malcolm and Jessie's claims related back to the date the complaint was originally filed.
The Bank contends that the Kings failed to meet their burden of proving the elements of fraud under either of the counts under § 6-5-101 and § 6-5-102, supra. Having properly filed motions for directed verdict and judgment notwithstanding the verdict or, in the alternative, for a new trial, challenging the sufficiency of the evidence on each of the counts, the issue is whether the Bank's motion for directed verdict as to either count was improperly denied. Cincinnati Ins. Co. v. Little, 443 So. 2d 891 (Ala.1983); Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
In order to go to the jury on a claim of misrepresentation, the plaintiff must adduce at least a scintilla of evidence on each of the following four elements of fraud under § 6-5-101:
The Bank argues that the plaintiffs' claims for misrepresentation are deficient on two of the four elements above: First, the Bank contends that the fact alleged to have been misrepresented by its officer, Kelly Moore, (viz., that the Bank had a title opinion when, in fact, it did not) did not constitute a material fact within the meaning of the Alabama fraud statutes. Second, the Bank maintains that the plaintiffs failed to establish that their reliance on the conversation with Moore, concerning a title opinion, was reasonable, considering the totality of the circumstances.
In support of its argument that the alleged misrepresentation was not material, the Bank relies on the following testimony of Paul King:
In its brief, the Bank argues that this testimony clearly shows that Paul King "was aware of the basic steps and responsibilities of the parties in purchasing real property, and securing the same by way of a real estate mortgage." The Bank further maintains that "Paul King was aware that the real estate mortgage executed in favor of the Bank was for [its] security, and, [therefore], there was no reliance by King on any representation by Kelly Moore as concerns the sufficiency of the title to the real property."
A "material fact," within the meaning of the Alabama fraud statutes, is a fact of such a nature as to induce action on the part of the complaining party, Crigler v. Salac, 438 So. 2d 1375 (Ala.1983). It is not necessary that the misrepresentation be the sole inducement: "`[I]t is sufficient if it materially contributes and is of such a character that the [complaining party] would not have consummated the contract, had he known the falsity of the statement.'" Marshall v. Crocker, 387 So. 2d 176, 178 (Ala.1980), quoting Jordan & Sons v. Pickett, 78 Ala. 331, 338 (1884). Generally, the materiality of a given fact is a question for the jury. Jim Walter Homes, Inc. v. Waldrop, 448 So. 2d 301 (Ala.1983); Courtesy Ford Sales, Inc. v. Clark, 425 So. 2d 1075 (Ala.1983). Thus, the question becomes whether the plaintiffs adduced a scintilla of evidence to go to the jury on the issue of whether the alleged misrepresentation by Moore "materially contributed" to their decision to purchase the Vina Packing Company and to obligate themselves to the Bank through the note and the mortgage thereon.
Our search of the record discloses that, on two occasions, once during the direct examination of Paul King, and again during the direct examination of Malcolm King, counsel for plaintiffs attempted to elicit testimony proving the "materiality" of the misrepresentation. Both times, however, counsel for the Bank objected and the trial court sustained the objections:
Although an offer of proof on the question of materiality was made below, in their cross-appeal plaintiffs do not claim as error the trial court's refusal to allow the witnesses to respond on this issue. Birmingham *284 Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85 (1915). Nor have we otherwise been able to find in the record even a scintilla of evidence from which a jury could reasonably infer that Moore's statement regarding a title opinion induced the Kings to do or not to do something. In other words, there is no evidence of record that, in fact, the decisions made or actions taken by the plaintiffs were, even in part, related to or contingent upon Moore's statement regarding whether the Bank had a title opinion. See Cook v. Brown, 393 So. 2d 1016 (Ala.Civ.App.1981).
Furthermore, we agree with the Bank that the only reasonable inference to be drawn from the context in which the inquiry was made, as admitted to by Paul King, is that Paul King was merely ascertaining what things he needed to provide the Bank in order for it to approve the financing transaction; he was not, in his own interest attempting to ascertain or inquire as to the sufficiency of the title to the packing company property. Thus, the alleged misrepresentation was not shown to have been of a material fact. Accordingly, there being a complete absence of proof on one of the essential elements of misrepresentation, the trial court erred in failing to direct a verdict in favor of the Bank on the plaintiffs' claims for misrepresentation. Osborn v. Johns, 468 So. 2d 103, 111 (Ala. 1985). We need not address the issue of reliance raised by the Bank with respect to the plaintiffs' misrepresentation claim.
The Bank further argues that the plaintiffs also failed to adduce a scintilla of evidence to prove that the Bank had the duty to disclose the existence of the error in the property description. The Bank correctly points out that mere silence is not actionable unless there is a duty to disclose material facts. Holdbrooks v. Central Bank of Alabama, N.A., 435 So. 2d 1250 (Ala.1983). In Holdbrooks, however, this Court recognized that there is "an obligation to communicate material facts in a confidential relationship or because of the presence of special circumstances. Code of Alabama, § 6-5-102." Id. at 1252.
A confidential relationship is one in which
In Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 86-87 (Ala.1980), this Court, quoting from Prosser, Torts (4th ed.1971), Chap. 18 § 106, explained further the duty of disclosure arising out of special circumstances:
While the relationship between a bank and its customer has been traditionally viewed by courts as a creditor-debtor relationship which does not impose a fiduciary duty of disclosure on the bank, a fiduciary duty may, nevertheless arise when the customer reposes trust in a bank and relies on the bank for financial advice, or in other special circumstances. Baylor v. Jordan, 445 So. 2d 254, 256 (Ala.1984), citing Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936) and Annot, "Bank as FiduciaryDuty of Disclosure," 70 A.L.R.3d 1344 (1976).
At the outset, we note that materiality is also an essential element of a claim for fraudulent suppression. We held above that, as to the claim for misrepresentation, there was no evidence adduced to prove the materiality of the fact misrepresented by the Bank. The same is true with respect to the claim for fraudulent suppression. The only evidence as to the materiality of the existence of the title defect, which the Bank admitted it did not disclose to the Kings, is the testimony quoted below and it pertains only to Malcolm and Jessie King:
Nevertheless, by this testimony, reference is made to only the July 1980 transaction which marked Malcolm King's first involvement with the Vina Packing Company. At that time, there were no special circumstances present which may have given rise to a duty to disclose. When both parties are intelligent and fully capable of taking care of themselves and dealing at arm's length, with no confidential relations, no duty to disclose exists when information is not requested, and mere silence is then not a fraud. There must be active concealment or misrepresentation. Mudd v. Lanier, 247 Ala. 363, 377, 24 So. 2d 550, 562 (1945); quoted in Jim Short Ford Sales, Inc. v. *286 Washington, supra; accord, Berkel & Co. Contractors v. Providence Hospital, 454 So. 2d 496 (Ala.1984). It was only through later occurrences that the relationship between the Kings and Mr. Moore at the Bank may have become such that "confidence [was] reposed and accepted, or influence acquired." Floyd v. Green, 238 Ala. 42, 47, 188 So. 867, 871 (1939). These occurrences include Moore's alleged solicitation of Harold King to purchase the failing packing company from Robert Winter, and Moore's personal assistance in the operations of the packing company.[5]
We, therefore, hold that the plaintiffs' claims for fraudulent suppression must also fail because they failed to adduce a scintilla of evidence on the essential element of materiality. Accordingly, the trial court erred in failing to direct a verdict in favor of the defendant Bank. For that reason, the judgment below must be, and it is, reversed and the case remanded for entry of judgment consistent with this opinion. Because the case must be reversed on the fraud issues, we need not address any of the other issues raised by these appeals.
REVERSED AND REMANDED.
FAULKNER, ALMON and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
The plaintiffs in this case ask the Court to say that the facts presented make out a case of fraud or suppression. I agree with the Court that the plaintiffs failed to prove their case.
Both the misrepresentation claim and the suppression claim require that the plaintiff prove that a material fact was misrepresented or suppressed. Code 1975, §§ 6-5-101, 6-5-102. As to the misrepresentation claim, there is no evidence that Paul and Diane King considered the title opinion issue to be of concern to them in making the decision to execute the mortgage. Justice Beatty correctly points out that, given the context in which the remarks were made, the Kings appear to have been concerned only with providing the documentation needed to secure the loan. The suppression claim fails for basically the same reason. At the time during which some evidence indicates there was materiality, there was no duty to disclose, because of the absence of a confidential relationship. As to the time during which there was allegedly a confidential relationship, there is no evidence supporting the materiality of the allegedly suppressed fact.
Having concluded that plaintiffs failed to establish a prima facie case of misrepresentation or suppression, I see no need to address the other issues raised in the appeal and cross-appeal.
[1] Malcolm King and Melissa Winter are brother and sister.
[2] Purportedly, this property was again mortgaged to Franklin Federal Savings & Loan Association to secure Malcolm's $45,000 note there.
[3] Since this lawsuit was filed, § 6-2-39 was repealed effective January 9, 1985, and its provisions transferred to § 6-2-38, so that those actions previously subject to the one-year limitations period under § 6-2-39 now have the two-year limitations period of § 6-2-38.
[4] Also effective January 9, 1985, § 6-2-3 was amended to substitute "two years" for "one year."
[5] Diane King testified that Moore had assisted her with the handling of the company bank account, and Moore testified that on one occasion he spent an entire day helping out the Kings at the packing company when they were exceptionally busy. | December 20, 1985 |
95ab185f-4a86-49aa-8666-3ef433c1617e | Hatter v. Nations | 480 So. 2d 1209 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1209 (1985)
Robert HATTER and Nina Hatter
v.
Sharon NATIONS.
84-638.
Supreme Court of Alabama.
November 22, 1985.
Rehearing Denied January 24, 1986.
George B. Azar for Azar, Campbell & Azar, Montgomery, for appellants.
Thomas T. Gallion III for Hooper, Gallion & Wilkerson, Montgomery, for appellee.
ADAMS, Justice.
Plaintiffs, Robert and Nina Hatter, appeal to this Court seeking a reversal of the Montgomery County Circuit Court's summary judgment against them and in favor of defendant, Sharon Nations. We affirm.
According to the documents filed in opposition to the motion for summary judgment, it appears that on Friday, May 20, 1983, Nations and another female, Julie Reeves, met Guy Allen Samply, Jr., at the Alabama Club at approximately 6:00 p.m. After about an hour, the three went to Samply's trailer, where they drank the better portion of twelve beers and a bottle of bourbon. The three stayed at the trailer until early the next morning. At about 4:00 a.m. Saturday, Samply drove Reeves home, and then took Nations back to the Alabama Club to pick up her car. Upon their arrival at the Alabama Club, Nations *1210 realized that she had left her purse at Samply's trailer. She called her husband, who brought her an extra set of car keys and then returned home. Samply told Nations that he would follow her home and then drive her back to his trailer to get her purse, so they would not have to take two cars to the trailer. While Samply was driving Nations back to the trailer, the car he was driving collided with a car being driven by plaintiff Nina Hatter, who sustained permanent injuries as a result of the accident.
Robert and Nina Hatter filed suit against Samply and Nations on October 20, 1983. Samply is not involved in this appeal, as summary judgment was not rendered against him. In their complaint, plaintiffs allege that:
Nations filed a motion for summary judgment on July 6, 1984, which the court granted by written order on July 23, 1984, stating:
On appeal, plaintiffs ask this Court to expand the scope of Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala.1984), in order to create a common law negligence cause of action which would allow them to recover from defendant Nations. Plaintiffs contend that Nations breached a duty that she owed to the general public when she asked Samply to violate Alabama law by driving his car while he was under the influence of alcohol. We are of the opinion that plaintiffs' theory of recovery is meritless.
Over 100 years ago, this Court announced the rule that there was no common law cause of action for negligently dispensing alcohol. King v. Henkie, 80 Ala. 505 (1876). In 1979, this Court reaffirmed this position in DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala. 1979). Five years later, in Buchanan, supra, we held that whether the conduct of employees of a licensed vendor was unreasonable, *1211 due to their failure to stop serving alcohol to a visibly intoxicated patron who they knew or should have known would try to drive a car, was a negligence question for the jury to decide.
All three of these cases contain a key element which is noticeably absent from the facts herein: the sale or distribution of alcohol. In DeLoach, this Court noted that the majority of jurisdictions in the United States fail to recognize a common law cause of action for negligent distribution of alcohol. Of the handful of states that do recognize such a cause of action, the majority have restricted recovery to actions involving the sale of alcohol by vendors. Buchanan, supra.
The requirement of a sale of alcohol by a licensed vendor is obviously lacking in this case. Moreover, it is undisputed that Nations did not purchase or otherwise furnish any alcohol to Samply. We are of the opinion that the trial court was correct when it found that Nations breached no duty owed to the plaintiffs, and, as such, was entitled to judgment as a matter of law. Therefore, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
[1] Although summary judgment was rendered against plaintiffs on all of the above claims, in their brief they limit their argument to claims 4. and 5. Therefore, we pretermit discussion of claims 1., 2., and 3. | November 22, 1985 |
c7b1849e-39b2-45d7-b714-ffb481ca5e8b | Tatum v. Kelley | 481 So. 2d 1132 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1132 (1985)
John Albert TATUM and Mary Ida Nichols
v.
Mary Elizabeth Tatum KELLEY.
84-567.
Supreme Court of Alabama.
December 20, 1985.
*1133 Julian L. McPhillips, Jr., of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellants.
G. Houston Howard, II, of Howard, Dunn, Howard & Howard, Wetumpka, for appellee.
SHORES, Justice.
On April 2, 1943, Preston Tatum married Lillie Mae Byrd while he was in the Army. Eighteen months later, on October 20, 1944, Preston filed for divorce, alleging that Lillie Mae was guilty of adultery and was pregnant with a child not fathered by him. The complaint stated, in pertinent part:
Lillie Mae was served with the complaint on October 23. On November 22, she gave birth to Mary (Mary Elizabeth Tatum Kelley, the intervenor in the present case). The birth certificate designated Preston Tatum as the father. On November 28, affidavits of Gertie Lou Tatum, Gray Tatum, and Dan Tatum were filed in support of the divorce complaint. Each affidavit stated in substantially similar language that Lillie Mae had neither seen nor lived with Preston since the day after their marriage, that Lillie Mae had committed adulterous acts with "divers people," and that Lillie Mae was pregnant when the suit was filed. Gertie Tatum's affidavit also stated that Preston was not the father of Lillie Mae's unborn child. On November 29, Lillie Mae did not appear for trial, and the court issued a pro confesso divorce decree, which states, in pertinent part:
On July 14, 1982, John Albert Tatum and Mary Ida Nichols filed a complaint in the Circuit Court of Autauga County, seeking an order for the sale of 358 acres of real property and a division of the proceeds among the joint owners. They also sought to quiet title in the land. Tatum and Nichols published a notice in the Prattville Progress to determine whether there were any unknown parties claiming an interest in the land.
On June 7, 1983, Mary Elizabeth Tatum Kelley filed an answer to the complaint. The answer stated that her father was Preston Tatum, that he had owned an interest in the property, and that because he had died intestate she was entitled to an interest in the land as his heir. On January 5, 1984, the trial court heard testimony regarding Mary's claim and, on that same day, denied her claim of a right to intervene as a party defendant. Stating that the 1944 divorce decree had determined that Preston was not her father, the court held that Mary was barred from intervening in the present action because of "res judicata or collateral estoppel."
Mary filed a motion to alter, amend, or vacate the judgment, giving the following reasons: (1) she was not bound by the divorce decree because she was not a party to the divorce proceeding and had not been represented by a guardian ad litem; (2) Preston's divorce petition did not request an adjudication or determination of paternity; (3) the divorce decree did not adjudicate or determine paternity; (4) the decree was secured by fraud and perjured testimony; (5) the denial of her intervention deprives *1135 her of intestate property interests without due process of law because she was not a party and was not represented in the divorce action; and (6) the evidence offered in the divorce proceeding was insufficient to overcome the presumption that Preston was her father. After hearing arguments, the trial court granted the motion to vacate its earlier order and stated in the subsequent order:
The plaintiffs filed a motion for the court to vacate this later order, but the court denied the motion. The plaintiffs now appeal to this Court.
Appellants Tatum and Nichols contend that the 1944 divorce decree settled the issue of paternity. They argue that Preston raised the issue when he asserted in his complaint that he was not the father of the unborn child. Consequently, according to the appellants, the doctrine of res judicata now bars the present action. Alternatively, the appellants argue that even if the issue was not actually litigated, res judicata is still a bar because the issue could have been litigated, and the judgment was broad enough to encompass the issue. According to the appellants, a decree based on the wife's abandonment and adulterous behavior necessarily encompasses the issue of paternity of a child conceived during the marriage; they also state that the issue of paternity is central to the divorce decree. Finally, appellants offer a third res judicata argument, stating that Mary's intestate rights are in privity with Lillie Mae's and are, therefore, barred because Lillie Mae's rights were extinguished upon the divorce.
It is a well settled rule that a child born to a married woman is presumed to be the legitimate offspring of her husband. Leonard v. Leonard, 360 So. 2d 710, 712 (Ala.1978). This presumption may be rebutted only by clear and convincing evidence that it is naturally, physically, or scientifically impossible for the husband to be the father. Id.
The appellants concede they have not carried that burden and rely on the doctrine of res judicata. Under that doctrine, a prior judgment bars later actions on all questions falling within the scope of the original action, including those which could have been litigated by exercising due diligence. Sims v. City of Birmingham, 254 Ala. 598, 607, 49 So. 2d 302, 310 (1950). Res judicata will apply to a later action only if the following elements are present: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was rendered on the merits; (3) the parties to both suits are substantially identical; and (4) the same cause of action is present in both suits. Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978).
It is clear from the record, including the divorce complaint, the affidavits, and the decree, that the issue of paternity was not actually litigated and was not adjudicated by the divorce decree. Preston may have raised the question by asserting that he was not the father of the then-unborn child, but he raised it in the context of Lillie Mae's allegedly adulterous behavior and did not request a declaration of nonpaternity. The issue of paternity was never actually litigated, and the divorce decree failed to mention the paternity of the then week-old child.
Although the paternity issue was not litigated, res judicata would still bar the later action if the issue could have been litigated and the four elements are present. In this case, however, at least one of the elements is missing: the parties to both actions were not substantially identical.
Because Mary was not a party to the divorce action and was not represented by a guardian ad litem, res judicata would apply only if Mary and Lillie Mae were in *1136 privity. For privity to exist between two people, there must be an identity of interests between them. Butler v. Michigan Mutual Ins. Co., 402 So. 2d 949, 953 (Ala. 1981). "Privity" has been defined as "a mutual or successive relationship to the same rights of property." Sims v. City of Birmingham, 254 Ala. 598, 607, 49 So. 2d 302, 310 (1950). In the present case, there is no mutual or successive relationship to the same rights of property between Lillie Mae and Mary Kelley. Lillie Mae's intestate rights were dependent on the continued existence of the marital relationship. Once that relationship was dissolved, those rights vanished. Drake v. Drake, 262 Ala. 609, 611-12, 80 So. 2d 268, 270 (1955); see code 1975, § 43-8-41. But the intestate rights of Mary arise from a different sourcethe alleged paternity of Preston and do not depend on the continued existence of the marriage. See Code 1975, § 43-8-42. The intestate rights of Lillie Mae and Mary were very different, and thus, the two were not in privity in regard to these interests. Therefore, the doctrine of res judicata will not bar Mary Kelley's intervention in an action to exercise those rights.
This Court will not disturb an order denying or granting a motion to alter, amend, or vacate a judgment unless there has been a manifest abuse of discretion. Tolleson v. Tolleson, 424 So. 2d 1331 (Ala. Civ.App.1983). The record must plainly and palbably show that the trial court erred. Coker v. Farmers Mutual Exchange, 425 So. 2d 489, 490 (Ala.Civ.App. 1983). There has been no such showing here. Exercising appropriate discretion, the trial court reconsidered its first order and vacated the judgment after hearing argument by counsel. The subsequent judgment is correct according to the law.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur. | December 20, 1985 |
bc67daa0-e622-4801-b31f-b03da0636b37 | McMurray v. Johnson | 481 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 887 (1985)
James G. McMURRAY, et al.
v.
Lavoid D. JOHNSON and Pauline Johnson.
84-676.
Supreme Court of Alabama.
December 20, 1985.
*888 Harold F. Herring and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellants James G. McMurray and James G. McMurray, P.C.
John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellants Thomas H. Griffith and Thomas H. Griffith, P.C.
Robert H. Ford and Daniel F. Aldridge for Brinkley & Ford, and Joseph M. Cloud for Cloud & Cloud, Huntsville, for appellees.
PER CURIAM.
The following language from Appellants' brief, with minor modifications, is an accurate and succinct "Statement of the Case":
Pursuant to Alabama Rules of Appellate Procedure 5(a), this Court granted the petition of Drs. McMurray and Griffith for an interlocutory appeal to review the issue whether the trial court erred in ordering a retrial of the claims of negligence, wantonness, assault and battery, and conspiracy to commit assault and battery where this Court's reversal of the judgment in favor of the Defendants was based solely on the trial court's failure to submit the fraud counts to the jury.
The parties are in general agreement that the confusion arises from the following language from our opinion in the first appeal:
461 So. 2d at 779.
We acknowledge that our language is susceptible of the interpretation obviously accorded it by the trial judge and argued here by Appellees' counsel. We can see by hindsight that perhaps our directions upon remand of this cause for a new trial would have been clearer if the first sentence under that part of the opinion subtitled "Other Issues" had read:
We find the following language from the Appellants' brief on this present appeal to be a clear and accurate expression of what the Court intended in its earlier opinion in this cause:
We hold, therefore, that the trial court erred in not limiting the retrial of this cause to the Johnsons' claims of fraud and conspiracy to commit fraud. Indeed, it is significant to note that we chose the two issues addressed under "Other Issues" precisely because of their potential to recur upon retrial of the fraud claims. Our selection of these issues was to the conscious exclusion of other issues raised by Appellants that were not apt to recur because the retrial would not include the tort claims that had been adjudicated in favor of Defendants after a full jury trial.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
MADDOX, ALMON and BEATTY, JJ., concur in the result.
ALMON, Judge (concurring in the result).
I concur in the result only, because of the views expressed in the dissent in Johnson v. McMurray, 461 So. 2d 775 (Ala.1984).
MADDOX, J., concurs. | December 20, 1985 |
9bee2445-d92f-4fad-b3eb-5f7ee1412b8b | Colonial Bank of Alabama v. Coker | 482 So. 2d 286 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 286 (1985)
COLONIAL BANK OF ALABAMA
v.
Stephen D. COKER and Insurors of Mobile, Inc.
84-656.
Supreme Court of Alabama.
December 20, 1985.
*288 Bradley R. Byrne and M. Kathryn Knight of Miller, Hamilton, Snider & Odom, Mobile, for appellant.
Jon A. Green of Sintz, Pike, Campbell & Duke, Mobile, for appellees.
ADAMS, Justice.
Plaintiff, The Colonial Bank of Alabama (hereinafter Colonial), appeals from the order of the Circuit Court of Mobile County granting summary judgment in favor of defendants-appellees, Stephen D. Coker and Insurors of Mobile, Inc.
The issue to be decided on appeal is whether the trial court erred by granting the defendants' summary judgment motion. We affirm the grant of summary judgment in favor of Insurors of Mobile, Inc., but reverse the grant of summary judgment as to Coker.
This cause arose from the following facts:
Prior to March 1981, Steven Coker was a shareholder and vice-president of Insurance Concepts, Inc., d/b/a The Insurance Center, located in Birmingham, Alabama. On February 20, 1981, Insurance Concepts, through Coker, contracted with Lady Diane, Inc., to sell a policy of insurance covering a fishing trawler owned by Lady Diane, Inc.
The Lady Diane insurance contract, which also contained a promissory note and security agreement, reflected an unpaid balance of $18,647.86 on the price of the insurance policy. The reverse side of the combined contract, note, and security agreement document contained a form for assignments to City National Bank of Birmingham (now Colonial Bank of Alabama). On February 26, 1981, Insurance Concepts executed an assignment of the Lady Diane insurance contract to Colonial.
In a letter dated February 27, 1981, Colonial informed The Insurance Center that Colonial would "accept the (Lady Diane) contract ... only on the condition that the first time it is over 30 days delinquent, your firm guarantees to pay the loan off within 15 days of our demand." The letter went on to state "should this be acceptable, then, please sign the attached copy and return to me and upon my receipt of your acknowledgment, the contract will be processed." Coker placed his signature on the letter without qualification and acknowledged the guarantee letter and returned a copy to Colonial as requested.
Colonial accepted the Lady Diane insurance contract assignment. Upon acceptance of the contract, Colonial deposited $16,162.51 into The Insurance Center's account at the bank on March 6, 1981, and applied the remaining $2,485.35 to pay "another loan of Lady Diane, Inc." Although it is clear that the funds advanced by the bank were to finance the premium due on the insurance contract, it is disputed by the parties whether the loan of the premium from the bank was to Lady Diane, Inc., or to Insurance Concepts.
*289 In addition to the February 27th guaranty executed by Coker, Coker on December 10, 1980, had executed a pre-printed guaranty agreement drafted by Colonial which obligated Coker to personally guarantee indebtedness of Insurance Concepts owed to Colonial.
Sometime in March 1981, Coker allegedly severed his association with Insurance Concepts, and became the sole shareholder of Insurors of Mobile. Originally, Insurors of Mobile was incorporated by Insurance Concepts, with Insurance Concepts owning 51 per cent of Insurors of Mobile, and Coker owning the remaining 49 per cent. Apparently, Coker purchased the interest of Insurance Concepts in March 1981, to become the sole owner of Insurors of Mobile.
Lady Diane, Inc., defaulted on its payments on the note financing the premiums for the insurance policy, and Colonial made demand upon Coker and Insurors of Mobile to pay off the Lady Diane loan pursuant to the 1981 guaranty agreement. Coker refused to satisfy the balance owing on the note, and Colonial brought suit against Coker and Insurors of Mobile to recover the outstanding indebtedness. After learning of the existence of the 1980 guaranty agreement through discovery, Colonial asserted that Coker and Insurors of Mobile were liable by virtue of the 1980 and 1981 guaranty agreements. Upon discovery that United States Central Underwriters Agency of Alabama, Inc., had agreed to purchase the assets of Insurors of Mobile, Colonial amended its complaint to add United States Central as a party defendant.
On November 5, 1984, after considering the briefs and arguments of counsel, along with the evidence before the court, the trial judge granted Coker's and Insurors of Mobile's motion for summary judgment. Colonial's Rule 59, A.R.Civ.P., motion to vacate the judgment was denied by operation of law pursuant to Rule 59.1, Ala.R.Civ.P., whereupon Colonial appealed to this Court.
The issue to be resolved on appeal is whether Colonial produced a scintilla of evidence giving rise to a genuine issue of material fact as to whether Coker and Insurors of Mobile are liable for the outstanding indebtedness arising from the Lady Diane, Inc., insurance contract by virtue of the 1980 and 1981 guaranty agreements executed by Coker. We are of the opinion that the trial court correctly granted summary judgment for Insurors of Mobile, but erred in granting summary judgment for Coker.
There is a material issue of fact presented by the evidence before us as to whether the guaranty agreement executed by Coker on December 10, 1980, made him personally liable for the indebtedness owed to Colonial as a result of the Lady Diane contract. The portion of the 1980 guaranty agreement in dispute reads as follows:
Although Coker denies having signed the agreement, his signature appears at the bottom of the document.
If Coker in fact executed the above contract of guaranty, then Coker undertook unconditionally to pay the debt of Insurance Concepts if Insurance Concepts, as principal, did not. The document is an absolute guarantee. Huckaby v. McConnon & Co., 213 Ala. 631, 105 So. 886 (1925). Because it is an absolute guarantee, Colonial, as creditor, may pursue its remedy against Insurance Concepts, as principal, or Coker, as guarantor, at Colonial's option. Ehl v. J.R. Watkins Medical Co., 216 Ala. 69, 112 So. 426 (1927).
However, Coker asserts that, as a matter of law, the 1980 guaranty agreement does not obligate him to repay the disputed indebtedness. Coker correctly points out that "a guarantor is bound only to the extent and in the manner stated in the contract of guarantee." Pate v. Merchants Nat. Bank of Mobile, 428 So. 2d 37, 39 (Ala.1983) (quoting Furst v. Shows, 215 Ala. 133, 137, 110 So. 299, 302 (1926)).
Coker contends that the guaranty agreement, by its terms, only guarantees loans made by Colonial directly to Insurance Concepts and does not guarantee secondary indebtedness of Insurance Concepts, such as that which arose from the 1981 guarantee of the Lady Diane contract. Whether Coker's guarantee of 1980 was broad enough to include indebtedness of Insurance Concepts arising from the enforcement of a subsequent guarantee of Insurance Concepts is a matter of contract construction. As noted in Pate, supra,
428 So. 2d at 39. Thus, the issue becomes whether the language in the agreement, which states "It is the intention and agreement of the undersigned that this guaranty shall cover and guarantee payment of all such loans, advances, rediscounts, endorsement liability and other indebtedness at any time owing by the debtor to the Bank," is to include the debt at issue. Courts in other jurisdictions have addressed whether similar language in guaranty contracts includes the guaranty of a guarantee agreement, and the courts have decided the issue both ways. See e.g., International Multifoods Corp. v. D & M Feed & Produce, Inc., 470 F. Supp. 654 (D.Neb.1979); Harris Trust and Savings Bank v. Stephens, 97 Ill.App.3d 683, 52 Ill.Dec. 927, 422 N.E.2d 1136 (1981); Empire Bank v. BAM Construction, Inc., 607 S.W.2d 227 (Mo.App. 1980) (debt guaranteed). Contra National Bank of Commerce of Kansas City v. Rockefeller, 174 F. 22 (8th Cir.1909); Rohn v. Weld County Bank, 155 Colo. 490, 395 P.2d 1003 (1964); Trego Wakeeney State Bank v. Maier, 214 Kan. 169, 519 P.2d 743 (1974) (debt not guaranteed).
In Alabama, when the terms of a contract are unambiguous, the contract's construction and legal effect become a question of law for the court, and when appropriate may be decided by summary judgment. Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So. 2d 716, 720 (Ala.1983) (citations omitted). However, when the terms of a contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact for the jury. Hall v. Integon Life Ins. Co., 454 So. 2d 1338 (Ala.1984). Whether a contract is ambiguous is a question of law for the court. Hartford, supra.
We are of the opinion that the above language of the 1980 guaranty contract is ambiguous in that it is reasonably capable of being subject to more than one interpretation. We note that Coker reached this same conclusion in his brief in response to Colonial's motion to vacate the summary judgment. The issue of the intention of the parties with respect to the types of indebtedness to which the agreement would extend is subject to parol evidence, and, thus, the determination of this issue becomes a question of fact for the jury.
Coker's second argument is that the 1980 guaranty agreement is unenforceable because it is not supported by consideration. Coker relies upon Shur-Gain Feed Div. William Davies Co. v. Huntsville Production Credit Ass'n, 372 So. 2d 1317, 1320 (Ala.Civ.App.1979), wherein the Court of Civil Appeals observed:
Coker contends that because Colonial never loaned money to Insurance Concepts (the guarantor's principal), there was no "consideration moving to the guarantor's principal" and, therefore, no consideration for the 1980 contract of guaranty. Furthermore, Coker states that if the guaranty agreement is a "debt" of Insurance Concepts, that debt cannot be consideration for the 1980 guaranty agreement because the "debt" was not created by a loan from Colonial to Insurance Concepts. We disagree.
In Lefkovits v. First Nat. Bank of Gadsden, 152 Ala. 521, 44 So. 613 (1907), the Court held that the creditor's promise to make additional future advances to the principal debtor was sufficient consideration to support the promise of payment by the guarantor. We think that the guaranty in the present case reflects a promise by Colonial to establish a line of credit and make future advances thereon. Moreover, there is evidence that Colonial had financed *292 numerous contracts for the purchase of insurance for customers of Insurance Concepts. This financing conferred a benefit upon Insurance Concepts sufficient to supply the necessary consideration.
In addition, there is evidence that Colonial had extended credit directly to Insurance Concepts, either prior to, or after, Coker's execution of the 1980 guaranty, and this would also sustain a finding of consideration for the agreement. The fact that the consideration for the guaranty agreement was given sometime prior to the Lady Diane assignment transaction is of no consequence because a continuing guaranty, such as in the present case, can include subsequent indebtedness without new consideration being given. Shur-Gain, supra.
Finally, Coker argues that there can be no personal liability for the disputed debt because Colonial failed to meet two conditions precedent necessary to occur before liability could attach. First, Coker recognizes that in the 1981 guaranty, Insurance Concepts "guarantees to pay the [Lady Diane] loan off within 15 days of [Colonial's] demand." Coker contends that since demand was made upon him and Insurors of Mobile, rather than Insurance Concepts, the condition precedent to Coker's payment of any debt of Insurance Concepts was not satisfied. We think that Colonial's demand upon Coker was valid if Coker's guarantee of 1980 is found by the jury to include liability for the Lady Diane debt. If, by the terms of the 1980 guaranty, Coker was obligated for this debt of Insurance Concepts, then Colonial was permitted to make demand upon Coker as the guarantor of the Insurance Concepts guaranty. Second, Coker asserts that if the balance due Colonial on the Lady Diane contract is a debt of Insurance Concepts, then he is not liable because the indebtedness is not evidenced "by notes on form now in general use by the bank," which he argues is the only form of indebtedness contemplated by the 1980 guaranty agreement and the only form of indebtedness for which he could be liable. We disagree. As previously discussed, if the 1980 guaranty agreement is construed to include all indebtedness of Insurance Concepts, then indebtedness other than that evidenced by a promissory note could be found by the jury to be guaranteed by the 1980 guaranty. This is another question of material fact to be decided by the jury.
We now turn our attention to the trial court's grant of summary judgment in favor of Insurors of Mobile. Insurors of Mobile asserts that summary judgment as to it was proper because there is no disputed material issue of fact as to whether Insurors of Mobile is not a successor corporation of Insurance Concepts, and, therefore, that Insurors of Mobile is entitled to judgment as a matter of law. We agree.
We note that Insurors of Mobile never directly guaranteed any indebtedness of Insurance Concepts and the only way Insurors of Mobile can be liable on the debt at issue is if it can be concluded that Insurors of Mobile is a successor corporation of Insurance Concepts. In Rivers v. Stihl, Inc., 434 So. 2d 766, 771 (Ala.1983), we said:
In National Dairy Products Corp. v. Borden Co., 363 F. Supp. 978, 980 (E.D.Wis.1973), the court opined that under the continuation exception to transferee non-liability, "the test is not the continuation of the business operation but the continuation of the corporate entity." The court in Weaver v. Nash International, Inc., 562 F. Supp. 860, 863 (S.D.Iowa 1983), observed that "the traditional indicia of the `mere continuation' exception are a common identity of officers, directors and shareholders in the selling and purchasing corporations and the existence of only one corporation at the completion of the sale of assets."
Moreover, in Reed v. Armstrong Cork Co., 577 F. Supp. 246 (E.D.Ark.1983), the court held the continuation exception inapplicable partly because the alleged successor purchased only a portion of the predecessor corporation and the predecessor corporation remained in operation after the sale of assets.
Assuming that the transfer of complete ownership of Insurors of Mobile to Coker is predicated on the sale of the assets of Insurance Concepts, then it is evident that this transaction does not fall within the continuation exception. Although there is a common identity of officers and shareholders between the two corporations, it is undisputed that the sale of assets was only the sale of a portion of the Insurance Concepts assets and that Insurance Concepts continued in existence as a separate entity for several months following the transfer. Based upon these facts contained within the record before us, we find there is no material issue of fact concerning the successor status of Insurors of Mobile, and Insurors of Mobile is entitled to judgment as a matter of law. Rule 56, Ala.R.Civ.P.
For all of the foregoing reasons, we affirm the summary judgment as to Insurors of Mobile, Inc., but reverse the summary judgment as to Coker.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR TRIAL.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | December 20, 1985 |
84f0fffa-002a-40c4-abc3-2cdc494b83c8 | Williams v. Dan River Mills, Inc. | 246 So. 2d 431 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 431 (1971)
Stanley WILLIAMS
v.
DAN RIVER MILLS, INC., et al.
3 Div. 388.
Supreme Court of Alabama.
March 25, 1971.
*432 Mooneyham & Mooneyham, Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Hill, Hill, Stovall, Carter & Franco, William A. Oldacre, and Theodore H. Hoffman, Montgomery, for appellees.
LAWSON, Justice.
This is an appeal by the plaintiff from a judgment in favor of the defendants below and from a judgment overruling the plaintiff's motion for a new trial.
All of the assignments of error relate to the judgment overruling the motion for new trial.
The grounds of the original motion for new trial which the plaintiff insists here were well taken and required the rendition by the trial court of a judgment granting the plaintiff a new trial aver, in effect, that one of the jurors who served on the case failed to disclose upon voir dire examination by the trial court that he was related by blood or marriage within the prohibited degree as prescribed by the law of this state to a member of a legal firm which represented the defendants, which relationship was unknown to the plaintiff or to his attorneys, and thereby plaintiff was deprived of his right to advisedly strike said juror whose service on the trial jury was to the prejudice and injury of the plaintiff.
In qualifying the jury, the trial court advised the prospective jurors that the defendants were represented by two law firms. The court identified them by firm names and identified the member or members of those firms who were present in court at the time the jury was being qualified. The court then propounded the following question: "Are any of you kin by blood or marriage to any of the gentlemen to either one of those law firms?"
It is conceded that none of the prospective jurors responded to that question.
It is further conceded that one of them, to whom we will sometimes hereinafter refer as the subject juror, was the first cousin of the wife of a member of one of the law firms which represented the defendants, at the time of their marriage in 1948. That member of the firm was not in court at the time. The wife died in 1962, long prior to the trial of this suit. Two children born of that marriage were living at the time of the trial.
Section 55, Title 30, Code 1940, in pertinent parts provides:
The subject juror was related by affinity within the fifth degree according to the rules of the civil law to a member of one of the law firms which represented the defendants as long as that attorney's marriage to the subject juror's first cousin continued. Hence, while the wife was alive the subject juror could have been successfully challenged for cause in a case in which the wife's husband or his firm appeared as counsel.§ 55, Title 30, Code 1940; Duke v. State, 257 Ala. 339, 58 So. 2d 764; Owen v. State, 255 Ala. 354, 51 So. 2d 541; Cambron v. State, 227 Ala. 575, 151 So. 443; Danzey v. State, 126 Ala. 15, 28 So. 697; Kirby v. State, 89 Ala. 63, 8 So. 110. The right to challenge for cause continued after the death of the wife and until the time of the trial because two children of the marriage were living. Pegues v. Baker, 110 Ala. 251, 17 So. 943; Shamberger v. State, 221 Ala. 538, 130 So. 70.
So subject juror, although he did not know that he was considered to be "kin by * * * marriage" to a member of one of the law firms representing the defendant, *433 under the law should have given an affirmative answer to the above-quoted question.§ 55, Title 30, Code 1940. At the time the question was propounded, counsel for plaintiff and the defendants, who were then present in court, were unaware of the relationship between the subject juror and an absent member of one of the firms representing the defendants.
The motion for new trial "was submitted to the Court upon the pleadings, affidavits and testimony taken orally before the Court."
The trial court based its action in denying the motion for new trial on the grounds presently under consideration on a finding from "the evidence introduced both in support and in opposition to the motion, including that taken orally before the Court * * * that any question of the disqualification" of the subject juror because of his affinity to a member of one of the firms which represented the defendants "was waived because of the testimony" of one of plaintiff's attorneys concerning facts which he learned during the trial.
The testimony of the attorney to whom the court had reference is more than ample to show that before the trial was concluded he became aware of facts sufficient to impose upon him the duty to make further inquiry to determine the accuracy of the information which had come to his attention if he was really disturbed by the presence of the subject juror on the trial jury. He testified that on the night of the first day of the trial, "I found out there was a connection but not the connection." (Emphasis supplied) That information came to him in time for the inquiry to have been made and the relationship could have been established with a minimum of effort.
In Oliver v. Herron, 106 Ala. 639, 17 So. 387, it was contended that a new trial should be granted because a non compos mentis was on the trial jury. The motion was denied. On appeal to this court it was said:
There are other cases of this court to like effect. See Jones v. Coley, 219 Ala. 23, 121 So. 24; Hurt v. Southern R. Co., 205 Ala. 179, 87 So. 533.
It is a well-recognized principle that notice of facts which ought to excite inquiry and which, if pursued, would lead to knowledge of other facts, operates as notice of those facts.Guaranty Sav. Bldg. & Loan Ass'n v. Russell, 221 Ala. 32, 127 So. 186; Figh v. Taber, 203 Ala. 253, 82 So. 495; Home Bond & Mortgage Corp. v. Alabama Utilities Service Co., 225 Ala. 322, 142 So. 827; Roberts v. Grayson, 233 Ala. 658, 173 So. 38; Blocker v. Boyd, 242 Ala. 345, 6 So. 2d 19.
The attorney for plaintiff who "found out there was a connection but not the connection" (emphasis supplied) during the course of the trial had notice of facts which ought to have excited inquiry on his part which, if pursued with reasonable diligence, would have disclosed "the" connection.
In Cambron v. State, 227 Ala. 575, 151 So. 443, a motion for new trial was denied which included the ground that one of the jurors was the father of the wife of a second cousin of deceased. On appeal we affirmed the action of the trial court in denying the motion for new trial on that ground, saying:
We hold that the trial court did not err in denying plaintiff's motion for new trial because of the relationship between the subject juror and a member of one of the firms which represented the defendants.
Plaintiff's original motion for new trial was timely filed, that is, within thirty days from the entry of the judgment in favor of the defendants.§ 276, Title 7, Code 1940.
More than thirty days after the judgment was rendered, the plaintiff presented an amendment in writing to the original motion for new trial, adding two separate and special grounds for new trial. The defendants objected to the allowance of the amendment. The court overruled those objections and allowed the amendment. The additional grounds should not have been allowed by the trial court, and they will not be considered by this court. The allowance of an amendment to a motion for new trial, stating new and different grounds not germane to any ground of the original motion, after expiration of the thirty days from date of judgment, should not be allowed by the trial court and will not be considered by this court.Sorsby v. Wilkerson, 206 Ala. 190, 89 So. 657. See Camp v. Atlantic Coast Line R. Co., 251 Ala. 184, 36 So. 2d 331; Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So. 2d 388; Atlantic Coast Line R. Co. v. Burkett, 207 Ala. 344, 92 So. 456; Southern R. Co. v. McCamy, 270 Ala. 510, 120 So. 2d 695.
On the day of the hearing on the motion for new trial the defendants "introduced in evidence in connection with the plaintiff's Motion for New Trial" four affidavits. They were made by one of the defendants' lawyers who actively participated in the trial, by the subject juror who was called as a witness by the plaintiff, by the member of one of the firms which represented the defendants whose deceased wife was a first cousin of subject juror, and by the foreman of the trial jury.
The plaintiff objected to "the affidavits on the ground that they are hearsay." The trial court did not rule on the objection, stating "* * * the Court will rule on them in its order." The court did not expressly rule in its judgment denying the motion for new trial on the objection interposed to the affidavits.
But, as heretofore shown, the judgment on the motion for new trial shows that submission on that motion was on the affidavits as well as on the pleadings and the testimony taken orally before the court. Thus it appears that the plaintiff's objection to the affidavits was, in effect, overruled. Consequently, there is no merit in the assignments of error which take the point that the trial court erred in failing or refusing to rule on plaintiff's objection to the introduction of the affidavits.
Plaintiff assigns as error the action of the trial court in admitting the affidavits in evidence over his objection.
In brief filed on behalf of plaintiff it is said:
In support of that broad, sweeping statement the following cases are cited.Harrison v. Baker, 260 Ala. 488, 71 So. 2d 284; City of Eufaula v. Speight, 121 Ala. 613, 25 So. 1009; State ex rel. Bailes v. Guardian Realty Co., 237 Ala. 201, 186 So. 168; Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So. 2d 190.
None of those cases support the broad statement in support of which they were cited. We see no occasion to comment on those cases.
As far as we are advised, this court has never said that an affidavit, irrespective of its content, cannot be admitted in evidence at a hearing on a motion for new trial because all affidavits run counter to the hearsay rule.
Where it appears from the face of an affidavit that the affiant had no personal knowledge of the matters to which he deposed and that he must have secured his information concerning those matters from others, then the affidavit is based on hearsay and should not be admitted.
One part of the affidavit of the foreman of the jury might have been subject to a motion to strike, but the affidavit as a whole was not subject to the objection that it was hearsay. Parts of one or more of the other affidavits might well have been stricken, but none of the affidavits as a whole was subject to the hearsay objection.
The affidavit of the subject juror contains no statement which could reasonably be challenged as being hearsay.
As we have heretofore shown, the objection interposed to the affidavits was in effect that all that was stated in each of the affidavits was subject to the hearsay rule. That simply is not the case. The trial court did not err "in admitting over appellant's (plaintiff's) objection the affidavits" (Assignment of Error 2) to which reference has been made.
Moreover, all of the affidavits related to the charge made by plaintiff relative to the so-called disqualification of subject juror and we think it clear from the judgment on the motion for new trial that the affidavits played no part in the trial court's decision on that matter.
The judgment of the trial court is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | March 25, 1971 |
9a53b4c6-5bb0-41ca-8550-652499223727 | Pettus v. Shafer | 244 So. 2d 573 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 573 (1971)
Clarence PETTUS
v.
Ron SHAFER, Ind., and d/b/a Ron Shafer Chevrolet Company, et al.
7 Div. 883.
Supreme Court of Alabama.
February 11, 1971.
*574 Gus W. Colvin, Jr., James S. Hubbard, Anniston, for appellant.
Miller & Hoffmann, Montgomery, Burnham, Klinefelter & Halsey, Anniston, for appellees.
MERRILL, Justice.
Appellant recovered a judgment for $15,000.00 as punitive damages against Ron Shafer, individually, and d/b/a Ron Shafer Chevrolet Company, and Terry McDonald, in connection with the sale of a pickup truck. The trial court granted a motion for a new trial conditioned upon plaintiff's remittance of all damages in excess of $1,093.00. Plaintiff declined and appealed from the order granting a new trial.
We do not propose to detail the evidence because we affirm the action of the trial court in granting the motion for a new trial, and we do not want to prejudice that trial.
It is sufficient to say that plaintiff bought a pickup truck and it proved to be, in the current vernacular, a "lemon." After several trips back to the dealer, appellant was told that they would try to straighten the frame and put the truck in proper shape. Appellant demanded either a new truck or his money back and later brought this suit.
The complaint, as amended, consisted of three counts which charged that the defendants, in the words of the trial court in its oral charge, "falsely misrepresented a truck to the plaintiff, and that upon this misrepresentation he acted, and as a result he was injured and suffered damages." Plaintiff also filed a third party complaint against General Motors Corporation, the manufacturer of the truck.
At the conclusion of the trial, the court gave the affirmative charge with hypothesis at the request of General Motors and the jury found against the plaintiff on the third party complaint. The jury did render the following verdict in favor of plaintiff: "We, The Jury, Find for the Plaintiff and assesses his damages in the amount of $15,000.00 for punitive damages."
A motion for a new trial was heard and the trial court was "of the opinion that the judgment is excessive as there is no evidence of willful false misrepresentation on part of defendants, or actual intent to deceive the plaintiff. The Court further finds that any other grounds mentioned in said motion, if error, is error without injury to the defendants. It is, therefore, ordered, adjudged and decreed by the Court that the plaintiff shall file a remittance of all damages in excess of $1,093.00 within fifteen days of this order; and if he should so fail to do, that a new trial be ordered between the plaintiff, Clarence Pettus, and the defendants, Ron Shafer, individually and doing business as Ron Shafer Chevrolet Company, and Terry McDonald."
The assignments of error charge in different wording that the trial court erred in granting the motion for a new trial. Assignment 2 reads: "The Court erred in granting the motion of Appellees for a new trial, as contrary to the law in the case." This assignment of error is too general and will not be considered. It does not point out specifically wherein the judgment is contrary to law. Allred v. Dobbs, 280 Ala. 159, 190 So. 2d 712; Danley v. Marshall Lumber and Mill Co., 277 Ala. 551, 173 So. 2d 94.
But under remaining assignments of error, we do consider appellant's contention that, from the evidence, a jury question *575 was presented as to whether the alleged misrepresentation was gross, oppressive or committed to deceive appellant.
Title 7, § 108, Code 1940, provides:
In Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484, cited and relied on by appellant, this court said:
But in that case, the verdict was general "We, the Jury, find in favor of the plaintiff and against the defendant and assess her damages at Fifteen Thousand ($15,000.00) Dollars." Here, the verdict is specific in that all the damages awarded are punitive damages.
Both parties to this appeal cite statements from Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24. Appellant relies on the first two sentences, appellees on the third:
All three sentences are correct statements of the law, but the third is more comprehensive of the rule applicable here.
Neither the testimony in the record, nor that highlighted in appellees' brief is sufficient for us to fault the finding of the trial court that "there is no evidence of willful false misrepresentation on the part of the defendants, or actual intent to deceive the plaintiff."
In Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37, the judgment was for $8,000.00, including $2,200.00 actual damages and $5,800.00 punitive damages. This court stated that "conduct of defendant or its agent, as disclosed by the evidence, affords no inference of gross or malicious misrepresentation of a material fact," and ordered a remittitur of all the punitive *576 damages awarded, or else the judgment would stand reversed. We stated that the general law on the subject of fraudulent misrepresentation is that "fraud being alleged, and established by the evidence, punitive damages may be recovered only if the fraud was malicious, oppressive, or gross, made with knowledge of its falseness, (or so recklessly made as to amount to the same thing), and made with the purpose of injuring the plaintiff. * * * If a fraud is not perpetrated grossly, maliciously, oppressively, and with an intent to deceive, the damages to be recovered are such as will compensate for actual damages received. Foster v. Kennedy's Adm'r, 38 Ala. 359; Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942."
It is clear how the trial court arrived at the sum of $1,093.00, the amount to which the verdict was reduced. Appellant testified that the purchase price of the new truck was $2,093.00 and its value, for "the shape it was in," was only $1,000.00, a difference of $1,093.00.
We do not have the arguments of counsel before us, and punitive damages may have been mentioned in argument. But there is no mention of punitive damages in the trial court's instructions to the jury and, in effect, punitive damages were excluded from the jury's consideration by the following portion of the oral charge:
There was no objection to this portion of the charge, and all parties announced that they were satisfied with it.
It is essential to orderly administration of the law that the jury obey the instructions the court gives it as the law, having application to the facts in evidence, or the reasonable inferences to be drawn therefrom; and a verdict rendered in disregard of such instructions, even though the instructions of the court be erroneous, is against the law of the case and, in a proper case, should be set aside. Penticost v. Massey, 202 Ala. 681, 81 So. 637, and cases there cited. The usual method of setting the verdict aside is by granting a motion for a new trial. Penticost v. Massey, supra; Fleming & Hines v. Louisville & N. R. R. Co., 148 Ala. 527, 41 So. 683; 18A Ala.Dig., Trial 337.
The jury disregarded the instructions quoted from the oral charge and we affirm the action of the trial court in granting the motion for a new trial, but we are not to be understood as holding that the trial court was authorized to require a remittitur of a verdict for "punitive damages," and award one for "compensatory damages" in this case.
Affirmed.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | February 11, 1971 |
b8d9a610-907e-4d99-9a59-a0f97222e782 | James E. Watts & Sons Contractors v. Nabors | 484 So. 2d 373 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 373 (1985)
JAMES E. WATTS AND SONS CONTRACTORS, INC.; James E. Watts; Charles E. Watts and James E. Watts, Partners, d/b/a Watts Construction Company; and American Casualty Company
v.
Joe D. NABORS.
83-1430.
Supreme Court of Alabama.
November 27, 1985.
Rehearing Denied January 31, 1986.
Jack W. Torbert, Jr. of Torbert & Torbert, Gadsden, for appellants.
Charles Hare of Gullahorn & Hare, Albertville, and John Baker, Montgomery, for appellee.
*374 ALMON, Justice.
This is an appeal of civil action tried ore tenus wherein appellee, Joe D. Nabors, a subcontractor on a sewer construction project in Rainsville, Alabama, was awarded a money judgment against subcontractor, James E. Watts and Sons Contractors, Inc.; James W. Watts; Charles E. Watts and James E. Watts, Partners, d/b/a Watts Construction Company, contractor, and the surety American Casualty Company. Nabors claimed damages for breach of contract; conversion; fraud; for money had and received and for breach of an insurance contract.
Part one of the trial court's judgment orders James E. Watts and Sons Contractors, Inc.; James E. Watts; Charles E. Watts and James E. Watts, Partners, d/b/a, Watts Construction Company and American Casualty Company to pay Nabors $24,523.89. As American Casualty Company was only mentioned in count one of Nabor's complaint it is apparent that part one of the judgment is directed at that part of the complaint. Count one was directed at the Watts parties for breach of contract for failure to pay Nabors an amount due under the contract and against American Casualty for payment of a bond issued by it as surety.
Appellants contend that the trial court erred in finding that they were in breach of contract. Specifically, they contend that it was the agreement of the parties that Nabors not be paid until after subcontractor James E. Watts and Sons Contractors, Inc., were paid by the City of Rainsville. They argue that Watts & Sons have not been paid in full by the City of Rainsville and thus, that the trial court has altered the agreement of the parties by ordering Watts and Son to pay Nabors.
The contract between Nabors and Watts and Sons was oral. Nabors testified that he understood when he went on the job that he would not be paid until Watts and Sons received their money from the City of Rainsville. Due to a contractual dispute between Watts and Sons and the City of Rainsville payment to Watts and Sons has not been made.
"Where the parties express without ambiguity their intention, no court can alter the agreement, and no room for judicial construction is left." Lilley v. Gonzales, 417 So. 2d 161 (Ala.1982). See also, Flowers v. Flowers, 334 So. 2d 856 (Ala.1976); Commercial Union Ins. Co. v. Rose's Stores, Inc., 411 So. 2d 122 (Ala.1982). As already noted, Nabors clearly states in his testimony that he understood when he took the job that he would not be paid until Watts and Sons was paid. This agreement was probably reached in order to protect Watts and Sons in the event payment from the City of Rainsville was delayed, which in fact did occur in this case. The situation at hand would appear to be the exact problem the agreement was to guard against. We find that the trial court erred in requiring Watts and Sons to pay Nabors prior to its being paid by the City of Rainsville. At such time that Watts and Sons does receive payment, Nabors will be due his percentage of the contract price.
Because payment to Nabors is not yet due under the contract, it is apparent that American Casualty is not due to make payment on the bond at this time. When payment to Nabors does become due American Casualty may become liable on the bond.
We therefore find that part one of the trial court's judgment is due to be reversed.
Part two of the trial court's judgment orders James E. Watts and Sons Contractors, Inc.; James E. Watts; and Charles E. Watts and James E. Watts, Partners d/b/a Watts Construction Company to pay Nabors $106,042.73.
Although the trial court did not make specific findings of fact, counts two through five of the Nabors complaint relate to the fact that Watts contracted to provide full insurance coverage for Nabors and deducted payments for such coverage but did not in fact procure such coverage. Due to a lack of liability insurance on his *375 work vehicles, Nabors was held liable for a judgment of $85,000 awarded Stephen Brown as compensation for injuries received in a collision with one of Nabors's employees.
Count five claims damages of $250,000 for breach of the contract for insurance against all of the defendants against whom the trial court awarded judgment in part two of its judgment. We conclude that the record supports a finding that there was an agreement to provide insurance, that it was paid for by Nabors but that it was not provided by the Watts defendants. Accordingly, we find that count five of Nabors's complaint alone could have been the basis of part two of the trial court's judgment.
Appellant further contends that only James E. Watts and Sons Contractors, Inc., should be liable and not James E. Watts; Charles E. Watts and James E. Watts, Partners, d/b/a Watts Construction Company. Nabors negotiated this oral contract with James E. Watts. The Watts partnership entered into the contract with the City of Rainsville. The Watts corporation, however, paid Nabors's employees and performed the bookkeeping tasks, etc. The evidence was heard ore tenus. After reviewing this lengthy record, we cannot conclude that the trial judge was in error in rendering judgment against these parties, because of their interrelationship, mode of doing business, and the nature of the oral contract.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and FAULKNER, BEATTY and HOUSTON, JJ., concur. | November 27, 1985 |
b5a86aee-a405-466d-b4ad-55ecf249a883 | Lee v. Brown | 482 So. 2d 293 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 293 (1985)
Bobby LEE
v.
Kenneth L. BROWN and Ruth C. Brown.
84-780.
Supreme Court of Alabama.
December 20, 1985.
*294 John R. Phillips of Phillips & Rice, Anniston, for appellant.
Herbert D. Jones, Jr. of Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, for appellees.
BEATTY, Justice.
Defendant, Bobby Lee, appeals from the trial court's order determining the boundary in a dispute between adjoining landowners in Calhoun County.
All of the property at issue in this case was previously owned by John Martin. On November 7, 1969, Martin conveyed a tract of land in the southwest corner of his property to his grandson Donald Martin and Donald's wife Alice, that tract being described in the deed as follows:
No survey was made at the time of that sale; John Martin, Donald Martin, and a third person staked the boundaries, using a hundred-foot tape measure and a compass. John Martin testified at trial that they began in the northeast corner of the tract *295 being sold and placed an iron stake near a telephone pole. They proceeded west to a blazed hickory tree, south to the road running east and west across the property, east to another iron stake, and then north to the point of beginning.
On October 27, 1971, John Martin sold the remaining portion of his land to defendant Bobby Lee. The deed conveyed to Lee the entire tract previously owned by John Martin, excepting the portion already conveyed to Donald Martin, which was described in Lee's deed by language identical to that quoted above. At the time of the sale, John Martin showed defendant Lee the four corners of the tract previously conveyed to Donald and his wife.
In 1973, Donald and Alice Martin conveyed the smaller tract to Rickey and Martha Howard. The Howards conveyed the property to Charles and Gay Nell Spurgeon. Pursuant to a divorce settlement, Charles Spurgeon conveyed his interest in the property to his ex-wife. Upon Mrs. Spurgeon's remarriage, she and her husband, John Farner, conveyed the property to themselves and later to the plaintiffs, Kenneth and Ruth Brown.
Donald Martin testified that he showed the four corners of the smaller tract to Rickey Howard at the time the Howards purchased the land. Similarly, Charles Spurgeon testified that he was shown the corners before he and his wife purchased the property. Both plaintiffs testified, however, that they were not shown the boundaries because the Farners did not know where they were.
The present dispute arose after a survey revealed a discrepancy between the description of plaintiffs' property in their deed and the boundaries as shown to defendant by John Martin. Specifically, the survey showed that plaintiffs hold record title to more land on the northern and eastern sides of their tract than defendant had contemplated. (See the diagram attached as an appendix to this opinion.)
Plaintiffs filed suit alleging that defendant had willfully trespassed on their property and damaged it by cutting timber. Defendant's counterclaim requested that the court determine the true boundary and reform the deeds by which the parties claim title to their respective properties, on the ground of mutual mistake in the descriptions in the deeds.
The trial court separated for trial the issues raised in the counterclaim from the trespass claim and, after hearing testimony presented ore tenus, found that defendant Lee had adversely possessed that portion of plaintiffs' property southeast of the north-south road, and awarded this portion to defendant. This section had been fenced in and cultivated by defendant each year since 1971. However, with respect to the other portions claimed by defendant, the trial court found insufficient evidence that defendant had adversely possessed any other part of plaintiffs' property not under fence. Furthermore, the court denied defendant's request for reformation of the deeds on the ground that plaintiffs were bona fide purchasers. The trial court's order was made final pursuant to Rule 54(b), A.R.Civ.P. Defendant's motion for new trial was denied.
The first issue is whether the trial court erred in determining that defendant had not acquired title to the disputed property on plaintiffs' northern boundary and the disputed property on plaintiffs' eastern boundary west of the road. A coterminous landowner may acquire title by adverse possession if he proves that he had open, notorious, hostile, continuous, and exclusive possession of the property for ten years. Tidwell v. Strickler, 457 So. 2d 365, 368 (Ala.1984). He need not show color of title or any of the other requirements of Code of 1975, § 6-5-200. Id. However, the burden of proof rests upon the party asserting adverse possession, and every presumption is in favor of the holder of legal title. Roberts v. Mitchell, 437 So. 2d 512, 514 (Ala.1983).
Defendant presented evidence that he cut hay on plaintiffs' eastern property and that in plaintiffs' northern property he had cleared a section with a bulldozer, cut hay, *296 and planted some fruit trees. However, the trial court, taking ore tenus testimony, found that there was insufficient evidence that the defendant adversely possessed "any particular portion" of the disputed section.
When a trial court hears ore tenus evidence, its findings of fact will not be disturbed on appeal unless they are clearly erroneous or manifestly unjust. Scarbrough v. Smith, 445 So. 2d 553, 555 (Ala. 1984). In Scarbrough, this Court stated:
The wisdom of this rule is evident from the following excerpts from the defendant's trial testimony:
On the basis of this record, we cannot disturb the trial court's finding that defendant did not meet his heavy burden of proving that he had actual possession of any particular portion of the disputed areas which were not fenced and cultivated by defendant. Although an adjoining landowner need not have color of title, possession of part of the adjoining land without color of title does not constitute constructive possession of the whole tract; the parts possessed must be specifically shown. Grissom v. State, 254 Ala. 218, 222, 48 So. 2d 197, 200 (1950).
The second issue raised by defendant is that the trial court erred in denying his request for reformation of the deeds by which he and plaintiffs claim title to their respective lands. It is evident from the testimony of John and Donald Martin that there was a mutual mistake in the description of plaintiffs' property at the time that tract was separated from the larger parcel. The question, however, is whether this mistake will cut off the right of plaintiffs, who were not parties to the original transaction.
*297 Section 35-4-153 of Code of 1975 provides:
Reformation will not be granted to prejudice the rights of a bona fide purchaser, that is, a purchaser of the legal title in good faith for value without notice, either actual, constructive, or inquiry, of the grounds for reformation. Touchstone v. Peterson, 443 So. 2d 1219, 1122-23 (Ala. 1983).
Plaintiffs' testimony is undisputed that they were not shown the boundaries of their property at the time of purchase nor did they know of any inconsistency between the description of the property in the deed and the four corners as shown to defendant by John Martin. Furthermore, there is no evidence that at the time of purchase plaintiffs knew of facts sufficient to put them on inquiry as to defendant's claim. Therefore, the trial court correctly denied the remedy of reformation of the deeds.
Finally, defendant argues that the trial court erred in denying his motion for new trial. His arguments in support of this alleged error are reiterations of his arguments as to the prior two issues. We find no error.
Let the judgment of the trial court be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and HOUSTON, JJ., concur.
In the following diagram, the solid lines represent the boundaries of plaintiffs' property as claimed by the defendant. The broken lines represent the boundaries according to the survey based upon the description in the deeds.
*298 | December 20, 1985 |
1e1abaec-5d3f-4d84-800c-f3a0875edcc9 | Food Centers, Inc. v. Davis | 244 So. 2d 576 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 576 (1971)
FOOD CENTERS, INC., a Corporation,
v.
Cecil DAVIS, d/b/a Cecil Davis Grocery Company, et al.
6 Div. 782.
Supreme Court of Alabama.
January 7, 1971.
Rehearing Denied February 25, 1971.
*577 James H. Faulkner, Birmingham, for appellant.
Frank Parker and Roberts & Davidson, Tuscaloosa, for appellees.
MERRILL, Justice.
This is an appeal from a decree which denied the injunctive relief sought by the appellant against the appellees for the latter's use of a trade name, "Food Center" or "Food Centers," as part of the name of the appellees' retail grocery stores, "Home Food Center."
The complaint alleged that the appellees, "by the use of the sign and words `HOME FOOD CENTER'" infringed upon the appellant's registered Trade Marks, "FOOD CENTER" and "FOOD CENTERS." The complaint also averred that some people, as a result of the appellees' use of those words, were misled, misinformed and confused, in other words, that the public was actually deceived into the belief that these stores were the same as those operated by the appellant. The complaint averred that the people of Tuscaloosa County were likely to be misinformed, misled *578 and confused to the detriment of the appellant's business.
Testimony was taken ore tenus. The evidence showed that an association had obtained a registration in June, 1951, with the Secretary of State of the names "Food Center" and "Food Centers." That association incorporated in November, 1951, and is the appellant here. The appellant does not have any member stores in Tuscaloosa County, but does have 32 member stores operating in Shelby, Jefferson, St. Clair and Chilton Counties. The appellant has made solicitations for new members in Tuscaloosa County and advertised in two Birmingham newspapers, which were circulated in Tuscaloosa, and their advertising was also transmitted over two Birmingham TV stations. The respondents advertised in the Tuscaloosa News under the name of "Home Food Center." There was no evidence as to when the respondents were organized and began using the name "Home Food Center," but the appellant first became aware of the appellees' use of that name in October, 1967. Advertisements of both organizations were introduced for comparison. The appellees' symbol was a roof design over the word "Home" under which was written "Food Center" in letters about one-third as high as "Home." The appellant's symbol is a solid circle with the words "Food Center" written inside.
The trial judge denied the injunction because it was not shown "that any person had been actually deceived by the use of the trade name, Home Food Center, by the respondents, and furthermore the evidence was not such as to reasonably satisfy the court that the use of the trade name, Home Food Center by the people of the Tuscaloosa area is calculated to deceive the public into the belief that the affairs of the respondents are those of the complainant or that the people of this area are likely to be misinformed, mislead, or confused by the use of such trade name of the respondents."
Assignments of error 1 and 2 are based on the two reasons given by the trial court for reaching the conclusion that an injunction should not be granted.
If a decree correctly determines the equities of the case, the reasons upon which the trial court proceeded are unimportant and the case will be affirmed. Cherokee County v. Cunningham, 260 Ala. 1, 68 So. 2d 507; Andrews v. Sullivan, 260 Ala. 291, 69 So. 2d 870.
A correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. Cherokee County v. Cunningham, supra; Lambert v. Alabama Farm Bureau Mut. Cas. Ins. Co., 281 Ala. 196, 200 So. 2d 656.
We think the trial court reached the correct result but we do not agree that the first reason given by the court was sufficient, by itself, to deny the injunction. We agree with appellant that Fuqua v. Roberts, 269 Ala. 59, 110 So. 2d 886, holds that in a suit of this kind, "It is not necessary to show in a bill for injunctive relief only that any person or persons have been actually deceived." Appellees argue that proof of actual deception, of which there was none, is required to prevent a fatal variance between the allegation and the proof. We disagree.
In a suit for injunction in Bobo v. City of Florence, 260 Ala. 239, 69 So. 2d 463, we stated it is "well settled that in equity it is not necessary to accurately prove every detail of averment as alleged provided that proof is made of such averments as are essential to the relief sought." Cited in support is Ellis v. Womack, 247 Ala. 254, 23 So. 2d 859, which states that "It is not always necessary to prove every allegation of a bill when the bill contains more than is necessary to be proved and the essentials for the relief sought have been proven." See Day v. Andrews, 279 Ala. 563, 188 So. 2d 523.
Under these authorities, and Fuqua v. Roberts, 269 Ala. 59, 110 So. 2d 886, the *579 allegation of actual deception was not necessary to support the action.
Here, the trial court was also of the opinion that the evidence of the use of the trade name, "Home Food Center," was not calculated to deceive or likely to deceive the public into the belief that the affairs of the respondents were those of the complainant. This is a valid reason with which we agree. The appellant assigns this finding as assignment of error 2. Where, as in the instant case, the evidence is taken ore tenus, strong presumptions in favor of the trial judge must be indulged on appeal. Such presumptions can only be overcome where it is apparent that the trial court's decision was palpably wrong and unjust. State v. City Wholesale Grocery Co., 283 Ala. 426, 218 So. 2d 140.
In addition, our own examination of the two symbols strengthens our conclusion that the trial court's decision was correct. There is a drastic difference in design and in the use of the words "Food Center." These words are accentuated in appellant's symbol, but are very secondary in appellees' symbol, where the decided accent is on the word "Home." Both the trial court and this court may rely not only on the testimony adduced on the trial but upon its own comparison of the trade marks or trade names used by the parties. American Foods, Inc. v. Golden Flake, Inc., 5th Cir., 312 F.2d 619, and cases there cited. We hold that there is no merit in appellant's assignment of error number 2 which challenged the trial court's finding that there was no likelihood of deception of the public.
The only other argued assignment of error charges that the trial court erred in holding that there was no evidence that the complainant corporation succeeded to the right of the trade mark registered with the Secretary of State on June 1, 1951, which the Food Centers Association acquired. It does not appear that had the trial court found that the appellant did succeed to the ownership of the trade mark, that a different result would have followed. We do not believe that the finding of the trial courtthat there was no likelihood of deception of the publicwould be changed if the court had found that the appellant did succeed in ownership to the trade mark. Therefore, assuming, without deciding, that there may have been some evidence from which an inference could arise that appellant did succeed to the right to use the registered trade mark, no substantial rights of appellant have probably been injuriously affected in this case. Supreme Court Rule 45.
Affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur. | January 7, 1971 |
782dde69-778a-444b-95b1-3027c5787567 | Hartford Accident & Indemnity Co. v. Kuykendall | 247 So. 2d 356 | N/A | Alabama | Alabama Supreme Court | 247 So. 2d 356 (1971)
HARTFORD ACCIDENT AND INDEMNITY CO., a Corp., et al.
v.
J. P. KUYKENDALL.
6 Div. 785, 785-X.
Supreme Court of Alabama.
April 15, 1971.
*357 Williams & Evans, Tuscaloosa, for appellant Hartford Accident and Indemnity Co.
Witcher & Young, Birmingham, for appellant Marcus B. White, individually and as administrator of Estate of L. B. White, deceased.
Skidmore, Skidmore, Crownover & Mountain, Tuscaloosa, for appellee.
McCALL, Justice.
This is an appeal from a final decree of the Circuit Court of Tuscaloosa County, in Equity, rendered in favor of the complainant-appellee.
The original suit was instituted by the appellee J. P. Kuykendall against Marcus B. White, individually and as administrator of the estate of L. B. White, deceased, and the surety on his administrator's bond, Hartford Accident and Indemnity Company, a Corporation, hereafter called Hartford. The suit arises out of the execution by L. B. White of two promissory notes, one for $10,000, payable to the order of the First National Bank of Tuscaloosa, and the other for $10,175, payable to the order of the City National Bank of Tuscaloosa. Each note bears on its face the signatures of both the appellee and L. B. White. Both banks filed verified claims against L. B. White's estate for the amounts due on the notes, in the office of the Judge of Probate of the county, within six months after the granting of letters of administration.
After these were declared good and valid claims against the decedent's estate, Hartford purchased the notes for value from the two banks, and the banks transferred them by endorsement, without recourse, to *358 Hartford. Hartford then filed an action in federal court to recover on the notes against the appellee, Kuykendall. The federal court rendered a judgment against the appellee in favor of Hartford on both notes. The appellee paid this judgment, and Hartford canceled the claims of record in the probate court. Thereafter, the appellee, Kuykendall, brought the present suit for a declaration of his rights, against the administrator on the theory that, having paid the obligation of his principal, he, as surety, became subrogated to the rights, remedies and securities of the original payees, and against Hartford on the theory that, having joined in helping to manage the decedent's estate, it aided the administrator in the commission of a devastavit which resulted in considerable financial loss to the estate, and in its becoming insolvent. The suit resulted in a final decree granting the appellee the relief prayed for.
What we said in White v. Hilbish, 282 Ala. 498, 501, 213 So. 2d 230, 233, we think appropriate to repeat here:
Accordingly, the appellants' assignments of error which are not substantially argued, will not be considered and will be treated as waived. Supreme Court Rule 9, Revised Rules of Practice in the Supreme Court, Tit. 7, Code of Alabama, 1940; Lietz v. Pfuehler, 283 Ala. 282, 215 So. 2d 723; Stallworth v. Doss, 280 Ala. 409, 194 So. 2d 566.
The appellants complain of a lack of competent evidence to support the trial court's final decree (1) that the appellee, Kuykendall, signed the notes as a surety rather than as a comaker, and, (2) that the administrator had mismanaged the estate. The appellants set out none of the testimony of the witnesses, in the Statement of the Facts in their brief. Rule 9, supra, states in part:
Since the appellants' brief does not comply with this requirement of Rule 9, we will not review the trial court's finding that the appellee executed the two notes as surety, and that a devastavit had been committed. Albright Equipment Co. v. Waddell, 284 Ala. 329, 224 So. 2d 878; Stewart v. Stewart, 284 Ala. 3, 221 So. 2d 116; Zanaty v. Hagerty, 280 Ala. 232, 191 So. 2d 516; Mothershed v. Mothershed, 274 Ala. 528, 150 So. 2d 372.
When there is no compliance with the rule, we apply the presumption that the record contains evidence to sustain every finding of fact. Kinsaul v. Florala Telephone Co., 285 Ala. 16, 228 So. 2d 777; Evergreen Heading Co. v. Skipper, 276 Ala. 623, 165 So. 2d 705; Nixon v. Richardson, 281 Ala. 632, 206 So. 2d 877.
There was no error in the trial court's permitting parol evidence to show suretyship. The statute, Tit. 9, § 82, Code of Alabama, 1940, is clear on this point and provides:
The appellants argue that the "Dead Man's Statute," Tit. 7, § 433, Code of Alabama, 1940, makes the appellee incompetent to testify to any transaction between him and L. B. White, the deceased, and, therefore, he could not testify that he was only *359 a surety on the notes, or that he received none of the consideration.
We have read the appellee's testimony in the record and do not find where he testified that, in signing the notes in question, he did so as surety for the deceased. Neither does the appellants' brief point out any testimony by the appellee to this effect.
There was no error in the trial court's permitting the appellee to testify that he did not receive any of the proceeds of either of the notes which were delivered to the respective banks to secure their loans.
In Gamble v. Whitehead, 94 Ala. 335, 11 So. 293, the plaintiff brought an action against an administrator to recover moneys collected by the defendant's intestate on a note delivered to him by the plaintiff for collection. The defendant claimed his intestate owned the note. At the trial the plaintiff was asked, "Whether she had ever received anything for the said note?" She was permitted to answer in the negative over the defendant's objection, the court saying:
We think Gilbreath v. Levi, 268 Ala. 148, 105 So. 2d 96, also supports our conclusion. There the court allowed the plaintiff to testify that the amount of a check was still due and unpaid by the deceased without violating § 433, Tit. 7, Code of 1940, because this was not testimony as to any transaction with or statement by the deceased, but only to the collateral fact that the amount evidenced by the check was due and unpaid.
The appellants next contend that it was error for the court to allow in evidence the testimony of the witnesses, J. C. Hood, Hershel Owens, Thomas P. Hester and Paul Singleton, officers of one or the other of the two banks, because their testimony tended to modify, explain or refute a transaction with a deceased person in violation of Tit. 7, § 433, Code of Alabama, 1940.
After Hartford's judgment, obtained in the federal court, was paid by the appellee, the decedent's estate was obligated in no way to either the banks or their transferee, and their pecuniary interest against the decedent's estate was extinguished. The appellee's interest arose under subrogation, Tit. 9, § 87, Code of Alabama, 1940, and not by an assignment or transfer from Hartford. The banks, therefore, have, in legal contemplation, nothing to gain or lose by the final decree to be rendered in this cause, nor would the record be legal evidence for or against them in any other legal action. Oliver v. Williams, 163 Ala. 376, 50 So. 937.
In Anthony v. Sturdivant, 174 Ala. 521, 56 So. 571, the subject witness, whose testimony concerned the execution of a note by his comaker, was challenged as being incompetent under the statute, § 433 to testify. The witness had received a discharge of the debt in bankruptcy. The court ruled otherwise, saying:
We think that to deny the appellee the benefit of the testimony in question by an application of the exception in the statute would evade the clear purpose, if not the exact letter of the statute. In Gamble v. Whitehead, 94 Ala. 335, 11 So. 293, the court observed:
For the reasons set forth, the testimony of these witnesses was properly admitted in evidence.
The appellee's claim against the decedent's estate, arising out of his liability as a surety for him, is said to be a contingent claim. What constitutes a contingent claim is found in Fretwell v. McLemore, 52 Ala. 124, 141, where the court said:
In Moore v. Stephens, 264 Ala. 86, 84 So. 2d 752, we recognized that an exception to the requirement in the Statute of Nonclaim, Tit. 61, § 211, Code of Alabama, 1940, is where the claim is a contingent one. In Edgehill Corporation v. Hutchens, 282 Ala. 492, 213 So. 2d 225, the court observed that the legislature as a matter of public policy did not intend to include "contingent claims," as being barred by a six months period from the time of appointment of an administrator or executor, and that an exception to the requirement of the Statute of Nonclaim is where the claim is a "contingent" one. Therefore, the provisions of Tit. 61, § 211, Code of Alabama, 1940, the Nonclaim Statute, do not apply to the appellee's claim.
We cannot treat the appellants' lone statement, in the argument section of their brief, that Marcus B. White's testimony at another trial in another case between different parties, was inadmissible, since he was present at the instant trial, as being a substantial argument in compliance with Rule 9, supra; Boudrow v. H & R Construction Co., 284 Ala. 60, 222 So. 2d 154; Cook v. Latimer, 279 Ala. 294, 184 So. 2d 807. We note from the record, however, that when the appellee tendered the former testimony of Mr. White in evidence, and the appellants objected to its introduction, the court stated that the objection would be noted as would all objections. Presumably, the court made no ruling on the objection interposed in view of the statute, Tit. 7, § 372(1), Code of Alabama, 1940, as Recompiled 1958. Since there had been no reception of the questioned testimony in evidence, we think that the appellants' subsequent motion to exclude this testimony was not well taken. Consequently, the court committed no error in denying the motion to exclude it. There is a presumption that the trial court did *361 not consider any illegal, incompetent or irrelevant evidence. Long v. Ladd, 273 Ala. 410, 142 So. 2d 660.
The final decree of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | April 15, 1971 |
f7d35ff8-a009-4005-a319-8a36e52743ea | Duffy v. Bel Air Corp. | 481 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 872 (1985)
Mary DUFFY, et al.
v.
BEL AIR CORPORATION d/b/a Bel Air Mall.
84-640.
Supreme Court of Alabama.
December 6, 1985.
*873 S. Robert Brooks, III, Mobile, for appellants.
Michael Gillion and David A. Hamby, Jr. of Brown, Hudgens, Richardson, Mobile, for appellee.
BEATTY, Justice.
Plaintiffs appeal from the trial court's entry of summary judgment in favor of defendant in a suit charging defendant with negligence in the maintenance and operation of a shopping mall parking lot.
Plaintiff Mary Duffy slipped on a piece of decorative gravel and broke her ankle in the parking lot owned by defendant corporation. She filed suit, alleging that defendant negligently allowed the gravel to spill over from a median onto the lot and remain there. Plaintiff William Duffy sued for loss of consortium.
Defendant moved for summary judgment without answering the complaint. The motion was based on the pleadings and "[a]ll discovery conducted in this action, particularly the deposition testimony of MARY L. DUFFY, the Plaintiff." Mrs. Duffy's deposition had not been filed at the time the motion was made, but was filed before the hearing on the motion.
Plaintiffs allege that there was no evidence to support defendant's motion for summary judgment. Plaintiffs note that defendant did not file an answer prior to moving for summary judgment and did not file any affidavits or depositions at the time the motion was made. Although the motion specifically states that it is based on Mrs. Duffy's deposition, plaintiffs maintain that the trial court could not consider the deposition because it was not filed until the day of the hearing on the motion.
The trial court can consider material before it at the time of the submission of the motion. Guess v. Snyder, 378 So. 2d 691, 692 (Ala.1979). Mrs. Duffy's deposition was before the court prior to the hearing on the motion and that was sufficient.
We turn now to the question of whether the trial court correctly determined on the basis of the materials before it that defendant was entitled to summary judgment. Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), A.R.Civ.P. If the material facts are not in dispute, a question of law is presented to be decided by the trial court. Kitchens v. Winn-Dixie Montgomery, Inc., 456 *874 So. 2d 45, 47 (Ala.1984). However, if there is a disputed material fact, even a scintilla of evidence supporting the nonmoving party will preclude summary judgment. White v. White, 431 So. 2d 1208, 1209 (Ala. 1983).
Plaintiffs argue that there was a scintilla of evidence on the question of whether defendant breached its duty of care. Defendant, however, maintains that summary judgment was appropriate because there was no disputed material fact concerning Mrs. Duffy's contributory negligence.
Where a plaintiff is aware of a defect, contributory negligence in not remembering and avoiding the danger will be presumed in the absence of a satisfactory excuse for forgetting. City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841, 845 (1918). An invitor is not liable for injuries to an invitee resulting from a danger which was known to the invitee or which should have been observed by the invitee in the exercise of reasonable care. Quillen v. Quillen, 388 So. 2d 985, 989 (Ala.1980). In Ex parte Bennett, 426 So. 2d 832 (Ala.1982), plaintiff tripped over a concrete car stop at the exit of a grocery store and was injured. The evidence indicated that plaintiff was aware of the stops prior to the accident and was attempting to avoid them at the time of the accident. This Court held that the granting of defendant's motion for judgment notwithstanding the verdict was proper since there was no disputed material fact on the issue of an open and obvious danger. 426 So. 2d at 835.
In her deposition, Mrs. Duffy gave the following testimony:
It is clear from Mrs. Duffy's deposition that she knew of the existence of the hazard prior to the accident. There was no evidence to the contrary before the trial court. Therefore, the trial court properly *875 determined that defendant was entitled to a judgment as a matter of law.
Let the trial court's entry of summary judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and HOUSTON, JJ., concur. | December 6, 1985 |
3dfbb1a7-ce47-430b-8638-2ff5e22031f1 | Knight v. West Alabama Environmental Imp. Auth. | 246 So. 2d 903 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 903 (1971)
Peggy L. KNIGHT
v.
WEST ALABAMA ENVIRONMENTAL IMPROVEMENT AUTHORITY, a Public Corporation, et al.
4 Div. 408.
Supreme Court of Alabama.
April 8, 1971.
*904 Alton L. Turner, Luverne, for appellant.
Garet Van Antwerp, III, Mobile, for appellees.
HEFLIN, Chief Justice.
This court holds that the "Environmental Improvement Authority Act of 1969" does not violate the provisions of Sections 93, 94, 213, 45, 42, 43 and 44 of the Constitution of Alabama, as amended.
The "Environmental Improvement Authorities Act of 1969," also identified as Act No. 1117, General Acts of Alabama 1969, Regular Session (which appears in the Code in Sections 270-287 of Title 8, Code 1940, as amended, 1969 Cum.Pocket Part Supp. of the 1958 Recompiled Code of Alabama), was passed by the 1969 Legislature with the proclaimed purpose of authorizing the establishment of public corporations which would have the power to cooperate with and lend financial assistance and other aid to municipalities, communities, counties, industries and public and private corporations in matters and undertakings pertaining to the control, abatement or prevention of water, air, or general environmental pollution. Among other things provided in said act to accomplish the legislative announced purpose, such public corporations are empowered to issue revenue bonds and to construct, acquire and lease equipment, facilities and systems in connection with the overall purposes of combatting ecological damage.
Appellant, Peggy L. Knight, individually, and as a taxpayer and citizen of the State of Alabama, filed this action seeking to have said Act No. 1117 declared unconstitutional and seeking injunctive relief in the Circuit Court of Crenshaw County as a class action instituted pursuant to Equity Rule 31. The appellees West Alabama Environmental Improvement Authority, North Alabama Environmental Improvement Authority and Southeast Alabama Environmental Improvement Authority are public corporations organized pursuant to and in accordance with the provisions of said Act No. 1117 and were respondents in the lower court as were the other appellees, who are the members and directors of each said authority.
The Attorney General accepted service and waived further notice. The decree of the trial court held said Act No. 1117 did not violate the raised constitutional provisions.
In the court below, the appellant, Peggy L. Knight, raised five principal questions as to the validity of said Act No. 1117, these questions, in summary, being:
These questions are raised for review by this Court by proper assignments of error.
Question No. 1 involves Section 93 of the Constitution of Alabama. Section 93, as amended, provides, in pertinent part:
There are five principal inhibitions against the State of Alabama embodied in the provisions of said Section 93 of the Constitution. The State is forbidden "(1) to engage in works of internal improvement, (2) to lend money in aid of such, (3) to lend its credit in aid of such, (4) to be interested in any private or corporate enterprise, and (5) to lend money or its credit to any individual, association, or corporation.
All of the prohibitions of said Section 93 of the Constitution of Alabama are directed toward the State of Alabama. It is well established by the decisions of this Court that a public corporation is a separate entity from the State and from any local political subdivision thereof, including a city or county, and that the prohibitions of Section 93 are directed to the State and not to public corporations. Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So. 2d 115; In re Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175; In re Opinion of the Justices, 275 Ala. 254, 154 So. 2d 12; In re Opinion of the Justices, 270 Ala. 147, 116 So. 2d 588.
This Court in Edmonson held that the act creating a public corporation for the promotion of industrial growth in Alabama, made up of three state cabinet members, and to which revenue from a special tax was appropriated and pledged for the purpose of carrying out the authority's purpose, did not violate the five restraints contained in said Section 93 of the Constitution. The act which was upheld by Edmonson is similar to Act No. 1117 in its basic approaches, but, of course, with differences as to organization, functions, powers and scope.
Nothing in Act No. 1117 authorizes the State, as such, to engage in the works of internal improvement or to lend money in aid of such or to lend its credit in aid of such or to be interested in any private or corporate enterprise, or to lend money or its credit to any individual, association or corporation. The said Act makes the authorities created thereunder separate independent *906 entities. The control of each such corporation is exercised by a board of directors appointed by the Governor for staggered terms and are removable from their offices as such directors by the process of impeachment. Section 9 of the Act provides that the obligations of the authorities created thereunder shall be solely and exclusively the obligation of the authority and shall not create an obligation or debt of any county or municipality or of the State.
Appellant relies on In re Opinion of the Justices, 237 Ala. 429, 187 So. 244, where this Court held that Section 93 of the Constitution was violated by an act authorizing the Commissioner of Agriculture and Industries to establish produce markets. But in a later case after the legislature authorized an independent board to engage in the same activity, the constitutionality of such action was approved under the separate entity doctrine. See Opinion of the Justices, 247 Ala 66, 22 So. 2d 521.
Under the precedents cited, Act No. 1117 is not contrary to the prohibition in Section 93 of the Constitution that the State shall not engage in works of internal improvement.
There is no suggestion in the Act that there is any violation of the inhibition against the State contained in said Section 93 pertaining to the lending of money in aid of works of internal improvement.
The clause pertaining to the restriction against the State lending its credit in aid of internal improvement has been construed to have reference to the employing of the credit of the State for the borrowing of money and the creation of debts. In re Opinion of the Justices, 209 Ala. 593, 96 So. 487. Act No. 1117 does not authorize the State to borrow any money or incur an indebtedness, for the bonds issued by the authority do not create an obligation or debt of the State. The bonds are payable solely from revenues derived by the Authorities from their anti-pollution activities. The State is not committed to pay in any event and its credit is in nowise involved. This Act does not violate this part of said Section 93 of the Constitution.
The restraints of said Section 93 concerning being interested in any private or corporate enterprise have been construed to mean, with certain exceptions not here relevant, that the State may not engage, alone or in concert with others, in the business of any type generally characterized as private enterprise. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283; In re Opinion of the Justices, 237 Ala. 429, 187 So. 244. Said Act No. 1117 does not authorize the State to engage in any private enterprise and does not violate this prohibitory clause of said Section 93.
Again the separate entity concept must be considered in connection with whether this Act authorizes that lending of money or credit of the State to any individual, association or corporation contrary to Section 93 of said Constitution. There is nothing in said Act which authorizes the State to do so; therefore, this Court holds that this inhibition contained in Section 93 of the Constitution is not violated by the Act.
This Court concludes that the "Environmental Improvement Authorities Act of 1969" does not violate Section 93 of the Constitution of Alabama.
In considering the second question as to whether or not Act No. 1117 is unconstitutional in that it authorizes a "subdivision" of the State to lend its credit, or to grant public money or a thing of value in aid of, or to individuals, associations, or corporations contrary to Section 94 of the Constitution of Alabama, as amended, the interdictions of Section 94 have reference to the kind of subdivisions of the State defined as political subdivisions such as the counties, cities, towns and probably certain districts which are endowed with governmental functions or powers, even though limited, and which are supported by and are responsible *907 for the protection of public revenues. The same reasoning which underlies the separate entity concept as applied to Section 93 of the Constitution must again be considered. Separate, independent public corporations are not political subdivisions of the State. They are not subdivisions of the State within the meaning of Section 94 of the Constitution, as amended.
Previously this Court considered this same question pertaining to an act which created industrial development boards under the "Cater Act" (Act No. 648, Gen.Acts of Alabama 1949, Regular Session) in Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175, and held that a public corporation organized under the provisions of that act was not a "subdivision" of the State. Such prohibitions contained in Section 94 of the Constitution were not violated by that act. While the public corporations which were created under Act No. 1117 are somewhat different from those that have been created under the "Cater Act," they are sufficiently similar for this court to conclude that such public corporations are not "subdivisions" of the State and that Act No. 1117 does not violate the inhibitions listed in Section 94 of the Constitution, as amended.
Proceeding to consider the question of whether Act No. 1117 violates Section 213 of the Constitution of Alabama, as amended, it is necessary to again review the separate entity concept. This court has consistently and repeatedly held that the restrictions of Section 213 are solely applicable to the State, as such, and not to separate public corporations, the bonds of which do not constitute a debt of the State. Justice Merrill, in Edmonson v. State Industrial Development Authority, supra, stated the following:
This Court holds that Act No. 1117 does not contravene Section 213 of the Constitution, as amended.
The Title of said Act No. 1117 appears in the following words:
Among other provisions, Section 45 of the Constitution says that each law enacted by the legislature "shall contain but one subject, which shall be clearly expressed in its title."
The title to Act No. 1117 does not make any expressed reference to the provisions of Sections 3, 8(7) and 8(9) of the Act which set forth detailed purposes and powers of such public corporations and authorize said public corporations to render *908 financial assistance to industries and private corporations and the provisions of Section 8(1) which authorize the public corporations to engage in works of watershed improvements.
A lucid discussion of this constitutional provision is found in Opinion of the Justices, 275 Ala. 254, 154 So. 2d 12, wherein the following language appears:
This Court in Yielding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580, held that a statute has but one subject, no matter to how many different matters it relates if they are all cognate, and but different branches of the same subject.
Examined in the light of the foregoing criteria, Act No. 1117 meets all the requirements of Section 45 of the Alabama Constitution here pertinent. Its title expresses a general idea or subjectthe study, control, abatement and prevention of water, air and general environmental pollution. There is no deception. The matters covered in the provisions of the Act relate to or are cognate to the general subject of combatting pollution and the Environmental Improvement Authorities, which are to serve as the agencies for carrying out this purpose.
There is one plan of actionto authorize the creation of public corporations with power to raise funds through revenue bonds for use in carrying out the main objective of controlling, preventing and abating pollution through the construction of facilities for such purposes. The provisions for giving financial, technical and other assistance to the public and private entities will further the purposes of controlling and combatting pollution, as will the detailed powers of such public corporations, and are clearly germane and cognate to the subject of the Act. Likewise is the provision authorizing the public corporations to engage in works of watershed improvement, a very important activity in connection with the control of water pollution. It is not fatal if such provisions and the details of the purposes and powers of such public corporations are not specifically expressed in the title. Clearly, those provisions and such details do not constitute separate unrelated subjects.
In answer to the fourth question, this Court holds that Act No. 1117 is not unconstitutional under Section 45 of the Constitution of Alabama, as amended, in that the provisions of Sections 3, 8(7) and 8(9) of said Act authorizing corporations created under said Act to render financial assistance to industries and private corporations and of Section 8(10) of said Act authorizing corporations created thereunder to engage in works of watershed improvement were not expressed in the Title of said Act No. 1117.
*909 This Court now addresses itself to the 5th constitutional question raised by the appellant which involves Sections 42, 43 and 44 of the Constitution of Alabama.
Sections 42, 43 and 44 of the Constitution pertain to the separation of powers doctrine, outlining the scope and prohibitions of the powers of the executive, judicial and legislative branches of government. The appellant contends that Act No. 1117 confers upon the Governor legislative power which is forbidden by these sections of the Constitution.
Section 4 of Act No. 1117 delegates certain fact-finding duties upon the Governor. In order to form any Environmental Improvement Authority, application must first be made to the Governor for his review prior to incorporation. The Governor is authorized to examine the statements made in the application for authority to incorporate and to determine whether or not such statements are true. The Act further provides certain guidelines for this determination. His task is purely administrative. He must determine whether or not the applicants and the proposed authority meet the standards set by the legislature. If the requirements of the Act reveal noncompliance, he must deny the application, and if the application reveals compliance, he must issue his executive order authorizing the incorporation. These guidelines provided by the legislature are both clear and reasonable.
With respect to public corporations created under said Act, there are certain administrative powers conferred which are designed to enable them reasonably to carry out the broad purposes of the Act. They can make studies, surveys and undertake to acquire, construct and operate, lease or dispose of facilities for the purpose of abating, preventing and controlling environmental pollution. They must confine themselves to this field and make it their aim to eliminate sources of pollutants which are causing pollution in excess of normal acceptable standards.
This Court in the case of Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93, held that the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the legislative halls.
In Heck v. Hall, 238 Ala. 274, 190 So. 280, this Court, in upholding the merit system act, quoted with approval the following statement from State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N.W. 347, 37 L.R.A. 157, 60 Am.St.Rep. 123:
In Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175, while considering the Cater Act, this Court scrutinized the delegation of authority to municipalities in regards to creating industrial development boards and held that it was not inappropriate for the legislature to delegate to a municipality the power to supervise and control the formation of such public corporation within the limits and requirements set by the legislature.
Norton v. Lusk, 248 Ala. 110, 26 So. 2d 849, held that the delegation of power to the Governor by the legislature in connection with making an appropriation of a certain sum "to be released upon the approval *910 of the Governor" was not an improper delegation of legislative power.
Therefore, this Court holds that Act No. 1117 is not in violation of Sections 42, 43 and 44 of the Constitution of Alabama because said Act does not wrongfully delegate legislative power to the Governor in connection with the creation of public corporations under said Act or wrongfully delegate legislative powers to public corporations created under the provisions of said Act in connection with the exercise of their powers under said Act.
The decree of the trial court is due to be, and is, affirmed.
Affirmed.
All the Justices concur except COLEMAN, J., who dissents.
COLEMAN, Justice (dissenting):
One of the five principal questions raised as to the constitutionality of Act No. 1117, approved September 12, 1969; Acts of Alabama, 1969, 1970, Vol. III, page 2060; is whether the body of the act contains provisions which are not clearly expressed in the title contrary to the requirements of Section 45 of the Constitution which, in pertinent part recites:
This question is stated as number (4) in the opinion of the court.
The title of Act No. 1117 recites:
Appellant contends that the body of the act contains the following provisions which are not clearly expressed in its title, to wit:
The title of Act No. 1117 gives notice that the act authorizes creation of public corporations to study, control, abate, and prevent water, air, or general environmental pollution; to allow the construction and ownership "by such corporations" of facilities for this purpose; to prescribe the powers, duties, composition, and financing of such corporations; and to provide "for cooperation" with political sudivisions and other agencies and instrumentalities of the state.
Section 3 of the body of the act provides that corporations may be formed under the act to construct, acquire, own, and operate equipment and facilities for the control, abatement, or prevention of pollution; which appears to be a power or purpose expressed in the title. Section 3, however, provides also that the corporations formed under the act may be for the purposes to ". . . . lease, sell and otherwise dispose of, equipment, facilities and systems. . . ." and to ". . . . lend financial assistance . . . . to municipalities, communities, counties, industries and public and private corporations . . . . *912 within or outside of the boundaries of the State of Alabama, in any matters and undertakings having to do with . . . . the control, abatement, or prevention of water, air, or general environmental pollution."
I find nothing in the title to give notice that the act proposes to empower such corporations "to lease, sell and otherwise dispose of" equipment and facilities to be acquired by the corporation, or to "lend financial assistance" to municipalities or counties, or industries, or public and private corporations within and outside the boundaries of the State of Alabama.
Section 8 provides that the created corporations shall have power ". . . . to transfer, convey . . . . or otherwise dispose of, property of every kind and character, real, personal and mixed . . . . whether located within or outside of the area of operation or within or outside of the State of Alabama . . . ." Section 8, in clause (7), authorizes corporate power to acquire and purchase apparatus ". . . . which may be useful" in control of pollution and "to lease, lend or sell any of the same" to municipalities, counties, firms, businesses, ". . . . with or without valuable consideration . . . ." and ". . . . to discard or otherwise dispose of the same, with or without valuable consideration . . . ."
Clause (9) authorizes the corporation ". . . . to . . . . give, subject to . . . . clause (8) of this section, to counties . . . . industries, firms, businesses . . . ." and others, ". . . . financial and technical assistance . . . . of every kind and character which will directly or indirectly promote . . . . or effect the control . . . . of water, air, or general environmental pollution."
Clause (10) authorizes the corporation to engage "in works of watershed improvement. . . ."
The title gives notice that the act provides for "cooperation with political subdivisions and other agencies and instrumentalities of the state . . . ." but this recitation in the title does not suggest that the corporation shall "cooperate" to the extent of selling apparatus or property with or without consideration, or giving financial assistance. This writer does not find in the title any notice that the corporation will have power to engage in watershed improvement.
For the reasons which I have undertaken to state, I am of opinion that Act No. 1117 does not conform to the requirements of Section 45 of the Constitution, and respectfully dissent. | April 8, 1971 |
2810933c-75cf-4ec1-927a-52da727df72d | Ex Parte State | 486 So. 2d 476 | N/A | Alabama | Alabama Supreme Court | 486 So. 2d 476 (1985)
Ex parte STATE of Alabama.
(Re Jerome Vincent Berard v. State of Alabama).
Ex parte Jerome Vincent BERARD.
(Re Jerome Vincent Berard v. State of Alabama).
84-309, 84-310.
Supreme Court of Alabama.
December 20, 1985.
Rehearing Denied February 7, 1986.
*477 Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for petitioner/cross-respondent.
Ira De Ment and Ronald W. Wise, Montgomery, for respondent/cross petitioner.
PER CURIAM.
This is an appeal following retrial. On this retrial, the defendant, Jerome Vincent Berard, was convicted in the Circuit Court of Montgomery County of a capital offense based on Code 1975, § 13-11-2(a)(10) (intentionally killing two or more human beings by one or a series of acts). Following the conviction by a jury, a sentencing hearing was held in the presence of the same jury, which returned a recommendation that the defendant be sentenced to death. A sentencing hearing was then held before the trial judge, who also found that the aggravating circumstances outweighed the mitigating circumstances and that the defendant should be sentenced to death. The Court of Criminal Appeals, pursuant to the mandates of Beck v. State, 396 So. 2d 645 (Ala.1980), reviewed the record and the issues presented by the defendant and upheld the conviction of the capital offense, but remanded the case to the trial court for a new sentencing hearing. Berard v. State, 486 So. 2d 458 (Ala.Crim.App.1984). On rehearing, the court denied the applications for rehearing from both the defendant and the State, but extended its original opinion in order to state that, on remand to the trial court, "this Court has clearly expressed its disapproval of a sentence to death in this case." Berard, supra.
Both the defendant and the State filed petitions for writ of certiorari to this Court. The defendant's petition for the writ is basically a request for this Court to review the issues concerning his conviction. The State's petition is a request for this Court to review the Court of Criminal Appeals' decision to remand the case for a new sentencing hearing. Because we are reversing the defendant's conviction of the capital offense and remanding his case for a new trial, we do not address the issues raised by the State with respect to the sentencing phase of the trial.
A complete statement of the facts in this case can be found in the opinion of the Court of Criminal Appeals following the first trial in this case, Berard v. State, 402 So. 2d 1044 (Ala.Crim.App.1980). In that opinion, the Court of Criminal Appeals affirmed the defendant's conviction, but remanded the case for a new sentencing hearing. Before further action was taken, the conviction was reversed on authority of Beck v. State, supra, and that reversal necessitated a second trial, from which the present appeal was taken.
The defendant was charged with the capital murder of two young boys, ages 14 and 16, outside the Skatehaven skating rink in Montgomery in April 1978. At trial, the defendant entered pleas of not guilty and not guilty by reason of insanity, and he presented several expert witnesses on the issue of whether he was insane at the time of the crime. One of those witnesses was *478 Dr. Chester Jenkins, a psychologist, who testified that the defendant was probably having a psychotic episode at the time he shot the two boys and was suffering from latent schizophrenia. On cross-examination, the district attorney questioned Dr. Jenkins in the following manner:
The defendant contends that the question of whether he would shoot somebody else was very prejudicial to his defense and was meant solely to inflame the passions of the jury. The State argues, on the other hand, that this is valid cross-examination of an expert witness on the issue of the defendant's insanity plea and, therefore, that the trial court did not err in allowing this testimony into evidence.
The State has cited several cases stating that both the defense and the State have a "wide latitude" in introducing evidence of a defendant's acts, declarations, or conduct, occurring both prior and subsequent to the crime, when the defendant has interjected the issue of insanity. See, e.g., Nichols v. State, 276 Ala. 209, 212, 160 So. 2d 619, 621 (1964); Barbour v. State, 262 Ala. 297, 303, 78 So. 2d 328, 333 (1954); George v. State, 240 Ala. 632, 637, 200 So. 602, 606 (1941). It is the State's contention that the question asked by the district attorney was used to shed light on the defendant's mental state at the time of the crime and to test the value and accuracy of the witness's opinion. See, Nichols, supra; George, supra. The State's argument appears to rest on the fact that there was a difference in the definition of the term "latent schizophrenia" as given by Dr. Jenkins and the definition of that term as found in standard psychiatric books. Thus, the State argues, the question asked by the district attorney was relevant for the jury's determination of the value to be placed on Dr. Jenkins's testimony.
Although the district attorney's question may have had some relevance in testing the value to be given to Dr. Jenkins's testimony, we must disagree with the State's interpretation of our prior cases. While the acts, declarations, and conduct of a defendant subsequent to the crime are admissible on the issue of insanity, the cases cited by the State make it clear that that principle relates to events occurring after the crime but before the trial. See, Nichols, supra (the defendant's answers to questions three hours after the murder of his wife were admissible to shed light on his state of mind at the time of the murder); George, supra (the defendant's attempted suicide while awaiting trial was admissible).
We have not been cited to any case in Alabama that approves of a prosecutor's asking a question about what the defendant is capable of doing in the future. We additionally note that this Court has previously *479 stated that, as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrent to crime. Ex parte Waldrop, 459 So. 2d 959, 962 (Ala.1984); Cook v. State, 369 So. 2d 1251, 1255 (Ala.1979). It would seem to be much more prejudicial to a defendant to allow the prosecutor to elicit this kind of testimony from a defense witness than it would be for the prosecutor to merely comment on that possibility in closing argument.
Our research has uncovered only one case which deals with this kind of situation. In State v. Barksdale, 590 S.W.2d 931 (Tenn.1979), the defendant had been charged with the crime of rape and had entered the plea of not guilty by reason of insanity. The psychiatrist called by the defense testified that the defendant was suffering from a mental disease which manifested itself in his inability to control his actions when he committed the rape. On cross-examination by the prosecution, the following took place:
590 S.W.2d at 932. (Emphasis added.)
The Tennessee Supreme Court reversed the defendant's rape conviction, relying on a previous case that held impermissible a prosecutor's comment in closing argument to the effect that "the defendant could `go right out of here and kill again.'" 590 S.W.2d at 933 (quoting Covey v. State, 504 S.W.2d 387, 393 (Tenn.Crim.App.1973)). The court decided that this kind of testimony was highly prejudicial and "would be even more devastating than the advancement of that thesis by the prosecution as in the Covey case, supra." Barksdale, 590 S.W.2d at 933.
We, too, believe that this kind of question is unfairly prejudicial to the defendant. First, the cases cited by the State do not support the proposition that an expert may be questioned on the future conduct of a defendant. Therefore, there was no proper basis for the district attorney to ask such a question. Second, the central issue in the guilt phase of a capital murder trial is whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of the crime charged. Beck, 396 So. 2d at 662. This kind of question could have easily shifted the focus of the jury's attention to the issue of punishment, which is an improper consideration at the guilt phase of the trial.
For these reasons, the defendant's conviction for the capital murder of two persons is reversed and this cause remanded to the Court of Criminal Appeals for that court to order a new trial.
REVERSED AND REMANDED.
*480 TORBERT, C.J., and FAULKNER, JONES, ALMON,[2] SHORES, BEATTY, ADAMS and HOUSTON,[2] JJ., concur.
MADDOX,[2] J., dissents.
MADDOX, Justice (dissenting).
I must respectfully dissent from the majority opinion, which concludes that the trial court erred in permitting the district attorney to ask Dr. Chester Jenkins, a psychiatrist hired by the defendant, whether the defendant's "latent schizophrenia" could recur.
As the majority opinion correctly states, there is limited authority on the exact question presented, but I believe that our evidentiary rule, which allows a searching cross-examination of witnesses, should be applied in this case. In fact, because of the questionable reliability of expert testimony involving mental disorders, I believe the searching cross-examination rule is uniquely applicable to the testimony of psychological experts.
In a comment in the Maryland Law Review, the author examines the history and the development of the use of the psychologist as an expert witness and suggests that the reliability of expert testimony is suspect. He writes:
Comment, The Psychologist as Expert Witness, 38 Md.L.Rev. 539, 577-81 (1979).
The author concludes:
Id. at 598-99.
Although I disagree with the author of the article in the conclusion that psychological expert testimony should be excluded, I do agree that when it is admitted it should be subject to "the usual course of rigorous cross-examination."
Why was this rigorous cross-examination proper in this case? Dr. Jenkins's conclusions were diametrically opposed to those *482 of the State's expert, and during cross-examination Dr. Jenkins admitted that the defendant did not meet the definition of "latent schizophrenia" contained in the American Psychiatric Association's Diagnostic and Statistical Manual II. Consequently, the district attorney's questions about the likelihood that the defendant would have a recurring episode of what Dr. Jenkins classified as "latent schizophrenia," including another psychotic episode in which he might shoot someone, were relevant to an understanding of the "latent schizophrenia" label Dr. Jenkins was using to diagnose the defendant. Questions about the nature and symptoms, and especially the duration of the illness, were certainly relevant and material to an understanding of Dr. Jenkins's diagnosis and the conclusions he drew from it. I am of the opinion that the cross-examination of Dr. Jenkins was very relevant in testing the reliability of Dr. Jenkins's opinion about the mental state of the defendant at the time he committed the offense; therefore, I must respectfully dissent.
[1] Outside the presence of the jury, this line of cross-examination had previously been discussed before the trial judge. The defendant's attorney objected to the district attorney's asking any question that concerned the future conduct of the defendant, on the grounds that such questions would prejudicially influence the jury in its findings and sentencing. At that time, the trial judge did not rule on the objection.
[2] Although these justices did not sit at oral argument, they have listened to the tape of oral argument. | December 20, 1985 |
71492259-4d27-407e-8780-681abb8a6f07 | Durham v. Farabee | 481 So. 2d 885 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 885 (1985)
Jackie Wayne DURHAM
v.
Douglas David FARABEE.
84-172.
Supreme Court of Alabama.
December 20, 1985.
Leo E. Costello of Costello & Stott, Birmingham, for appellant.
Edgar M. Elliott III and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellee.
MADDOX, Justice.
The issue on this appeal is whether the fact that the defendant Douglas David Farabee paid without contest a fine based on a traffic citation for failing to yield the right of way is admissible in a subsequent personal injury action brought against him as a result of an accident allegedly resulting from that failure to yield. The trial court ruled that this evidence was not admissible. We disagree and reverse.
The facts of this case are simple, and, for purposes of this appeal, largely undisputed. *886 On February 21, 1979, Farabee attempted to make a left turn at an intersection and failed to see an approaching motorcycle driven by plaintiff Jackie Wayne Durham. Durham's motorcycle struck the side of Farabee's car and Durham sustained numerous personal injuries, for which he brought suit.
As a consequence of the accident, Farabee was issued a traffic citation for failing to yield the right of way. He subsequently paid a fine based on the citation, paying at the Birmingham Municipal Court, and this payment of the fine was, in effect, a plea of guilty to the citation. The trial court refused to allow Durham's attorney to present to the jury proof of the payment of this fine. The jury returned a verdict for Farabee. Durham contends that the failure to allow the evidence of the payment of the fine was error.
Generally, a person's conviction in a criminal case is admissible against him in a civil action to show that he did the act for which he was convicted. Yancey v. Farmer, 472 So. 2d 990 (Ala.1985):
Some courts have created an exception, and refuse to allow convictions for traffic violations into evidence as proof of negligence. Keebler v. Willard, 91 Ga.App. 551, 86 S.E.2d 379 (1955); Bolen v. Buyze, 16 Mich.App. 252, 167 N.W.2d 808 (1969). The reason for this exclusion is that, "[f]aced with a small penalty for a petty infraction, the driver may not have defended with vigor, and the quality of justice accorded him in the traffic court may be open to question." Note, Admissibility of Traffic Convictions as Proof of Facts in Subsequent Civil Action, 50 Col.L.Rev. 529, 530 (1950); see, Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966). Other courts, however, have followed the general rule even where traffic violations are involved. In Kelch v. Courson, 103 Ariz. 576, 579, 447 P.2d 550, 553 (1968), a case involving facts very similar to those presented here, the Arizona Supreme Court stated:
As stated in C. Gamble, McElroy's Alabama Evidence § 269.05(1) (3d ed. 1977):
"McElory's goes on to state in Section 269.05(2):
We feel that this is the better reasoned view. A defendant charged with a traffic violation may decide it is more convenient to simply pay the ticket, rather than vigorously defend himself. Whether he went to trial or merely paid the fine does not make any difference. The fact that he is convicted and does pay a fine should not determine whether that fact is admissible as evidence against him. He is always free to explain the circumstances of his decision to the trier of fact. It is the role of the trier of fact to determine what weight should be given to the evidence.
Because we resolve this issue in Durham's favor, we decline to address his other contentions. The judgment of the trial court is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | December 20, 1985 |
e04850bc-b5e6-4a1d-b02b-d3d8483f134f | Pierce v. Heyman | 480 So. 2d 1185 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1185 (1985)
Eugene PIERCE
v.
Harry L. HEYMAN, et al.
84-448.
Supreme Court of Alabama.
November 8, 1985.
Leon Garmon, Gadsden, for appellant.
James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
FAULKNER, Justice.
Eugene Pierce appeals from the trial court's order dismissing the four appellees as defendants. We affirm.
The issue is whether Alabama has in personam jurisdiction over the appellees, who are employees of Combined Insurance Company of America, a Chicago-based corporation.
On or about August 11,1983, Pierce filed a complaint against the corporate defendant, Combined Insurance. The complaint alleged in essence that Pierce was accidentally shot in his left hip on or about June 12, 1981, and as a result was hospitalized and that subsequent thereto the insurance company paid claims of benefits. Pierce was hospitalized again beginning in June of 1982 and a controversy arose as to what benefits, if any, he would be entitled to receive under the terms of his policies. Before the controversy was resolved, a suit was filed by Pierce. The complaint was amended to add as defendants Harry L. Heyman, Theresa Liakopoulos, Lori Buckley, Jacqueline Durr, and Ricky Glassco. All five of these defendants filed motions to dismiss and the first four filed affidavits in support of their motions.
The affidavits and motions to dismiss by Heyman, Liakopoulos, Buckley, and Durr show that they are employees of Combined Insurance, that none of them is a resident of Alabama and that none of them has ever been present in Alabama. They were not conducting any personal business, either through the use of their employer corporation as an alter ego or through personal agents, in the State of Alabama. Any acts which they performed regarding Pierce's claims were performed within the scope of their employment in the claims department of Combined Insurance.
The trial court dismissed the complaints against Heyman, Liakopoulos, Buckley, and Durr, but denied the motion to dismiss by Ricky Glassco, since he is a resident of Alabama and, thus, subject to the court's jurisdiction.
*1186 Pierce argues that Alabama's long-arm statute rule permits personal jurisdiction to be exercised over these defendants. Rule 4.2(a)(2)(D) of the Alabama Rules of Civil Procedure reads:
This Court in Thames v. Gunter-Dunn, Inc., 373 So. 2d 640, at 642-43 (Ala.1979) stated:
In the instant case, the facts are very similar to those in Thames, supra, although the four nonresident defendants do not hold the title of bank officers, but are employees of an insurance company working in the claims department. From the allegation in the complaint and exhibits attached thereto, it appears that they had valid justification to request and obtain additional records and information as to the date of what they alleged to be a second injury before paying the claim.
"`In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation.'" Brooks v. Inlow, 453 So. 2d 349, 353 (Ala.1984), quoting Calder v. Jones, 465 U.S. 783,104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Each defendant's contacts with the *1187 forum state must be assessed individually, and maintenance of the suit must not offend "traditional notions of fair play and substantial justice." Brooks v. Inlow, at 353, quoting Calder v. Jones.
After reviewing the complaint, exhibits, and affidavits filed in this case, we find that the assertion of personal jurisdiction over these four defendants would offend traditional notions of fair play and substantial justice. Therefore, the judgment dismissing them as defendants is affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur. | November 8, 1985 |
1d99cea7-ee7c-4f55-bc59-d9790474bfa4 | Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mattison | 243 So. 2d 490 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 490 (1971)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a Corporation,
v.
Winford MATTISON, Jr., a minor, et al.
6 Div. 794.
Supreme Court of Alabama.
January 7, 1971.
Baker, McDaniel, Hall & Parsons, Birmingham, for appellant.
Francis H. Hare, Sr., Birmingham, for appellees Carolyn Morris, a minor, and Buck Morris.
HARWOOD, Justice.
The Alabama Farm Bureau Mutual Casualty Insurance Company, a Corporation, issued to Charles Thomas as the named insured, a policy of automobile casualty insurance. The policy afforded coverage on a 1964 Ford, two Buicks, and some eight or ten trucks.
Mr. Thomas operated a poultry farm. The trucks were used in the farm operations. One of the Buicks was used principally by Mr. Thomas, the other Buick by Mrs. Thomas, and the Ford by David Thomas, their son, it having been bought for David's use.
Winford Mattison, referred to in the testimony as "Junior" Mattison was a boyhood friend of David Thomas. They were both 16 years of age at the time of the *491 automobile collision which is the basis of this proceeding. This collision occurred on a Saturday night.
Mattison worked at the Thomas' poultry farm about two afternoons per week, and usually on Saturdays. He performed various chores on the farm, and from time to time would be instructed by Mr. Thomas to go on various errands such as to a hardware store, or to a sawmill to pick up wood chips, etc.
In carrying out such errands Mattison would usually use one of the trucks, or if more convenient, he would use one of the Buicks or the Ford.
On the Saturday of the collision, David and Winford Mattison had worked at the poultry farm until about 4:00 P.M. They each then went their separate ways. That night they met in a poolroom by chance. After a short while they began driving around in the Ford, Winford Mattison driving the automobile with David's permission. They went to a football game where they remained for a short while, and to an ice cream stand, and were on their way to a skating rink when the Ford collided with another automobile. Their peregrinations on this night appear to have been jointly agreed upon.
Two people in the second automobile were injured in the collision. Suits were filed by parties claiming damages as a result of the accident, two of such suits naming Mattison as defendant, and two naming both Mattison and David Thomas as co-defendants.
The insurer filed a declaratory action seeking a judicial determination as to whether it was obligated to afford Mattison or David Thomas a defense of the suits or payment of any judgments that might be rendered.
In the declaratory proceedings it was the insurer's contention that it was under no duty or liability to either Mattison or David Thomas for the reason that at the time of the accident Mattison was driving the Ford without the express permission of Charles Thomas, the named insured, or of his spouse.
The pertinent provisions of the policy relative to insurer's contention of no obligation under the policy reads as follows:
In the hearing below Charles Thomas, the insured, testified that the Ford had been bought with the intention that it was to be used by his son David. He instructed David to be careful in operating the Ford, but nothing was ever said as to David permitting some one else to drive the Ford.
He knew that Mattison had used the Ford a few times during his work on the farm in going on errands, as well as the other vehicles.
He had observed Mattison driving the Ford in the daytime on weekends, accompanied by David, but had had no occasion to observe Mattison driving the Ford at night, but nothing was said by him to David relative to Mattison driving the Ford when not at work.
*492 On the night of the accident David left the house and he did not recall David telling him where he was going, and on that night he did not expressly give Mattison permission to drive the Ford nothing was said one way or the other.
Mattison testified that when he drove the Ford at night or on weekends he had never had occasion to ask Mr. Thomas' permission to drive the car, and never had occasion to talk to Mr. Thomas on the night of the accident relative to driving the automobile.
David Thomas likewise testified that his father had never said anything relative to his permitting other people to drive the Ford. The only instructions he had ever given him were to be careful. When Mattison was driving the Ford, which was always with his permission, he said nothing to him about the operation of the automobile as he knew Mattison was careful and there was no need to tell him how to drive. When they jointly decided to go to the skating rink, he did not tell Mattison how to get there as Mattison knew the way.
David also testified that he had permitted friends of his, other than Mattison, to drive the Ford on occasions.
The material question raised on this appeal is whether a permittee driver of an insured (as distinguished from the named insured), who is driving an insured automobile is entitled to coverage under an automobile liability policy which provides coverage to (1) the named insured, (2) relatives who are residents of the named insured's household, and (3) any other person using the automobile with the express permission of the named insured.
This identical question was before this court in the very recent case of Alabama Farm Bureau Mutual Casualty Ins. Co. v. Government Employees Insurance Company, and Joseph S. Szczepanski, etc., 286 Ala. 414, 240 So. 2d 664, decided November 5, 1970.
In concluding that a driver of an automobile under such circumstances was not entitled to coverage, this court wrote:
Counsel for the appellees contend that:
With this contention, we cannot agree. The evidence shows that each time Mattison had driven any of the vehicles, either the trucks, Buicks, or the Ford, it had been under the instructions of Mr. Thomas to perform some act in connection with the operation of the poultry farm. Mattison apparently used whichever vehicle was most convenient for the purpose. We do not think that such instructions could be deemed to arise to a general permission to use the trucks or the Buicks *493 at times other than in due course of carrying out Mr. Thomas' instructions. We see no basis to place the use of the Ford in a different category.
As further stated in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Government Employees Insurance Co., etc., supra:
"Another court has said:
Bradford v. Sargent, 135 Cal. App. 324, 27 P.2d 93, 96."
There was no evidence presented in the hearing below that Charles Thomas, the named insured, or his spouse affirmatively gave any direct or distinct permission to drive the Ford on the Saturday night of the collision.
The Chancellor therefore erred in adjudging and decreeing that the appellant-insurer was liable under the coverage provisions of its policy to afford representation in the pending cases to Winford Mattison, Jr., and to pay, within the limits of the policy contract, any damages assessed against him in any of said suits against Mattison. Accordingly, the decree and judgment is due to be, and hereby is, reversed and rendered in this aspect.
It being clear under the evidence that David Thomas, the minor son of the named insured Charles Thomas, and residing in his household, is insured under the policy, that part of the decree ordering and adjudging that the appellant-insurer is liable under the policy to afford representation to David Thomas, and to pay, within the limits of the policy, any damages that may be assessed against David Thomas, is due to be, and is, affirmed.
Affirmed in part, reversed and rendered in part.
LAWSON, MERRILL, MADDOX and McCALL, JJ., concur. | January 7, 1971 |
de232e60-8afc-4d6d-bb7e-024823ec079c | Hayes v. Newton Bros. Lumber Co., Inc. | 481 So. 2d 1123 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1123 (1985)
John HAYES, Alice Hayes, Wess L. Cleary, and Ricky Tubbs
v.
NEWTON BROTHERS LUMBER COMPANY, INC., Alabama Power Company, and Ralph Newton.
84-74.
Supreme Court of Alabama.
December 20, 1985.
C. Delaine Mountain, Tuscaloosa, for appellants.
Larry Bradford and Andrew J. Smithart, III, of Lee, Barrett & Mullins, Tuscaloosa, for appellees Newton Bros. Lumber Co. and Ralph Newton.
Olin Zeanah of Zeanah and Hust, Tuscaloosa, James H. Miller, III, and John J. Coleman, III, of Balch & Bingham, Birmingham, for appellee Alabama Power Co.
*1124 MADDOX, Justice.
Plaintiffs appeal from a judgment based on a jury verdict for defendants in a negligence action. Plaintiffs claim the trial court erred in: (1) refusing to instruct the jury on mental anguish, and (2) allowing the introduction of evidence concerning plaintiffs' insurance coverage. We find no error and affirm the judgment below. We set out relevant facts in the following discussion of these two issues.
Plaintiffs argue that the trial court committed reversible error in refusing to instruct the jury on mental anguish.
Even assuming that the trial judge erred in failing to instruct the jury as plaintiffs requested,[1] because the alleged error concerns the measure of damages and because the jury's verdict was in favor of the defendants, the action of the trial judge, if error, was harmless. McCullough v. L. & N.R. Co., 396 So. 2d 683, 685 (Ala.1981); Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448 (1965).
Even had the verdict been in favor of the plaintiffs, we do not believe any error is shown.
We have held before that "`where there has been a physical injury to a person, under circumstances warranting the recovery of compensatory damages therefor, mental suffering, which is a natural incident thereto, furnishes one of the elements of recoverable damages[,]'" but "`as a general rule, the law will not permit the recovery of damages for mental distress, where the tort results in mere injury to property.'" B.F. Goodrich Co. v. Hughes, 239 Ala. 373, 379, 194 So. 842, 847 (1940). Furthermore, Rule 51, Ala.Civ.P., *1125 requires specificity in objections to instructions or to a failure to instruct. Here, the trial judge did not violate the spirit of Rule 51.
Plaintiffs next argue that the trial court erred in allowing the introduction of evidence concerning their insurance coverage. In the record, during defense counsel's cross-examination of one of the plaintiffs, we find the following:
Assuming arguendo the sufficiency of the objection by plaintiffs' counsel to the foregoing testimony, we find no error, because plaintiffs' own counsel first elicited evidence as to plaintiffs' insurance coverage, as we shall show. The following exchange took place on direct examination between plaintiffs' counsel and the same plaintiff whose cross-examination is quoted from above:
A party cannot introduce evidence, object unsuccessfully to the same evidence when introduced by an opposing party, and then successfully claim error on appeal. State Farm Mutual Automobile Ins. Co. v. Boyer, 357 So. 2d 958, 963 (Ala.1978). See also, Murray v. Alabama Power Co., 413 So. 2d 1109 (Ala.1982); Gardner v. Stevens, 269 Ala. 213, 111 So. 2d 904 (1959).
We have reviewed plaintiffs' other arguments and find them to be without merit. Therefore, the judgment appealed from is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.
[1] Plaintiffs requested the trial court to instruct the jury as follows:
"If you are reasonably satisfied from the evidence that the plaintiffs have undergone mental anguish as a proximate result of the injury in question, you should award a sum which will reasonably and fairly compensate them for such mental anguish suffered by them."
The trial court refused to give their requested instruction, but did, in its oral charge, state the following:
"The law has fixed no monetary standards to compensate a person for physical pain and suffering. Such an element of damage is left to the good sound judgment and discretion of the jury as to what amount would reasonably and fairly compensate a party for such physical pain and suffering as you might find from the evidence that a party did suffer. It's for you to determine from the evidence the nature, extent, and duration of Mr. Tubbs' injuries in this case. If you're reasonably satisfied from the evidence that Mr. Tubbs has suffered injuries, whether temporary in nature or permanent, and that those injuries resulted or proximately resulted from wrongs complained of, then you should include in your verdict such sum as you determine to be reasonable compensation for those injuries to the extent that you find those injuries exist."
At the conclusion of the court's instruction to the jury, the following occurred:
"THE COURT: Ladies and gentlemen, I didn't give you an example of each and every claim made by each and every person because you heard the evidence. Naturally the mobile home is an issue. I hope everybody understands that. Nobody is saying forget the mobile home.
"MR. MOUNTAIN: Thank you. And I assume there was a claim and I just may have dozed off on this, but on mental anguish and pain and suffering for Ricky Tubbs. You gave that general charge(interrupted).
"THE COURT: Yes, sir.
"MR. MOUNTAIN: Okay. And we have, of course, we want toI'm going to let Herbert reiterate our claim for mental anguish or loss of home. I'll let Herbert be more specific on that.
"THE COURT: Well, it's denied but go ahead.
"MR. MOUNTAIN: For the record, we'd like to have it in.
"MR. NEWELL: For the record, we would like to state our objection to the Court's failure to charge for mental anguish for loss of the home. It's my understanding the reasoning in the cases which have denied that is because it's too speculative. Of course, the cases on warranty of habitability in a home allow the jury to consider mental anguish on the basis that it is not too speculative.
"THE COURT: Well, I don't knowMr. Newell, I don't know where you're getting all this speculative business. I haven't used the word speculative anywhere in this trial pertaining to mental anguish. You're making statements that I denied it for some particular reason. I denied it because it was not justified in this case under the law.
"MR. MOUNTAIN: Okay, well, we just really basically want to preserve our claim for mental anguish." | December 20, 1985 |
3a7cc46e-764e-4a98-afb9-2c91d47a244f | Washington Nat. Ins. Co. v. Strickland | 491 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 491 So. 2d 872 (1985)
WASHINGTON NATIONAL INSURANCE COMPANY
v.
Carol M. STRICKLAND.
84-483.
Supreme Court of Alabama.
December 20, 1985.
*873 Alan T. Rogers of Balch & Bingham, Birmingham, for appellant.
Eason Mitchell of Mitchell, Green, Pino & Medaris, Alabaster, for appellee.
HOUSTON, Justice.
This is an appeal from a judgment based on a jury verdict in favor of Carol Strickland against Bruce Palmer and Washington National Insurance Company. We affirm.
On January 15, 1981, Bruce Palmer met with Carol Strickland and members of her family to discuss medical insurance. Mrs. Strickland was five feet, two inches tall, and weighed 180 pounds. Palmer described plans for medical insurance with four different companies, including a plan with Washington National which Mrs. Strickland and her husband chose. She completed a Washington National application for insurance; Palmer tore from the application a detachable form called a "conditional receipt" and gave it to Mrs. Strickland. He took a check from Mrs. Strickland for $100. The receipt stated that the effective date of coverage was January 15, 1981.
Mrs. Strickland and members of her family testified that Palmer told them at the meeting that Strickland's insurance coverage would be effective as of that date, January 15, 1981, and that she would be covered if she had an accident going home from that meeting. As a result of these assurances, Mrs. Strickland cancelled an application for hospitalization insurance with another company. Palmer testified, to the contrary, that he told Strickland she would be covered as of that date only "if everything was in order." The application for insurance and a statement in the conditional receipt given to Mrs. Strickland provided that no agent was authorized to make or modify contracts, to waive any of the company's rights or requirements, or to bind the company by making or receiving representations.
Four days after the meeting with Palmer, Mrs. Strickland fell and hurt her ankle. At the time of the accident, Palmer had not yet submitted Mrs. Strickland's application for medical insurance to Washington National. Palmer testified that he submitted the application to John Martin, a general agent for Washington National, on January 22, 1981. Following subsequent underwriting review, Washington National declined to issue a policy of coverage for Mrs. Strickland on grounds that she was physically unfit.
Palmer testified that his authority with Washington National was limited to the solicitation of applications and the collection of initial premiums. Martin testified *874 that Palmer could solicit applications, but had no authority to bind Washington National to coverage. He stated that Palmer was a broker for Mutual of New York, and was not an agent for Washington National. The record shows, however, that Bruce Palmer was a licensed agent for Washington National in the State of Alabama. The document evidencing this fact provided for identification of the status of an applicant as agent, broker, or solicitor. Mr. Palmer's application included the code number denoting "agent." This application, which purported to designate Palmer's status for 1980, 1981, and 1982, was dated November 16, 1981, ten months after Palmer's meeting with Mrs. Strickland and her family. Martin was the notary public who acknowledged Palmer's signature on that application.
Mrs. Strickland sued Washington National and Bruce Palmer for fraud and misrepresentation. The jury awarded Mrs. Strickland $22,500. The parties had stipulated that the amount of compensatory damages involved in the case was $1,369.14, so $21,130.86 of the verdict constituted punitive damages. Washington National moved for directed verdict at the close of plaintiff's evidence and at the close of all the evidence. In its post-trial motion for JNOV and/or new trial, Washington National argued that there was insufficient evidence to support Mrs. Strickland's allegations of fraud and to support an award of punitive damages. We hold that Washington National's pre-verdict and post-trial motions were properly denied.
The first issue before this Court is whether Washington National could properly be found liable for the misrepresentation by Palmer that Mrs. Strickland had insurance coverage as of January 15, 1981. This would depend upon whether Palmer was acting as a general or soliciting agent for Washington National or as an independent agent or broker. If Palmer were a general or soliciting agent, Washington National would be liable. If Palmer were an independent agent or broker, Washington National would not be liable. A discussion of the distinctions between brokers, agents, and soliciting agents will go far to allay any initial confusion.
A "general agent" is one who has authority to transact all of the business of the principal, of a particular kind, or in a particular case. Southern States Fire Insurance Co. v. Kronenberg, 199 Ala. 164, 170-71, 74 So. 63, 67, (1917). The powers of such an agent are coextensive with the business entrusted to his care, authorizing him to act for the principal in all matters coming within the usual and ordinary scope and character of such business. Id., 199 Ala. at 171, 74 So. at 67. A general agent has full power to bind the insurer to the agent's contract of insurance or to issue policies or to accept risks. McGhee v. Paramount Life Insurance Co., 385 So. 2d 969 (Ala.1980). In fact, a general agent "stands in the shoes" of the principal for the purpose of transacting business entrusted to him. Since a general agent's powers are coextensive with the business entrusted to him, his fraudulent act is the fraudulent act of his insurer principal as well.
An insurance company also has the right to employ agents with limited authority. Robinson v. Aetna Insurance Co., 128 Ala. 477, 30 So. 665 (1901). A "special agent," as distinguished from a "general agent," is authorized to act for the principal only in a particular transaction, or in a particular way. Southern States Fire Insurance Co., supra, 199 Ala. at 171, 74 So. 67. In the insurance context, the most prevalent type of special agent is the "soliciting agent." A soliciting agent is different from a general agent in that he has no power to bind his insurer principal in contract. Watson v. Prudential Insurance Co., 399 So. 2d 285 (Ala.1981). However, when a soliciting agent commits a fraud upon one who seeks insurance coverage, his insurer principal will be liable for that fraud, if the fraud was perpetrated by the agent within the scope of his employment. The liability of an insurer for the fraudulent acts of its soliciting agents is grounded in the doctrine of "respondeat *875 superior," and not the doctrine of agency. National States Insurance Co. v. Jones, 393 So. 2d 1361 (Ala.1980). Since a soliciting agent is regarded as the "servant" of the insurer "master," the insurer has the full right of control over the agent's actions. A general agent, however, stands in the shoes of the principal; his actions are regarded as those of the principal. The law deems the principal to have "participated" in the fraud of its general agent, and so subjects the principal to direct liability. Where a soliciting agent commits fraud the insurer's liability is vicarious, and the principal is liable in spite of the fact that he did not participate in the fraud, or even forbade it. National States Insurance Co. v. Jones, supra, at 1367.
An independent agent or broker is usually not an agent for the insurer at all; rather, he is the agent of the insured. See Code 1975, § 27-7-1. For example, this Court has held that when an independent agent or broker fails in his duty to obtain insurance coverage, the principal may sue either for a breach of contract, or, in tort, for breach of duty imposed on the agent or broker to sue reasonable skill, care, and diligence in obtaining insurance. Highlands Underwriters Insurance Co. v. Elegant Inns, 361 So. 2d 1060 (Ala.1978). In Highlands, the principal was the insured.
Washington National contends that Palmer was an independent agent or broker and that it was not liable for Palmer's misrepresentation. It cites Northington v. Dairyland Insurance Co., 445 So. 2d 283 (Ala.1984). In the Northington case, it was undisputed that the person committing the fraud was an independent agent and broker. But the court properly analyzed Dairyland Insurance Company's liability for the fraud of the independent agent/broker in terms of actual and apparent authority, because the issue was whether the agent/broker, normally an agent of the insured, was also acting as an agent for Dairyland.
Although an independent agent or broker is normally an agent for the insured, for some purposes he may at the same time be an agent for the insurer as well. See Mobile Insurance, Inc. v. Smith, 441 So. 2d 894 (Ala.1983). In such cases, if the insurer principal authorizes the agent to make representations, and the agent makes those representations within the scope of his authority to make them, the principal will be liable if those representations are false. In other words, an insurer's liability for the fraud of an independent agent or broker is predicated upon actual or apparent authority conferred upon the agent/broker by the insurer to make representations on the insurer's behalf. The doctrine of respondeat superior does not apply in the independent agent or broker situation because the insurance company does not exert sufficient control over the activities of the agent/broker to put him in the same position as a company employee. An independent agent or broker can never impose liability upon his principal for representations that are not authorized by the principal.
In the instant case, appellant Washington National relies upon the Northington case for the proposition that it is not liable for Palmer's misrepresentation to Mrs. Strickland. But whereas in Northington it was clear that the person committing the fraud was an independent agent and broker, in the instant case Palmer's status is the subject of dispute. The issue is whether the jury could properly have found Palmer to be a general or soliciting agent for Washington National so that Washington National would be liable for Palmer's misrepresentation to Mrs. Strickland. The evidence clearly shows that Palmer had no actual or apparent authority to make the representations, so if Palmer had been an independent agent or broker, Washington National would not be liable for the fraud. Therefore, we must examine under the applicable standards of review whether the evidence indicates that Palmer was acting as a general or soliciting agent.
In reviewing denials of motions for directed verdict and for judgment notwithstanding the verdict, this Court has held *876 that the evidence must be examined in the light most favorable to the nonmoving party. Carnival Cruise Lines, Inc. v. Snoddy, 457 So. 2d 379 (Ala.1984). Also, a strong presumption favors a jury's verdict and a trial court's refusal to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So. 2d 1369 (Ala.1983).
There is sufficient evidence in the record to support the jury verdict in favor of Mrs. Strickland. Even though Martin testified that Palmer was a broker, and even though the record shows that Palmer offered four different companies' policies to Mrs. Strickland for her consideration, there is evidence indicating that Palmer was a licensed agent for Washington National. Copies of Palmer's Alabama Department of Insurance license and license application were introduced at trial. The license application gives the applicant a choice of describing himself as "agent," or "broker," or "solicitor." Palmer was designated as "agent" in the license application. Although the application was dated November 16, 1981, ten months after Palmer's meeting with Mrs. Strickland and her family, it was admitted into evidence without objection. The license itself purports to cover the years 1980, 1981, and 1982, so it described Palmer's past, present, and future status with Washington National, including his status at the time he took Mrs. Strickland's application. Martin notarized Palmer's signature on the license application. Likewise, Washington National provided Palmer with applications, sales literature, and instructions. Martin knew that persons purchasing Washington National insurance from Palmer would be relying on Palmer's representations about insurance coverage. In order to hold Washington National liable for Palmer's misrepresentation, the jury must have found that Palmer was either a general agent, thereby subjecting Washington National to direct liability, or that he was a soliciting agent, thereby subjecting Washington National to vicarious liability under the doctrine of respondeat superior. There is sufficient evidence in the record to support either finding by the jury.
Washington National also argues that the jury's award of punitive damages was improper due to a lack of proof of any "gross, malicious, or oppressive conduct" by Palmer when he defrauded Mrs. Strickland. This argument is without merit because it represents an incorrect interpretation of the law; this Court, in American Honda Co. v. Boyd, 475 So. 2d 835 (Ala. 1985), has stated that evidence of gross, malicious, or oppressive conduct need not be found before a jury can impose punitive damages. All that is necessary is that there be evidence to establish an intent to deceive or defraud on the part of the defendant.
In this case, the evidence, when viewed in the light most favorable to the nonmoving party, shows that an award of punitive damages by the jury was proper. The evidence of fraud in this case consists of Palmer's verbal statement to Mrs. Strickland that coverage would be effective as of January 15, 1981, and Palmer's handwritten notation on the conditional receipt, to wit: "coverage effective 15 January 81 on Carol and children." These representations were obviously ineffective for contract purposes in light of the following language found in the conditional receipt:
From the evidence introduced, the jury could reasonably have inferred that Palmer knew that Mrs. Strickland's height and weight were such that a medical examination was likely to be required before Washington National would determine whether or not to assume the risk of coverage; that Mrs. Strickland was relying on Palmer's representation that she was insured as of that moment and so cancelled her application for hospital insurance with another insurer based upon Palmer's representation; and that Palmer made the representation in order to make a sale, without concern for whether Mrs. Strickland received insurance coverage as of that moment as promised. All this constitutes sufficient evidence from which a jury could reasonably have inferred that the fraud was committed with an intent to deceive or defraud. Consequently, the jury's award of punitive damages was proper.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | December 20, 1985 |
3da36f3f-1a52-4a1d-9ed4-f1d2b91058d3 | Davis v. Huntsville Production Credit Ass'n | 481 So. 2d 1103 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1103 (1985)
Lee DAVIS
v.
HUNTSVILLE PRODUCTION CREDIT ASSOCIATION.
84-191.
Supreme Court of Alabama.
November 22, 1985.
*1104 Jimmy E. Alexander of Alexander, Corder & Plunk, Athens, for appellant.
James W. Woodroff, Jr. of Woodroof & Woodroof, Athens, for appellee.
SHORES, Justice.
In September 1979, the Huntsville Production Credit Association (HPCA) loaned Lee Davis and Herman Scott $45,430 to purchase equipment for their new logging operation. Davis and Scott signed a real estate mortgage, a security agreement, and a note. The loan was secured by the logging equipment (sawmill, engine, loader, and skidder), a third mortgage on 355.11 acres of real estate owned by Davis, a first mortgage on a one-third interest in 15 acres owned by Scott, and two mobile homes owned by Scott. In February 1980, Davis and Scott obtained an additional advance of $22,810 from HPCA for replacement equipment. Because of the depressed economy, the equipment sat idle until the fall of 1980, when Scott began operating the mill. Scott, however, refused to make payments on the loan. When Davis discovered this, he and Scott had a serious disagreement, and Scott moved to Tennessee with all the logging equipment in his possession. No payments on the joint loan were made after April 1980.
In September 1982, HPCA filed a detinue action to repossess the logging equipment from Scott. The Circuit Court of Limestone County issued an order awarding the equipment to HPCA, which agreed to let Davis hold the equipment so that he could resell it. However, Davis was unable to find a buyer, and HPCA sent Davis notice of its intended disposition by letter of February 16, 1983:
HPCA sent a second notice on April 19, 1983, stating that the logging equipment was "to be sold on or before May 1, 1983." The security agreement required five days' written notice to the debtor before a private sale. HPCA took possession of the *1105 equipment on April 11 and sold the sawmill and engine for $2,000 in May and the skidder for $17,000 in July. The loader was not sold.
Meanwhile, in March 1981, HPCA made an individual loan to Davis in order to renew his current debt and to advance him $22,500 for his 1981 farming operations. The security agreement for this loan listed as collateral Davis's crops, cattle, farming equipment, and a second mortgage on 355.17 acres of real estate. Thus, HPCA held both a second and third mortgage on the land; the Farmers Home Administration (FHA) held the first mortgage. In 1982, Davis repaid approximately $17,000-$23,000 on this individual loan, but was unable to make any further payments in 1983.
On July 5, 1983, HPCA filed a detinue action against Davis and obtained a writ of seizure against the cattle and farm equipment. HPCA took possession of both on July 6 and 7, pursuant to notice on July 6:
HPCA sent a second notice the next day, which provided:
HPCA sold the cattle on July 12. On August 25, 1983, HPCA sold Davis's land at a foreclosure sale of the second mortgage and purchased it for $196,260, the same amount listed as consideration in the foreclosure deed. HPCA also purchased Scott's property at the foreclosure sale for $3,500. HPCA was still in possession of the farming equipment when trial commenced in July 1984.
There is some dispute concerning what was said at the foreclosure sale in regard to the application of the sale proceeds. HPCA and the FHA contend that HPCA announced that the first mortgage debt would be paid from the proceeds of the second mortgage foreclosure sale. Davis and several others testified that HPCA announced that the property would be sold subject to the first mortgage, and consequently, the buyer would be responsible for paying the first mortgage. That debt was $58,387.08, and was not in default at the time of the foreclosure sale. The next payment was not due until December 1983, but HPCA paid off the debt from the foreclosure sale proceeds in two payments on November 1 and 16, 1983.
In response to HPCA's detinue action filed in July, Davis counterclaimed against HPCA for conversion of the cattle and farm equipment, for money had and received (the surplus proceeds), and for fraud in the inducement. Davis's motion to dismiss HPCA's claim was denied, as were his motions for a directed verdict later during trial. The trial court instructed the jury on the detinue, conversion, and fraud claims, but not on the claim for the surplus proceeds. Davis properly objected to the court's instructions.
The jury found that HPCA was entitled to possession of the loader in the detinue action. The jury also found in favor of HPCA in regard to Davis's counterclaims. The court entered judgment for HPCA and denied Davis's subsequent JNOV and new trial motions. This appeal followed.
This case presents several closely related issues for our consideration, and we discuss each in turn.
It is well settled in Alabama that foreclosure of a mortgage extinguishes the debt to the amount of the purchase price, if that amount is less than the debt, or extinguishes the entire debt if the purchase price is more than that amount. Mobley v. Brundidge Banking Co., 347 So. 2d 1347, 1352 (Ala.1977); Alford v. Southern Building & Loan Association, 228 Ala. *1106 412, 413, 153 So. 864, 865 (1934). Where a mortgagee purchases the premises on foreclosure for a sum equal to the sum of the mortgage note or debt and lawful expenses, the purchase operates as an extinguishment of the debt, and the mortgagee is precluded from further recovery on the debt. Whigham v. Travelodge International, Inc., 349 So. 2d 1078, 1083 (Ala. 1977); Oden v. King, 216 Ala. 504, 508-09, 113 So. 609, 612 (1927).
In the present case, HPCA elected to foreclose on the second mortgage and then to purchase the property at the foreclosure sale for $196,260, an amount exceeding Davis's debt to HPCA. Therefore, HPCA received one satisfaction of the debt and was not entitled to another. Because the debt was thus extinguished, Davis was entitled to at least a directed verdict on HPCA's detinue claim.
The law is clear that the proceeds from the sale of mortgaged property must be applied to the debt secured by the property. Muscle Shoals National Bank v. Hallmark, 399 So. 2d 297, 298 (Ala.1981). See, also, Pearce v. Mills, 190 Ala. 616, 67 So. 581 (1941). A first mortgagee has no right to any surplus upon foreclosure of the second mortgage, particularly in the absence of default of the first mortgage. Atlas Subsidiaries of Mississippi, Inc. v. Nixon, 47 Ala.App. 103, 251 So. 2d 235, 239 (1971). The foreclosure of a second mortgage is subject to the lien of the first and in no way affects its security. Atlas, supra. In the absence of an agreement in the mortgage instrument, a mortgagee may not add payments made on a senior mortgage to the sum secured by the junior mortgage. Crutchfield v. Johnson & Latimer, 243 Ala. 73, 75, 8 So. 2d 412, 414 (1942).
Davis was in default only on the second mortgage. When HPCA foreclosed on this mortgage and sold the property to itself, it acquired land subject to the first mortgage. It appears from the purchase amount at the foreclosure that HPCA attempted to enforce the encumbrance of the first mortgage, which was not in default. This is impermissible, as the first mortgagee had no right to the proceeds. HPCA's announcement at the foreclosure sale that the proceeds would be applied to the first mortgage was in contravention of the law. Furthermore, there was no agreement between HPCA and Davis for HPCA to pay off the first mortgage and add the amount to the second mortgage. The trial court erred in its jury instructions on the proper application of the sale proceeds.
The law is equally clear in regard to the issue of who gets the surplus proceeds. When property is sold at a foreclosure sale, conducted under the power of sale contained in a mortgage, at an amount greater than the indebtedness secured by the mortgage, the mortgagee is liable to the mortgagor for the surplus. Atlas, supra, 251 So. 2d at 237; Bartlett v. Jenkins, 213 Ala. 510, 511, 105 So. 654, 655 (1925). The result is unchanged by the fact that the purchaser at the sale is the mortgagee. Muscle Shoals Bank, supra, at 298. See, also, Pruett v. First National Bank of Anniston, 229 Ala. 441, 157 So. 846 (1934).
It is obvious in this case that Davis was entitled to the surplus proceeds from the foreclosure sale. The purchase amount exceeded the indebtedness secured by the second mortgage, even when construing the evidence most favorably to HPCA. Even the security agreement clearly stated the priority in applying the proceeds:
After HPCA applied proceeds to cover its expenses and the debt, the surplus (or residue) should have been paid to Davis. The trial court erred in not directing a verdict for Davis on his claim for money had and received. The only issue left was determining the actual amount owed to Davis.
In regard to the issues of conversion and notice, Alabama law defines conversion as the exercise of dominion of another over personal property to the exclusion of or in defiance of the owner's right. Wells v. Central Bank of Alabama, N.A., 347 So. 2d 114, 120 (Ala.Civ.App.1977). Failure to satisfy the notification requirements regarding the sale or disposition of collateral constitutes conversion. Simmons Machinery Co. v. M & M Brokerage, Inc., 409 So. 2d 743, 751 (Ala.1981); Wells, supra, at 120. The Alabama Code states the requirements of notice:
Code 1975, § 7-9-504(3). Furthermore, the notice must identify whether the sale is public or private, in addition to meeting the time and place requirements; the law will not put the debtor in the perilous position of interpreting a vague notice. Simmons, supra, at 750. In the absence of prior notice, the issue of conversion is clearly a question of law for the trial court. Simmons, supra.
In the present case, HPCA's notices to Davis regarding the disposition of the cattle and the farming and logging equipment were clearly deficient in that they failed to identify the type of sale. The notices merely stated a time frame for the sale. The trial court recognized the defect in the notice.
Therefore, as a matter of law, HPCA's defective notice and subsequent sale of Davis's logging equipment and cattle constituted conversion. In addition, because Davis's second mortgage debt was extinguished as of the date of the foreclosure sale, HPCA's continued possession of Davis's other collateralthe farming equipmentwas unlawful and constituted conversion. The trial court's refusal to direct a verdict on the conversion counterclaim was erroneous. The only issue proper for the jury concerned damages for conversion.
We reverse the trial court's judgment and remand for a determination of the amount that HPCA owes to Davis.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur. | November 22, 1985 |
ce77b63d-fa71-4e65-a65b-c7ff7b915649 | Hanvey v. Thompson | 243 So. 2d 748 | N/A | Alabama | Alabama Supreme Court | 243 So. 2d 748 (1971)
Burton Eugene HANVEY
v.
Naomi THOMPSON and Neal D. Thompson.
Ex parte Naomi THOMPSON et al.
8 Div. 394, 394A.
Supreme Court of Alabama.
February 4, 1971.
*749 Humphrey, Lutz & Smith, Huntsville, for petitioners-appellees.
Bell, Richardson, Cleary, McLain & Tucker and James H. Porter, Huntsville, for respondent-appellant.
BLOODWORTH, Justice.
These cases (consolidated on appeal) come to us on a writ of certiorari to the Court of Civil Appeals, 46 Ala.App. 476, 243 So. 2d 743. The petition for the writ was assigned to another member of the court on preliminary consideration. After the writ was granted, it was reassigned to the writer.
The writ seeks to have us review and reverse the decision of the Court of Civil Appeals which reverses two judgments for the plaintiffs totalling $10,000, after jury verdicts in their favor in the Madison County Circuit Court.
Petitioners (plaintiffs below) contend that the decision of the Court of Civil Appeals (in holding that a certain requested charge should have been given) is a case of first impression in Alabama and is in conflict with a prior decision of our court; and that it construes a statute (Pedestrian Walk and Wait Signals, Title 36, § 58(38), Code of Alabama 1940) which is also a case of first impression in Alabama.
Before the petition was granted, respondent filed a "motion to strike" it. After the writ was granted, respondent filed a "motion to discharge" the writ. In both *750 motions respondent contends that there is no conflict with any prior decision of our court, nor is this a case of first impression in Alabama. Hence, he urges in brief:
While we appreciate his alluding to the burdensome case loads under which this court operated prior to October 1, 1969,[2] we cannot agree with respondent's comment that the legislature can narrowly limit the "types of decisions for the review of which a petition for writ of certiorari could be granted."
In the landmark case of Ex parte Louisville & Nashville R. Co., 176 Ala. 631, 58 So. 315 (1912), this court construed Section 140, Constitution 1901,[3] with respect to our power and authority to superintend and control the Court of Appeals (then newly created). As Justice (later Chief Justice) Anderson writing for the court observed:
Likewise, in Act No. 987, supra, the act creating the present Courts of Appeals, the legislature recognizes the power of this court to control the proceedings and decisions of the Courts of Appeals. Section 10 of the Act is but a copy of that section of the Acts of 1911, quoted supra.
Justice Anderson went on to say for the Court, beginning at page 636, 58 So. at page 317:
Thus, we conclude that the legislature does not possess the power (as respondent suggests in brief) to narrowly limit "the types of decisions for the review of which a petition for writ of certiorari could be granted." We think this power resides in this court.
On December 14, 1970, we amended our existing Rule 39 to provide the method by which we consider applications for writs of certiorari to the Court of Appeals. It so happens that we chose to limit our review to the same classes of cases prescribed in Section 32, Act No. 987, supra.
*752 And, though we limit our review at this time to those instances delineated in Rule 39, as amended, we still preserve our constitutional right to prescribe the mode and manner in which we will exercise the power to issue writs of certiorari and any other remedial writs which we deem necessary to give us general superintendence and control over the Courts of Appeals. Exparte Louisville & Nashville R. Co., supra.
We wish to call the attention of bench and bar to the statement in Ex parte State of Alabama ex rel. Attorney General (In re: Clarence Stallworth v. State of Alabama), 285 Ala. 72, 229 So. 2d 27 (1969), that the clerk of the court is instructed to return, without filing, all petitions for writs when no attempt was made to comply with Act No. 987, Section 32, supra. The court has now decided that this practice is no longer to be followed. All petitions for writs will be filed by the clerk. In the event a petition for a writ does not comply with Rule 39, as amended, it will be subject to being stricken on motion of a party or ex mero motu by the court. To this extent and to the extent that our Rule 39, as amended, is to be followed instead of Section 32, Act No. 987, supra, the Stallworth case is modified. It is not here intended to otherwise modify or overrule Stallworth.
After a careful consideration of the respondent's several motions we have concluded that neither is well taken and each ought to be denied. The full court in consultation has concluded that the petition for writ of certiorari in this case does substantially comply with our amended Rule 39 and sets forth sufficient grounds for our review.
To enable a clear understanding of this opinion, we deem it necessary to recount the relevant facts. Plaintiff, Naomi Thompson, a pedestrian, was injured when struck by an automobile driven by defendant. The accident occurred at the intersection of Holmes and Washington Streets in Huntsville. Holmes is a one way street going west. Washington Street is one way going north. A traffic light facing south and controlling traffic on Washington Street is situated on the northeast corner of the intersection. Also located on this corner and facing south is a light for pedestrians containing the lighted words, "Walk" or "Don't Walk." A similar pedestrian light is positioned on the southeast corner of the intersection, facing west. These lights are synchronized in such a manner that when the pedestrian lights signal "Walk," no traffic moves into the intersection and pedestrians can proceed in any direction, including diagonally. Conversely, no pedestrian can walk when traffic is moving on either street. The plaintiff arrived at the southwest corner of the intersection, looked at the northeast corner and observed that the traffic light was red and that the pedestrian's light signalled, "Don't Walk." Plaintiff proceeded easterly across Washington Street without looking at the pedestrian light facing her on the southeast corner. It was raining at the time and she had an umbrella protecting her from the rain. Two cars were stopped, side by side, on Washington Street in response to the red traffic light that the plaintiff had observed on the northeast corner. The light turned green as plaintiff passed in front of the first automobile. The driver of that vehicle saw the plaintiff and allowed her to clear before driving on. The defendant, who was in the second car, says he did not observe the plaintiff and started forward when the light changed to green. Defendant's automobile struck the plaintiff, thereby resulting in her injuries. The plaintiff testified that she was familiar with this intersection and the manner in which the traffic and pedestrian lights operated.
And, now we address ourselves to the principal question raised, whether the Court of Civil Appeals erred in its decision which reversed the Madison County Circuit *753 Court for refusing to give defendant the following written requested charge:
Petitioners contend that the charge is bad and was properly refused by the trial judge because it is vague, abstract and misleading. Petitioners query: In what respect was this plaintiff negligent as a matter of law? Was she negligent because she violated a statute? Then, what statute? Petitioners state that the Court of Civil Appeals decision indicates her negligence was not confined solely to her violation of a statute, but included her other acts. Thus, they contend that the charge is misleading because it does not advise the jury which of her other acts were those constituting negligence as a matter of law.
Respondent replies that the charge is neither vague, abstract nor misleading but is very specific. He contends that it should have been given by the trial court. On submission of the case at oral argument, respondent cited Simpson v. Glenn, 264 Ala. 519, 88 So. 2d 326 (1956), as authority for his position.
After a careful consideration by the entire court in consultation we have concluded that the charge is misleading.
The opinion of the Court of Civil Appeals does seem to hold that the plaintiff, Naomi Thompson, was guilty of negligence as a matter of law in violating the statute, and also in not keeping a proper lookout. But, the charge does not so state. The jury is left in a state of uncertainty as to which act or acts of plaintiff constituted her "said negligence."
As petitioners aptly observe in brief:
The case of Simpson v. Glenn, supra, cited by respondent does not militate against our conclusion that the charge is misleading. In that case the charge was:
The facts of that case are stated in the opinion:
Justice Simpson writing for the court concludes:
We think it is readily apparent that there are several distinctions between that charge and the charge in this case. For instance, the charge in Simpson v. Glenn, supra, clearly states that the act of negligence on the part of Mrs. Glenn is her crossing 12th Street at Princeton Alley. This, she did in violation of a city ordinance forbidding pedestrians to cross at other than street intersections. Additionally, there is no other conduct charged as negligence in that case such as the Court of Civil Appeals found to exist in the instant case.
There may also be other reasons why refusal of this charge by the trial court was not error. But, we think our discussion is sufficient to point out that in our view the charge is misleading and the Court of Civil Appeals is in error in holding that the charge should have been given.
Though the issue is not before us we think we may point out that we agree with the Court of Civil Appeals in its opinion in holding that the affirmative charge was properly refused the defendant.
Thus, in view of our conclusions, it results that the Court of Civil Appeals is due to be reversed and this cause remanded to that court for the entry of a decision not inconsistent with this opinion.
Reversed and remanded with directions.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, COLEMAN and McCALL, JJ., concur.
HARWOOD and MADDOX, JJ., concur in the result.
[1] Act No. 987, Acts of Alabama 1969, Vol. II, p. 1744.
[2] The effective dates of Act No. 987 (creating the Court of Civil Appeals and redesignating the Court of Criminal Appeals), supra, and Act No. 602 (adding two justices to the Supreme Court), Acts of Alabama 1969, Vol. II, p. 1087.
[3] "Sec. 140. Except in cases otherwise directed in this Constitution, the supreme court shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions and regulations, not repugnant to this Constitution, as may from time to time be prescribed by law, except where jurisdiction over appeals is vested in some inferior court, and made final therein; provided, that the supreme court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions." | February 4, 1971 |
4f38bfbc-3f7f-4705-99bb-55f10593a175 | Ala. Farm Bur. Mut. Ins. Service v. Jericho Plantation | 481 So. 2d 343 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 343 (1985)
ALABAMA FARM BUREAU MUTUAL INSURANCE SERVICE, INC., a Corp.
v.
JERICHO PLANTATION, INC., et al.
83-602.
Supreme Court of Alabama.
November 8, 1985.
J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellant.
John W. Kelly III of Sikes & Kelly, Selma, for appellees.
PER CURIAM.
The original opinion in this case is withdrawn and the following opinion is substituted therefor.
This appeal arises from a jury verdict in favor of plaintiffs-appellees awarding damages for negligent failure to procure fire insurance. We reverse and remand.
George W. Baker and his wife conveyed 923 acres by vendor's lien to Eastern Freight Forwarders, Inc., in February 1977. Eastern Freight Forwarders subsequently conveyed the 923 acres, subject to the vendor's lien, to Loper Timberlands, Inc. Loper Timberlands obtained a release of forty acres from the vendor's lien in May 1978.
Loper Timberlands built a hunting lodge on the forty-arce tract of land in Perry County in the summer of 1978. The 900-square-foot lodge was constructed to the same standards as a residence, with a living room, den, two bedrooms, two bathrooms, patio, and storage shed, and was fully furnished.
On June 1, 1978, the forty acres was mortaged to the trustees of Federal Union Real Estate Investment Trust ("Trust") to secure a note in the sum of $40,000. It is not clear whether the hunting lodge was in existence at the time of the mortgage. Loper Timberlands conveyed this forty acres and lodge, along with the 883 other acres still subject to the vendor's lien, to Jericho Plantation, Inc., by deed dated August 10, 1978. Jericho Plantation defaulted in its payments, and the vendor's lien was foreclosed on the other 883 acres. It is unclear whether Jericho Plantation later quitclaimed the entire property, including the forty-acre tract with the lodge, to Eastern Freight Forwarders in exchange for extinction of the mortgage, or whether a mere statutory right of redemption regarding the foreclosure of the other 883 acres was assigned.
Sometime around March 1980, Belton Loper, president of both Jericho Plantation and Loper Timberlands, and Harry Hardy, attorney for the Trust and president of *344 Eastern Freight Forwarders, went to the Alabama Farm Bureau office in Marion, Alabama, to obtain fire insurance on the lodge and its contents. The insurance agent, Joe Horne, was not in the office, so they advised the secretary they wished to insure the building for $30,000, and its contents, which belonged to Belton Loper and his brother Mark, for $5,000. Mr. Hardy testified he told her the Trust was the mortgagee and he asked her to have the original copy of the policy sent to him, and the bill sent to Loper. They gave the secretary the location of the property, and she told Hardy that the agent, Joe Horne, would process the request and get the policy to him.
A few days later, Mark Loper, secretary-treasurer of Jericho Plantation and full-time resident of the lodge, went to the Farm Bureau office and talked with Joe Horne about the insurance. Mark testified Horne said he had all the information he needed, but he had to see the property. Horne said he would call Mark to set up an appointment to inspect and photograph the lodge.
After a few more days, Belton Loper called Horne to find out when he intended to visit the property. Horne told him no payment was necessary at that time and all Horne needed to do was to go to the property and ascertain the buildings did exist and their value was in line with the amount of insurance requested. Horne later called Mark and made an appointment to inspect the premises the next morning. Mark waited all day, but Horne did not show up. A second appointment was later made by Horne to see the property, but again he never arrived.
Belton Loper then called Horne to find out why he had not yet seen the property. Belton testified Horne said he had been "snowed under" but "kept insisting" he would inspect the property. No binder was ever issued by Horne. On May 10, 1980, about three days after the last telephone conversation and approximately six weeks after the initial visit to Farm Bureau's office, the lodge burned to the ground. Belton called Horne, who denied coverage with words to the effect of "tough luck."
Jericho Plantation, the Lopers, and the Trust as mortgagee sued Alabama Farm Bureau for its agent's negligent failure to procure insurance. The jury found for the plaintiffs and awarded $30,000 damages. Alabama Farm Bureau appeals.
Farm Bureau contends the trial court below erred in failing to charge the jury on the issue of contributory negligence. We agree and reverse.
Farm Bureau's amended answer to the complaint set forth the affirmative defense of contributory negligence. In addition, the record shows Farm Bureau requested jury charges on contributory negligence, which the trial court refused. The rule is that a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by the proper instructions, State Farm Mutual Automobile Insurance Co. v. Dodd, 276 Ala. 410, 162 So. 2d 621 (1964), and the court's failure to give those instructions is reversible error. Liberty National Life Insurance Co. v. Smith, 356 So. 2d 646 (Ala.1978).
A plaintiff's contributory negligence is ordinarily a question of fact for the jury. State Farm, supra. The record shows that the trial court refused to give the charge because there was "not one scintilla of evidence of contributory negligence." Harry Hardy, acting for the mortgagee Trust, took no further action to procure insurance after his initial visit with Belton Loper to the Farm Bureau office, some six weeks before the fire. Days elapsed from the time Belton and Mark Loper each contacted Horne until the time of the fire. While we do not say that these facts constitute contributory negligence, they are some evidence of contributory negligence, and, therefore, the jury should have been so charged. The record shows the trial court even admitted there might have been some evidence of contributory negligence:
We therefore reverse and remand for a new trial.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REHEARING DENIED; REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON, SHORES, BEATTY, and HOUSTON, JJ., concur.
MADDOX and JONES, JJ., recused. | November 8, 1985 |
8fee6599-d901-4e84-a924-bb3720db2ad2 | BOARD OF TRUSTEES OF EMPLOYEES'RETIRE. SYS. v. Talley | 244 So. 2d 791 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 791 (1971)
BOARD OF TRUSTEES OF EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF MONTGOMERY, Alabama
v.
Dorothy Carr TALLEY.
3 Div. 456.
Supreme Court of Alabama.
February 4, 1971.
Rehearing Denied March 4, 1971.
*792 Walter J. Knabe, Montgomery, for appellant.
Calvin M. Whitesell, Montgomery, for appellee.
McCALL, Justice.
The appellee filed her bill of complaint, in equity, in the circuit court under Tit. 7, § 156, et seq., Code of Alabama, 1940, as amended, being the Alabama version of the Uniform Declaratory Judgment Act, against the Board of Trustees of the Employees' Retirement System of the City of Montgomery for a declaration of rights, status, and other legal relations, under a municipal ordinance, adopted by the Board of Commissioners of the City of Montgomery, Alabama, establishing the Employees' Retirement System for that city. The municipality adopted the ordinance pursuant to the provisions of Act No. 486, Acts of Alabama, 1961, p. 550, authorizing cities within its classification to enact ordinances to establish and maintain a general system of pensions and retirements. Under the ordinance, the Retirement System is placed under the management of a Board of Trustees of the System which consists of seven members. No respondents, other than the Board of Trustees, are named in the bill. The City of Montgomery is not made a party to the bill.
The complainant, who is the widow of John C. Talley, alleges herself to be a person, interested under this ordinance, whose rights, status, or other legal relations are affected thereunder, because she is the beneficiary designated by her deceased husband, a member of the Retirement System, to receive the retirement allowance at his death, provided in one of the option plans found in Section 6, Subsection 17 of the ordinance. The pertinent portion of this option plan provides that should the retired employee die within thirty days after retirement, his optional election shall not be effective and he shall be considered to be a member in service at the time of his death, and the only benefit payable on his account shall be the return of his contributions, reduced by any retirement allowance payments received by him prior to his death.
Prior to his death on February 25, 1967, John C. Talley applied, on December 29, 1966, for Disability Retirement under the ordinance, requesting that his retirement become effective on February 1, 1967, and stating that he had been totally and permanently disabled since August 23, 1966, and *793 that he was born on September 28, 1917. He elected to receive his retirement allowance under one of the option plans which he had read, and he designated his wife Dorothy Carr Talley, the appellee, who was born on January 10, 1922, as the beneficiary to receive the benefits at his death. The Board denied the appellee's application for retirement allowance on the ground that Mr. Talley had died within thirty days after his retirement, insisting that his nominee, the appellee, was entitled under the ordinance only to a return of the contributions, made to the system by her late husband.
In her amended bill, as last amended, the appellee, Mrs. Talley, attacks the constitutionality of the ordinance and avers that the system was not adopted in the best interests of the employees and is arbitrary, and discriminatory in that it provides windfalls to those responsible for its creation and a roulette system for those it was supposed to be enacted for and she prays that the court declare the ordinance null, void and unconstitutional, or, in the alternative, award her monthly benefits for life.
The chancellor decreed, as being void and unconstitutional, the portion of the ordinance which provides that if a member should die within thirty days after retirement or within thirty days after the date of filing his optional election, whichever is later, his optional election shall not be effective and he shall be considered to be a member in service at the time of his death, with the only benefit payable being the return of the contributions made by him, reduced by any retirement allowance payments which he received prior to death. The court made no finding or statement as to why it decreed the ordinance unconstitutional.
There is an actual justiciable controversy existing between the parties to this suit, but it appears from reading the transcript of the record on appeal that the City of Montgomery is not made a party to the suit, notwithstanding the fact that the validity of a municipal ordinance is involved. Thus a question arises as to whether or not the trial court had jurisdiction to proceed to a determination of the case on the merits in the absence of the municipality being a party. This question was not raised by the trial court or the parties.
Tit. 7, § 166, Code of Alabama, 1940, provides as follows:
Under the provisions in the first sentence of this statute, it is not fatal to a suit for a declaratory judgment, to omit an interested person as a party, if such person is found to be one whose presence is not necessary to a determination of the controversy between the parties who are before the court, because this is contemplated by § 166, supra, which states in part "* * * no declaration shall prejudice the rights of persons not parties to the proceeding. * * *." Trammell v. Glens Falls Indemnity Co., 259 Ala. 430, 66 So. 2d 537; Trustees of Howard College v. McNabb, 268 Ala. 635, 108 So. 2d 835; McCall v. Nettles, 251 Ala. 349, 353, 37 So. 2d 635.
Further, where a person, not made a party to the declaratory judgment proceeding, is found to be a necessary party, and the bill shows on its face an absence of such a party, without whose presence the controversy cannot be determined, the court must require such interested person to be made a party, and if not, the bill is *794 subject to a demurrer assigning that ground. Brantley v. Brantley, 258 Ala. 367, 63 So. 2d 29.
The word "shall," in that portion of § 11 (our § 166, supra) of the Uniform Declaratory Judgments Act has been construed to mean "may," because the rights of absent parties having an interest in the controversy are saved from prejudice by the provision in this portion of § 166, supra, which states that "* * * no declaration shall prejudice the rights of persons not parties to the proceeding. * * *." State ex rel. City of Indianapolis v. Brennan, 231 Ind. 492, 109 N.E.2d 409; Annotation: 71 A. L.R.2d 723, 730; 22 Am.Jur.2d, § 80, p. 944, note 18; 26 C.J.S. Declaratory Judgments § 122, p. 282; and Trammell v. Glens Falls Indemnity Co., supra, holds that this portion of the statute controverts the need for making all interested persons parties, if the parties present represent the merits of the conflict.
There is no such qualification of "shall," in the second and last sentence of this statute, § 166, supra. The plain language of this provision in the statute, dictates that "shall's" logical meaning is "must," for otherwise the statutory requirement to make the municipality a party would be without purpose and meaningless. So, where the validity of a municipal ordinance is involved in a declaratory judgment proceeding, the municipality is to be made a party, because the statute expressly requires that this be done. This second sentence of the statute also provides that the municipality shall be entitled to be heard. The municipality is not afforded an opportunity to be heard until or without first being made a party.
The Board of Trustees of the Employees' Retirement System of the City of Montgomery does not constitute the City of Montgomery, the governmental body which adopted the ordinance. Making the Board of Trustees a party is not the same as making the municipality a party. It is clear that they are separate and distinct bodies. City of Danville v. Wilson, Ky., 395 S.W.2d 583, 585. The Board of Trustees, a subdivision or agency of the municipality, is charged with the general administration and the responsibility for the proper operation of the System, and for making effective the provisions of the ordinance. The municipality is charged with appropriating the amount of money necessary to pay the normal and accrued liability contributions to the Pension Accumulation Account for each ensuing year, and the amount of the appropriation required to cover the expense necessary to conduct the administration and operation of the System. The rates of contribution by the municipality to the Pension Accumulation Account are required by the ordinance to be fixed on the basis of the liabilities of the System as shown by actuarial valuation and the municipality's contribution is required by the ordinance to be sufficient to provide for the payment of any pension or other benefit payable on an employee's account not provided by his own contributions. The trial court's final decree, by declaring void and unconstitutional the thirty day waiting period after retirement or after the election of an option plan, whichever is later, understandably increases the risk of loss and the consequent liability of the municipality to pay the retirement allowance to survivors of employees during their lives, and logically, to meet this increase in amount of liabilities, the City of Montgomery must increase its contributions to raise the money. There may be other instances in which the interest of the municipality under the ordinance is involved, but, be that as it may, here it is sufficient to say that in our opinion the legal relations of the appellee-complainant and the Board of Trustees of the System to the City of Montgomery, arising under this ordinance, and the municipality's relations to the Board and the appellee are so affected by the ordinance as to demonstrate that under Tit. 7, § 166, Code of Alabama, 1940, the municipality is an interested party in this proceeding and that it is entitled to be heard.
*795 The following is taken from 22 Am.Jur. 2d, Declaratory Judgments, § 85, p. 949:
Under the provision of § 166, supra, that "* * * if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard," it has been held that service on the attorney general is mandatory and goes to the jurisdiction of the court and this court must take notice of our want of jurisdiction apparent on the record. Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27; Bond's Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So. 2d 582; Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 98 So. 2d 50; Smith v. Lancaster, 267 Ala. 366, 102 So. 2d 1; Cole v. Sylacauga Hospital Board, 269 Ala. 405, 113 So. 2d 200; Town of Warrior v. Blaylock, 271 Ala. 685, 127 So. 2d 618; City of Gadsden v. Cartee, 279 Ala. 280, 184 So. 2d 360; See also Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 319, 211 So. 2d 451. We think the language in the same sentence of § 166, supra, "* * * In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, * * *" is of like compulsory import to that of the other provision in this sentence, and it becomes as equally mandatory to comply with this mandate, as it does with that requiring service on the attorney general when the unconstitutionality of a statute or ordinance is alleged.
While the transcript of the record in this case is absent of any matter showing that the attorney general was served with a copy of the proceeding, or had notice of it, we do find in the appellant's brief mention of the following:
It is not necessary in this case though for us to decide whether or not such an ex parte statement by counsel dehors the record, overcomes the apparent jurisdictional deficiency in the record to show service on the attorney general, because we think that the absence of the municipality as a party shows the lack of jurisdiction of the court.
This court held in City of Mobile v. Gulf Development Co., 277 Ala. 431, 440, 171 So. 2d 247, that the general rule in a court of equity is that all persons having a material interest, legal or equitable, in the subject matter of a suit, must be made parties, either as plaintiffs or defendants and if the bill is defective for the want of proper parties, advantage should be taken of the defect by plea, demurrer, or answer, and if not so taken, the objection is waived, but if the cause cannot be properly disposed of, on the merits, without the presence of the absent parties, the objection may be made at the hearing, or on error, it may be taken by the court ex mero motu. Prout v. Hoge, 57 Ala. 28. See also: Batre v. Auze's Heirs, 5 Ala. 173; McMaken v. McMaken, 18 Ala. 576; Woodward v. Wood, 19 Ala. 213; McCully v. Chapman, 58 Ala. *796 325; Watson v. Oates, 58 Ala. 647; Amann v. Burke, 237 Ala. 380, 186 So. 769; Matthews v. Matthews, 247 Ala. 472, 25 So. 2d 259; Garrison v. Kelly, 257 Ala. 105, 57 So. 2d 345; Rollan v. Posey, 271 Ala. 640, 645, 126 So. 2d 464, 468.
It is further said in City of Mobile v. Gulf Development Co., supra:
See also Dews v. Peterson, 283 Ala. 650, 652, 219 So. 2d 903; Reid v. City of Birmingham, 274 Ala. 629, 638, 150 So. 2d 735; Holland v. Flinn, 239 Ala. 390, 195 So. 265; Alabama Independent Service Station Ass'n v. McDowell, 242 Ala. 424, 6 So. 2d 502.
There is other authority which supports our holding that the omission to join the municipality as party goes to the jurisdiction of the court where the validity of an ordinance is involved.
The case of Laman v. Martin, 235 Ark. 938, 362 S.W.2d 711, was a declaratory judgment suit against the mayor and manager of the City Electrical Department, seeking a declaration of rights, remedies and protection under municipal civil service. The respondent's demurrer simply stated that "defendants are not proper parties defendant to defend this action." The Arkansas statute, dealing with parties is identical to our § 166, supra, except that the former commences "When declaratory relief is sought." In the Arkansas case the court held that since the appellees were seeking to establish the validity of a municipal ordinance, the clear wording of the Arkansas statute made the City of North Little Rock a necessary party.
In conclusion the court said:
In 26 C.J.S. Declaratory Judgments § 132, p. 304, we find this statement:
The case of Morgan v. Banas, 331 Mass. 694, 122 N.E.2d 369, was a suit for a declaratory decree involving the validity of a municipal zoning ordinance in which the city was not made a party. The court held that by the language of the statute the city is made an indispensable party, and that the case could not go on to a declaratory decree in its absence.
The statutory requirements to make the City of Montgomery a party to the proceeding and to entitle it to be heard, in our opinion, are mandatory and jurisdictional. These requirements not having been complied with, the jurisdiction of the trial court was not invoked, and the court's decree, declaring the portion of the municipal ordinance in question unconstitutional, is void.
It follows that the appeal must be dismissed.
Appeal dismissed.
HEFLIN, C. J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | February 4, 1971 |
5e7da8a0-e33e-46f9-b30b-ef4f140b410c | Clark v. Clark | 247 So. 2d 361 | N/A | Alabama | Alabama Supreme Court | 247 So. 2d 361 (1971)
Reba Turner CLARK
v.
William Orester CLARK et al.
4 Div. 345.
Supreme Court of Alabama.
April 8, 1971.
Rehearing Denied May 6, 1971.
W. J. Williamson, Greenville, for appellant.
James M. Prestwood, Andalusia, for William Orester Clark, Foster Quinton Clark, Readie Faye Miller and Wilma Birdie Mack.
Robert B. Albritton and Hiram J. Brogden, Jr., Andalusia, for J. B. Simmons as Executor of the estate of Bury Clark, deceased.
*362 LAWSON, Justice.
Bury Clark, a resident of Covington County, died testate in October, 1963, survived by his widow, Reba Turner Clark, and by five children of a former marriage.
J. B. Simmons was nominated as executor by Bury Clark in his last will, dated January 10, 1961, to which a codicil was added on August 27, 1963. Letters testamentary were granted to Simmons by the Probate Court of Covington County on December 10, 1963, the day on which the will was admitted to probate.
Two of the children filed a bill in the Circuit Court of Covington County, in Equity, against the other children and against Mrs. Reba Turner Clark and J. B. Simmons, contesting the will dated January 10, 1961. In that bill as finally amended all five of the children were named as complainants and Mrs. Reba Turner Clark and J. B. Simmons, as executor under the will of Bury Clark, were the only respondents. In the bill as last amended the complainants therein challenged the validity of the will under date of January 10, 1961, on the ground of undue influence exerted over the testator by his wife, Reba Turner Clark, and on the further ground that the codicil dated August 27, 1963, revoked the will dated January 10, 1961, and revived a prior will dated December 20, 1960. The will contest was docketed in the equity court as Case No. 6138.
There was a trial before a jury, which ended in a mistrial. On the next trial the jury returned a general verdict in favor of the contestants. The trial court rendered a final decree in accord with the jury verdict.
The respondents, Reba Turner Clark and J. B. Simmons, appealed to this court. Clark et al. v. Clark et al., 280 Ala. 644, 197 So. 2d 447. Our opinion in that case concludes:
In the decree rendered here we reversed and annulled the "judgment" from which the appeal was taken and we dismissed the "bill of complaint filed by the contestants." The last paragraph of our decree reads:
After we had overruled the application for rehearing in Clark et al. v. Clark et al., supra [April 13, 1967], Mrs. Reba Turner Clark on May 15, 1967, filed in the Circuit Court of Covington County, in Equity, a "Motion for Reference and Taxing of Costs," wherein she asked, among other things, that the trial court order the Register to hold a reference to determine the amount of the attorneys' fees which should be allowed the executor for services rendered to him by the attorneys in his defense of the will contest case. That motion also requested the trial court to tax the costs of the will contest case [Case No. 6138], including such attorneys' fees, against the contestants.
Action on that motion was continued by the trial court until date of final settlement of the estate of Bury Clark. The administration of that estate had been removed to the equity court, where it was docketed as Case No. 6299.
Thereafter J. B. Simmons, as executor, filed his report and petition for final settlement of his administration of the estate of Bury Clark, deceased. In his said petition the executor pointed out that the trial court had previously deferred all questions of attorneys' fees in the will contest case *363 (Case No. 6138) until final settlement and averred that said attorneys' fees in the will contest case (Case No. 6138) should be taxed as court costs, which costs should be taxed against the interests of the contestants in the will contest case (Case No. 6138). In his said petition the executor also asked that the trial court set a reasonable attorneys' fee to be allowed his attorneys for their services in connection with the general administration of the estate.
The trial court did not order a reference, but proceeded to take evidence on several occasions on the matters set forth in the executor's petition for final settlement and all other matters pending for final settlement in Case No. 6299 and on the motion of Reba Turner Clark to tax the attorneys' fees incurred by the executor in the will contest case (Case No. 6138) to the contestants.
On December 13, 1968, the trial court rendered a joint decree covering both cases, that is, Case No. 6138 and Case No. 6299, which decree in pertinent parts reads as follows:
The trial court fixed the sum of $14,000 as the fee for the executor's attorneys for their services rendered in connection with the will contest case, that is, Case No. 6138, and fixed the sum of $3,500 as the fee for those attorneys for representing the executor in the administration of the estate of Bury Clark, deceased, Case No. 6299.
Mrs. Reba Turner Clark has appealed to this court from the decree of December 13, 1968, and has made eleven assignments of error.
Assignments of Error numbered 1 through 8 are all to the effect that the trial court erred in ordering the executor to pay the attorneys who represented him in the defense of the will contest case (Case No. 6138) the sum of $14,000 "from the properties embraced with the terms of the residuary clause of the will of the testator, Bury Clark, * * *"
In so ordering, the trial court requires Mrs. Reba Turner Clark to defray the cost of paying the executor's attorneys for their services rendered in the will contest case, inasmuch as the "residuary clause" referred to in the trial court's decree is included in Item Sixth of the will and Mrs. Clark is the only person named therein to receive the residuary estate. That Item reads:
We have heretofore observed that Mrs. Reba Turner Clark and the executor both took the position in their pleadings that the fees due the attorneys who represented the executor in the will contest case should be taxed as costs against the contestants in that case, the appellees here.
It is obvious that the trial court did not consider that such fees should be taxed against the contestants as costs, since it taxed the costs of the will contest case against contestants in accordance with our action in Clark v. Clark, supra, and yet ordered such fees to be paid by the executor out of the residuary estate.
Our action in taxing the costs against the contestants, the appellees, in Clark v. Clark, supra, was in keeping with the following language of § 59, Title 61, Code 1940: "The costs of any contest under the provisions if this article must be paid by the party contesting, if he fails; * * *" Section 59, Title 61, supra, is a part of Article 3, Chapter 1, Title 61, Code, which authorizes the filing of a contest in equity under certain circumstances. It follows that there is no merit in appellees' contention that the provisions of § 59, Title 61, last quoted above, have no application to this case because said § 59, Title 61, Code, relates to will contests in a Probate Court." In Ex parte Winn, 226 Ala. 447, 147 So. 625, we held the provisions of § 10625, Code 1923, the progenitor of § 59, Title 61, Code, to be applicable to a will contest which the original transcript discloses was filed in the Probate Court of DeKalb County but was later transferred to the law side of the Circuit Court under the provisions of § 10636, Code 1923, now § 63, Title 61, Code, as amended. See Stanley v. Beck, 242 Ala. 574, 7 So. 2d 276, where we referred to the provisions of § 59, Title 61, Code. An examination of the original transcripts in the cases of Stanley v. Sawyer, 237 Ala. 515, 187 So. 425, and Sawyer v. Stanley, 241 Ala. 39, 1 So. 2d 21, shows that the will contest which was involved in Stanley v. Beck, supra, originated in the Probate Court of DeKalb County, but was tried in the DeKalb County Court, to which it was apparently transferred under the provisions of § 18, Act 179, approved July 22, 1927, Local Acts, 1927, p. 93. We can conceive of no logical reason why the provisions of § 59, Title 61, Code, should be applicable to will contest cases tried on the law side of the circuit court after transfer from the probate court and to such cases tried in inferior courts to which the contests are transferred, but not applicable to will contest cases filed originally in the circuit court, in equity, under the provisions of § 64, Title 61, supra.
The decree in Clark v. Clark, supra, taxing the costs against the appellees, the contestants, made no reference to attorneys' fees and it was not intended as a directive to the trial court to tax such fees as a part of the costs in the case. But, as previously shown, the motion filed by Mrs. Reba Turner Clark in Case No. 6138 and the petition filed by the executor in Case No. 6299 both presented to the trial court the question as to whether the fees allowed the attorneys who represented the executor in the will contest (Case No. 6138) should be taxed against the contestants as a part of the costs in that case.
No statute of this state has come to our attention which expressly provides that such fees are to be taxed as a part of the costs, but § 63, Title 46, Code 1940, provides in pertinent part as follows:
An executor is a trustee, and his administration of the estate of a decedent is that of a trustee.Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60. In the will contest suit (Case No. 6138) J. B. Simmons, in opposing the efforts of the contestants to invalidate the will, acted in his capacity as executor-trustee and hence the administration of a trust estate was involved in that suit within the meaning of § 63, Title 46, Code 1940. Under that section the trial court, in our opinion, had the authority to ascertain a reasonable attorneys' fee to be paid the attorneys who represented the executor in the will contest case and to tax such fee as a part of the costs in that case.
We have said that the allowance of the attorney's fee under § 63, Title 46, supra, is on the basis of, and solely for, benefits inuring to the common estate and the tenants in common.Pate v. Law, 277 Ala. 608, 173 So. 2d 596, and cases cited. But careful reading of the opinion in the Pate case and other opinions containing similar statements indicates that the limitation to the effect that the benefits which accrue from the attorney's services must inure to the common estate is where the fee of the attorney is to be taxed against the common estate.
We do not have to decide in this case whether the services rendered to the executor in the will contest suit inured to the common estate within the meaning of § 63, Title 46, supra, for there was no effort to have the fee paid out of a common fund. As shown above, the insistence of Mrs. Reba Turner Clark and the executor was that the fee of the attorneys who represented the executor in the will contest suit should be taxed as costs against the contestants. As we have already indicated, we entertain the view that the trial court had the authority under § 63, Title 46, supra, to tax the attorneys' fee in question as costs. If this had been done, then it would follow that under the provisions of § 59, Title 61, supra, the fee would have to be taxed against the contestants, the appellees, who failed in their efforts to have the will of Bury Clark, deceased, invalidated.
We do not want to be understood as even indicating that we do not think that an attorney who has represented an executor in establishing the validity of a will, which resulted in common benefit to the estate, is not entitled to a reasonable fee for his legal services, to be taxed under the provisions of § 63, Title 46, supra. King v. Keith, 257 Ala. 463, 60 So. 2d 47.
We have said that the allowance of an attorney's fee under § 63, Title 46, supra, is a matter of judicial determination and discretion of the trial court, subject to review by this court.Latimer v. Milford, 241 Ala. 147, 1 So. 2d 649; King v. Keith, supra.
After indulging all fair intendments in favor of the trial court's order requiring the fee allowed the attorneys who represented the executor in the will contest suit to be paid out of the residuary estate (Item Sixth of the will), we conclude that such order was unjust and unfair. Such conclusion is grounded primarily on the fact that it was the contestants who instituted the will contest suit, thereby creating the necessity for the executor to employ counsel to defend that suit, which this court concluded was altogether without merit.Clark v. Clark, supra.
In view of the foregoing, we hold that the trial court erred in decreeing that the attorneys' fee allowed the attorneys who *366 represented the executor in the will contest case be paid out of the residuary estate and in not taxing such fee against the contestants as costs in the will contest suit.
Counsel for appellant asserts in brief that the trial court erred in ordering $3,500 awarded to the attorneys for the executor for services rendered on the general administration of the estate, to be paid from the residuary estate, Item Sixth of the will. Counsel construes Assignment of Error No. 9 to charge error in that respect. We do not so construe that assignment. It is much too general to justify a consideration by this court of appellant's insistence relative to the trial court ordering the payment of the $3,500 fee from the residuary estate. No other assignment of error presents that contention.
Assignment of Error 10 asserts error on the part of the trial court in decreeing that the executor was not entitled to credit for the payment of ad valorem taxes on the land of the estate of Bury Clark, deceased, for the year 1967. Assignment of Error 11 is based on that part of the decree here under review which charged the executor with the sum of $1,410, the value which the trial court placed on certain farm equipment which the executor turned over to Mrs. Reba Turner Clark. The argument made in support of Assignments of Error 10 and 11 is hardly more than a restatement of the assignments. The argument is not sufficient to warrant a consideration of those assignments of error.
Counsel for the appellant, Mrs. Reba Turner Clark, asserts in brief:
No such contention was asserted in the trial below. Perhaps because there was no such contention, there is no assignment of error raising that point. Consequently, we do not have before us any question concerning the right of Mr. Williamson to be paid for his services rendered to the appellant, Mrs. Reba Turner Clark.
The decree of the trial court is reversed and the cause is remanded to that court with directions that a decree be entered in accordance with this opinion.
Reversed and remanded with directions.
SIMPSON, MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur.
BLOODWORTH, J., concurs specially.
HEFLIN, C. J., and COLEMAN, J., dissent.
BLOODWORTH, Justice (concurring specially).
I concur, understanding this holding to be limited to the proposition that an executor's attorney's fee incurred in successfully defending a will contest may be taxed as costs against the contestant in the trial court's discretion (subject to appellate review) when it is judicially ascertained that the contest is groundless.
HEFLIN, Chief Justice (dissenting).
The majority opinion avoids a harsh result to the widow under the present fact situation, but it establishes a precedent which, I fear, will bring about far reaching *367 and dangerous results and overturns a settled principle of law. I therefore must respectfully dissent.
The majority base their holding in this case on what must be conceded to be a strained construction in pari materia of Section 63, Title 46, Code 1940, and Section 59, Title 61, Code, in order to tax the attorneys' fees of the Executor in the will contest case against the contestants.
Section 59, Title 61, supra, provides that "The costs of any contest under the provisions of this article must be paid by the party contesting, if he fails * * *." There is no reference in the statute to attorneys' fees being included in costs. To endeavor to reach their desired result, the majority finds it necessary to engraft to said Section 59, Title 61, supra, a section from the Code which appears in a different title, i. e., Section 63, Title 46, supra, which provides, inter alia:
Even then these statutes fail to properly intermesh, so it is necessary to resort to case law to find authority for the proposition that the administration of an estate is the administration of a trust, thereby finally establishing what the majority concludes is ample authority for its holding. See Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60.
There is the principle of law that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys' fees paid by the opposing side. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935, 937; Penney v. Pritchard & McCall, 255 Ala. 13, 49 So. 2d 782; Pappas v. City of Eufaula, 282 Ala. 242, 210 So. 2d 802.
Where authority for taxing attorneys' fees against the opposing party is allowed by statute, it is considered that such statutory authority is in derogation of the common law and in order for such fees to be allowed the case must be strictly within the statute and its provisions must be complied with in every respect. See 20 C.J.S. Costs § 218, pp. 455, 458, and cases cited thereunder. A statute in derogation of the common law will not be presumed to alter it further than is expressly declared. Cook v. Meyer Bros., 73 Ala. 580; Pappas v. City of Eufaula, supra. A statute which is in derogation of the common law must be strictly construed and should not be extended further than is required by the letter of the statute. Foster v. Martin, 286 Ala. 709, 246 So. 2d 435 (decided by this Court on March 25, 1971). This common law mandate can hardly be followed through a strained construction engrafting one statute to another statute which still lacks any degree of cohesiveness until case law is used to glue them together.
The interwoven construction of Section 63, Title 46, supra, with Section 59, Title 61, supra, will mean that in every case in which attorneys' fees for the proponent of a will are allowed as part of the court costs in a will contest case (under Section 63, Title 46, supra) then it is mandatory that the contestant pay the same if the contestant fails in the will contest because of the language "must be paid" contained in Section 59 of Title 61, supra. Such merged construction of these statutes could mean that a losing contestant would have to pay his own attorneys' fees, the attorneys' fees of the proponent and face the real possibility in an equity will contest case of the imposition of attorneys' fees *368 for multiple other parties for the language of Section 63, Title 46, supra, allows the court to assess attorneys' fees for any party in the proceedings. Section 65, Title 61, Code 1940 (one of the equity will contest statutes), requires that in such proceedings all parties interested in the probate of the will, such as devisees, legatees, heirs, distributees or next of kin, must be made parties to the proceedings.
The language of the majority opinion allows lower court judges to tax attorneys' fees as part of the court costs in all will contest cases, regardless of whether the contest originates in probate or equity. The only limitation upon the discretion of the judge will be the prospect of an appellate court reversing his action because of an abuse of discretion. That limiting prospect must hurdle the presumption in favor of such judge's action.
The intermeshing of these two statutes could have the effect of removing will contests from the rule of law as a practical matter. It would indeed be rare to find an informed individual who is willing to contest a will, regardless of how meritorious his grounds of contest might be, in view of the risk of the imposition of attorneys' fees for one or more of the opposing parties.
Alabama has been proud of the fact that we have low court costs in civil litigation. Inexpensive court costs allow every man to have his day in court and his disputes settled by the rule of law. However, such a strained linking construction of these statutes will mean that only the rich or the clairvoyant can run the risk of contesting a will.
I would affirm the action of the trial court in charging the attorneys' fees of $14,000.00 awarded the attorneys for the Executor in the will contest case to the residuary estate in accordance with the settled law of this state. Powell v. Labry, 210 Ala. 248, 97 So. 707.
COLEMAN, J., concurs. | April 8, 1971 |
c972fd2b-4398-498d-a1df-f0a6e96bb72b | Muery v. Muery | 247 So. 2d 128 | N/A | Alabama | Alabama Supreme Court | 247 So. 2d 128 (1971)
In re Barbara Darlene MUERY.
v.
Robert Wilburn MUERY.
Ex parte Barbara Darlene Muery.
8 Div. 427.
Supreme Court of Alabama.
April 15, 1971.
Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for petitioners.
No brief from respondent.
McCALL, Justice.
Petition of Barbara Darlene Muery, et als., for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision in In re Muery v. Muery (Ex parte Muery), 46 Ala.App. 617, 247 So. 2d 123.
Writ denied, Wilkerson v. State, 246 Ala. 542, 21 So. 2d 622.
HEFLIN, C. J., and SIMPSON, COLEMAN and BLOODWORTH, JJ., concur. | April 15, 1971 |
674d2963-59ef-4075-8155-0f6a7ecc4544 | Gregory v. Western World Ins. Co., Inc. | 481 So. 2d 878 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 878 (1985)
Bobby GREGORY
v.
WESTERN WORLD INSURANCE COMPANY, INC.
84-822.
Supreme Court of Alabama.
December 13, 1985.
Gary W. Alverson and William R. Hovater, Tuscumbia, and Robert W. Bunch, Florence, for appellant.
Walter W. Bates of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee.
BEATTY, Justice.
Appeal by defendant Bobby Gregory from a summary judgment in favor of the plaintiff, Western World Insurance Company, Inc. (Western World), in plaintiff's action for a declaratory judgment. We affirm.
On August 30, 1982, Western World issued a policy of liability insurance to William E. Danley, Jr., and Glenn E. Kirk, d/b/a Big Daddy's Lounge. The policy was amended September 1, 1982, by the following endorsement:
On March 18, 1983, Gregory filed an action against Big Daddy's Lounge and others. His amended complaint contained five counts.
In Count One, he alleged that while he was at Big Daddy's Lounge, one of the co-defendants, Jerry Raines, "committed an assault and battery on the Plaintiff."
In Count Two, plaintiff alleged that assault and also alleged that other co-defendants, *879 Sandra Dowdy and Glenn Kirk, as agents and employees of Glenn Kirk and William Danley, Jr., at the time of the assault and battery, "negligently and wantonly maintained the premises known as Big Daddy's Lounge, so that it was not reasonably safe for members of the public" and that "as a proximate consequence of said wantonness or negligence, Plaintiff was caused to suffer the injuries heretofore described."
In Count Three, plaintiff realleged the facts of his earlier counts and also charged that the co-defendants, "Sandra Dowdy and Glenn Kirk, while employed as agents and employees of Glenn Kirk and William Danley, Jr., ... did sell, give, or otherwise dispose of to the Defendant Jerry Raines, contrary to the provisions of law, liquors or beverages, that caused the intoxication of Jerry Raines. As a consequence thereof, the Plaintiff was caused to suffer the injuries heretofore described."
In Count Four, plaintiff alleged that certain fictitious parties "A through HH, as set out in the caption of the Complaint, negligently and wantonly maintained the premises known as Big Daddy's Lounge, so that it was not reasonably safe for members of the public, including the plaintiff," and that "[a]s a proximate consequence of said wantonness or negligence, Plaintiff was caused to suffer injuries heretofore described."
In Count Five, plaintiff adopted the allegations of Count Three, and added:
Thereafter, Western World filed its action for a declaratory judgment, seeking a determination that its policy afforded no coverage to the insureds, or any obligation to defend the insureds in the aforementioned lawsuit. A copy of the insurance policy was attached to Western World's complaint. To this complaint, Bobby Gregory filed his answer, asserting certain defenses and praying that the trial court decree that coverage existed. Following a course of pleading, Western World moved for summary judgment based on the pleadings, the terms of the insurance policy, and an affidavit of Richard Parker, an independent insurance agent employed by the insurance agency which sold the policy to Danley and Kirk. This affidavit recited Danley's knowledge of the assault and battery exclusion. A stipulation of facts was also admitted, which stated in part:
Plaintiff's claim against the insured is based upon the Alabama dram shop statute, Code of 1975, § 6-5-71(a):
Additionally, plaintiff asserts that at the time of the incident in question the Alabama Alcoholic Beverage Control Board had in effect Rule 20-X-6-.02(4):
According to plaintiff, the insureds were acting contrary to law at the time of the incident, and that Western World's coverage for such an incident was provided by its liability policy. Plaintiff, moreover, contends that an ambiguity was created in the policy's terms by the assault and battery endorsement and that it must be resolved in favor of coverage.
The liability policy in question provides the following coverage:
The quoted coverage obviously extends to "dram shop" liability, subject to the stated exclusions. Exclusion (d) itself, excluding liability arising out of products or representation or warranty made with respect to products, specifically does not apply to liability imposed by dram shop law or regulation; consequently no ambiguity exists under Coverage X. To the contrary, the exclusion under (d)(1) and (2) preserves dram shop liability coverage.
Does the addition of the assault and battery exclusion lead to ambiguity in those terms? We think not.
Of course, insurance companies are entitled to have their policy contracts enforced as written, rather than risking their terms either to judicial interpretation or the use of straining language, and the fact that adverse parties contend for different constructions does not mean that the disputed language is ambiguous. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala.1985).
The relevant exclusion explicitly states that "the insurance does not apply to bodily injury ... arising out of assault and battery ... whether caused by or at the instigation or direction of ... patrons or any other person."
That is, if the claimed injury arises out of an assault and battery caused by a patron, insurance coverage is excluded. Insofar as this exclusion is concerned, the company could have placed it in the policy with the other quoted exclusions under Coverage X, but it chose instead to place it under a "Combined Provisions Endorsement" along with other exclusions. The insureds themselves selected some of these exclusions and also eliminated some of them. The effect of the assault and battery exclusion, clear in itself, does no more than the other exclusions agreed to by the insured; limiting the company's coverage to those remaining instances of injury arising out of "the selling, serving or giving of any alcoholic beverage at or from the insured premises."
It is not disputed that the bodily injury in question here was injury "arising out of assault and battery." The exclusion, therefore, being applicable, the trial court was correct in granting summary judgment for the plaintiff.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and HOUSTON, JJ., concur. | December 13, 1985 |
825be7f2-48ca-4087-b11d-6d90ebfb7e71 | Russell v. Stylecraft, Inc. | 244 So. 2d 579 | N/A | Alabama | Alabama Supreme Court | 244 So. 2d 579 (1971)
Betty Jo White RUSSELL et al.
v.
STYLECRAFT, INC., a Corp.
6 Div. 741.
Supreme Court of Alabama.
February 11, 1971.
*580 Hanes & Hanes, Brimingham, for appellants.
Ira H. Kline and R. A. Norred, Birmingham, for appellee.
LAWSON, Justice.
The appeal is from a final decree of the Circuit Court of Jefferson County, in Equity, rendered in a proceeding instituted for the purpose of having land sold for division among joint owners. § 210, Title 47, Code 1940.
Luther White died intestate in April, 1952, owning surface rights to twenty acres of land in Jefferson County, described as "the South half of the Southeast Quarter of the Northwest Quarter of Section 8, Township 14, Range 2 West * * *"
Luther White was survived by his widow, Audrey White, and ten children, Betty Jo White, Garland White, Arthur White, Dovie White Gibson, Reva White, Jarrell White, Albert White, Robert L. White, John W. White, and Earl G. White, all of whom are complainants in this case except Albert, Robert, John and Earl.
Albert, Robert, John and Earl, along with the complainant Dovie White Gibson, by quitclaim deed conveyed their interests in the twenty-acre tract of land to their mother, Audrey White.
*581 Subsequent thereto, five parcels were carved out of the twenty-acre tract by Audrey White for building sites. Audrey White conveyed all of her right, title and interest in and to Parcels 1, 2, 4 and 5 and retained Parcel 3 for her own use. She conveyed her right, title and interest in Parcel 1 to Earl White, in Parcel 2 to John White, in Parcel 4 to Arthur White, and in Parcel 5 to Albert White.
Dwelling houses were constructed on each of the parcels with labor and materials furnished by Outdoor Development Company, Inc. The purported owner of each of the five parcels executed a mortgage on his or her parcel to Outdoor Development Company, Inc., to secure the price of the labor and materials which went into the construction of the dwellings. The dwellings substantially enhanced the value of the twenty-acre tract. Each of the mortgages was foreclosed and Outdoor Development Company became the purchaser of the five parcels under the power of sale contained in the mortgages. Outdoor Development Company conveyed all of its right, title and interest in and to the said parcels of land to Stylecraft, Inc., a corporation.
The complainants were all minors at the time the deeds and mortgages heretofore referred to were executed with the exception of Dovie White Gibson.
In their bill the complainants averred that each of them owned an undivided 1/10 interest in the five parcels of land and that the respondent, Stylecraft, Inc., owns an undivided 4/10 interest; that the parcels of land could not be "fairly and equitably divided or partitioned among the joint owners thereof without a sale, inasmuch as said parcels are, separately and severally, building lots and not suitable for division, and that one or some of said parcels have a dwelling thereon incapable of being equitably divided or partitioned."
Aside from the prayer for process and the prayer for general relief, the bill prayed, in effect, that the said five parcels of land be sold for division and partition "between the said joint owners."
The respondent, Stylecraft, Inc., filed an answer which it made a cross bill. In essence, the cross bill sought to have the court allocate or allot to the respondentcross complainant the five parcels of land which the complainants-cross respondents in their original bill sought to have sold for division and to have the court allot to the complainants-cross respondents the remaining land in the South half of the Southeast quarter of the Northwest quarter of Section 8, Township 14, Range 2 West, Jefferson County, and to have such land partitioned in kind among the complainants-cross respondents. Demurrer interposed by the complainants-cross respondents to the cross bill was sustained. Thereafter, the respondent-cross complainant amended its cross bill and sought to make Audrey White, in her individual capacity, a cross-respondent. But she made no appearance. We see no occasion to summarize the averments added to the stating part of the original cross bill by the amendment. The prayer of the cross bill was amended so as to read in pertinent part as follows:
Demurrer interposed by the complainants-cross respondents was sustained to the cross bill as amended.
The cause was submitted to the trial court for final decree on behalf of the *582 complainants on their bill of complaint and a stipulation of facts and on behalf of the respondent upon its answer and a stipulation of facts.
In its final decree the trial court found that the complainants and the respondent are tenants in common of the five parcels of land to which reference has heretofore been made. It did not find that the parties to the litigation were tenants in common or joint tenants or joint owners of the remaining part of the South ½ of the Southeast ¼ of the Northwest ¼ of Section 8, Township 14, Range 2 West. Nevertheless, the trial court decreed as follows:
The final decree contains the further provision:
From the decree the complainants in the original bill appealed to this court.
The case is presented in this court, as it was in the lower court, on the theory that upon the death of Luther White his ten children became the owners in fee simple of the twenty-acre tract of land, free of any dower or homestead rights in his widow, Audrey White. For the purpose of this appeal, but for that purpose only, we treat the matter of ownership of the said twenty-acre tract of land as did the parties in the trial below.
As we have indicated, the stipulation of facts shows that five of the children, including Dovie White Gibson, conveyed their undivided interests in the twenty-acre tract to their mother, Audrey White. Accepting that statement as true, each of the six complainants did not, as alleged in the original bill of complaint, own an undivided one-tenth interest in the twenty-acre tract at the time the bill was filed. The discrepancy may result from the fact that Dovie White Gibson, one of the complainants, joined in the conveyance to her mother. We do not understand that, in this proceeding, Dovie White Gibson sought to avoid the effect of her joining in that conveyance, although the stipulation of facts contains the following language: "Dovie White Gibson at the time of her signing the conveyance attached hereto was twenty year (sic) of age and a married woman. Since the date of said conveyance to the present date she has performed no act of disaffirmance." The conveyance to which reference is made is that in which the five children joined in conveying their undivided interest in the twenty-acre tract to Audrey White.
In the case of O'Neal v. Cooper, 191 Ala. 182, 184-186, 67 So. 689, 690, 691, it was said, in part, as follows:
"(1) It is, of course, universally recognized that a cotenant may convey at his pleasure his undivided interest in all the lands held in common without the knowledge or consent of his companions in interest. Such a conveyance places the grantee in the deed in the same position that the grantor had previously occupied; no possible injury could result to the other cotenants in the tract.
*583 "(2) The rule is further recognized that a cotenant has a right to a partition of the common property. As was said in the case of Gore v. Dickinson, 98 Ala. 363, 11 So. 743, 39 Am.St.Rep. 67: `So, also, it is settled that neither the fact that inconvenience or injury will result, or mischief be entailed upon the property, or that a division may be embarrassed by difficulties, will deprive a cotenant of the right to demand a partition of the common property.'
"(3) In recognition of this right on the part of a cotenant, it is held by the decided weight of authority that a deed from a cotenant of a part of the land held in common cannot in any way operate to the prejudice of the other tanants in common. And it has therefore been held that the other tenants in common have a right to have the land partitioned unaffected by such deed. In such case, however, it is held that a court of equity will protect the rights of such purchaser, if it can be done without prejudice to the other cotenants.
"Speaking to this same subject, it was said in the case of Stark v. Barrett, 15 Cal. [361], 368, as follows: `It is the settled law, and hence a conveyance by one tenant of a parcel of the general tract, owned by several, is inoperative to impair any of the rights of his cotenants. The conveyance must be subject to the ultimate determination of their rights, and upon obvious grounds. One tenant cannot appropriate to himself any particular parcel of the general tract; as, upon a partition, which may be claimed by the cotenants at any time, the parcel may be entirely set apart in severalty to the cotenant. He cannot defeat its possible result while maintaining his interest, nor can he defeat it by a transfer of his interest; he cannot, of course, invest his grantee with rights greater than he possesses.'
"Mr. Freeman, in his work on Cotenancy and Partition (section 203), quotes the following from an authority cited in the note: `The grantee then acquires all the interest of his grantor in the special tract, and that interest is the tenancy in the special tract in common with the cotenants of his grantor; but his conveyance did not sever the special tract from the general tract, so far as the cotenants are concerned, and the general tract is therefore liable to partition, so far as the cotenants of the grantor are concerned, as it would be had the conveyance of the special tract not been made.'
"(4) These authorities therefore demonstrate that one cotenant cannot, by a sale of his interest in only a part of a common tract, thus prejudice the rights of his cotenants in the property of the common estate, and that in the partition proceeding such grantees of only a part of said common estate from one of said cotenants are proper parties, and indeed their interest is treated as a tenancy in the special tract in common with the cotenants of their grantor, and that the conveyance did not sever the special tract from the general tract, so far as the cotenants are concerned, but that such general tract is liable to a partition, so far as the cotenants are concerned as would be had the conveyance of the special tract not been made. As to the right of cotenants in common to a partition of the common property, we cite, also, in this connection, Upshaw v. Upshaw, 180 Ala. 204, 60 So. 804; McLeod v. McLeod, 169 Ala. 654, 53 So. 834; Hollis v. Watkins [189 Ala. 292], 66 So. 29, [present term].
"We need not here stop to inquire to what extent a court of equity would go in the protection of the interest of a grantee of a part of such common estate in a partition proceeding, but the authorities show that their interests will be fully protected in such court if consistent with the rights of the contenants of the common tract. Our statutes (sections 5232-5233, Code 1907) [§§ 189-190, Title 47, Code 1940] were evidently intended for a liberal use of the power of a court of equity in proceedings for the partition or sale for partition of estates of tenants in common."
In so far as we can determine, the language quoted above from O'Neal v. Cooper, *584 supra, has not been criticized by any subsequent opinion of this court.
We entertain the view that Albert, Robert, John and Earl White and Dovie White Gibson had the right to convey their undivided interests in the twenty-acretract to their mother, Audrey White; that Audrey White had the right to convey her undivided interest in parcels of the twenty-acre tract, sometimes hereinafter referred to as the general tract, and she and her grantees had the right to mortgage their undivided interests in the parcels which were carved out of the general tract; that the conveyance by Audrey White of four parcels carved from the general tract and the mortgages placed on those parcels and on the parcel upon which Audrey White had a dwelling constructed could not prejudice the rights in the common estate of the five children who did not join in the conveyance to Audrey White; that the conveyances and the mortgages of and on the several parcels did not sever them from the general tract, so far as cotenants, tenants in common or joint owners are concerned.
The complainants in the original bill had the right to seek a partition in kind and a sale for division of the general tract, that is, the twenty-acre tract. But they did not seek such relief as to the general tract. They wanted the five parcels sold for division of proceeds, leaving the remainder of the general tract untouched.
Although the trial court sustained the demurrer interposed to the cross bill and the demurrer interposed to the cross bill as amended, the final decree from which this appeal was taken affects the entire twenty-acre tract. As previously shown, the five parcels to which we have frequently referred above were "set aside and awarded to the respondent [Stylecraft, Inc.] to be its sole property." The remainder of the twenty-acre tract was ordered sold for division "between the complainants in this cause."
Although there is authority to the contrary (In re Prentiss, 7 Ohio 130, Part II, 30 Am.Dec. 203), the rule which seems to be well established is that a suit for partition should include all of the lands of the original cotenants in common and if it does not, any party, whether his interest extends through all such lands or is restricted to some specific part, may insist that the omitted land or lands be included in the suit, and that all persons be made parties whose presence is necessary to a partition with such lands included.40 Am.Jur., Partition, § 32, p. 27. See 68 C.J.S. Partition § 55b(2), p. 80.
In O'Neal v. Cooper, supra, 191 Ala. 188, 67 So. 691, we made the following observation concerning the Ohio case of In re Prentiss, supra: "By some of the authorities above cited, the Ohio case is treated as holding to a contrary view to the great weight of authorities and as opposed to the views expressed in these cases."
In Inman v. Prout, 90 Ala. 362, 366, 7 So. 842, 844, it was said: "The parties must be tenants in common of all the lands sought to be divided." But the right of a cotenant to split up a common tract to the prejudice of the right of his cotenants for partition of the common estate was not discussed or involved in that case. Indeed, the opinion shows that the original cotenancy was dissolved by valid judicial sale. The opinion says: "By the proceedings the title of the original joint owners to the several lots was divested, and vested in the purchasers respectively, so that each purchaser's title and possession is separate and distinct." (90 Ala. 365-366, 7 So. 843-844)
*585 In Leddon v. Strickland, 218 Ala. 436, 438, 118 So. 651, 652, we said:
We hold, therefore, that there is no merit in the appellants' contention that the decree of the trial court is erroneous simply because Stylecraft, Inc., was not a tenant in common in all the lands which the trial court ordered divided or sold for division.
Appellants contend that the pleadings upon which this cause was submitted for final decree did not seek affirmative relief as to any land other than the five parcels and that consequently the trial court erred in ordering the remainder of the general tract sold for division.
Since the decree must be reversed for other reasons hereinafter discussed, we lay aside the question as to whether the trial court could correctly decree that the land in the general tract not included in the five parcels be sold for division, since the original bill did not pray for such relief and since the demurrer was sustained to the cross bill and to the cross bill as amended. We entertain the view that on another trial the issues will be framed in the light of this opinion.
The decree must be reversed because Audrey White owned an undivided interest in the lands which the trial court ordered sold for division of the proceeds "among the complainants." She was not a "complainant" in her individual capacity.
The respective right, title and interest of the partites who are joint owners or tenants in common of land ordered sold for division should be ascertained before the order. This was not done. For this reason, also, the decree of the trial court is reversed. Harvey v. Jenkins, 219 Ala. 121, 121 So. 419.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | February 11, 1971 |
b1aa796c-2c01-480c-830c-de9be9ba1827 | Ex Parte Edwards | 480 So. 2d 1264 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1264 (1985)
Ex parte Titus James EDWARDS.
(Re Titus J. Edwards v. State of Alabama).
84-1273.
Supreme Court of Alabama.
November 27, 1985.
Arthur J. Madden, III, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
Prior Report: 480 So. 2d 1259 (Ala.Cr. App.).
FAULKNER, Justice.
The petition for writ of certiorari is denied.
In denying the petition for 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 *1265 Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur. | November 27, 1985 |
c5a2c63d-3e52-493f-bdb9-ffbeb419cdca | Turner v. Lassiter | 484 So. 2d 378 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 378 (1985)
Vance TURNER and Jessie Mae Turner
v.
Larry LASSITER, Helen Lassiter and James W. Elliott, Jr.
84-658.
Supreme Court of Alabama.
December 6, 1985.
Rehearing Denied January 31, 1986.
*379 James E. Hart, Jr., Brewton, for appellants.
Bert W. Rice of Maxwell & Rice, Atmore, for appellees Larry Lassiter and Helen Lassiter.
Charles R. Godwin, Atmore, for appellee James W. Elliott, Jr.
HOUSTON, Justice.
Larry Lassiter filed a complaint in the nature of an action in ejectment against Vance Turner seeking to recover possession of an undivided one-half interest in and to all oil, gas, and minerals in, on, or under a twenty-acre tract in Escambia County, Alabama. The complaint was amended to add a second claim for declaratory relief in regard to the instruments in dispute in this cause. Turner denied the allegations of the complaint as amended, filed affirmative defenses (estoppel, waiver, and fraud), and filed a counterclaim for reformation of the deed from Lassiter to Turner and for fraud and misrepresentation. James W. Elliott, Jr., and Beau Camp Oil and Gas Corporation, who were lessees of oil, gas, and minerals on the twenty acres of Lassiter and Turner respectively, and the wives of Lassiter and Turner were added as parties.
Motions for summary judgment filed by the Lassiters and Elliott were granted by the trial court. The Turners appeal. We affirm.
Archie James owned the entire interest in the surface and minerals of the twenty-acre tract involved in this litigation when he died intestate, leaving an undivided interest to each of his sons, Raymond Lee James and John Russell James. In 1975, John conveyed his half interest in the surface to Raymond, reserving the oil, gas, and mineral rights. On May 24, 1976, John conveyed an undivided half interest in said minerals to Raymond and in the same instrument reserved an undivided half interest in said minerals to himself. On the same day (May 24, 1976), Raymond and his wife conveyed by warranty deed the entire twenty acres, without any reservation of "oil, gas, or minerals" interest, to Lassiter. On October 12, 1977, John conveyed a one-half interest in minerals to Raymond and his wife. On April 14, 1978, Lassiter conveyed to the Turners the same twenty acres "LESS AND EXCEPT all oil, gas and minerals, one-half of which have [sic] been reserved by prior owners and one-half of which the undersigned expressly reserves unto himself, his heirs and assigns." In July 1981, Turner obtained a transfer of royalty and mineral interests to an undivided one-half interest in all oil, gas, and minerals in the twenty-acre tract from Raymond and his wife.
The basic objective in construing the terms of a deed is to ascertain the intention of the parties, especially the grantor, and if that intention can be found from the entire instrument, arbitrary rules of construction need not be used. Financial Investment Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America., 353 So. 2d 1389 (Ala.1977).
Upon consideration of the entire deed, when it clearly appears that the grantor intended to reserve or except mineral rights, the reservation or exception will be sufficient, even though the granting clause contains words of inheritance without exception and reservation. It clearly appears that Lassiter intended to reserve and except oil, gas, and mineral rights. *380 Holmes v. Compton, 273 Ala. 554, 142 So. 2d 697 (1962).
In ascertaining the intention of the parties to a deed, the deed's terms must be legally presumed to have intended what is plainly and clearly set out. Financial Investment Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America, supra, citing Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973). "LESS AND EXCEPT ALL oil, gas and minerals." Under the facts of this case: "All" is all. "All" is not ambiguous. "All" is not vague. "All" is not of doubtful meaning.
It is not necessary to discuss whether Raymond and his wife owned all of the mineral interests at the time that they conveyed by warranty deed the twenty acres without reserving or excepting any mineral interests. It is probable that they did (see Morgan v. Roberts, 434 So. 2d 738 (Ala. 1983)). However, on October 12, 1977, Raymond and his wife acquired all of the mineral interests owned by John. This was after Raymond and his wife had given the warranty deed to Lassiter. Under the doctrine of after acquired title, Lassiter immediately acquired title to the minerals when such title was subsequently acquired by his grantors.
There are numerous Alabama cases which support the after-acquired-title proposition of law, and one of the best statements is contained in Doolittle v. Robertson, 109 Ala. 412, 19 So. 851 (1895):
In Porter v. Henderson, 203 Ala. 312, 82 So. 668 (1919), this Court declared:
In Floyd v. Andress, 246 Ala. 301, 20 So. 2d 331 (1944), we held:
Does the phrase which follows this unambiguous exception make the exception ambiguous when half of such oil, gas, and minerals has not in fact been reserved by prior owners: "[O]ne-half of which have [sic] been reserved by prior owners and one-half of which the undersigned expressly reserves unto himself, his heirs and assigns."?
It does not. This was addressed by this Court in the case of Union Oil Company of California v. Colglazier, 360 So. 2d 965 (Ala.1978), where a trial court had granted summary judgment in a declaratory action and the procedural posture of that case was substantially similar to the posture of the present case. In that case, there was a reservation of "`[a]n undivided one-half (½) interest in and to the oil, gas and minerals,... same having been reserved to G.C. Coggin Company, Inc.'" In fact Coggin had not reserved such undivided one-half interest. This Court held:
In Union Oil, this Court concluded that the deed was not ambiguous and clearly excepted an undivided one-half of the mineral interest.
We conclude that the deed in the case at issue was not ambiguous and clearly excepted all oil, gas, and minerals. The phrase "one-half of which have been reserved by prior owners" is merely a recitation *381 of fact, which may or may not have been erroneous, and it does not make the deed ambiguous. The deed from Lassiter to the Turners clearly excepted all oil, gas and minerals.
The effect of the application of the doctrine of after acquired title to the undisputed facts in this case is that Lassiter acquired all mineral rights acquired by Raymond and his wife, immediately upon their acquiring such rights, i.e., on October 12, 1977. Therefore, Raymond and his wife had no interest in such minerals at the time that they executed the transfer of royalty and mineral interests to the Turners in June 1981.
The misrepresentation and fraud counts of the Turners' counterclaim were predicated upon all oil, gas and minerals, instead of one-half thereof, having been reserved in the deed from the Lassiters to the Turners.
Section 6-2-39, Code 1975, provides for a one-year limitation of actions on fraud. Section 6-2-3, Code 1975, limits the accrual of the claim to one year after discovery of facts constituting fraud.
Fraud is deemed to have been discovered when the person either actually discovered it, or when the person ought to or should have discovered the facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered. Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984); Cooper Chevrolet, Inc. v. Parker [MS. December 6, 1985] (Ala.1985).
It is undisputed that the deed was given to Turner in April 1978. It was dated April 14, 1978, and filed for record and recorded on April 17, 1978. At that time, the Turners could have seen that Lassiter reserved and excepted all of the oil, gas, and minerals. The counterclaim was not filed until 1983.
However, Ala.R.Civ.P., Rule 13(c), provides:
In this case, the fraud action arose out of the same transaction or occurrence that formed the basis of the plaintiff's claim in the nature of ejectment; and, therefore, it is a compulsory counterclaim under Rule 13, Ala.R.Civ.P., and cannot be defeated by the general statute of limitations for fraud actions. Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976).
There was a scintilla of evidence of fraud presented in the affidavits of Turner, Robert White, Wayne Turner, and Leon Coleman, Jr. Therefore, summary judgment is improper as to the Turners' counterclaim seeking damages for fraud.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | December 6, 1985 |
3bd63cae-4e59-4644-bfa4-9276944cb4b0 | Hines v. City of Mobile | 480 So. 2d 1203 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1203 (1985)
Thomas C. HINES
v.
CITY OF MOBILE, et al.
84-1294.
Supreme Court of Alabama.
November 8, 1985.
Thomas C. Hines, pro se.
James B. Rossler, Mobile, for appellees.
PER CURIAM.
On August 31, 1984, while incarcerated in an Alabama state prison, Thomas C. Hines filed a civil action against the City of *1204 Mobile and one of its police officers. Hines alleged that the officer committed an assault and battery on him on or about May 26, 1983. Hines's motion to proceed in forma pauperis was granted, and his motion for appointment of counsel was denied.
The case was set for trial on July 16, 1985. There is no allegation that Hines was unaware of the date. In fact, Hines had filed a motion requesting that another inmate be required to attend the trial as a witness for him. Because Hines failed to appear at trial either in person or through counsel, the judge dismissed the case with prejudice for want of prosecution.
Hines raises two issues on appeal. First, he claims the trial judge abused his discretion in failing to appoint counsel. A prisoner who is representing himself in a civil case is "not due to have counsel appointed." Hubbard v. Montgomery, 372 So. 2d 315, 317 (Ala.1979).
Second, Hines argues that the trial judge erred in dismissing the case for want of prosecution because a layman should not be held to the standard of a lawyer in knowing how to secure his own presence or testimony at trial. This issue has been raised and rejected in prior cases. We have held that a prisoner has no right to appear in person at the trial of a civil suit unrelated to his confinement. We pointed out that a prisoner could take his own oral or written deposition under Rule 30 or 31, A.R.Civ.P. to be used at trial pursuant to Rule 32(a)(3)(C), A.R.Civ.P. See Hubbard v. Montgomery, 372 So. 2d 315 (Ala.1979); Whitehead v. Baranco Color Labs, Inc., 353 So. 2d 793 (Ala.1977); Aguilar v. Spradlin, 408 So. 2d 525 (Ala.Civ.App. 1981); Whitehead v. Baranco Color Labs, Inc., 355 So. 2d 376 (Ala.Civ.App.1979).
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur. | November 8, 1985 |
dfcb6735-5edf-4945-87b9-c083a170d858 | City of Tuskegee v. Lacey | 486 So. 2d 393 | N/A | Alabama | Alabama Supreme Court | 486 So. 2d 393 (1985)
CITY OF TUSKEGEE, et al.
v.
Andrew J. LACEY, et al.
84-415.
Supreme Court of Alabama.
December 20, 1985.
Rehearing Denied and Special Concurrence Modified March 31, 1986.
Fred D. Gray and Walter E. McGowan of Gray, Langford, Sapp, Davis & McGowan, Tuskegee, for appellants.
Ira De Ment and Joan Van Almen of De Ment & Wise, Montgomery, for appellees.
PER CURIAM.
The summary judgment from which this appeal is taken recites the following facts:
Because the issue of "standing" raised by defendant/appellee City of Tuskegee is not expressly dealt with in the trial court's judgment, we now address this threshold issue.
The primary ground on which the City challenges the standing of the property owners' right to seek relief is a city ordinance exempting these plaintiff property owners from the payment of taxes or the exercise of other regulations or controls. Implicitly, the trial judge rejected the City's "standing" contention and explicitly observed that "this suit was filed by one or more persons whose lands abut the annexed rights-of-way."
We believe that this initial issue can be summarily disposed of by simply noting that all of the plaintiffs are property owners within the City's police jurisdiction, as that jurisdiction is determined by the newly-annexed public rights-of-way, and that certain of the plaintiffs own property abutting the public rights-of-way involved. This proximity to the "annexed" corridor, which authorizes the City to exercise certain power and control over the property and its owners, supplies sufficient interest in these plaintiffs, affected by their inclusion, to give them standing to prosecute this action.
Moreover, one of the alternative remedies sought is quo warranto relief pursuant to Code 1975, § 6-6-591 (see, also, Annot., 18 A.L.R.2d 1255, § 7 (1951); State ex rel. Martin v. City of Gadsden, 214 Ala. 66, 106 So. 229 (1925)), and the mere threat of taxation affords sufficient interest in a relator to maintain suit. See, generally, Annot., 13 A.L.R.2d 1279 at § 7 (1959). We hold, therefore, that the trial court did not err in denying the City's motion to dismiss for lack of standing. See, also, People ex rel. Kirby v. City of Effingham, 43 Ill.App.3d 360, 2 Ill.Dec. 28, 356 N.E.2d 1315 (1976).
Addressing the merits of the case, the trial court decreed as follows:
We reverse the trial court's grant of summary judgment for two reasons.
First, the trial court was in error because there exists a material issue of fact as to whether the road which served as a vehicle for the contiguity requirement of the annexation statute had been abandoned and had, thus, become private property. The annexation proceeding at issue in this case was conducted pursuant to Code 1975, § 11-42-21, which provides in part:
Plaintiff F.C. Thompson contends that he is a landowner whose property was within the designated roadway right-of-way annexed by the City of Tuskegee and that he has not given consent to the annexation as required by Code 1975, § 11-42-21. Plaintiffs' expert stated in an affidavit that Thompson's deed included the annexed right-of-way and that in his opinion the road annexed by the City had long been abandoned by the County. These circumstances give rise to a material issue of fact as to the public status of the annexed road as well as whether the City conducted the disputed annexation in accord with the statutory requirements. The trial court, on remand, must conduct a hearing to determine if the disputed roadway is public or private. On motion for summary judgment, there were affidavits supporting both contentions. If the roadway is determined to be private, a determination must be made as to whether all private owners have given their consent. See Code 1975, § 11-42-21.
In addition, the trial court erred in holding that the City of Tuskegee's method of annexation entitled plaintiffs to summary judgment as a matter of law. We do not subscribe to the view espoused by the trial court that the physical traits of the annexed land in the instant case violate the purpose and intent of Alabama's annexation law. Code 1975, § 11-42-21, only requires that the annexed land be "contiguous to the corporate limits" of the annexing municipality. In City of Dothan v. Dale County Commission, 295 Ala. 131, 324 So. 2d 772 (1975), this Court held that a 350-foot-wide common boundary between a municipality and annexed land was sufficient to satisfy the statutory contiguity requirement despite the fact that the land annexed constituted a narrow corridor connecting a parcel of land miles from the corporate limits of the municipality. This Court rejected a requirement of a "substantial common boundary" and found that "`contiguity' means a `touching' at some point." 295 Ala. at 134, 324 So. 2d at 775. This Court went on to say:
295 Ala. at 135, 324 So. 2d at 776. See also City of Birmingham v. Mead Corp., 372 *396 So. 2d 825 (Ala.1979). Clearly, the annexation by the City of Tuskegee meets the contiguity requirement defined in City of Dothan.
Although we concede that the facts in the present case differ from those in City of Dothan, we see no compelling reason for reaching a different result here. The corridor or strip annexed in this case arguably consists of public road right-of-way rather than private property; however, as previously noted, the legislature used the term "contiguous" without reference to the nature of the annexed land or the use to which it is put. There is no statutory requirement that the land be private rather than public, and we find no basis for reading this limitation into the statute.
The majority of courts in other jurisdictions with statutory provisions similar to our own have treated corridor annexation with disfavor, regardless of whether the corridor involved public or private land. See Annot., 49 A.L.R.3d 589, § 10-16 (1973). However, in City of Dothan, this Court condoned corridor annexation. In other jurisdictions that have generally upheld this annexation method, there has been no apparent distinction made between the annexation of public road rights-of-way and private property and the use of public rights-of-way has been upheld. See e.g. Fox Development Co. v. City of San Antonio, 468 S.W.2d 338 (Tex.1971).
We agree that the wholesale allowance of what the circuit court terms "the long lasso doctrine" could invite abuse and substantial problems; however, it is also a general rule in this state that the courts can act to correct an abuse of a municipality's discretion in enacting an annexation ordinance. See City of Birmingham v. Mead Corp., 372 So. 2d 825 (Ala.1979); Washington v. City of Birmingham, 364 So. 2d 1151 (Ala.1978); City of Birmingham v. Community Fire District, 336 So. 2d 502 (Ala.1976).
The Court in City of Dothan considered the City's motives, as well as the beneficial results derived from the contested annexation:
324 So. 2d 776. Applying these same considerations to the peculiar facts of the instant case, it is abundantly clear that the City of Tuskegee's interest in the annexed property, as well as its motivation in enacting the annexation ordinance, are no less laudable than those apparent in City of Dothan. The City furnishes electricity, water, fire protection, and police protection to the annexed property and has expended approximately $500,000.00 to provide these services. Moreover, the City receives $8,000.00 to $9,000.00 monthly in tax revenues generated by the racing facility situated on the annexed property. Until the legislature pronounces more circumscribed limitations upon the power it has delegated to municipalities to extend their boundaries, we see no reason to adopt the result reached by the trial court, which in our minds' eye would establish an inflexible precedent that would stifle growth in our state and hinder the upgrading of beneficial public services for our citizens.
REVERSED AND REMANDED.
FAULKNER, SHORES and ADAMS, JJ., concur.
BEATTY and HOUSTON, JJ., concur specially.
TORBERT, C.J., and MADDOX, JONES and ALMON, JJ., dissent.
HOUSTON, Justice (concurring specially).
Four Justices on this Court would affirm the trial court's rejection of the "long lasso" doctrine, but would also reaffirm this Court's rejection in City of Dothan v. Dale County Commission, 295 Ala. 131, 324 So. 2d 772 (1975), of the "substantial common boundary" annexation doctrine. This reasoning is inconsistent. I cannot distinguish City of Dothan from the case at issue. In City of Dothan, this Court permitted a 350-foot-wide strip of land owned *397 by an authority exempt from ad valorem taxes to serve as a corridor to connect the city limits of Dothan with property which Dothan wanted to use as a municipal airport. The opinion did not disclose the length of the strip of land, but did show that it extended beyond the geographical boundaries of Houston County into Dale County.
It is clear to me that Dothan a decade ago employed the same "long lasso" that Tuskegee is accused of using in the case at issue. Perhaps the dimensions of the "lasso" are not the same here as in City of Dothan; but since the present law of Alabama is that "contiguity" for annexation purposes means "touching at some point," the width of the strip and the length of the corridor are immaterial.
The four dissenting Justices in this case attempt to distinguish City of Dothan by the fact that here "the only connecting territory between the dog track and the nearest boundary ... is fourteen miles of public rights of way." The majority correctly points out, however, that in those jurisdictions that have adopted corridor annexation, no distinction has been made between the annexation of public land and the annexation of private land. Under the rule adopted in City of Dothan, if there is a public right-of-way between the city limits of Tuskegee and the "dog track" property, it can serve as a "corridor" to provide the contiguity for annexation purposes.
Three Justices on this Court would reaffirm the City of Dothan decision without distinguishing it from the case at issue. The four dissenting Justices would reaffirm City of Dothan while attempting to distinguish it from the present case, as discussed above. Thus, seven Justices of this Court agree that the doctrine expressed in City of Dothan should be reaffirmed. But in condoning corridor annexation (even for the worthy purpose for which the annexation was sought, namely, an airport) this Court took a position contrary to that taken by the majority of courts in this country. Those courts require that there be a "substantial common boundary" to satisfy the statutory contiguity requirement. I share that view and believe that we should overrule City of Dothan. Sometime in the future I hope that a majority of this Court will come to share this view. The present law in Alabama, however, is that enunciated in City of Dothan. Since "contiguity" for annexation purposes means "touching at some point," Tuskegee has the right under present law to annex the land in question.
A question of fact, making summary judgment inappropriate, is whether the roads between the city limits of Tuskegee and the "dog track" property are all public roads or whether some of those roads or parts of them have been vacated or abandoned. See Bownes v. Winston County, 481 So. 2d 362 (1985). If any portion has been abandoned or vacated and the owner or owners[1] who have acquired title thereto have not consented to the annexation, then the annexation is not valid; but that is for the trier of facts and not a matter for summary judgment.
BEATTY, J., concur.
JONES, Justice (dissenting).
I would adopt the trial court's judgment (less the last paragraph, not here pertinent) as the opinion of this Court. For a collection of authorities supportive of the trial court's rejection of the "long lasso" doctrine, see Annot., 49 A.L.R.3d 589, §§ 10, 16 (1973).
The central thrust of the City's argument is founded on this Court's rejection of the "substantial common boundary" annexation theory in City of Dothan v. Dale County Commission, 295 Ala. 131, 324 So. 2d 772 (1975). I not only agree with the premise of the City's contention, but I would reaffirm the City of Dothan holding. I would hasten to point out, however, *398 that the trial court's rejection of the City's argument in support of annexation in this case is based on a set of facts altogether different from the facts presented in City of Dothan.
Indeed, the facts in the two cases differ materially, in that the only connecting territory between the dog track and the nearest city boundary in the instant case is fourteen miles of public rights-of-way. In City of Dothan, the property owned by the airport authority extended the full distance from the airport proper to a point that bounded 350 feet of land along the nearest municipal boundary; and in that case there was no extended corridor consisting solely of public rights-of-way connecting the "annexed" property to the city boundary.
TORBERT, C.J., and MADDOX and ALMON, JJ., concur.
[1] § 11-42-20, Code 1975"The term `owners,' as used in this article, shall mean the person in whose name the property is assessed for ad valorem tax purposes in the absence of proof to the contrary." | December 20, 1985 |
20f65685-aa2c-47ae-9b2c-db6fe2511a67 | Scholz Homes, Inc. v. Hooper | 254 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 254 So. 2d 328 (1971)
SCHOLZ HOMES, INC., a Corp.
v.
William J. HOOPER and Gwendolyn R. Hooper.
1 Div. 651.
Supreme Court of Alabama.
November 4, 1971.
John V. Duck, Fairhope, for appellant.
Wilson Hayes, Bay Minette, for appellees.
SIMPSON, Justice.
This is an appeal by Scholz Homes, Inc., a corporation, from a judgment of the Circuit *329 Court of Baldwin County against it and in favor of William J. Hooper and Gwendolyn Hooper in the sum of $13,500. The judgment followed a jury verdict in like amount. There was no motion for a new trial. The appellant assigns as error two actions of the trial court.
The first error assigned is that the court erred in refusing to give appellant's requested written charge Number One which was as follows:
The second error assigned is that the court erred in refusing to give appellant's requested written charge Number 1-A which is as follows:
We will treat these assignments in inverse order. The complaint consisted of three counts as follows:
"The Plaintiffs claim of the Defendant NINETEEN-THOUSAND NINE-HUNDRED EIGHTY-NINE AND TWENTY-SIX/100 ($19,989.26) DOLLARS damages, for that on to-wit: the 4th day of February, 1969 the Defendant represented to Plaintiffs that the cost of a certain home, viz, Defendant's House Plan known as Meadow Branch Inline Plan #51023 was the sum of FORTY-SEVEN-THOUSAND SIX-HUNDRED and NO/100 ($47,600.00) DOLLARS.
"That Plaintiffs were thereby induced to purchase certain materials from Defendant for the construction of a home of the value of TWENTY-TWO-THOUSAND SIX-HUNDRED EIGHTY-EIGHT and SIXTY ONE/100 ($22,688.61) DOLLARS and to incur expenses for the construction of such home.
"That said representation [sic] were false and were known to Defendant at the time they were made to be false and were made with the intent to deceive Plaintiffs.
"That the Plaintiffs purchased the said materials from Defendant, that they engaged a Contractor approved by Defendant, that they performed all matters as directed and suggested by Defendant and employed Defendant's Engineer and Consultant for the purpose of building said home and that the cost of building the said home exceeded SIXTY-SEVEN-THOUSAND SEVEN-HUNDRED EIGHTY-NINE and TWENTY-SIX/100 ($67,789.26) DOLLARS, all to the damage of Plaintiffs.
"The Plaintiffs claim of the Defendant NINETEEN-THOUSAND NINE-HUNDRED EIGHTY-NINE and TWENTY-SIX/100 ($19,989.26) dollars damages, for that on to-wit the 4th day of February, 1969 the Defendant acting by and through its agent, servant or employee was then and there acting in the line and scope of his employment represented to the Plaintiffs that a certain home, viz, Defendant's House Plan known as Meadow Branch Inline Plan #51023 was the sum of FORTY-SEVEN-THOUSAND SIX-HUNDRED and NO/100 ($47,600.00) DOLLARS.
"That Plaintiffs were thereby induced to purchase certain materials from Defendant for the construction of a home of the value of TWENTY-TWO-THOUSAND SIX-HUNDRED EIGHTY-EIGHT and SIXTY-ONE/100 ($22,688.61) DOLLARS and to incur expenses for the construction of such home.
"That said representation [sic] were false and were known to Defendant at the time they were made to be false and were made with the intent to deceive Plaintiffs.
*330 "That the Plaintiffs purchased the said materials from Defendant, that they engaged a Contractor approved by Defendant, that they performed all matters as directed and suggested by Defendant and employed Defendant's Engineer and Consultant for the purpose of building said home and that the cost of building the said home exceeded SIXTY-SEVEN-THOUSAND SEVEN-HUNDRED EIGHTY-NINE and TWENTY-SIX/100 ($67,789.26) DOLLARS, ALL TO THE DAMAGE OF PLAINTIFFS.
"The Plaintiffs claim of the Defendant the sum of NINETEEN-THOUSAND NINE-HUNDRED EIGHTY-NINE and TWENTY-SIX/100 ($19,989.26) DOLLARS damages, for that on to-wit: the 4th day of February, 1969 and on divers days before and after that date the Defendant represented to Plaintiffs that the cost of a certain home, viz, Defendant's House Plan known as Meadow Branch Inline plan #51023 was the sum of FORTY-SEVEN-THOUSAND SIX-HUNDRED and NO/100 ($47,600.00) DOLLARS.
"That the said representation was made to induce Plaintiffs to purchase certain materials for the construction of a home; that the representations were false, that they were made wilfully to deceive, or recklessly without knowledge, and that such representations were relied upon by Plaintiff and acted upon in that Plaintiffs purchased materials for the building of a home from Defendant and that the said home exceeded in costs the amount represented by Defendant, all to the damage of Plaintiffs."
After filing demurrers, which are of no concern to us as this record does not show action taken on them nor are errors assigned pertaining to them, the defendant plead not guilty to each count of the complaint and the case proceeded to trial resulting in the judgment above set forth.
There being no motion for a new trial we will limit our review of the evidence to that introduced in proof of the averments of the complaint, in order to determine whether or not under the scintilla rule a jury question was presented. If so, and if the complaint stated a cause of action, the trial court did not err in refusing the general charge requested by the defendant.
A study of the evidence reveals testimony of witnesses favorable to the plaintiffs substantially as follows:
Scholz was in the business of selling packaged or prefabricated homes. The Hoopers, having seen a magazine advertisement of their product, ordered a brochure from them. This was followed by a personal call from Don White, a representative of the company, for a discussion of the various house plans available in package forms from Scholz. The first visit was followed by others. Various floor plans were discussed as was the fact that they were not inflexible. The Hoopers worked up one floor plan and inquired of White what it would cost. When advised that the total cost would be $53,000 they replied that they could not build that much house because of its cost. They, the Hoopers, then worked up another and more modest plan using features they were told by White were available from Scholz. After this plan was submitted to White, he delivered to them the following instrument, typewritten on the stationery of the company:
This written statement was in confirmation of an oral one in which White said to Hooper, "This house will cost you $47,600." White had represented himself as being experienced in the construction business and knew it in and out.
The Hoopers and the salesman for the company then called a local contractor concerning the actual building of the house, using the "package" of Scholz. The contractor stated that he thought the total cost would be over $60,000 but the representative of the company still insisted it would not be over $47,600 if done on a cost plus 10 percent profit basis; that the difference between the contractor's estimate and that of the company resulted from the techniques of construction by using the packaged form which would save the difference. The contractor was awarded the contract to build on a cost plus basis, the Hoopers ordered and paid for the "package" which cost $22,686.80. The "package" was shipped to the construction site, the contractor began and completed the building of the house and the Hoopers wound up with a total bill of $67,789. The Hoopers wrote to the home office of Scholz concerning the excess in cost over the assurances of their representative and received the following letter in reply:
"Dear Mr. Hooper:
There was also evidence that the Hoopers were unsophisticated as to building costs and methods and relied heavily on the statements made by Scholz acting through their agents that the cost of the completed house would not exceed the sum of $47,600. Matching the above outlined evidence against the allegations of the complaint as above set forth it appears that the requirements of the scintilla rule have been more than met and that the court did not err in refusing the general charge because of lack of proof.
The statement in the home office letter that the items furnished by Scholz, in addition to architectural and engineering service normally represents only thirty per cent of the entire cost would certainly justify the jury in finding willful misrepresentation on the part of their agent when he stated that the cost of the house would not exceed $47,600, having before him a contract price for the Scholz items in the amount of $22,686.80.
The appellant's main argument is that the statements made by White that the cost of the house was $47,600 could not have been a false statement because the house had not been built and no one could know what the cost would be in view of the fact that the erection was done on a cost plus basis. The appellant further reasons that because of the above fact the plaintiffs failed to prove the allegations of their complaint and that such failure entitled the defendant to the affirmative charge. We see the point but we do not think it has merit and is a matter of semantics rather than substance. It is clear to us from the allegations of the complaint that the word "was" was used in the sense of "would be" or "will be". All knew that the sale of the "package" pertained to a house yet to be built rather than one already built. We are cited by the appellant the case of Birmingham Broadcasting Company v. Bell, 259 Ala. 656, 68 So. 2d 314, and to §§ 108 and 110 of Title 7, Code of Alabama as recompiled in 1958 as authority for the proposition that deceit must be based on a material fact then in existence at the time misrepresentations are made. We do not find Birmingham Broadcasting Co. v. Bell apt authority under the pleadings and proof in the present case. In that case there was no allegation of intentional deception or that the facts represented were better known to one party than to the other. We consider the case of Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 more pertinent to our consideration. There we find quoted with approval language from Kefuss v. Whitley, 220 Mich. 67, 189 N.W. 76, which is as follows:
Quoting further from Shepherd v. Kendrick, we find:
From the foregoing we are persuaded that the proof of the allegations in the complaint was sufficient to present a jury question. We do not find reversible error in assignment of error number two and will now proceed to consider the other assignment of error which is based on the refusal of the trial court to give the requested special charge which is set forth above.
Charge one was properly refused as it would, if given, tend to mislead the jury. It cannot be the law in such cases that every statement made by the seller or his agent must relate to a material fact. For example had the salesman White remarked that it was a pleasant day, the effect of the requested charge literally construed would require the jury to find for the defendant unless such remark pertained to a material fact. Charge one is also defective as being abstract and not properly hypothesized on the evidence.
The judgment of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, and McCALL, JJ., concur. | November 4, 1971 |
0f2ee0f3-6148-466c-9318-e79c6fd77517 | Ex Parte Crowe | 485 So. 2d 373 | N/A | Alabama | Alabama Supreme Court | 485 So. 2d 373 (1985)
Ex parte Coy Patrick CROWE.
84-399.
Supreme Court of Alabama.
December 13, 1985.
Rehearing Denied February 7, 1986.
John L. Carroll, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.
*374 PER CURIAM.
Defendant, Coy Patrick Crowe, was convicted in the Jefferson County Circuit Court of the capital crime of murder of a deputy sheriff while such deputy was on duty, pursuant to the 1975 Code of Alabama, § 13A-5-40(a)(5). After a sentencing hearing, the jury recommended that defendant be sentenced to life imprisonment without the possibility of parole. The court then conducted its own sentencing hearing, and ordered that the advisory verdict of the jury was not the proper sentence in this case, and sentenced defendant to death by electrocution.
The Court of Criminal Appeals reviewed defendant's assertions of error, searched the record, and found no error adversely affecting defendant's rights. The court also found that the death penalty imposed on defendant was not excessive or disproportionate to the penalty imposed in similar cases. Based upon these findings, the court upheld defendant's conviction and sentence of death.
We are of the opinion that, because there is no showing that defendant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), his in-custody response to questioning by FBI agents was erroneously admitted at trial. Therefore, defendant is entitled to a new trial.
The facts leading up to defendant's incriminating statement are taken from the testimony of FBI agents Stanley Carr and Gwin Hutfer, the two officers who arrested defendant at a Shoney's restaurant in Nashville, Tennessee. According to Carr, he and Hutfer apprehended defendant as he was attempting to elude them. The pertinent portion of Carr's testimony follows:
Agent Hutfer then testified as follows:
*376 Prior to the agents' being called as witnesses, a motion to suppress defendant's statement was made by defense counsel, and after a hearing outside the presence of the jury, the court denied the motion.
The Court of Criminal Appeals, in addressing the issue of the admissibility of defendant's statement, stated:
Crowe v. State, 485 So. 2d 351 (Ala.Crim. App.1984).
We cannot agree with the Court of Criminal Appeals' conclusion that there was no custodial interrogation in this case. The United States Supreme Court granted certiorari in Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), specifically to discuss the meaning of "interrogation" under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). That Court stated:
Rhode Island v. Innis, 446 U.S. at 298-301, 100 S. Ct. at 1688-90.
It is clear to us from our review of the record that defendant was subject to "interrogation" as defined in Rhode Island v. Innis. Defendant responded to a direct question posed by one of the FBI agents who arrested him, which seems to be just the type of express questioning that Rhode Island v. Innis says must invoke the procedural safeguards set forth in Miranda. At the very least, this questioning falls under the second part of the Rhode Island v. Innis definition: "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect." The agent might just as well have asked the obviously improper question"Did you kill that deputy"?as that would have sought the same type of incriminating answer as did the question actually asked. Based upon the foregoing, we are of the opinion that the Court of Criminal Appeals erred when it found that defendant was not subject to an interrogation, or its functional equivalent, in this case.
Having established that there was an interrogation, we must determine whether the requirements of Miranda were met in this case. Although there is proof that defendant was given his Miranda warnings prior to his incriminating statement, there is not one shred of evidence that he ever waived his rights under Miranda. Not only is there no evidence of waiver in the agents' testimony quoted herein, but we have searched the record, pursuant to Rule 45A, A.R.App.P., and have not found even a scintilla of evidence that defendant waived his right to remain silent or to have an attorney present during questioning. Moreover, when defendant arrived at the jail he was again read his rights, at which time he refused to sign the waiver of rights form and expressly stated that he did not intend to make any statements.
On the subject of waiver, the Court in Miranda v. Arizona, supra, stated:
384 U.S. at 475, 86 S. Ct. at 1628. The Court re-affirmed this position in North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979), and said:
441 U.S. at 373, 99 S. Ct. at 1757.
In the case at bar, the state has failed to meet its burden of proof. Defendant's incriminating statement was a direct response to in-custody questioning by FBI agents, and, absent a showing that he waived his rights under Miranda, the statement was improperly admitted at trial. Thus, defendant is entitled to a new trial. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court with instructions to order a new trial.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.
FAULKNER, J., dissents.
HOUSTON, J., not sitting. | December 13, 1985 |
9b2eb9fc-cd17-4d56-b620-ebd6b0781a8d | Ex Parte Wesley | 481 So. 2d 1162 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1162 (1985)
Ex parte Paul WESLEY.
(Re: Paul Wesley v. State.)
No. 84-809.
Supreme Court of Alabama.
November 8, 1985.
Paul M. Harden, Monroeville, for petitioner.
*1163 Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
Certiorari was granted in this case to review that part of the opinion of the Court of Criminal Appeals, 481 So. 2d 1155, holding that petitioner was properly charged under the original indictment "after reversal of his plea of guilt to an offense which was no longer a lesser included offense under the indictment."
Petitioner was first tried under an indictment which charged him with first degree robbery. He pleaded guilty to "attempted robbery" after the indictment was amended to charge "attempted robbery." Wesley was then convicted and sentenced to a term of five years' imprisonment. He appealed. In Wesley v. State, 448 So. 2d 468 (Ala. Crim.App.1984), the Court of Criminal Appeals reversed petitioner's conviction and remanded the case on the ground that, the general attempt statute no longer being applicable to robbery offenses, the crime of attempted robbery "now constitutes robbery." 448 So. 2d at 469. See Code of 1975, § 13A-8-41; Petty v. State, 414 So. 2d 182 (Ala.Crim.App.1982); Reed v. State, 372 So. 2d 876 (Ala.1979). That court added:
However, on remand, the State of Alabama did not reindict petitioner but put him to trial upon the original indictment for robbery in the first degree. Such a course was erroneous. The clerk's record in the first case establishes that, with the petitioner's consent, the indictment charging first degree robbery was amended to charge attempted robbery, and it was to the amended indictment charging attempted robbery that petitioner pleaded guilty and received the sentence of five years in the first case. Accordingly, petitioner pleaded guilty to a charge which at that time did not exist, and, accordingly, he could not be sentenced under such a void indictment. Petty v. State, supra. It follows that when the State of Alabama chose to try petitioner again on the void amended indictment, his conviction was erroneous. However, as stated in Wesley, supra, the State of Alabama is free to reindict petitioner for the appropriate offense. Williams v. State, 333 So. 2d 613 (Ala.1976).
The judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court for an order consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES and HOUSTON, JJ., concur.
ADAMS, J., not sitting. | November 8, 1985 |
2ab0ba45-f3b2-442d-8e90-c9472f86d8ce | Schoen v. Gulledge | 481 So. 2d 1094 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1094 (1985)
Otto SCHOEN and Clara Schoen
v.
Robert I. GULLEDGE, et al.
84-249.
Supreme Court of Alabama.
November 8, 1985.
*1095 Davidson L. Laning and Elizabeth R. Jones, Emond & Vines, Birmingham, for appellants.
J. Don Foster and Thack H. Dyson, of Foster, Brackin & Bolton, Foley, for appellees Robert and Linda Gulledge.
Wesley Pipes and Victor H. Lott, Jr., of Lyons, Pipes & Cook, Mobile, for appellee Federal Land Bank of Jackson, formerly known as The Federal Land Bank of New Orleans.
John Earle Chason, of Chason & Chason, Bay Minette, for appellee Federal Land Bank Ass'n of Robertsdale.
C. Robert Gottlieb, Jr., of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee Weldon R. Payne.
PER CURIAM.
The trial court granted summary judgment in favor of all defendants on all counts stated in the complaint. The plaintiffs appeal. We reverse and remand.
Viewing the evidence most favorably to the non-moving party, which we must do in reviewing the trial court's order granting summary judgment, we find that the plaintiffs have established jury issues which compel a reversal.
Otto Schoen and his wife Clara purchased 320 acres of land in 1979. Otto Schoen approached Robert Gulledge, the record title holder, with regard to the land sometime in 1978. Gulledge quoted Schoen a price of $1,500 per acre and advised Schoen to allow him a few days to let Gulledge talk to Weldon Payne, president of the Federal Land Bank Association of Robertsdale (FLBA), about lending Schoen *1096 the purchase money. Thereafter, Schoen contacted Payne, who, according to Schoen, miscalculated, allegedly deliberately, the cash flow needed by Schoen to sustain a loan of $650,000. (Schoen had a prior loan which was consolidated, making a total of $650,000.)
Schoen produced a witness, Payne's successor as president of FLBA, who testified as an expert that the loan to Schoen should not have been made, that the amount of interest, which was critical in determining whether there was sufficient cash flow to sustain the loan, was an objective figure available to Payne, who approved the loan. This witness also testified that the Federal Land Bank of New Orleans (now of Jackson) could have determined that Schoen's cash flow was insufficient based upon the figures submitted to it by Payne.
Lloyd Taylor acted as the attorney for FLBA and was the loan closing attorney on the loan. The loan was closed on January 3, 1979. The terms of the loan called for annual payments of $57,448.40 over a period of forty years. Schoen was unable to pay the first installment, which came due in January 1980. He subsequently sold half of the acreage and reduced the principal by $180,000. He could not pay the annual payment due in January 1981, and the FLBA foreclosed on the loan.
In September 1982, Gulledge, Payne, and Taylor were indicted by a federal grand jury in the United States District Court for the Southern District of Alabama. They were charged with, among other things, conspiracy and obtaining unlawfully money from the Federal Land Bank Association of Robertsdale and the Federal Land Bank of New Orleans. Gulledge and Taylor were charged with aiding and abetting Payne to obtain unlawfully monies from FLBA and the Federal Land Bank of New Orleans. Gulledge was charged with making false statements in a loan application submitted to FLBA. The indictment referring to unlawfully obtaining monies involved the proceeds derived from the sale of the 320 acres to Schoen.
It was established during the federal prosecution that Payne, at the time he handled the loan application with Schoen, owned a one-half interest in the land and, unknown to Schoen, split the purchase price with Gulledge. Payne's interest in the property was in violation of the conflict of interest rules of the FLBA. He was ultimately convicted, as was Taylor. The federal judge granted Gulledge's motion for acquittal as to one count; and the jury was unable to reach a verdict on two others, and a mistrial was ordered.
The Schoens' complaint was filed in August 1983. They allege that they were the victims of a fraud scheme perpetrated by the defendants, who conspired to induce them to incur a loan beyond their means to service and did so by fraudulently calculating their cash flow in order to insure that the loan would be approved. They also alleged claims for breach of contract, bad faith, outrage, etc.
The record in this case runs to over 5,000 pages, consisting of affidavits, depositions of various parties and witnesses, and the record in the criminal case in the federal court. Yet the trial court granted summary judgment in favor of all defendants as to all claims. The trial court cannot shift to this Court its responsibility to determine the triable issues in a complex case by granting pre-trial motions for summary judgment. Because we hold that genuine issues of fact exist as to the fraud and conspiracy claims, we reverse the judgment appealed from and express no opinion with regard to other claims.
The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So. 2d 601 (Ala. 1980); Fulton v. Advertiser Co., 388 So.2d *1097 533 (Ala.1980). The movants here have not met that burden as to the conspiracy and fraud claims, and it was reversible error to grant their motions.
Each argues on appeal that summary judgment was appropriate because the complaint shows on its face that the fraud claims are barred by the statute of limitations. This argument is without merit. It is true that, at the time of the events pertinent to this case, fraud actions were governed by a one-year statute of limitations, § 6-2-39(a)(5), Code of Ala.1975.[1] However, at the time this suit arose, § 6-2-3 provided:
In this case, the Schoens testified that they had no reason to believe they had been victims of a fraudulent scheme involving the 320 acres until they saw newspaper accounts of the criminal indictment of Gulledge, Payne, and Taylor. This creates a fact issue which, if believed by the jury, would bring them within the saving clause of this statute. Their testimony in this regard, as in any other, is subject to belief by the jury, but it creates a genuine issue of material fact as to when they discovered, or should have discovered, the alleged fraud. That is all one is required to do to prevent summary judgment. Sims v. Lewis, 374 So. 2d 298 (Ala.1979); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981).
The complaint alleges that the defendants, acting in concert, conspired to defraud the plaintiffs in connection with the purchase of the land involved. Three of these defendants were criminally indicted, and two were convicted of an offense against the United States arising out of the same transaction. Gulledge's contention that, by the federal judge's having granted his motion for acquittal on the criminal charge, he is absolved of civil liability in this case, is without merit. The burden of proof on the government in a criminal case is different from, and greater than, that of the plaintiff in a civil case.
Payne's assertion that he owed no duty to Schoen in the loan transaction is equally groundless. As the owner of a one-half interest in the property, it was to his personal benefit to see that the loan was approved. As an officer of the lender, it was his duty to recommend only sound loans. The conflict of interest is obvious. The fact that he may also have defrauded the Federal Land Bank of New Orleans and his employer, FLBA, does not lessen his duty to his borrower to deal fairly. Apparently, a borrower was essential to the alleged scheme to defraud, and a jury may find a breach of duty to each. First Federal Savings & Loan Association of Hamilton v. Caudle, 425 So. 2d 1050 (Ala.1982); Johnson v. United States Dept. of Agriculture, 734 F.2d 774 (11th Cir.1984).
The plaintiffs have alleged that FLBA and Federal Land Bank of New Orleans (now Jackson) were parties to the conspiracy. Both are entities created pursuant to the Farm Credit Act. 12 U.S.C. § 2001(a) (1971). The policy prompting the enactment of that legislation is expressed thusly:
12 U.S.C. § 2001(a) (1971).
Whether the plaintiffs can prove that these institutions breached a duty to them we cannot say. They produced a witness who testified that the loan should not have been made, based upon the information available at the time it was made. This witness also testified that the Federal Land Bank of New Orleans (now Jackson) could have determined that the Schoens' cash flow would not allow them to service the loan. We are unimpressed with the argument of these defendants to the effect that Schoen simply borrowed more money than he could repay. Their argument would say that only the borrower dictates the size of a loan. Common experience teaches otherwise.
Additionally, the plaintiffs requested the court, pursuant to Rule 56(f), A.R.Civ.P., to continue the various defendants' motions for summary judgment pending further discovery. Depositions of the board of directors of the Federal Land Bank of Jackson were scheduled for October 19, 1984. Although the defendants did not object to a continuance, as indicated by the record, the trial judge insisted on hearing the motions for summary judgment on October 18, 1984, and granted each of them.
We hold that the trial court erred in granting summary judgment in favor of all defendants. We address only the error with regard to the conspiracy and fraud claims.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES and SHORES, JJ., concur.
[1] Section 6-2-39, Code 1975, was repealed by Act 85-39, Second Spec. Session 1984-85, effective January 9, 1985. Those causes of action listed under that one-year statute were transferred by Act 85-39 to § 6-2-38, the two-year statute.
[2] Section 6-2-3, Code 1975, was amended by Act 85-39, effective January 9, 1985, to change the one-year "saving clause" to a two-year clause. | November 8, 1985 |
ac86ca1c-1798-4ff8-8c46-9790bc3f52c6 | Singleton v. State | 262 So. 2d 768 | N/A | Alabama | Alabama Supreme Court | 262 So. 2d 768 (1971)
In re Arthur SINGLETON
v.
STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
8 Div. 405.
Supreme Court of Alabama.
February 4, 1971.
*769 MacDonald Gallion, Atty. Gen., and Charles H. Barnes, Asst. Atty. Gen., for the State.
Parker, Wilkinson & Montgomery, Birmingham, for defendant.
MADDOX, Justice.
Can a defendant charged with a felony, not capital, waive a jury trial, enter a plea of not guilty and be tried by a circuit judge without a jury? The Court of Criminal Appeals, 48 Ala.App.262 So. 2d 767, answered this question in the negative. We granted certiorari to review the decision on the ground that it was one of first impression in Alabama. After review, we believe the judgment of the Court of Criminal Appeals is erroneous and is due to be reversed.
The Court of Criminal Appeals held that the defendant could not consent to a trial by the court without a jury, apparently on the ground that there are no constitutional or statutory provisions in Alabama which authorize a waiver of jury trial in a felony case. There is some support for this position in our decisions, and courts in other jurisdictions have reached the same conclusion as did the Court of Criminal Appeals here, but we think the modern trend is that a defendant should be allowed to waive a trial by jury in a felony case, not capital, when the prosecutor consents and the court approves. See Annotation 51 A.L.R.2d 1346.
On a similar question but involving the validity of a jury verdict of eleven jurors, we held in Bell v. State, 44 Ala. 393 (1870), that in a criminal case, a verdict rendered by eleven jurors was invalid, notwithstanding the consent of the defendant and the prosecutor. We said:
The Court of Appeals in Cleghorn v. State, 22 Ala.App. 439, 116 So. 510 (1928), reached a similar result as that rendered in Bell, supra.
These cases are very persuasive, and we would be constrained to follow them and uphold the judgment of the Court of Criminal Appeals here but for a later decision of this Court in Kirk v. State, 247 Ala. 43, *770 22 So. 2d 431 (1945), wherein we discussed at length the question of whether a defendant could waive a trial by a jury in certain fact situations. While Kirk involved the question of the waiver of a trial by a jury of less than twelve, and in Kirk there was a statute specifically authorizing a defendant to make a waiver, we think what we said there is applicable here.
Both Bell and Cleghorn were decided prior to the time the Supreme Court said in Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, that a defendant could consent to be tried by a jury of less than twelve, and that the jury was an instrumentality of the court for the protection of the accused and not an inseparable part of the court. In other words, the provisions of law relating to trial by jury are not jurisdictional, but are meant to confer a right upon the accused which he may forego at his election. As we said in Kirk, supra, Patton is worthy of careful study because "[I]t shows how the ancient doctrine that the accused could waive nothing is no longer supported by modern conditions." We are still of the opinion expressed in Kirk that we cannot see why a defendant can plead guilty and waive a jury altogether and cannot plead not guilty and agree to waive a jury. As was said in Patton and quoted in Kirk:
We consider it unnecessary to review the history of the development of trial by jury in criminal cases. That history has been set out in some detail in decisions of the Supreme Court of the United States.[1]
Furthermore, in Kirk, supra, the late Justice Stakely collected many of our decisions and opinions from other courts on the question of the right of a defendant to waive a jury trial in a felony case, not capital. We are not here dealing with a claimed infringement of a constitutional right because the accused did not raise the questionthe Court of Criminal Appeals noted the question itself and decided it to be jurisdictionalthat is, that a jury in a felony case was an inseparable part of the court and neither the defendant nor the prosecutor could waive the requirement. We agree that there are no provisions of our Constitution or in our laws for the waiver of a jury trial in a felony case.[2]*771 An accused is entitled to a trial by jury under our Constitution and he, at his election, can forego this right.
We express no opinion whether a defendant could waive a jury trial in those cases where a jury is required to fix the punishment,[3] and degrees of the offense, but we note the provisions of Title 15, § 329, which read:
We do call attention to Act No. 1061, Acts of Alabama, 1969, which amends Title 15, § 277, Code of Alabama, 1940, so as to eliminate the necessity of impaneling a jury in certain criminal cases when the defendant upon arraignment or prior to trial pleads guilty. The view that the accused cannot waive a trial by jury in criminal cases on the ground that to allow such waiver would be violative of public policy seems to be unsound. We inferentially said this in Kirk, supra. We now say it directly.
We do not mean that a waiver must be put into effect automatically. Trial by *772 jury is the natural and probably the preferable procedure to be followed in criminal cases, especially those above misdemeanors. As was said in Patton, supra:
In view of what we have said, we reverse the judgment of the Court of Criminal Appeals, with directions to examine the record before it to determine whether the accused knowingly and intelligently waived his right to trial by jury, whether the State consented to such waiver, and whether the trial court reasonably approved of such waiver in view of the facts and circumstances surrounding the alleged waiver by the accused.
Reversed and remanded with directions.
LAWSON, SIMPSON, MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
HEFLIN, C. J., and COLEMAN, J., dissent.
[1] See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, June 22, 1970.
[2] In misdemeanor cases in the circuit court, the issues and questions of fact are tried by the court without the intervention of a jury unless one is demanded. Title 15, § 321, Code of Alabama, 1940 (Recompiled, 1958).
[3] in 1st degree Title 14, § 318 Life, death
Murder in 2nd degree Title 14, § 318 10 years, life
Manslaughter in 1st degree Title 14, § 322 1 to 10 years
Manslaughter in 2nd degree Title 14, § 322 1 year and $500
Kidnapping to obtain money Title 14, § 7 5 years to death
Attempt to kidnap Title 14, § 8 5 years to death
Arson, where injury occurs Title 14, § 23 Life to death
Arson, 2nd degree Title 14, § 24 Life to death
Assault with weapon Title 14, § 34 $2,000 and 12 mos.
Flogging while masked Title 14, § 35 1 to 10 years
Burglary in 1st degree Title 14, § 85 10 years to death
Wilfully setting off dynamite near
dwelling, etc. Title 14, § 123 10 years to death
Wilfully setting off dynamite near
public bldg., etc. Title 14, § 124 2 to 10 years
Defamation Title 14, § 350 $500 and 6 mos.
Lynching Title 14, § 355 5 years to death and
1-21 years
Selling mortgaged property Title 14, § 362 $500 and 6 mos.
Rape Title 14, § 395 10 years to death
Carnal knowledge, using drugs Title 14, § 397 10 years to death
Carnal knowledge, under age 12 Title 14, § 398 10 years to death
Carnal knowledge, under age 16 Title 14, § 399 2 to 10 years
Carnal knowledge, by impersonation Title 14, § 400 10 years to death
Unlawful assembly Title 14, § 407 Fine and 6 mos.
Rout Title 14, § 408 Fine and 6 mos.
Riots and routs Title 14, § 409 Fine and 2-10 years
Selling arms during riot Title 14, § 410 $500-$1,000 & 1 year
Violating proclamation
re: selling arms Title 14, § 411 $500-$1,000 & 6 mos.
Violating order of Nat'l. Guard Title 14, § 414 6 mos.
Robbery Title 14, § 415 10 years to death
Train robbery Title 14, § 416 10 years to death
Treason Title 14, § 424 Life to death
| February 4, 1971 |
0c0def0d-5239-4dd9-9709-1f8d92e5c4fe | Marquis v. Marquis | 480 So. 2d 1213 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1213 (1985)
Herman MARQUIS
v.
E.H. MARQUIS.
84-374.
Supreme Court of Alabama.
December 13, 1985.
*1214 William P. Gray, Jr. and Thomas A. Nettles, IV, of Gray, Espy & Nettles, Tuscaloosa, for appellant.
Olin Zeanah and Steve Henry of Zeanah & Hust, Tuscaloosa, for appellee.
ADAMS, Justice.
This is an appeal from a judgment following a directed verdict in favor of defendant, E.H. Marquis. Plaintiff-appellant, Herman Marquis, contends that the trial court erred by directing a verdict for the defendant on plaintiff's negligence and wantonness counts. We agree and reverse the grant of directed verdict as to both counts of plaintiff's complaint.
Plaintiff and defendant are brothers. In January 1983, plaintiff, at the request of the defendant, assisted defendant in cutting firewood on defendant's land. Defendant cut a large tree with his chainsaw, but the tree became lodged on top of a smaller tree, so that it would not fall completely to the ground. The defendant's chainsaw became stuck as he attempted to saw the smaller tree, and the defendant requested that the plaintiff come to his aid. The plaintiff was asked by the defendant to saw the small tree, which was now bent as a result of the force exerted by the larger tree upon it, at a point above the place where the defendant's saw was bound. The plaintiff cut the tree as requested by the defendant, but before the plaintiff was able to cut completely through the tree the trunk split, striking the plaintiff and severely injuring his leg.
The plaintiff filed an action against the defendant, alleging that the defendant negligently or wantonly caused the tree to fall on the plaintiff. At the end of the plaintiff's case, the trial court directed a verdict against the plaintiff on both counts of plaintiff's complaint, finding that due to the openness and obviousness of the dangerous condition which caused the plaintiff's injuries, there was no breach of duty by the defendant. The plaintiff's motion for judgment notwithstanding the verdict or new trial was denied.
Although this case presents a close question, we think the trial court erred by directing a verdict for the defendant on the negligence and wantonness counts under the facts of the instant case.
At the outset, we note that our standard of review is the same standard as that applied by the trial court in passing on the motion for directed verdict. As stated in Kingsberry Homes Corporation v. Ralston, 285 Ala. 600 at 605, 235 So. 2d 371 at 375 (1970):
*1215 Orange v. Shannon, 284 Ala. 202, 224 So. 2d 236 (1969).
More recently, this Court said:
Quillen v. Quillen, 388 So. 2d 985, 987-88 (Ala.1980) (citations omitted). We opine that the evidence at the trial of the instant case was such that reasonable persons could draw different conclusions as to the defendant's negligence or plaintiff's contributory negligence and, therefore, that the question of open and obvious danger was one for the jury. See Ex parte Bennett, 426 So. 2d 832 (Ala.1983).
One essential element to be proven by a plaintiff in every negligence action is the breach of a duty owed by the defendant to the plaintiff. Bryant v. Morley, 406 So. 2d 394 (Ala.1981). We find, as did the trial court, that the plaintiff had invitee status while on the defendant's property the day of the incident. The record reflects that the plaintiff was on the defendant's land at the express invitation of the defendant and that the plaintiff's presence was of material commercial benefit to the defendant in his business endeavor of selling firewood. This is sufficient to give rise to invitee status. See Osborn v. Brown, 361 So. 2d 82 (Ala.1978); Nelson v. Gatlin, 288 Ala. 151, 258 So. 2d 730 (1972). As an invitee, the plaintiff was owed a duty by the landowner-defendant to use reasonable care to keep the premises in a reasonably safe condition for the contemplated uses within the scope of the invitation and to warn of dangers of which he knew or should have known and which were not known to the plaintiff. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60,173 So. 388 (1937).
In Lamson & Sessions, supra, the Court recognized, however, that this duty is limited:
Lamson & Sessions Bolt Co., 234 Ala. at 63, 173 So. at 391. Whether we speak in terms of the duty owed by the defendant or of contributory negligence of the plaintiff, the plaintiff cannot recover for negligence or wantonness if the plaintiff's injury was caused by an open and obvious danger of which the plaintiff knew, or should have been aware. However, not only must the plaintiff have knowledge of the dangerous condition, but the plaintiff also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred. Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala.1984); Furgerson v. Dresser Industries, Inc., 438 So. 2d 732 (Ala.1983); Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978); Kingsberry Homes Corp. v. Ralston, supra. The Court in F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 140 So. 2d 824 (1962), and again in Kingsberry Homes, supra, reaffirmed that "we have long been committed to the proposition that the plaintiff's appreciation of the *1216 danger is, almost always, a question of fact for the determination of the jury." 273 Ala. at 394, 140 So. 2d at 825-26.
In the case at hand, we think that the record reflects at least a scintilla of evidence that the plaintiff did not appreciate the danger posed by the cutting of the tree at the time he was directed to do so and that this presented at least a reasonable inference for the jury to consider. Plaintiff testified that he believed the defendant was somehow pinned by the tree and that he approached the tree in an excited state to help the defendant. The plaintiff also testified that he was not aware that he himself was in any danger. The defendant testified that he was aware that the situation was dangerous and that he told the plaintiff that cutting the tree was dangerous and that the plaintiff should be careful. The record reflects that the plaintiff had cut timber in the past, but that his primary duties had been to trim branches from fallen trees rather than felling trees. From this evidence, the jury could have found that the plaintiff did not perceive the danger and that the defendant breached his duty to warn the plaintiff of the danger. The question of whether the plaintiff should have recognized the danger became one for the jury, and the trial court erred by directing a verdict for the defendant.
Defendant relies upon our decision in Quillen v. Quillen, 388 So. 2d 985 (Ala. 1980), for his contention that the directed verdict in the present case was properly granted by the trial court. In Quillen, this Court affirmed the granting of a directed verdict in favor of the defendant when the trial court determined as a matter of law that an aluminum ladder leaning against a metal gutter constituted an open and obvious danger equally apparent to defendant and to plaintiff and one which the plaintiff should have recognized in the exercise of reasonable care. We reaffirm Quillen on its facts and distinguish it from the present case by noting that in Quillen there was no testimony that defendant knew of the dangerous condition and, more importantly, no testimony that the plaintiff was unaware of the condition at the time of the incident. In addition, the evidence in Quillen reflected that the plaintiff had extensive experience in the installation of television aerials, the very task he was performing when injured. Simply stated, unlike the evidence in Quillen, the evidence put forth in the present case meets the scintilla test and, therefore, should go to the jury as to the questions of negligence and contributory negligence.
We are also of the opinion that the evidence is sufficient to satisfy the scintilla test on the wantonness count. The Court in Myers v. Evans, 287 Ala. 710, 713, 255 So. 2d 581, 583 (1971), observed:
In the instant case, the defendant testified that he had knowledge of the danger posed by the situation. If the jury were to believe this testimony and that the defendant failed to warn the plaintiff, then the jury could find an omission of a duty of the defendant and that the defendant was conscious that injury to the plaintiff was likely or probable. The trial court erred by directing a verdict for the defendant on the wantonness count.
We therefore reverse the judgment of the trial court and remand this case for a new trial.
REVERSED AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
TORBERT, C.J., dissents. | December 13, 1985 |
370fbc5a-1d83-4438-ac0d-58442f4bae87 | Pemberton v. Birmingham News Co. | 482 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 482 So. 2d 257 (1985)
John W. PEMBERTON
v.
The BIRMINGHAM NEWS COMPANY, a corporation, and Mark Winne.
83-766.
Supreme Court of Alabama.
November 22, 1985.
Rehearing Denied January 10, 1986.
*258 John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
James C. Carton, Gilbert E. Johnston, Jr., and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees.
BEATTY, Justice.
Plaintiff John W. Pemberton appeals from the trial court's entry of judgment notwithstanding the verdict (JNOV) in favor of defendant The Birmingham News Company (hereinafter "the News" or "the defendant") in a libel suit. We affirm.
On Saturday, August 8, 1981, the News featured an article on its front page entitled "House Clerk helps arrange paroles, News-launched investigation reveals." The article, written by defendant Mark Winne,[1] revealed the results of Winne's investigation into the parole system and focused on information concerning plaintiff, clerk of the Alabama House of Representatives. Plaintiff's picture accompanied the article. A second article "Long wait, delays ... call came" also appeared on the front page and dramatized Winne's undercover activities in paying $3,000 to a middleman to obtain a parole for an inmate, $1,500 of which was ultimately given to plaintiff.
Two other articles dealing with the same subject were printed on the front page of that edition of the newspaper. One article reported the arrest of Andrew Cooper, deputy commissioner of the Alabama prison system, on charges of bribery and violation of ethics laws in connection with the parole of an inmate. The second article "Paroles for Sale?" announced that the News had been investigating possible irregularities in the parole system for two months and was beginning a series of articles on the subject. Neither of the latter two articles referred to the plaintiff.
Plaintiff filed suit against Winne, the News, and other parties unknown, alleging that defendants had libeled him. At the trial, the court overruled defendants' motion for directed verdict at the close of plaintiff's case. At the close of all the evidence, the trial court overruled both the defendants' and the plaintiff's motions for directed verdict. The jury returned a verdict exonerating Winne but finding the News liable for damages in the amount of $75,000. Judgment was entered in accordance with the verdict. Later, however, the trial court granted the motion of the News for JNOV and entered judgment in favor of the News. In doing so, the trial court found that plaintiff had not presented clear and convincing evidence of actual malice on the part of the defendants in writing and publishing the news stories or in drafting and publishing the headlines.
On appeal, plaintiff argues: (1) that the trial court applied the wrong standard of review in ruling on defendant's motion for JNOV; and (2) that, applying the correct *259 standard, there was sufficient evidence from which the jury could find actual malice.
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 725-26, 11 L. Ed. 2d 686 (1964), the United States Supreme Court announced the rule that a public official could not recover damages "for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Proof of actual malice must be made by clear and convincing evidence. Mobile Press Register, Inc. v. Faulkner, 372 So. 2d 1282, 1288 (Ala.1979). There is no dispute in this case that plaintiff, as clerk of the Alabama House of Representatives, is a public official required to prove actual malice under the New York Times standard. This controversy centers on the standard which the trial and appellate courts should use in determining the merits of defendant's motion for JNOV and on whether there was sufficient evidence of actual malice in this case to uphold the jury verdict.
Ordinarily, the same standard applies to both a motion for directed verdict and a motion for JNOVa scintilla of evidence is sufficient to defeat either motion. Marion v. Hall, 429 So. 2d 937, 943 (Ala.1983); Rule 50(e), A.R.Civ.P. In accord with this rule, plaintiff contends that the trial court erred in granting JNOV for the News if there was a scintilla of evidence of actual malice.
However, in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 1965, 80 L. Ed. 2d 502 (1984), the Supreme Court held that the first amendment requires appellate judges to decide independently of the trier of fact whether there is clear and convincing proof of actual malice in the record. Although the Court noted that it had frequently applied the rule of independent appellate examination of the record to cases arising in state courts, in Bose the Court resolved the apparent conflict between that rule and Rule 52(a), Federal Rules of Civil Procedure, which provides that findings of fact should not be set aside unless clearly erroneous. The Court decided that the rule of independent appellate review "is a rule of federal constitutional law." 466 U.S. at 510, 104 S. Ct. at 1965.
In reaching its decision in Bose, the Court relied upon its decisions in the related first amendment area of obscenity, 466 U.S. 506-510, 104 S. Ct. at 1963, such as Jenkins v. Georgia, 418 U.S. 153, 154-55, 94 S. Ct. 2750, 2752, 41 L. Ed. 2d 642 (1974), in which the Court had reviewed a Georgia Supreme Court decision affirming the appellant's conviction for distributing obscene material. The Court in Jenkins stated:
After its independent review, the Court held that as a matter of constitutional law, *260 the film could not be found to be obscene. In a separate opinion, Justice Brennan stated: "After the Court's decision today, there can be no doubt that Miller requires appellate courtsincluding this Courtto review independently the constitutional fact of obscenity." 418 U.S. at 163, 94 S. Ct. at 2756 (Brennan, J., concurring in the result).
We have no doubt that federal constitutional law requires us to review the record independently of the trier of fact to determine not whether there was a scintilla of evidence, but whether there was clear and convincing evidence presented on the constitutional fact of actual malice in a defamation case. This does not mean, however, that we ignore the jury verdict. It is entitled to some weight, especially on matters involving the credibility of witnesses. Widener v. Pacific Gas & Electric Co., 75 Cal. App. 3d 415, 433, 436, 142 Cal. Rptr. 304, 313, 315 (1977), cert. denied, 436 U.S. 918, 98 S. Ct. 2265, 56 L. Ed. 2d 759 (1978).
We have previously held that the scintilla rule is applicable on a motion for summary judgment in a defamation case. American Benefit Life Ins. Co. v. McIntyre, 375 So. 2d 239, 249 (Ala.1979) (opinion on rehearing). We find it incongruous for the sufficiency of the evidence to be measured in a libel case involving a public figure by different standards at different stages of the proceedings. In view of the Bose case and our decision today, McIntyre should no longer be followed. We now hold that for purposes of trial motions, posttrial motions, and appellate review in a libel case involving a public official or a public figure actual malice must be shown by clear and convincing evidence.
Therefore, we turn now to the evidence of actual malice presented in this case.
The following facts concerning defendants' investigation underlying the stories about plaintiff are relevant to an inquiry into actual malice.
In the spring of 1981, partially as the result of a controversial parole of an inmate, the News decided to investigate the parole system in Alabama. Winne was the reporter assigned to the story, and Clark Stallworth, an associate editor of the News, was assigned to supervise and monitor Winne. Winne gathered information from inmates, parolees, and parole board employees. He was not allowed to see files of the parole board but parole board employees gave him information from the files in response to his questions. Winne was allowed to review files of the Alabama State Ethics Commission. In reviewing the Ethics Commission files, Winne discovered the cases referred to in the article in which plaintiff had filed a disclosure indicating that he was representing an inmate. In one disclosure letter, plaintiff stated he was representing Leon Starr. Employees of the parole board told Winne they were unable to find a file for this inmate; however, after the articles were published, a file was located for George Leon Starr.
During his investigation, Winne met James King, a former prison inmate. Using an assumed identity, Winne pretended to be interested in securing a parole for an inmate, James Harding. King stated that he knew a high official in state government who could arrange a parole for $3,000 but that the arrangements must be kept "under the table."
After discussing the information with his editors, Winne contacted Tom Krebs, head of the Governor's Task Force on Crime and Corruption. Winne and Stallworth met with Krebs and other state officials at a motel in Clanton. After the meeting, Krebs arranged for the governor's office to provide Winne with $3,000 to give to King.
Following a series of telephone calls, Winne and King arranged to meet on Saturday, August 1, at the post office in Birmingham. Law enforcement authorities monitored this meeting and taped the conversations between King and Winne. At the post office, Winne insisted on speaking to the official by telephone. King put Winne on the telephone with someone. John Hendrix, head of the intelligence unit of the Department of Public Safety, later concluded from tapes of the conversation that the voice on the telephone was not *261 plaintiff's voice. After speaking on the telephone, Winne gave King the money.
King was followed by law enforcement officers. He and his wife traveled to a barber shop in Midfield and then to a restaurant for dinner. After dinner, they went to a used car lot in Tarrant, where King used part of the money to purchase a pickup truck. When King and his wife returned home without delivering the money, the decision was made to arrest King for theft by deception. During his interrogation, King named Ealon Lambert, chairman of the parole board, as his contact. King was told that he could be sent back to prison without the possibility of parole, under the Habitual Offender Act, and that his wife could be convicted as an accomplice. King said that he would cooperate with the authorities.
King and his wife were taken to a Birmingham motel for the night. The next morning, King broke into tears and admitted that his contact was not Lambert but was plaintiff, John Pemberton. After being taken to Montgomery, King telephoned plaintiff and requested that he come to a motel room. The transcript of the telephone conversation reveals that plaintiff agreed to meet King to "chat a little bit," without any explanation of the reason for the meeting.
The following excerpts are from the August 2 meeting between plaintiff and King:
It was undisputed at trial that plaintiff took the $1,500 from King.
At the conclusion of the King-Pemberton meeting, Ray Acton, attorney for the Department of Public Safety, instructed the law enforcement officers not to arrest plaintiff. The tapes of the meeting were reviewed by law enforcement authorities. Winne was present at that time. Although there was some disagreement among the authorities, they decided to concur in Acton's decision not to arrest plaintiff because the evidence at that time did not present a prosecutable case.
On Thursday, August 6, Winne and Stallworth met again at a Clanton motel with various law enforcement officials. Montgomery County District Attorney James Evans requested that the News delay any story about its investigation until after the arrest of Andrew Cooper, so that Cooper would not become alarmed. Stallworth and Winne agreed to delay the series.
On Friday, August 7, King called plaintiff at approximately 7:00 a.m. and said that Harding's uncle was "bugging" him about Harding's case. Plaintiff agreed to meet with the uncle. Plaintiff also said that he had talked to Lambert about the case and was waiting for Lambert to call him back. Shortly after this telephone conversation, law enforcement authorities arranged for Harding to call plaintiff. During that conversation, plaintiff denied that he had received any money from King but stated that King had promised to bring him a retainer. Later in the conversation, when Harding asked if plaintiff needed more money, plaintiff responded, "I don't need any money, period.... If I can help you or King, I'll make the phone call and I'll be glad to do it. I don't want no money." Plaintiff then called King and stated: "That boy called me.... He started asking me all kinds of damn questions." Plaintiff arranged to meet King and Harding's uncle that morning, but King later cancelled the meeting, using his health as the excuse.
Winne was in Montgomery on Friday, August 7, for the Andrew Cooper arrest. He arrived back in Birmingham around midnight and began working on a draft of the Pemberton story. Stallworth arrived at the News offices about 3:00 a.m., Saturday, August 8, and discussed with Winne *263 the urgency of beginning the parole series, since Cooper had been arrested. Stallworth reviewed Winne's article and insisted that he contact plaintiff for his comments before publishing the story.
At approximately 5:00 a.m., Winne called plaintiff. After Winne identified himself, the following colloquy took place:
Later in the conversation, plaintiff stated that he had not contacted anyone at the parole board to inquire about Harding. Winne then asked plaintiff about parolees to whom reference is made in the lead article. Plaintiff offered no explanation when informed that the parole board had no record of a Leon Starr.
Winne then called Lambert, who stated that plaintiff had inquired about the possibility of a parole for Harding and was told that it was unlikely Harding would be paroled any time soon.
The article was then approved for publication.
"Actual malice" is defined as knowledge of the falsity of a statement or reckless disregard of whether the statement is true or false. New York Times Co. v. Sullivan, 376 U.S. at 279-80, 84 S.Ct. at *264 725-26. In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968), the Court stated:
Of course, if the published statements are true, there is no cause of action for defamation and no need to inquire about malice.
At trial, the attorneys for defendants cross-examined plaintiff about the articles paragraph by paragraph. Plaintiff was unable to point to anything in the articles which he personally knew to be untrue as of the time of publication. In reviewing the motion of the News for JNOV, the trial court specified two erroneous statements. First, the article stated:
The subpoenas were never issued. Both Winne and Krebs testified that, at the August 6 meeting in Clanton, Evans stated that he would subpoena plaintiff's bank records as well as the bank records of several other state officials. Evans testified that he did not recall whether he discussed that possibility at the Clanton meeting, but admitted that he had subpoenaed Cooper's bank records after his arrest.
Second, the article stated: "Another well-placed source said Pemberton regularly called the board about prisoners, sometimes up to 20 times a month." The trial court noted that parole board members testified that they had no knowledge of plaintiff's calling that often. Plaintiff admitted in his deposition that he got calls every day from members of the House of Representatives requesting that he check on inmates from their district and that he called the parole board often to inquire about the status of those inmates.
Assuming that these statements in the article were erroneous, we agree with the trial court's conclusion that the jury could not infer actual malice on the part of the News based on these errors. The trial court observed that Winne was the investigative reporter who did the research and authored the challenged statements. The jury verdict exonerating Winne is necessarily based on the conclusion that either the statements are essentially accurate or there was insufficient evidence that they were written by Winne with malice. There was no evidence that anyone else employed by the News had knowledge of facts unknown to Winne or had any reason unknown to Winne to seriously doubt the truth of the statements. Therefore, a finding that the News acted with malice in publishing the story would be inconsistent with the jury verdict for Winne. Moreover, from our own independent examination of the record, we do not find clear and convincing evidence of actual malice on the part of the News based on these two allegedly misleading statements in the article.
Plaintiff contends that the headline, which was not written by Winne, conveys the false impression that plaintiff was involved in an illegal or unethical scheme of buying and selling paroles. Plaintiff argues that actual malice on the part of the News in publishing the headline can be inferred from its reliance on an unreliable source, its failure to investigate the story properly before concluding that plaintiff was guilty, and its rejection of evidence favorable to plaintiff.
Plaintiff argues that the News exhibited reckless disregard for whether the accusation was true or not by relying on King's assertion that plaintiff was his high state official who could arrange a parole "under the table" for $3,000. Plaintiff cites King's *265 status as an exconvict, his lying about taking all of the money directly to the state official, and his changing the name of his contact from Lambert to Pemberton as indications of King's unreliability ignored by the News.
In Curtis Publishing Co. v. Butts, 388 U.S. 130, 135, 87 S. Ct. 1975, 1981, 18 L. Ed. 2d 1094 (1967), the Saturday Evening Post published an article accusing Butts, the athletic director of the University of Georgia, of conspiring to fix a football game between the University of Georgia and the University of Alabama. The article revealed that a source had accidentally overheard a conversation between Butts and the Alabama coach in which Butts outlined Georgia's defense strategy. 388 U.S. at 136, 87 S. Ct. at 1981. In the companion case, Associated Press v. Walker, a news dispatch was distributed which accused Walker of leading a charge against federal marshals and encouraging rioters to use violence at the University of Mississippi to prevent the enrollment of a black student. After deciding that the plaintiffs could recover if they showed that the media defendants' actions were "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,"[2] Justice Harlan, writing for the plurality, concluded that Butts had made such a showing while Walker had not. 388 U.S. at 155-56, 87 S. Ct. at 1991-92.
The following facts regarding Burnett, the source of the information in Butts, were determinative:
The Court found the following facts important in the companion case:
Chief Justice Warren's opinion concluded that these facts regarding the sources and investigative techniques justified a finding *266 of actual malice in Butts but not in Walker. 388 U.S. at 165, 169-70, 87 S. Ct. at 1998-99 (Warren, C.J., concurring in the result).
In St. Amant v. Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 1326, 20 L. Ed. 2d 262 (1968), the Court observed that a defendant's assertion that he believed the defamatory statement to be true would not always be a sufficient defense. The Court stated:
See also Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1027-28 (5th Cir.1975); Trapp v. Southeastern Newspapers, 10 Media L.Rptr.1985 (S.D.Ga. June 7, 1984).
In the present case, the News did not rely solely on King's statements. It contacted law enforcement authorities and participated in an investigation into plaintiff's dealings with the parole board. The fact that King was an exconvict did not diminish his credibility in this situation, but rather made it more probable that he would have inside information about how to obtain a parole "under the table." Although the News knew that King spent half of the $3,000 rather than taking it all to his contact, it also knew that plaintiff had accepted $1,500 as his fee and had told King that King would have to work out his fee with Harding. Similarly, although King changed his story after originally incriminating Lambert, the News knew that plaintiff had expressed no surprise at being contacted by King about a parole and had taken $1,500 from him. Finally, the fact that the person King called from the Birmingham post office was not plaintiff loses its significance in view of the later transactions between King and plaintiff. We find that the reliance by the News on King's statements was reasonable under the circumstances.
Plaintiff maintains that the News acted with actual malice in failing to investigate the subject more thoroughly. Plaintiff argues that this story was not "hot news" and, therefore, that there was time for a proper investigation which would have exonerated him.
"Failure to investigate does not in itself establish bad faith." St. Amant v. Thompson, 390 U.S. at 733, 88 S. Ct. at 1326. "However, when an article is not in the category of `hot news,' that is, information that must be printed immediately or it will lose its newsworthy value, `actual malice may be inferred when the investigation for a story ... was grossly inadequate in the circumstances'" Hunt v. Liberty Lobby, 720 F.2d 631, 643 (11th Cir.1983) (quoting Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.), cert. denied, 404 U.S. 864, 92 S. Ct. 49, 30 L. Ed. 2d 108 (1971), appeal after remand, 507 F.2d 1024 (5th Cir.1975)).
In Hunt, an article appeared on the front page of a weekly newspaper under the headline: "CIA TO NAIL HUNT FOR KENNEDY KILLING." The article was continued on another page where a larger headline stated: "CIA TO `ADMIT' HUNT INVOLVEMENT IN KENNEDY SLAYING." Hunt, 720 F.2d at 634. The text of the article reported that there was a plot within the CIA to frame Hunt for the assassination of President Kennedy. The author of the article did not testify at trial, nor did either party take his deposition. Employees of the defendant company testified that they relied upon the author's reputation and his confidence in the reliability of his sources in publishing the story without any independent verification. They also testified, however, that they knew the author had been involved in litigation with the CIA and that this fact caused them to question what the author wrote. The eleventh *267 circuit held that reliance on the author without verification was unreasonable. The court held that actual malice could be inferred from the failure to investigate, the inherent improbability of the story, and the inference from the headlines that Hunt had in fact killed Kennedy.
Similarly, in Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780-81 (9th Cir.1975), cert. denied, 423 U.S. 930, 96 S. Ct. 280, 46 L. Ed. 2d 259 (1975), the appellate court held there was evidence of actual malice in that there was evidence that the authors of the story had doubts about the veracity of their sole source but deliberately failed to cross-check on the validity of his statements because they did not want to find them to be untrue. However, in Reveley v. Berg Publications, Inc., 601 F. Supp. 44, 46 (W.D. Texas 1984), the court found that the author of an allegedly defamatory article was at most negligent in relying upon his own memory of unverified statements contained in an earlier published article, and that the publisher was negligent in not verifying the facts. The court granted the defendants' motion for JNOV. See also McNabb v. Oregonian Publishing Co., 69 Or.App. 136, 685 P.2d 458, review denied, 297 Or. 824, 687 P.2d 797 (1984), cert. denied, ___ U.S. ___, 105 S. Ct. 1193, 84 L. Ed. 2d 339 (1985).
In the present case, we do not find it necessary to decide whether the story was "hot news." We note that Stallworth and Winne felt that it was important to break the story when they did due to the arrest of Cooper. However, assuming, arguendo, that this was not "hot news," we find insufficient evidence for a jury to conclude that the investigation was grossly inadequate under the circumstances. Winne spent over two months on the investigation talking to parolees, inmates, and parole board employees. He reviewed Ethics Commission files and requested information from parole board files. When he did get a source, he notified law enforcement authorities and turned the investigation over to them. Although events in the week before the publication of the article moved quickly, we do not find evidence of recklessness due to lack of diligence in investigating the facts.
Finally, plaintiff maintains that actual malice can be inferred from the rejection by the News of evidence favorable to him when it accused him of buying and selling paroles. Plaintiff points out that he is a lawyer entitled to represent inmates before the parole board, that he accepted money from King to represent Harding, that he repeatedly promised to return the money if unsuccessful, and that the law enforcement authorities' decision not to arrest him was evidence of his innocence of any wrongdoing.
In Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969), cert. denied, 396 U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 (1970), the defendants decided to devote an issue of their magazine to Senator Goldwater after his nomination at the 1964 Republican convention. Before any research had been done on the article, one of the defendants wrote in a letter that the article would conclude that "Goldwater is so belligerent, suspicious, hot-tempered, and rigid because he has deep-seated doubts about his masculinity." 484 F.2d at 328. Questions were sent to psychiatrists and the results of this poll were published. Defendants had no training in polling techniques. While the poll was being conducted, reputable psychiatrists and psychiatric professional associations sent defendants letters denying the validity of the project. The responses to the questionnaire were edited in such a way as to delete responses favorable to plaintiff, especially statements questioning the assertion that plaintiff had suffered two nervous breakdowns. One of the defendants added phrases, sentences, and paragraphs to the letters, some of which he wrote himself and some of which he claimed to have taken from other letters which he could not identify. Most of the letters were published without any indication of deletions or additions. The court found sufficient evidence of actual malice on these facts.
*268 However, in New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966), the fifth circuit commended the reporting practices of the defendant and stated:
In the case before us, we find that defendants did not overstep the bounds of constitutional protection. While the defendants knew that plaintiff was a lawyer who could represent clients before the parole board,[3] they also knew that plaintiff had not filed the required disclosure statement with the Ethics Commission.[4] Furthermore, they knew that plaintiff had denied both to Harding and to Winne that he was representing Harding. He also denied that he had met with King and accepted money from him on Harding's behalf. King's statement that the deal must be handled "under the table" was corroborated by plaintiff's reluctance to speak with Harding and answer his questions. This conduct is certainly not typical of a normal attorney-client relationship.
We are also not persuaded that plaintiff's frequent statements that he could not split a fee with King were sufficient to cause the News to have serious doubts about the validity of its conclusion. Plaintiff accepted $1,500 from King knowing that King had gotten $3,000 from Winne. When read in context, plaintiff's assertions that he could not split a fee with King were merely a way of telling King that plaintiff would not give him any of the $1,500 plaintiff had just accepted.
Likewise, plaintiff's frequent promises to return the money if unable to secure the parole are not exculpatory; returning the money would not legitimate an attempt to use his influence to secure a parole even if his attempt was unsuccessful.
Finally, the decision of law enforcement officials not to arrest plaintiff after his August 2 meeting with King was known by defendants to be a decision that there was not enough evidence to prosecute at that time rather than an exoneration of plaintiff. According to both Winne and Krebs, the Montgomery County district attorney indicated at the August 6 meeting in Clanton that the investigation of plaintiff was continuing.
We do not imply that plaintiff is guilty of any illegal or unethical conduct, because that issue is not before us. We do, however, conclude that, based on the information available at the time, as a matter of constitutional law, there is no clear and convincing evidence that the News published the articles or the headlines knowing that they were false or with reckless disregard of their falsity.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.
FAULKNER, JONES and ALMON, JJ., dissent.
*269 ALMON, Justice (dissenting).
I disagree with the holding of the majority that Pemberton did not present sufficient evidence to withstand a motion for JNOV. The articles published by the Birmingham News implicated Pemberton in the criminal activity of buying and selling paroles, even though the News had no evidence he had done anything illegal. Those responsible for the story knew he was an attorney and could legitimately represent clients for a fee before the parole board. They also knew that their only information linking Pemberton to any impropriety came from a highly unreliable source.
James Jacobson, the editor-in-chief of the Birmingham News, and Clark Stallworth, the associate editor who worked with Winne throughout the investigation, made the final decisions on publishing the parole stories. The News editors chose to run the article about Pemberton at the top of the front page with a large headline reading, "House clerk helps arrange paroles, News-launched investigation reveals." Next to the article was a picture of Pemberton. Evidence of actual malice may come from the writing of the headline to go with an article. Hunt v. Liberty Lobby, 720 F.2d 631, 646 (11th Cir.1983).
Immediately below the article on Pemberton was a story about the arrest of Andrew Cooper for accepting bribes to obtain a parole for a prisoner. The headline for this article was, "Deputy prison commissioner quits after bribe arrest." In the center of the page, also beneath the article on Pemberton, was a picture of Cooper being taken into the courthouse by the police. Beneath Pemberton's picture was an article headlined "Long wait, delays ... call came." This article described the reporter's contacts with a middleman in an attempt to buy a parole. At the bottom of the page was an article by Stallworth entitled "Paroles for sale?" The defamatory impact of an article may come from the context in which it is placed. Golden Bear Distr. Systems of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944 (5th Cir.1983); Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984).
The only informant to say that Pemberton was involved in illegal efforts to obtain paroles was James King, whose credibility was too much in doubt for the News to consider him a reliable source. Not only was he a convicted criminal, but also he had lied to Winne and the others in the investigation. He had said the entire $3000 would go to his contact, but he immediately spent much of it on himself. King also named two different individuals as his contact. "[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, 390 U.S. 727, 730, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968), citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967).
Prior to giving King the money, Winne insisted on speaking to the official who was to receive the money. Law enforcement officers monitoring the telephone conversation later said that the voice was not Pemberton's, and Winne informed Stallworth of this fact. Nevertheless, the article on Winne's investigation states that Winne "was to meet with the middle-man who would take $3,000 cash to a top state official he would not name (though other sources had)...." The article proceeded to describe the telephone conversation, including the statement that "the voice assured me it knew the right people to pay off to get a parole." The article later identified Pemberton as King's contact, but did not mention that the voice on the phone was not Pemberton's or that King had first named Ealon Lambert as his contact.
When King received the money, he did not go directly to his contact. Instead, he used part of the money to buy himself a truck and then took his wife out to dinner. Officers from the Governor's Task Force on Crime and Corruption followed King and his wife and arrested them when they went home. When the officers questioned King that night at a Birmingham police station, they told him if he did not cooperate *270 with them he could be prosecuted for theft and sent to jail for life without parole as a habitual offender. He identified his contact as Ealon Lambert. The Task Force officers placed King and his wife in a motel room for the night, with the telephone disconnected. The next morning, King changed his story and said that Pemberton was his contact. Winne and Stallworth knew that King had at first named Lambert as his contact and had only named Pemberton later. The jury could have determined that the News acted with reckless disregard of the truth or falsity of its publication because it relied on King's information given under these circumstances.
King later met with Pemberton. Pemberton accepted $1500 to represent the inmate. The attorney monitoring the conversation for the Department of Public Safety determined that there was no violation of the criminal law. Winne, Stallworth, and Jacobson all knew of this determination.
Winne's inquiries at the Parole Board and the Ethics Commission had revealed only three or four parole cases in which Pemberton was involved. The Pemberton article implied that these paroles took place under suspicious circumstances, but the parole records do not bear out this charge. For example, the article states that the routine parole date for one of the inmates represented by Pemberton was November 1979 when in fact it was March 1978. The inmate was paroled in April 1978. As to another inmate for whom Pemberton telephoned the parole board, the article merely stated that "There is no indication whether money was paid him," when in fact both the parolee and her aunt had told Winne that Pemberton had not been paid any money. The article also quotes a source as saying that Pemberton called the parole board regularly, "sometimes up to 20 times a month." It did not mention that legislators frequently referred calls from their constituents about inmates to Pemberton. Pemberton, as Clerk of the House, made these inquiries for his employers, the members of the House of Representatives.
When asked whether he knew the article was accusing Pemberton of selling paroles, Stallworth answered, "I think that's a fair implication." Stallworth also testified that he thought it was fair to call Pemberton for his comments at 5 a.m. immediately prior to the printing of the article.
The News published the Pemberton story on Saturday, August 8, because of Cooper's arrest on Friday, August 7. Winne was in Montgomery on Friday for the arrest of Cooper and saw a Montgomery television reporter at the district attorney's office. He drove to Birmingham that night and spent the whole night writing the Pemberton story so it could be released the next morning. Stallworth came in to the News offices at 3 a.m. and told Winne to call Pemberton for comments. Winne called Pemberton at 5 a.m. and Ealon Lambert at 5:30. Stallworth called Jacobson to the office to review the story before the printing deadline around 6:30 or 7:00. The evidence reveals no connection whatsoever between the allegations against Cooper and the allegations concerning Pemberton.
The record contains sufficient evidence that the News acted with at least reckless disregard of the truth or falsity of its allegations that Pemberton was involved in illegal activity. I therefore would reverse the trial court's order granting judgment notwithstanding the verdict.
FAULKNER and JONES, JJ., concur.
[1] Although Winne was a defendant below, on appeal plaintiff does not argue that the judgment in favor of Winne should be reversed.
[2] This standard was subsequently rejected by the Court when it decided that public figures must make the same showing of actual malice as public officials. See Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir.1983). However, the fact that the same result can be reached on these facts using an actual malice standard is clear from the opinion of Chief Justice Warren. Butts, 388 U.S. at 165, 169-70, 87 S. Ct. at 1998-99 (Warren, C.J., concurring in the result).
[3] The lead article stated: "As an attorney, Pemberton can represent clients before the parole board for a fee if he files the proper papers with the Ethics Commission each time he does so." See Code of 1975, § 36-25-10.
[4] At trial, there was introduced a letter from plaintiff to Melvin Cooper of the Ethics Commission, which stated:
"I have been retained to represent Mr. James Harding at a hearing to be held before the Pardon and Parole Board. I believe that Mr. Harding can be represented as adequately and affectively [sic] by members of his family as he can by me as his attorney. I am, therefore, returning the retainer and declining to represent Mr. Harding in this Matter."
Although the letter was dated August 7, 1981, the postmark on the accompanying envelope was August 8, the day the articles appeared in the newspaper. The letter was received by the Ethics Commission on August 10. There is no evidence that the News knew of the existence of this letter when it published the articles. Winne testified that he checked with the Ethics Commission on the afternoon of August 7 to see if a disclosure had been filed by plaintiff. | November 22, 1985 |
59106f8c-6c73-4304-bac5-a1dd5efe65ae | Garrett v. City of Mobile | 481 So. 2d 376 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 376 (1985)
Clyde D. GARRETT and Cathy Garrett
v.
CITY OF MOBILE.
84-779.
Supreme Court of Alabama.
November 22, 1985.
*377 Nathan Friedlander of Marr & Friedlander, Mobile, for appellants.
James B. Rossler of Stout & Roebuck, Mobile, for appellee.
SHORES, Justice.
Appellant Clyde Garrett and his family attended a fireworks display sponsored in part by the City of Mobile at Ladd Memorial Stadium on July 3, 1982. As the Garretts were walking to their automobile at the end of the display, Mr. Garrett was assaulted by a group of five or six teenage males. He received numerous stab wounds. Prior to assaulting Garrett, the same group of teenagers had stabbed two other individuals inside the stadium. Eighty-two police officers were assigned to Ladd Stadium for the fireworks display. Garrett brought suit against the City of Mobile, alleging that the City negligently failed to provide the security necessary to prevent his injury. He contends that because the police were aware of two previous assaults, the risk of his injury was foreseeable and therefore was proximately caused by the officers' negligent failure to react. The trial court granted the defendant's motion for summary judgment, and this appeal followed. We affirm.
Our review of the summary judgment in this case is controlled by the recent decision of Calogrides v. City of Mobile, 475 So. 2d 560 (Ala.1985). Calogrides was the first victim of these teenage assailants on July 3, 1982. After he was attacked, he alerted two police officers and was taken to get first aid.
In Calogrides and in Rich v. City of Mobile, 410 So. 2d 385, 387 (Ala.1982), a suit involving the city's negligent inspection of sewer lines, we stated the general rule that a city has no duty, the breach of which will impose tort liability to a person "`in those narrow areas of governmental activities essential to the well-being of the governed.'" Calogrides v. City of Mobile, supra, at 561, quoting Rich v. City of Mobile, supra. We further held in Calogrides that the organization and maintenance of a police force is one of the activities that is essential to the well being of the citizenry. Calogrides, id. The imposition of liability on a municipality in connection with a legitimate effort to provide a police force is not consistent with the goal of maintaining that force. Garrett contends that during the period of forty-five minutes to an hour that elapsed between the attack on Calogrides and the subsequent attack on him, the police department had a duty to provide for his protection. We do not agree. There is a finite number of officers on any city's police force, and no individual can expect complete protection.
The appellant in Ellmer v. City of St. Petersburg, 378 So. 2d 825 (Fla.Dist.Ct. App.1979), was attacked when he drove his car into a riot area. He brought suit against the city, alleging that it had negligently failed to protect the safety of its citizens by giving them an appropriate warning of the riot or cordoning off the locale. In dismissing the claim, the court stated:
378 So. 2d at 827. Similarly, the City of Mobile cannot be held liable for a failure to locate and arrest five or six teenagers in a crowd of thousands in a period of minutes. There are no genuine issues of material fact; therefore, the decision of the trial court is affirmed. Rule 56, Ala.R.Civ.P.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur. | November 22, 1985 |
06380a69-3e65-4454-91da-4da5abb656c7 | Martin v. Reed | 480 So. 2d 1180 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1180 (1985)
Mr. and Mrs. J.J. MARTIN, Mr. W.J. Williams, Mr. and Mrs. Charles Buddy Spears
v.
Joe REED, et al.
84-447.
Supreme Court of Alabama.
November 8, 1985.
Rehearing Denied December 20, 1985.
*1181 Julian L. McPhillips, Jr. of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellants.
Solomon S. Seay, Jr., Montgomery, for appellee Joe Reed.
J. Bernard Brannan, Jr., Montgomery, for appellees Emory Folmar and City of Montgomery.
TORBERT, Chief Justice.
This is an appeal from a judgment of the Montgomery County Circuit Court denying declaratory and injunctive relief. The plaintiffs, Mr. and Mrs. J.J. Martin, Mr. W.J. Williams, and Mr. and Mrs. Charles Spears, are taxpayers in the City of Montgomery. *1182 They originally filed this suit against city councilman Joe Reed and the City of Montgomery (City) to prevent the waste and misuse of city funds in the construction of a sidewalk along the south side of Carter Hill Road in Montgomery. Their complaint alleged that the proposed sidewalk would lessen property values in the neighborhood, would lead to an invasion of their privacy, and was unnecessary. In amendments to the complaint, the plaintiffs also alleged that defendant Reed would receive personal gain from the construction of the sidewalk, thereby creating a conflict of interest which would void the construction contract. An additional amendment alleged that the defendant City had failed to adopt an ordinance authorizing the construction project, in violation of Code 1975, § 11-48-5(a).
In 1983, the plaintiffs had brought suit against these same defendants in federal district court when the City sought to use federal funds to construct the sidewalk. Martin v. United States Department of Housing and Urban Development, No. 82-252-N (M.D.Ala.1983) (unpublished opinion). The federal district court granted the injunction the plaintiffs were seeking and prohibited the City from spending any funds on the construction project. When the present suit was filed, the City filed a motion for clarification of the court's order. The court responded by ruling that the injunction that had been issued only prohibited the City from spending federal funds on the project and did not prohibit the expenditure of City funds to construct the sidewalk.
On February 1, 1985, after taking testimony and reviewing the depositions and documents introduced into evidence, the trial court issued an order denying the injunctive relief sought by the plaintiffs. The court found that the City officials had not acted in an arbitrary or capricious manner in deciding to construct the sidewalk and allowed the City to proceed with the construction. The plaintiffs appeal from this judgment and raise several issues for review.
The plaintiffs' initial contention is that the trial court should have given collateral estoppel effect to the federal court's ruling that the decision to fund the sidewalk construction was made arbitrarily and capriciously. They argue that since the same issue was litigated in the previous suit, its relitigation should have been precluded.
Collateral estoppel, also known as issue preclusion, is available as a defense to relitigation of an issue in a subsequent suit between the same parties which is not on the same cause of action. See, Conley v. Beaver, 437 So. 2d 1267, 1269 (Ala.1983). In the case of Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979), the Supreme Court also sanctioned the use of collateral estoppel by a plaintiff in a subsequent suit to prevent the defendant from relitigating a previously decided issue. It is in this "offensive" manner that the plaintiffs wanted to utilize the doctrine of collateral estoppel in the trial court. However, before the doctrine of collateral estoppel can be used in either the "offensive" or "defensive" manner, three elements must be present: (1) The issue must be identical to the one involved in the previous suit; (2) the issue must have been actually litigated in the prior action; and, (3) the resolution of the issue must have been necessary to the prior judgment. Conley, supra. For the reasons set forth below, we do not believe that the plaintiffs satisfied even the first of the elements necessary for collateral estoppel to operate.
In the prior federal court suit, the plaintiffs were seeking an injunction to prevent the same defendants from spending any federal funds to construct the sidewalk. In that suit, the federal district judge had specific regulations to review in deciding whether the City could utilize federal funds to construct the sidewalk. Before a city can utilize federal Community Grant funds on a construction project, the construction project must be shown to either "(a) principally benefit low and moderate income persons, or (b) aid in the prevention or elimination of slums and blight, or *1183 (c) meet other community development needs having a particular urgency." 24 C.F.R. 570.302(b) (1983). The opinion of the federal court dealt exclusively with whether the use of the funds would meet the requirements set forth in the regulations. The final order that was issued stated that any use of federal funds would violate these regulations. Therefore, the issue of whether the decision to fund the sidewalk construction was made in an arbitrary and capricious manner was not litigated.
Additional support for our holding is provided in the federal court's order in response to the City's "motion to clarify" made following the filing of the instant suit. In that order the court said:
Clearly the issue of whether the City acted in an arbitrary and capricious manner was not decided. Therefore, the trial court was correct in not applying the doctrine of collateral estoppel in this case.
The second issue presented by the plaintiffs is whether the trial court erred in not finding that the defendants improperly allocated funds for this construction project because the city council had not passed a specific ordinance authorizing the construction. The plaintiffs base their contention on Code 1975, § 11-48-5(a), which they argue requires that a specific ordinance be enacted before any one of the enumerated improvements may be undertaken. Section 11-48-5(a) provides in pertinent part:
In interpreting a statute, this Court must give effect to the intent of the legislature and, if possible, that intent is to be gathered from the language of the statute. Advertiser Co. v. Hobbie, 474 So. 2d 93, 95 (Ala.1985). This statute expressly provides that the City must pass an ordinance when the cost of the improvement is to be assessed against abutting property owners. All of the cases that have interpreted this particular Code section have been concerned with the necessity of an ordinance or resolution only when an assessment of cost is to be made. See, e.g., Streater v. Town of Town Creek, 234 Ala. 132, 173 So. 853 (1937); Walton v. City of Mobile, 232 Ala. 200, 167 So. 247 (1936); Garner v. City of Anniston, 178 Ala. 430, 59 So. 654 (1912). In the absence of such an assessment of cost, such as in this case, a city is not required to pass a specific ordinance authorizing each individual improvement.
This is not to say that an ordinance was not passed which authorized the funds for this construction. In the general budget for the City, which was adopted by the city council, there was a line item that allocated $225,000 to the district in which the sidewalk construction is located. Under the form of government established in Montgomery, the mayor is responsible for the administration of the general budget and is authorized to make contracts on behalf of the City. Ala.Acts of 1973, No. *1184 618, § 4.06(4). It was with this authority that the mayor of Montgomery entered into the construction contract utilizing funds properly appropriated in the City's budget. Therefore, the trial court did not err in finding that a specific ordinance was not necessary.
The third issue presented by the plaintiffs is whether the trial court erred when it failed to find that defendant Reed had a conflict of interest with respect to the sidewalk construction project. The plaintiffs contend that, as a city councilman, defendant Reed cannot legally receive any personal benefit from the construction project and that, since he had done so, the construction contract should have been invalidated.
The plaintiffs' argument is based on three Code sections which prohibit an official from using his public office for private gain. Section 36-25-5, Code 1975, which is part of the Code of Ethics for Public Employees, provides that no public official may use his official position "to obtain direct personal financial gain." Code 1975, § 11-43-54, states that a city councilman may not vote on any matter in which he has a "special financial interest." Code 1975, § 11-44-94, prohibits any officer or employee of a city from being "interested, directly or indirectly, in any contract for work or material ... to be furnished or performed for the city."
We agree with the trial court that defendant Reed did not have a conflict of interest with respect to the sidewalk construction project. The plaintiffs' evidence failed to establish that Reed would receive any personal gain from the construction, or that he voted on a project while he had a financial interest in it, or that he has any interest in the contract between the City and the construction company to build the sidewalk. In the absence of such evidence, the trial court was correct in determining that no conflict of interest existed.
The final issue raised on this appeal is whether the trial court should have found the sidewalk construction to be a waste of taxpayer funds. The plaintiffs argue that the evidence presented before the court showed that no one in the vicinity of the construction desired a sidewalk and, therefore, that any appropriation of money for this project was improper.
In Alabama, a taxpayer within a city has the right to bring a suit against the city to prevent it from wasting public funds. See, Townsend v. McCall, 262 Ala. 554, 558, 80 So. 2d 262, 265 (1955). In this kind of suit, however, the burden is on the party challenging the action to show that it is so arbitrary or unreasonable as to constitute a clear abuse of power. Alosi v. Jones, 234 Ala. 391, 394, 174 So. 774, 776 (1937). As this Court has previously said:
Blankenship v. City of Decatur, 269 Ala. 670, 675, 115 So. 2d 459, 462 (1959) (quoting Alosi v. Jones, supra).
The legislature has clearly delegated to cities the power to construct sidewalks and other public improvements. Code 1975, § 11-48-4. With this power goes the discretion to decide where and when such improvements are to be made. McQuillan, Municipal Corporations, § 37.18, § 37.25 (1971). We cannot say that the City has clearly abused this delegated power. The testimony presented by the plaintiffs, though persuasive on the fact that certain residents oppose the construction, does not show a clear abuse of power. Therefore, the trial court's decision not to enjoin the City from constructing the sidewalk was correct.
For the reasons stated, the judgment of the trial court is due to be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES and HOUSTON, JJ., concur. | November 8, 1985 |
65eb1d97-5eb1-4f3e-b7f1-ff28b6e0cc74 | All American Life and Casualty Co. v. Dillard | 255 So. 2d 17 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 17 (1971)
ALL AMERICAN LIFE AND CASUALTY CO., a Corp.
v.
Dewey Lee DILLARD.
6 Div. 630.
Supreme Court of Alabama.
November 18, 1971.
*19 Walter R. Byars, Montgomery, John Self, Hamilton, for appellant.
Bill Fite, Hamilton, Frank W. Riggs, III, Montgomery, for appellee.
PER CURIAM.
Appellee recovered judgment against appellant on a contract of disability insurance. Defendant appeals and seeks a reversal of the judgment.
We concur in appellee's assertion that the judgment denying defendant's (appellant's) motion for a new trial is invalid and has no legal significance.
The motion was presented to the trial judge on April 19, 1968, at which time the judge entered an order continuing the motion for hearing on May 15, 1968. Without any further order of continuance or judicial indication in the record that the motion was heard on May 15, supra, or that the same was submitted and taken under advisement on the date set for the hearing, or otherwise became lodged in the breast of the court, the trial court, on June 20, 1968, entered a judgment overruling and denying the motion.
This action of the trial court was without legal authority for that the motion was discontinued. Title 13, § 119, Code of Ala., Recompiled 1958; Moving Picture Machine Operators Local No. 236, et al. v. Cayson, 281 Ala. 468, 205 So.2d 222(14); Moore v. Ashe, 269 Ala. 359, 113 So. 2d 678.
In view of the end results of this appeal as appear in this opinion, we pretermit consideration of appellant's motion to amend citation and notice of appeal, security for costs and supersedeas bond; also appellee's motion to dismiss the appeal.
It appears from the record that appellant's written charges 2, 3, 4 and 5 were not, at the time of the trial, marked "Given" or "Refused", and signed by the judge in compliance with Title 7, § 273, Code of Ala.1940.
Failure to comply with this statutory mandate was the subject of mandamus proceedings in this court. See In re All American Life and Casualty Company v. Moore, Jr., as Judge, etc. (Ex parte All American Life and Casualty Company), 286 Ala. 492, 242 So. 2d 661.
Petitioner (appellant) invoked this remedy to compel the trial judge to write or mark "Refused" on each of said charges 2, 3, 4 and 5 (also on 1, 6 and 7) or appear at a time to be designated by this court and show cause why he should not be required to do so. Also petitioner prayed for a peremptory writ.
This court granted the alternative writ or rule nisi, but after answer filed, following issuance of the rule nisi, this court took cognizance of the fact that in the special prayer petitioner did not pray that the respondent judge be required to sign his name to each of the seven charges after having marked each of them refused. However, such relief was included in the rule nisi pursuant to petitioner's prayer for general relief.
*20 We observed in All American Life and Casualty Company v. Moore, supra, as follows:
Thus, it appears that petitioner averred that the charges were refused, but we held that such allegation was refuted by Judge Moore's averments in his answer that he had no independent recollection of the charges being presented to him. Hence, and for other reasons, we declined to order him to mark the charges "refused", and to sign his name thereto when he had not actually refused them after giving them consideration.
But, it appears in the record that on January 8, 1971, following the publication of our decision on December 23, 1970, denying issuance of a peremptory writ, the trial judge, at appellant's request, marked "refused" and signed his name thereto on each of charges 2, 3, 4 and 5; that on January 20, 1971, the transcript of record in this case was filed with this court containing said charges. These charges, as they appear in the record before us, were each marked "refused" and purport to have been signed by the trial judge, Bob Moore, Jr.
It thus appears that the trial judge formed and exercised judicial judgment that the charges 2, 3, 4 and 5 were not valid *21 or correct. He then performed a ministerial duty of marking these charges "refused" and signed his name thereto.
This purported judicial judgment was reached after appellant filed its petition here on October 3, 1968, for a rule nisi and a peremptory writ to compel the trial judge to perform a ministerial act of marking each charge "refused" and signing his name thereto. At that time, according to respondent's answer to the petition filed here November 6, 1968, and in the opinion of this court (All American Life and Casualty Company v. Moore, supra) he had not made a judicial determination as to the correctness of these charges.
Such judicial determination comes too late, because an appeal to this court had been taken by All American. Jurisdiction of this court attached on July 12, 1968, at which time security for costs and a Supersedeas Bond had been filed and approved. Such filing and approval perfected an appeal. Title 7, § 766, Code of Ala.1940; Austin v. City of Anniston, 243 Ala. 214, 8 So. 2d 410; McCulley v. Stroud, 286 Ala. 515, 243 So. 2d 28; Maya Corporation et al. v. Smith et al., 239 Ala. 470, 196 So. 125.
Under the facts here obtaining and in view of our holding in All American, etc. v. Moore, etc., supra, we conclude that the trial judge had been divested of his jurisdiction when he made a judicial determination, if in fact one was made, refusing the charges, and impressed each charge, 2, 3, 4 and 5, with the word "refused" and signed his name thereto.
It is to be noted that this court takes judicial knowledge of its own records. Vol. 9, Ala.Dig., Evidence, Jackson, etc. v. Chemical Nat. Bank, 215 Ala. 538, 112 So. 105(7).
We think and so hold that the issuance of a writ of certiorari to the Circuit Clerk of Marion County to send up an amended transcript of the record which does not contain written charges 2, 3, 4 and 5 as the same appear on pages 15 and 15A of the transcript (with the words, "Refused, Bob Moore, Judge" thereon), would be unnecessary procedure even if allowable. The decision of this court on the original mandamus petition, supra, and the records before us, justify this court in treating the words, "Refused, Bob Moore, Judge" as surplusage and without lawful efficacy or significance. The charges, in the opinion of this court, were never lawfully ruled on prior to this appeal. Petition for certiorari here filed by appellee, to be directed to the Clerk of the Circuit Court of Marion County, is denied.
Assignment of Error No. 5 asserts that the trial court erred in overruling defendant's (appellant's) demurrer to plaintiff's complaint. We will consider only those grounds that are adequately argued.
Ground 2 charges that the complaint fails to state a cause of action against defendant. This ground is general and contravenes Title 7, § 236, Code of Ala.1940. See also United Insurance Company of America v. Pounders, 279 Ala. 410, 186 So. 2d 125; Caffee v. Durrett, 282 Ala. 71, 209 So. 2d 210; Bright v. Wynn, 210 Ala. 194, 97 So. 689(2); Ala.Dig., Vol. 2, Appeal & Error. This ground has no merit.
Ground 3 of the demurrer states that the averments of the complaint are merely conclusions of the plaintiff with no facts alleged to support said averments.
This ground is also general and without merit. Title 7, § 236, Code of Ala.1940, supra; Johnson v. Ralls, 286 Ala. 565, 243 So. 2d 673; Central of Georgia Ry. Company v. Hinson, 262 Ala. 223, 78 So.2d 286(7).
Ground 11 charges said count fails to apprise the defendant of any breach of the contract of insurance between defendant and the plaintiff; but the complaint alleges a breach of contract.
*22 Ground 12 charges that the allegations of the complaint by the plaintiff fail to apprise the defendant what the defendant is to defend.
This ground is general and contravenes Title 7, § 236, Code 1940. See United Insurance Company of America v. Pounders, supra (2).
Ground 13 asserts that the allegations of the complaint fail to show that there was a repudiation of the contract of insurance.
The complaint alleges that on or about, to-wit, August 15, 1967, "the Defendant wrongfully and tortiously and without just cause or good excuse did cancel the Plaintiff's said policy of insurance, and thereby the Defendant insurance company tortiously and wrongfully breached the same and became liable to the plaintiff for the present value thereof on the date to which the Defendant has paid its monthly payments, as required by the terms and conditions of the said policy."
In Otterbein v. Babor & Comeau Co., 272 N.Y. 149, 5 N.E.2d 71, 72, it was held that "cancellation" of insurance contract means termination of insurance in accordance with the cancellation clause of the policy by insured, insurer or both; to cancel being "`to annul or destroy; to revoke or recall.'"
We think that the words "wrongfully * * * and without just cause or good excuse did cancel the plaintiff's said policy of insurance * * *" are broad enough to import repudiation of the policy by defendant (appellant).
The judgment of the trial court in overruling the demurrer was free of error as we view the argued grounds.
We will first consider Assignments of Error 1, 2 and 6.
Assignments 1 and 6 refer to the same written charge 2, which directs the jury, with hypothesis, to return a verdict for the defendant.
This charge was not lawfully marked "refused" and signed by the trial judge. See CERTIORARI, supra. Assignments of Error which do not refer to any ruling of the trial judge will not be considered on appeal. United Insurance Company of America v. Pounders, supra; Cash v. Usrey, 278 Ala. 313, 178 So.2d 91(9); Ala.Dig., Vol. 2A, Appeal & Error.
Assignment of Error 2 asserts that the court erred in overruling appellant's motion for a new trial. There was no lawful ruling on this motion. It was discontinued. See MOTIONS, supra. In the absence of a lawful ruling there is nothing to review. See citations in the preceding paragraph.
Appellant challenges the court's adverse ruling on defendant's objection to a question as follows:
Overruling on the ground that question was leading was free of error. Allowance of leading questions is largely in the court's discretion and is not reviewable in the absence of abuse of discretion. Elliott v. McCraney, 26 Ala.App. 565, 163 So. 814; Louisville & Nashville R. R. Co. v. Dumas, 209 Ala. 324, 96 So. 243; 2A Ala.Dig., Appeal & Error. We do not think the question calls for a conclusion. It calls for a statement of fact concerning plaintiff's physical condition immediately before the heart attack which plaintiff suffered, and which he *23 contends was totally disabling within the terms of the insurance policy. The ruling was correct. This assignment 7 is without merit.
Assignment 8 asserts error by the trial court in overruling appellant's objection to question propounded to plaintiff as follows:
There was no error in the ruling. See Assignment 7, supra.
Assignment 9.
The objection was general and without specific assignment of ground or grounds.
This question did not call for evidence that was patently inadmissible under the issue. Circuit and Inferior Court Rules, Rule 33, Title 7, Code of Ala.1940, Appendix; Tankersley v. Webb, 263 Ala. 234, 82 So. 2d 259. The ruling was free of error.
Assignment of Error 11 refers to the adverse ruling of the trial court on a question propounded to plaintiff as follows:
The inquiry refers to plaintiff's heart condition as well as to an arthritic condition. Without question, the heart condition was a proper subject of inquiry. The objection is to both facets of the inquiry. The objection was properly overruled.
Assignment of Error 12.
It appears in the record that defendant, on direct examination of plaintiff, made an inquiry of plaintiff as follows:
Plaintiff merely pursued the subject of treatment for plaintiff's leg. There was no error on the part of the court in overruling defendant's objection to the evidence. It was a legitimate pursuit of a subject that defendant opened up.
Assignment of Error 13.
Appellant here challenges the adverse ruling of the trial court to the inquiry *24 of plaintiff's attorney to plaintiff, as follows:
We think this question called for a factual answer that was forthcoming. The answer was: "Yes".
Assignment of Error 14.
Adverse rulings by the court to defendant's objections were made by the trial court to questions to plaintiff as follows:
* * * * * *
We think the record discloses that the "medicine" referred to was medicine prescribed for plaintiff's heart condition. There was no error in allowing plaintiff to show a continuation of the treatment, prescribed by his physician, for his heart condition.
Assignment of Error 15.
There was no error in allowing plaintiff to answer the question as follows:
The question called for a factual answer that followed. There was no error in the ruling of the court.
Assignment of Error 16.
There was no error on the part of the court, over defendant's objection, in permitting the following question:
This question and answer merely deal with the wear and tear on a person having to stay around the house while suffering from a heart condition. It implies the need of recreation. We are unwilling to say that the question and answer were patently irrelevant and illegal. Circuit and Inferior Court Rules, Rule 33, supra; Tankersley v. Webb, supra.
We conclude that the judgment of the trial court should be affirmed. It is so ordered.
Affirmed.
BLOODWORTH and McCALL, JJ., concur.
*25 HEFLIN, C. J., and COLEMAN and MADDOX, JJ., concur in result.
HEFLIN, Chief Justice (concurring in the result).
I concur in the result that this cause is due to be affirmed under its present posture; however, I do not agree with all of the language of the affirming opinion. Further, I wish to point out that I did not participate in the decision and opinion in In re All American Life and Casualty Company v. Moore, Jr., as Judge, etc. (Ex parte All American Life and Casualty Company), 286 Ala. 492, 242 So. 2d 661. | November 18, 1971 |
2df4ef7f-8d2b-46bf-931c-5a366ab5933c | Cooper Chevrolet, Inc. v. Parker | 494 So. 2d 386 | N/A | Alabama | Alabama Supreme Court | 494 So. 2d 386 (1985)
COOPER CHEVROLET, INC.
v.
Gerald D. PARKER and Robbie B. Parker.
84-362.
Supreme Court of Alabama.
December 6, 1985.
Rehearing Denied July 25, 1986.
Fred Ray Lybrand, Anniston, for appellant.
Frank S. Teel of Teel & Teel, Rockford, and James S. Hubbard, Anniston, for appellees.
HOUSTON, Justice.
On May 31, 1982, the plaintiffs purchased an automobile from Cooper Chevrolet, Inc., which had been orally represented to them to be new. In June 1982, the plaintiffs received all of the sales documents from Cooper. These documents showed that the automobile had been placed in demonstrator service prior to the sale. The plaintiffs received their copy of the certificate of title by mail from the State of Alabama on June 18, 1982. This document also indicated that the automobile purchased by the plaintiffs was a "demo" at the time of the sale.
The plaintiffs had numerous problems with the automobile from the date of purchase. It was often at the Cooper dealership being repaired. On October 7, 1982, the plaintiffs sent certified letters to Cooper and to the Chevrolet Motor Division of General Motors Corporation, formally notifying them of plaintiffs' claim that they had breached both the implied and express warranties accompanying the sale of the automobile. These letters stated that they were written "upon the instruction of my attorney." This suit was filed by the plaintiffs on November 22, 1983, more than thirteen months after this notice was given and approximately seventeen months after their receipt of the sales documentation and certificate of title. The plaintiffs alleged breach of express and implied warranties against the original defendants, General Motors Corporation and the General Motors Acceptance Corporation, and breach of implied warranty and fraud on the part of Cooper. The case proceeded to trial and, subsequent to the plaintiffs' presentation of their case, General Motors and G.M.A.C. agreed to cancel the debt owed by the plaintiffs to G.M.A.C. upon their relinquishment of title and possession of the automobile to General Motors. Thereafter, the plaintiffs executed a pro tanto release to these two defendants and dismissed the breach of implied warranty claim against Cooper. The case went to the jury solely on the fraud count against Cooper, the plaintiffs claiming compensatory *387 damages of $1,500 and punitive damages of $125,000. The jury returned a verdict in favor of each of the plaintiffs for $6,250 and Cooper appeals.
Cooper filed a motion for a directed verdict after the plaintiffs rested and at the close of all the evidence. It argues that the trial court erred to reversal in overruling these motions. We agree.
Section 6-2-39, Code 1975, provides for a one-year limitation on actions of fraud. Section 6-2-3, Code 1975, limits the accrual of the claim to one year after discovery of facts constituting fraud.
In interpreting § 6-2-3, Code 1975, this Court has consistently held that facts constituting fraud are deemed to have been discovered when they should have been discovered. Retail, Wholesale and Dept. Store Employees Union v. McGriff, 398 So. 2d 249 (Ala.1981); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala.1979). In Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984), a case very similar factually to the present case, this Court held:
The plaintiffs insist that the running of the statute was tolled by their failure to read the documents. It is undisputed however, that the documents, which showed that the automobile purchased by the plaintiffs was a demonstrator, were received by the plaintiffs in June 1982. The date that these documents were received was the date the fraud was or should have been discovered. Gonzales v. U-J Chevrolet Co., supra. This suit was not filed until seventeen months after that date. Therefore, because this action was barred by the applicable statute of limitations, the directed verdict should have been granted by the trial court.
REVERSED AND JUDGMENT RENDERED FOR DEFENDANT COOPER.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | December 6, 1985 |
ce9a677e-6492-4b00-96a1-7011be2ecca7 | Gulf House Ass'n, Inc. v. Town of Gulf Shores | 484 So. 2d 1061 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 1061 (1985)
GULF HOUSE ASSOCIATION, INC. and William Nesbit
v.
TOWN OF GULF SHORES, Alabama, et al.
GULF HOUSE ASSOCIATION, INC.
v.
BOARD OF ADJUSTMENT OF the TOWN OF GULF SHORES, Alabama, et al.
84-428, 84-533.
Supreme Court of Alabama.
November 8, 1985.
Rehearing Denied February 14, 1986.
Taylor D. Wilkins, Jr. of Wilkins, Bankester & Biles, Bay Minette, for appellants.
Benjamen T. Rowe of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellees.
FAULKNER, Justice.
Gulf House Association, Inc.,[1] appealed to this Court from the trial court's denial of both preliminary and permanent injunctive relief against the construction of "The Whaler" condominium apartments in Gulf *1062 Shores. Petitioners also appealed to the Circuit Court of Baldwin County from the issuance of a variance granted by the Board of Adjustment of the Town of Gulf Shores, and, following trial in that court, appealed to the Court of Civil Appeals from a ruling in favor of issuance of the variance. These two appeals were consolidated for this Court's consideration. We affirm.
In 1983 Forrest Waters, Jr., purchased lots 3, 4, 5, and 6 of the Romeo Skipper subdivision in the Town of Gulf Shores. These lots are in a commercial district zoned BTL:
The Waters lots, each measuring approximately 50 feet by 140 feet, were created by subdivision at a time when use of the area in question was primarily residential. Lots 5 and 6 face the beach; lots 3 and 4 are directly behind, or north of them. The north lots and south lots are separated by a right-of-way in the form of a narrow alleyway. Immediately to the east of the Waters property is the Gulf House, a six-floor 36-unit condominium stretching from the beach back almost to Highway 182, the beach highway (East Gulf Shores Boulevard). The alleyway dead ends into this property. These lots are depicted in the drawing attached hereto as Appendix A.
In August of 1983, Waters applied for a variance to allow the unitization of all the lots as one piece of property for purposes of zoning in order to enable him to construct a condominium. At the Board of Adjustment hearing on this matter, counsel for Gulf House appeared and objected to issuance of the variance. Waters withdrew this variance request, stating that he would return to a later meeting with a request specifying the precise areas where a variance would be required. On September 8, 1983, Waters applied for four variances, described as follows:
At the September 1983 meeting of the Board of Adjustment it was noted by the Board that lot unitization had never before, to the knowledge of the members present, been presented to the Board for a variance, although a number of lots within the town had been unitized. The Board then passed a motion stating if lots 3, 4, 5, and 6 were unitized into one lot, then requested variances one and two were approved based on the plans submitted.
In October of 1983 Waters again requested a variance from area and dimension requirements in order to utilize lots 5 and 6 for a building and lots 3 and 4 for parking. The board reminded Waters that it had approved the variances regarding the north lot line and the shadow effect contingent on Water's unitizing the lots by declaration of unitization. Waters withdrew that request and thereafter executed a "Covenant of Unity of Title," which was filed in the county probate office. This document stated that the four lots were considered to be one piece of property for purposes of building. On April 30, 1984, the Town of Gulf Shores issued the building permit for the construction of the condominium. On March 12, 1984, the Town Council approved by resolution the site plan for the condominium, to be known as "The Whaler."
*1063 On May 2, 1984, Gulf House filed a "Motion for Preliminary Injunction," and on July 5, 1984, a "Complaint for Permanent Injunction," seeking to enjoin construction of The Whaler and to enjoin enforcement of the provisions of §§ 8-13-A and 8-13-B of Ordinance Number 284 of the Town of Gulf Shores, alleging those sections to be unconstitutional.[2]
Hearings were held before the Circuit Court of Baldwin County on May 7, June 19, and August 21, 1984. Both preliminary and permanent injunctive relief were denied by the trial court, but in the course of the proceedings the court, on its own motion, concluded that Waters should obtain an additional variance which would allow him to build in accordance with his plans, to a point on his south property line on lots 5 and 6.
Under the Town's zoning ordinance an owner may build to what is called the construction setback line on lots abutting the Gulf. Section 8-2, Zoning Ordinance of May 10, 1982. For multi-family or commercial properties, the construction setback line is a line running generally parallel to the shoreline at points 5 feet inland of the primary dune crest line. Section 8-11, Zoning Ordinance, supra. On other commercial lots, not abutting the Gulf, structures must be set back 20 feet from the property line and inland of the construction setback line. Sections 7-1 and 8-11, Zoning Ordinance, supra.
The Waters lots abut a private beach in which Waters owns an undivided interest. His property line is inland of the construction setback line at the point in question. For these reasons the Town considered his lots to be Gulf side lots and did not construe the ordinance as requiring a 20-foot south setback. Nevertheless, in response to the trial court's direction, Waters applied for and received on June 6, 1984, a variance to build to this south lot line. At this point, foundation pilings had been put in, the basic foundation had been poured, and approximately $600,000 had been expended for construction. It is from the issuance of the variance on the south setback line, as well as the denial of injunctive relief, that Gulf House appeals.
We will first decide whether the ruling in favor of issuance of the variance was proper. Any party aggrieved by any final judgment or decision of a Board of Zoning Adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with the Board a written notice of appeal. Ala.Code 1975, § 11-52-81. In Crowder v. Zoning Board of Adjustment, 406 So. 2d 917, 918 (Ala.Civ.App.1981), the court held that "in order for a party to appeal from a decision of a zoning board he must be a `party aggrieved' by establishing proof of the adverse effect the changed status of the rezoned property has, or could have on the use, enjoyment, and value of his own property."
The evidence in this case is insufficient to show that Gulf House was "aggrieved." The record contains only an attempt to interject evidence of the effect of The Whaler on the view from the Gulf House condominiums. This attempt is shown by the following exchange.
No other offer of proof as to damages was made by Gulf House. The residents of Gulf House have no legal entitlement to a *1064 view across the Waters property. In Ray v. Lynes, 10 Ala. 63 (1846), the court said:
Thus, the residents at Gulf House have failed to show any legally cognizable adverse effect on the use, enjoyment, and value of their property. Accordingly, the ruling granted in favor of issuance of the variance was proper. Whether or not the trial court erred in denying the preliminary injunction is moot, because there has been a final decision on the merits which denied the permanent injunction. See Kellum v. Williams, 252 Ala. 71, 39 So. 2d 573 (1949). Therefore, the only issue left to decide is whether the trial court abused its discretion in denying permanent injunctive relief. The decision to grant or deny injunctive relief rests in the sound discretion of the trial court and will not be set aside unless an abuse of that discretion is shown. Acker v. Protective Life Insurance Co., 353 So. 2d 1150 (Ala.1977). A permanent injunction will be granted when there exists a clear, specific, legal right requiring protection and the injunction is necessary to prevent irreparable injury and there is no adequate remedy at law. Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17 (Ala.1983); State ex rel. Abernathy v. City of Sheffield, 428 So. 2d 5 (Ala.1982); First National Bank of Oxford v. Whitmore, 339 So. 2d 1010 (Ala.1976); Nininger v. Norwood, 72 Ala. 277 (1882).
The record in this case supports the denial of permanent injunctive relief, because Gulf House has failed to show the existence of a legal right which requires protection. The only thing for which protection is sought is a view of the Gulf of Mexico, to which Gulf House does not have a legal entitlement. Ray v. Lynes, supra.
Correspondingly, there can be no irreparable injury to Gulf House. In addition, there was no evidence to establish that Gulf House had no inadequate remedy at law.
Gulf House also asserts that Sections 8-13-A and -B of Gulf Shores Ordinance Number 284, amending Article 8 of Ordinance Number 235, are unconstitutional. The record establishes that the amendment of the Zoning Ordinance and the Town Council's approval of plans for the construction of The Whaler were separate, independent events. Waters was told by the Board in September of 1983 that he needed to unitize the lots in order to get a variance. He did this by filing a "Covenant of Unity of Title" in the county probate office. The Town Council did not approve the amendment of the Zoning Ordinance until March 12, 1984. This was also the date on which the Council approved the site plans and specifications for The Whaler. However, there does not appear to be any connection between the two acts by the Council.
Since there is no evidence to show that the approval of the construction was dependent upon the amendment, consideration of the constitutionality of that amendment provision is not essential for disposition of this case. See Primm v. City of Birmingham, 42 Ala.App. 657, 177 So. 2d 326 (1964); Bray v. State, 140 Ala. 172, 37 So. 250 (1904); Smith v. Speed, 50 Ala. 276 (1873). In Smith v. Speed, supra, the court also stated:
Due to the fact that we have found no connection between the amendment and the approval of construction and have found *1065 that denial of injunctive relief was proper, we decline to pass upon the constitutionality of the amendment.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., not sitting.
[1] Gulf House Association, Inc., is an incorporated group of people who own and occupy the Gulf House condominium apartments.
[2] The Zoning Ordinance of May 10, 1982, of the Town of Gulf Shores was amended on March 12, 1984, by Ordinance Number 284, which added Sections 8-13-A and -B. Sections 8-13-A and -B provide that when it is necessary that two or more pieces of property be joined to meet area or dimension requirements, the building permit application shall be accompanied by evidence of the recording of a unity of title declaration and that land so joined shall remain indivisible. | November 8, 1985 |
deaa6f8f-afe4-4bf0-90a7-1e6acf2fdaec | Collier v. Duprel | 480 So. 2d 1196 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1196 (1985)
Chesley Lee COLLIER
v.
Eunice Martin DUPREL and Montgomery Lincoln-Mercury, Inc.
84-580.
Supreme Court of Alabama.
November 8, 1985.
*1197 George H. Howell of Howell, Sarto and Howell, Prattville, for appellant.
Edward B. Parker II of Balch & Bingham, Montgomery, for appellee Eunice Martin Duprel.
J. Donald Reynolds, Montgomery, for appellee Montgomery Lincoln-Mercury, Inc.
SHORES, Justice.
Chesley Lee Collier broke his leg at approximately 11:30 p.m. on February 26, 1983, after tripping over an orange electrical cord used to supply electricity to two display signs at the Clearview Lounge, operated by Daniel Wainwright in Prattville, Alabama. The cord was plugged into an outlet located in the exterior wall of the building and was draped inches above an adjacent sidewalk. Collier was on the premises as a member of a band hired to play at the lounge.
The premises were owned by Eunice Duprel, who had leased them to Wainwright on July 1, 1981. They had previously been leased to Montgomery Lincoln-Mercury, Inc. Wainwright owned a portable display sign, which he used for advertising. It was placed next to a permanent sign which, at one time, was supplied with electricity through an underground electrical cable. However, during Montgomery Lincoln-Mercury and Wainwright's leases, the extension cord came to be used as the method of supplying electricity to the signs.
Collier filed suit against Wainwright in the Circuit Court of Autauga County and, by an amendment to his complaint, later added Duprel and Montgomery Lincoln-Mercury. He alleged that he was a business invitee on the premises and that Duprel negligently or wantonly caused or allowed a dangerous condition to exist there and failed to warn him of that condition. He also alleged that Montgomery Lincoln-Mercury originally utilized the above-ground cord to supply electricity to the permanent sign. Collier appeals from summary judgments granted in favor of Duprel and Montgomery Lincoln-Mercury.[1] We affirm.
In Sanders v. Vincent, 367 So. 2d 943, 944 (Ala.1979), the Court stated the rule in Alabama:
Eunice Duprel's affidavit, which was attached to her motion for summary judgment, reads, in pertinent part, as follows:
Collier's answer in response to the motions for summary judgment, reads, in pertinent part, as follows:
Our review of Eunice Duprel's deposition, as referenced in Collier's answer, does not indicate that she "inspected" the premises after Montgomery Lincoln-Mercury vacated. Although it was undisputed that there was no covenant to repair, she did do some general clean up and maintenance work, including painting and replacing broken window panes. However, she did not examine the premises with Wainwright prior to his occupation of it.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(e), A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
Collier contends that a question of fact for the jury exists as to whether Eunice Duprel knew of the existence of the electrical cord when she cleaned up after Montgomery Lincoln-Mercury vacated. Assuming that she did, summary judgment was proper in this case because such knowledge is not material. The alleged defect was not a "latent" one. A latent defect is defined as "[a] hidden or concealed defect," "[o]ne which could not be discovered by reasonable and customary inspection." Black's Law Dictionary (5th ed. 1979). It is undisputed, as Collier states in his answer, that when Wainwright took possession of the premises, he observed the cord lying on the ground unplugged. Wainwright testified further on deposition that he, or one of his employees, plugged it in. Therefore, the manner in which the electricity was supplied to the signs could not have been concealed from him by Eunice Duprel.
Summary judgment was also properly granted in favor of Montgomery Lincoln-Mercury. It was undisputed that Collier was injured on February 26, 1983, and that Wainwright had leased the premises on July 1, 1981. On the date of his injury, Collier was the business invitee of Wainwright. Montgomery Lincoln-Mercury owed no duty to Collier merely because, during the time of its lease, it may have used the cord to supply electricity to a sign in a similar manner.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and HOUSTON, JJ., concur.
[1] The judgments were certified final pursuant to Rule 54(b), A.R.Civ.P. | November 8, 1985 |
be49f04b-4273-4b77-9789-cc0a9de7c950 | Wilder v. DiPiazza | 481 So. 2d 1091 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1091 (1985)
Elizabeth U. WILDER
v.
John A. DiPIAZZA, Jr., and John A. DiPiazza, Sr.
84-85.
Supreme Court of Alabama.
November 8, 1985.
Carl E. Chamblee, Jr. and Patricia N. Moore, Birmingham, for appellant.
J. Bentley Owens III, of Starnes & Atchison, Birmingham, for appellees.
SHORES, Justice.
This appeal is from the Circuit Court of Jefferson County, where a jury returned a verdict in favor of the defendant John DiPiazza, Jr. We affirm the judgment of the trial court for both defendants.
On January 4, 1983, Elizabeth Wilder filed a three-count complaint against John DiPiazza, Jr., and John DiPiazza, Sr., alleging that the son negligently or wantonly drove a car into the plaintiff's vehicle, resulting in property damage and personal injuries to her. Wilder's third count contained *1092 a theory of negligent entrustment against the father. After filing motions to dismiss, which were denied, both defendants filed responsive pleadings, generally denying the allegations and raising the affirmative defenses of contributory negligence and assumption of the risk. The son also filed a counterclaim for property damage to his car. After discovery was completed, the father moved for summary judgment, which was denied.
On April 2, 1984, the defendants filed a motion for separate trials of the claim against the father (negligent entrustment) and the claims against the son (negligence and wantonness). The motion was denied. However, prior to striking the jury, the motion was renewed and granted by the court after oral argument. The court also dismissed the wantonness count and the counterclaim.
Trial commenced on July 23, 1984, on the negligence claim against the son, and after three days of testimony, the plaintiff rested. The defendant son moved for a directed verdict, which the court denied. The jury returned a general verdict in favor of the defendant son. The court entered judgment for both defendants. Consequently, the claim against the father was not tried. The plaintiff moved for a new trial; the motion was denied, and this appeal followed.
On appeal, Wilder raises five issues for our consideration. We briefly consider each issue in turn.
Under the Alabama Rules of Civil Procedure, the trial court may order a separate trial of any claim or issue "in furtherance of convenience or to avoid prejudice...." A.R.Civ.P. 42(b). Generally, trial judges have broad discretion to order separate trials. Robinson v. Computer Servicenters, Inc., 360 So. 2d 299 (Ala.1978).
In the present case, Wilder joined the negligence claim against the son with the entrustment claim against the father. In the entrustment claim, Wilder would have had to prove the incompetence of the son as an element of the claim to show that the father knew or should have known of his son's incompetence and was thereby negligent in the entrustment. See, e.g., Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1143 (Ala.1985); Keller v. Kiedinger, 389 So. 2d 129, 133 (Ala.1980). To show this, Wilder would have been permitted to bring forth evidence of the son's prior experience, such as his driving record. See, Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853 (1970). However, in the negligence claim against the son, this same evidence is barred by the general rule that evidence of similar prior acts of negligence is inadmissible on the issue of negligence at the time of the injury complained of in the suit. Bruck, supra, at 1144; 29 Am. Jur.2d Evidence § 315 (1967). It is obvious, then, that if these two claims were joined at trial, the son might have been prejudiced by the inadmissible evidence. The trial court's solution to this dilemma separating the claims for trialwas appropriate under A.R.Civ.P. 42(b) and was not an abuse of discretion. See, Bruck, supra.
It was not reversible error to exclude this evidence, as it was totally immaterial to the issues involved in this case. C. Gamble, McElroy's Alabama Evidence § 21.01(b) (3d ed. 1977).
The trial court did not abuse its discretion by sustaining the defendant's objection to evidence as to the cost of repairs to the automobile. Wilder argues that the evidence was intended to impeach the defendant son's testimony of his speed prior to the accident. However, this evidence regarding repair costs would have had little *1093 probative value in establishing the defendant's speed at the time of the collision. Also, the evidence would draw attention from the main inquiry, and it was, thus, within the trial court's discretion to disallow the evidence.
No ground of a motion for a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence. Cooper v. Peturis, 384 So. 2d 1087, 1089 (Ala. 1980). Verdicts supported by any competent evidence are presumed correct, and that presumption is strengthened when the new trial motion is denied by the trial court. Guthrie v. McCauley, 376 So. 2d 1373, 1374 (Ala.1979). A jury verdict will not be disturbed on appeal on the ground that it is contrary to the evidence unless the evidence clearly convinces the court that it is wrong and unjust. Guthrie, supra.
After the jury returned a verdict for the defendant, Wilder filed a motion for a new trial on the grounds that the verdict was contrary to the weight of the evidence. The trial court denied this motion, and Wilder claims the denial was error. We disagree, as there is sufficient evidence in the record to support both the jury's verdict and the subsequent denial of Wilder's motion for a new trial.
According to the Alabama Code, the trial court has the duty to determine whether a juror possesses the qualifications required by law. Code 1975, § 12-16-6. The qualification relevant to this appeal is that the prospective juror must be a "resident of the county for more than 12 months." Code 1975, § 12-16-60(a)(1). After qualification by the court, jurors undergo examination by the parties or the court; if the latter course is followed, then the court "shall permit the parties ... to supplement the examination as may be proper." A.R.Civ.P. 47(a). In Alabama Power Co. v. Bonner, 459 So. 2d 827 (Ala. 1984), this Court stated:
459 So. 2d at 833, quoting Griffin v. State, 383 So. 2d 873 (Ala.Crim.App.1980). Although voir dire is not confined to matters which disqualify a juror, but extends to any matter which might tend to affect the verdict, the scope of examination is left largely to the discretion of the trial judge. 459 So. 2d at 832.
In the case below, Wilder's counsel attempted to ask on voir dire the following question concerning homeownership:
The trial court, however, refused to allow the question on the basis that it was not a relevant avenue of inquiry. According to Wilder, the question is based on § 12-16-150(1), which reads:
Code 1975, § 12-16-150(1). We agree with the trial court in this case that the question propounded did not reasonably relate under the circumstances to the question of qualification or interest or bias on the part of the prospective jurors, especially since the court had already inquired into the subject during the qualification stage.
*1094 Because the trial court ruled properly on all issues raised in this appeal, we affirm the judgment below.
AFFIRMED.
TORBERT, C.J., and MADDOX and HOUSTON, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
I agree completely with this Court's holding that the trial court was correct in disallowing questions on home ownership during jury voir dire. I arrive at this ultimate destination, however, by a somewhat different route. Section 12-16-60(a)(1) sets the residency qualifications of a prospective juror:
Section 12-16-150(1) provides as a ground for challenge of a juror:
Literally construed and applied, these two statutes mandate that the trial court disqualify any prospective juror who has not been a "resident of the county for more than 12 months"; and that, upon challenge by either party, the trial court must likewise excuse for cause any juror who has not been a "resident householder or freeholder of the county for the last preceding six months." In other words, the "resident householder or freeholder" ground for challenge is viable notwithstanding the juror's qualification as a "resident of the county for more than 12 months." Thus, if a prospective juror is qualified under the 12-month requisite of § 12-16-60(a)(1), he or she may yet be subject to challenge for cause for not having been a resident "householder" or "freeholder" (whatever these pre-Civil War terms mean or were ever perceived to mean) for the last preceding six months, pursuant to § 12-16-150(1).
This irrefutable analysis of these two juror qualification statutes leads to the equally irrefutable conclusion that, given the validity of the "resident householder or freeholder" qualification requisite, the trial court erred in rejecting the Appellant's inquiry concerning home ownership. The statute furnishes an unconditional ground for challenge of any juror who has not been a resident householder or freeholder for the last preceding six months. Thus, the challenge has nothing to do with "a relevant avenue of inquiry" or the trial court's exercise of its discretion.
The "not a relevant avenue of inquiry" reason given by the trial court cannot withstand appellate review unless we hold forthrightly that the trial court had the right to totally ignore the "householder or freeholder" qualification. Indeed, this, in legal effect, is exactly what the trial court necessarily did in disallowing the question. It seems altogether too obvious on its face to warrant discussion that § 12-16-150(1) cannot meet constitutional muster.
For this reason, I would affirm and make it abundantly clear that this antiquated ground for challenge of a juror must be struck down as repugnant to our federal and state constitutions. | November 8, 1985 |
0de4eb3d-de6e-4a20-bc21-bf72ea057087 | Ex Parte Tidwell Industries, Inc. | 480 So. 2d 1201 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1201 (1985)
Ex parte: TIDWELL INDUSTRIES, INC., Tidwell Insurance Brokers, Inc., and International Harvester Company, Inc.
(In re: Carlton WALDREP, et al. v. TIDWELL INDUSTRIES, INC., Tidwell Insurance Brokers, Inc., and International Harvester Company, Inc., et al.)
84-1148.
Supreme Court of Alabama.
November 8, 1985.
De Martenson and Frank E. Lankford, Jr. of Huie, Fernambucq & Stewart, Birmingham, for petitioner Intern. Harvester.
Andrew Campbell of Leitman, Siegal & Payne, Birmingham, for petitioners Tidwell Indus., Inc., Tidwell Ins. Broker, Inc.
James P. Rea of Hogan, Smith, Alspaugh, Samples, & Pratt, Birmingham, for Waldrep.
PER CURIAM.
Is the trial judge of a county to which a case has been transferred under Rule 82(d)(1), A.R.Civ.P., authorized to consider a motion to retransfer the case to the county in which it was initially filed? This is the issue presented by this petition for writ of mandamus. We hold that he is not and grant the writ.
On November 23,1983, respondent/plaintiff Waldrep filed suit in Jefferson County against petitioners/defendants Tidwell Industries *1202 (Tidwell), Tidwell Brokers, Inc. (Brokers), and International Harvester Company, Inc., seeking damages for personal injuries suffered in a tractor/trailer accident in Mississippi. On January 9, 1984, Tidwell and Brokers filed a motion to transfer the case to Winston County, contending that venue was improper in Jefferson County under Art. XII, § 232, of the Alabama Constitution and § 6-3-7, Ala. Code 1975. Tidwell and Brokers argue that they are foreign corporations (incorporated under Delaware law) with their principal places of business in Haleyville, Winston County; they also argue that neither corporation was doing business by agent in Jefferson County at the inception of the suit. Officers from both corporations submitted affidavits attesting to the above facts. Waldrep submitted no evidence at the hearing. On January 31, 1984, Jefferson County Circuit Court Judge John Bryan heard arguments on the motion. Based on the information before him, Judge Bryan ordered the case transferred to Winston County.
That same day, Waldrep filed a motion for reconsideration in Jefferson County Circuit Court. In this motion, Waldrep stated that the transfer was "premature... until the question of `doing business' can be fairly and accurately resolved by discovery." Waldrep had not previously initiated any discovery proceedings. Thereafter, Waldrep filed a second, similar motion in Jefferson County Circuit Court on March 19, 1984. This motion was supported by a memorandum of law and an affidavit with photographs by an investigator, referring to business allegedly conducted by Tidwell in Jefferson County.
The next day, March 20, Waldrep filed in the Winston County Circuit Court a motion to remand the case to Jefferson County. The trial judge heard arguments on the motion in October 1984, and on July 18, 1985, granted the motion, remanding the case to Jefferson County. Tidwell thereupon filed this petition for writ of mandamus, seeking an order to compel Judge Aderholt, the Winston County judge, to vacate his retransfer order.
The law for determining the proper venue of this action is the Alabama Constitution, Art. XII, § 232, and § 6-3-7, Ala. Code 1975. The constitutional provision states, in pertinent part:
Ala.Const.Art. XII, § 232. Similarly, § 6-3-7 provides:
Thus, when a foreign corporation asserts its constitutional privilege against suit in a county in which it is not doing business by agent, the trial court may properly transfer the entire action or the claim against the foreign corporation to a county in which the defendant foreign corporation is amenable to suit. Hodges v. General Shale Products Corp., 346 So. 2d 416 (Ala.1977). Rule 82, A.R.Civ.P., makes such a transfer mandatory:
A.R.Civ.P., Rule 82(d)(1).
Mandamus is the appropriate remedy to review the action of the trial court. Medical Service Administration v. Dickerson, 362 So. 2d 906 (Ala.1978), expressly overruling Ex parte Morrow, 259 Ala. 250, 66 So. 2d 130 (1953). Writing for the Court in Dickerson, Justice Maddox stated:
362 So. 2d at 910.
The procedure Waldrep followed in the present casefiling a motion to retransfer in the transferee courtis precisely the kind of "needless procedure" that Justice Maddox described in Dickerson.
The foreign corporation supported its motion for transfer with affidavits establishing factually that venue was improper in Jefferson County. These facts were not controverted in Jefferson County, so the trial judge properly, as he is mandated to do by Rule 82(d)(1), A.R.Civ.P., ordered the transfer.
If the plaintiff thought that the trial court in Jefferson County prematurely granted the defendants' motion to transfer and thereby denied him a reasonable opportunity to develop facts to support his claim that venue was proper in Jefferson County, his remedy was by way of mandamus to the judge in Jefferson County. Ex parte Maness, 386 So. 2d 429 (Ala.1980). He cannot subsequently establish those facts in the county to which the case has been transferred.
We hold that the trial judge in Winston County erred in entertaining the motion to retransfer the case to Jefferson County. The writ of mandamus is granted.
WRIT GRANTED.
TORBERT, C.J., and MADDOX, JONES, SHORES, and HOUSTON, JJ., concur. | November 8, 1985 |
c94d6b6a-5775-4991-a552-7a0f305ad5d6 | Allstate Enterprises, Inc. v. Alexander | 484 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 484 So. 2d 375 (1985)
ALLSTATE ENTERPRISES, INC.
v.
Wayne ALEXANDER.
84-637.
Supreme Court of Alabama.
December 6, 1985.
Rehearing Denied January 31, 1986.
*376 Vincent A. Noletto, Jr. for Brown, Hudgens, Richardson, Mobile, for appellant.
Rod M. Alexander, Moulton, for appellee.
HOUSTON, Justice.
There was a jury verdict for Wayne Alexander against Allstate Enterprises, Inc., in the amount of $25,000 for trespass and conversion. Allstate appeals.
Allstate financed an automobile for Alexander. In October 1983, Allstate assigned Alexander's account to Larry Hancock for repossession of the automobile. Hancock was not an employee of Allstate. He repossesses for Allstate and other lending institutions. He was not given any specific instructions as to how to repossess Alexander's automobile. His instructions were simply to repossess the automobile.
Hancock had a key made for the automobile and removed the automobile from the driveway of Alexander's home at approximately 2:00 A.M. The yard was not fenced. Hancock did not confront anyone while removing the vehicle from Alexander's yard. Hancock notified the sheriff that the automobile had been repossessed and delivered the automobile to Allstate.
Allstate provided Hancock with a "hold harmless" letter, which was not introduced. Hancock testified: "To a certain extent they [Allstate] hold me harmless, except in the event of any wrongdoing on my part, such as a breach of the peace or anything like that. They have no responsibility at that point."
On the same evening that the automobile was taken by Hancock, Alexander's utility house was forcibly entered and a carpenter's line belt and other items were taken from the utility house. The carpenter's line belt was among the items of personal property which were returned to Alexander by Allstate as having been personal property of Alexander in the automobile at the time of repossession. Certain personal property which was in the automobile and which was in the utility house was not returned to Alexander.
At the close of Alexander's evidence and at the close of all the evidence, Allstate moved for a directed verdict.
After the verdict, Allstate moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial.
Even though Allstate's able counsel describes it as "that last bastion of refuge for a beleaguered plaintiff who otherwise has no case," the "scintilla of evidence" rule is given application in this jurisdiction. Penticost v. Massey, 202 Ala. 681, 81 So. 637 (1919).
It is conceivable that gibberish and jargon have caused form to encrust form until most vitality has been squeezed out of the scintilla rule. This Court, in some cases, while giving lip service to this standard, in fact, has applied a more stringent standard than those courts professing to apply the substantial evidence standard. See the excellent article by Professor Jerome A. Hoffman, Alabama's Scintilla Rule, 28 Ala.L.Rev. 592, 608-631 (1977). The scintilla rule should be revisited.
The scintilla rule of evidence is the unique sufficiency standard that most favors jury determination. Let the courts and bar recognize it as being that, and stop the rote recitation of gleam and glimmer, spark and trace which seems more like a chorus of "Glow Worm" than a definitive statement of the standard which was the prevailing rule or standard at the time of the adoption of the United States Constitution, Company of Carpenters v. Hayward, 99 Eng.Rep. 241 (K.B.1780), and which was adopted as the rule or standard by the early American courts, see, e.g., Parks v. Ross, 52 U.S. (11 How.) 362, 13 L. Ed. 730 (1850).
The "scintilla of evidence" rule or "any evidence" rule developed out of the device previously used by parties to test the sufficiency of their opponent's evidence prior to *377 a verdict, i.e., the demurrer to the evidence. The demurrer to the evidence was designed to prevent verdicts contrary to law. In demurring to the evidence, the defendant was required to admit the truthfulness of all evidence favorable to the plaintiff, which removed all issues of credibility from the case. If there were facts from which the jury could reasonably infer the ultimate facts upon which the claim or defense depended, the party had to concede the inference. If the inferences were not logically unreasonable, even though they were not the most likely inferences to be drawn, this would defeat the demurrer to the evidence. By requiring the moving party to concede the truthfulness of the opponent's evidence, the demurrer operated without encroaching upon the jury's function of assessing credibility and weighing the evidence. To ensure that the judge did not usurp the function of the jury, the demurrer to the evidence incorporated the view that "any evidence" would take a proponent's case to the jury. Hoffman, Alabama's Scintilla Rule, supra, 605.
Mr. Justice Hugo Black wrote that the "any evidence" standard or rule was given "an ugly name," i.e., scintilla, to "hasten its demise." Galloway v. United States, 319 U.S. 372, 404, 63 S. Ct. 1077, 1094, 87 L. Ed. 1458 (1943) (Black, J., dissenting).
This Court may be the last to lay the old aside, but it is not willing to shift from the jury as the trier of facts to the judge the function of determining the credibility of evidence introduced. This Court is not willing to shift from the jury as a trier of facts to the judge the function of ascertaining what inferences may reasonably be drawn from circumstantial evidence deemed credible. This Court is not willing to shift away from the jury as a trier of fact to the judge the function of weighing the various hypotheses inferable from all of the circumstantial evidence. So whether the scintilla of evidence rule is viewed as "that last bastion of refuge for a beleaguered plaintiff who otherwise has no case" or as the unique sufficiency standard that most favors jury determination and which was the prevailing rule at the time of the adoption of the United States Constitution and was the standard of sufficiency adopted by the early American courts, the scintilla of evidence rule (or "any evidence" rule) will be given application in this jurisdiction.
If Hancock had been a defendant, clearly, the "scintilla of evidence"/ "any evidence" rule would have required that both the trespass count and the conversion count go to a jury as to Hancock. For reasons known only to Alexander, this cause was brought against Allstate only. Allstate's first issue for review is whether there was a scintilla of evidence that Hancock was an agent of Allstate. It is not necessary for the Court to determine this. This case went to the jury on the theories of trespass and conversion. There is evidence that a pair of snow chains, jumper cables, and a tape recorder and other personal property, which was the property of Alexander, was in the automobile the night it was repossessed. There is evidence that Hancock delivered the automobile and contents to Allstate. There is evidence that Allstate returned to Alexander certain items that were in the automobile the night it was repossessed, but not others. A pair of snow chains, jumper cables, and a tape recorder were not returned to Alexander. There is evidence that the utility house was broken into the night that the automobile was repossessed and that certain items, such as a carpenter's line belt, side grinder, drills, and a tow bar were taken from the utility house. Allstate returned the carpenter's line belt to Alexander, but not the side grinder, drills, or towbar. Assuming all of this is true, were there facts from which the jury could reasonably infer the ultimate facts upon which a claim for trespass or conversion was based against Allstate? Yes. The jury could reasonably infer that the pair of snow chains, jumper cables, tape recorder, side grinder, drills, and towbar were taken by Hancock, were given to Allstate by Hancock, and were not returned to Alexander by Allstate.
Conversion is the wrongful exercise of dominion over property in exclusion or *378 defiance of a plaintiff's rights, where said plaintiff has general or special title to the property or the immediate right to possession. Ott v. Fox, 362 So. 2d 836 (Ala.1978). Under these facts, it would not be logically unreasonable for a jury to conclude that Allstate wrongfully exercised dominion over Alexander's property. The jury could reasonably infer that there was a conversion.
The jury returned a general verdict without reference to either the count in trespass or the count for conversion; therefore, the verdict would be referred to either of the counts supported by the evidence. Sparks v. Milligan, 295 Ala. 358, 330 So. 2d 417 (1976); Gamble v. Webb Quarterback Club, 386 So. 2d 455 (Ala.Civ.App.1980), cert. denied, 386 So. 2d 459 (Ala.1980).
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, and BEATTY, JJ., concur. | December 6, 1985 |
7ec63476-6eca-4e74-8314-07c1068727dd | Gaylord v. Lawler Mobile Homes, Inc. | 477 So. 2d 382 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 382 (1985)
Wesley M. GAYLORD
v.
LAWLER MOBILE HOMES, INC.
84-462.
Supreme Court of Alabama.
October 4, 1985.
Charles C. Carter, Columbus, Ga., for appellant.
W.F. Horsley of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.
PER CURIAM.
Wesley M. Gaylord appeals from a summary judgment granted in favor of the *383 defendant, Lawler Mobile Homes, Inc., in an action alleging breach of warranty, bad faith, and violation of the Magnuson-Moss Act, 15 U.S.C. § 2301, et seq.
On 29 April 1982, Gaylord purchased a mobile home from Lawler Mobile Homes. After delivery a week later, Gaylord noticed a number of defects in the mobile home. He asked the seller to correct these defects; no action was taken. Gaylord made numerous further attempts to obtain the necessary repairsbut to no avail.
The purchase agreement between Gaylord and Lawler Mobile Homes contains the following provision:
Lawler Mobile Homes argues that this provision operates as a disclaimer of all implied warranties; alternatively, however, it argues that were this Court to find the disclaimer ineffective, the provision would operate as a limitation of the remedies available to Gaylord.
This Court fails to see how the above provision could operate as a limitation of remedies. The provision nowhere mentions remedies. Code 1975, § 7-2-719(1)(b), establishes a presumption that remedies are cumulative unless expressly limited. Burbic Contracting Co. v. Cement Asbestos Products, 409 So. 2d 1 (Ala. 1982). Thus, the provision in the purchase agreement cannot serve as a limitation of remedies. Lawler's cause must rest on the validity of the provision as a disclaimer of implied warranties.
Under Alabama law, a warranty of merchantability is implied in all contracts of sale, if the transaction conforms to the requirements of Code 1975, §§ 7-2-314 and 7-2-315, and if the implied warranty is not properly excluded. The standard for exclusion is contained in § 7-2-316. To disclaim an implied warranty of merchantability, the provision must be conspicious and must mention "merchantability." Code 1975, § 7-2-316(2). In the instant case, the relevant provision in the purchase agreement nowhere mentions "merchantability."
However, an alternative method of excluding potential warranty liability is provided in § 7-2-316(3)(a), as follows:
An exclusion under this subsection need not mention "merchantability," and it need not be conspicuous. Gilliam v. Indiana National Bank, 337 So. 2d 352 (Ala.Civ. App.1976).
Because the product involved was new, the statutory disclaimer and its language "as is," "with all faults," or "as they stand" (see Code 1975, § 7-2-316, comment 7) has no application. The issue in the instant case is whether the language "except as ... required under ... state law the dealer makes no warranties" constitutes language which in common understanding calls the buyer's attention to the exclusion of warranties and makes it plain that there is no implied warranty. Because, under the circumstances, the law imposes implied warranties of merchantability, absent compliance with § 7-2-316(3)(a), we cannot say, as a matter of law, that there is no genuine issue of material fact; thus, the trial court improperly granted summary judgment. The factual issue of merchantability is for the jury.
Additionally, the claim asserted for violation of the Magnuson-Moss Act raises genuine issues of material fact for submission to the jury; thus, the trial court's grant of summary judgment as to this claim was also improper.
On the other hand, with regard to the bad faith claim, summary judgment was proper. The tort of bad faith has been *384 recognized in this state only within the insurance policy context. See Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 81 (Ala.1983). Therefore, we affirm the summary judgment as to the bad faith claim, but reverse and remand to the trial court for further proceedings as to the claims for breach of warranty and the claim for violation of the Magnuson-Moss Act.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.
TORBERT, C.J., and BEATTY, ADAMS and HOUSTON, JJ., not sitting. | October 4, 1985 |
6e2cba7c-49ae-424f-abaa-460d1290665e | Ex Parte Army Aviation Ctr. Fed. Cred. Union | 477 So. 2d 379 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 379 (1985)
Ex parte ARMY AVIATION CENTER FEDERAL CREDIT UNION.
(Re: JIM POSTON HOME BUILDERS, et al. v. ARMY AVIATION CENTER FEDERAL CREDIT UNION).
84-434.
Supreme Court of Alabama.
October 4, 1985.
*380 Stephen T. Etheredge of Johnson, Huskey, Hornsby & Etheredge, Dothan, for petitioner.
Joe S. Pittman of Pittman, Whittaker & Pittman, Enterprise, for respondents.
HOUSTON, Justice.
Army Aviation Center Federal Credit Union (Credit Union) petitions this Court for a writ of mandamus directing the Honorable Terry L. Butts, Judge of the Coffee County Circuit Court, to limit the issues on retrial in the above captioned case to whether the Credit Union breached a contract with the plaintiff. The Credit Union seeks further to have the writ directed to Judge Butts to permit only the testimony of qualified members of the bar on the issue of the reasonableness of attorney's fees with regard to the contract. The writ is granted in part and denied in part.
The necessary facts to be considered in the resolution of the cause are as follows:
On December 18, 1981, James E. Poston individually, and Jim Poston Homebuilders, Inc. (referred to together hereinafter as Poston), filed suit against the Credit Union. The complaint as amended alleged five claims: (1) misrepresentation and/or deceit; (2) outrageous conduct; (3) bad faith breach of contract; (4) breach of contract; and (5) breach of an oral agreement and tortious interference with a contractual relationship.
At trial the Credit Union moved the court to direct a verdict in its favor at the close of Poston's case. This motion was granted by the trial court with regard to those counts of the complaint denoted as "second claim," "third claim," and "fifth claim," but was denied as to the "first claim" and "fourth claim." The jury returned a verdict for Poston for $65,000.
The Credit Union appealed to this Court, and in Army Aviation Center Federal Credit Union v. Poston, 460 So. 2d 139 (Ala.1984), we held: "In this case, there is a total absence of any evidence of probative value tending to show the Credit Union's intent to deceive or its intent not to perform as promised; therefore, the trial court should have granted the Credit Union's motion for a directed verdict." 460 So. 2d at 143.
Accordingly, the action was remanded to the circuit court. The Credit Union filed a motion for restriction of issues on retrial for the purpose of limiting the issue on retrial to the breach of contract claim only. It also filed a motion in limine for the purpose of excluding certain testimony on the issue of attorney's fees. On February 4, 1985, Judge Butts entered an order denying both motions. This petition for writ of mandamus followed.
The Credit Union offers three grounds to support its request for the writ. First, it argues that the trial court should not permit litigation of the claims for outrageous conduct, bad faith breach of contract, breach of an oral agreement, or interference with contractual relations because those claims are barred by res judicata. At trial, a verdict was directed in favor of the Credit Union with regard to those issues. When the Credit Union appealed, Poston did not cross-appeal as to the efficacy of that directed verdict. We hold that the failure to do so operates as a bar to relitigation of those issues. In cases where an appeal is taken with respect to only a particular *381 issue or issues, there can be no retrial after remand of issues previously tried and determined but not appealed from. Sewell Dairy Supply Co. v. Taylor, 113 Ga.App. 729, 149 S.E.2d 540 (1966); 5B C.J.S. Appeal and Error § 1989 (1958). The instant case falls under that principle.
A second ground upon which the Credit Union bases its request for the writ is this Court's prior decision on appeal with regard to the issue of misrepresentation. In that prior decision, we held that insufficient evidence of misrepresentation was presented at trial and that the trial judge should have granted the Credit Union's motion for directed verdict as to that issue. The Credit Union argues that this prior holding precludes relitigation of the misrepresentation issue on remand. We agree.
This Court has clarified the distinctions between evidentiary challenges as follows:
"`For the sake of clarity, we restate the familiar: other than objections to admissibility, evidentiary challenges are divided into two separate and distinct categories: 1) sufficiency of the evidence, raised by motions for directed verdict and for J.N. O.V. and measured by the objective "scintilla rule"; and 2) weight and preponderance of the evidence, raised by motion for a new trial and measured by the more subjective "palpably wrong, manifestly unjust" standard.'" Ex parte Alabama Power Co., 431 So. 2d 151, 153-154 (Ala.1983) (quoting from Casey v. Jones, 410 So. 2d 5, 8 (Ala.1981).
Those distinctions are important for our purposes, because when a case is reversed upon the ground that the verdict is contrary to the weight of the evidence, and the case is sent back for new trial, the court below may uphold another verdict upon the same evidence, if, in its judgment, it is proper to do so; on the other hand, when a case is reversed upon the ground of insufficiency of the evidence to sustain the verdict, that decision constitutes a final adjudication, and cannot be relitigated in the court below. Garmon v. King Coal Co., 409 So. 2d 776 (Ala.1981). Therefore, because the issue of misrepresentation was disposed of by this Court when we found insufficient evidence to support the claim, that decision constituted a final adjudication. It thus applies to bar any further litigation regarding that issue.
The Credit Union asserts as a final ground for requesting the writ that the trial judge should be ordered to exclude certain evidence regarding the issue of reasonableness of attorney's fees. The Credit Union filed a motion in limine for this purpose, but it was denied by the trial court. Now it seeks mandamus to accomplish this end.
Mandamus is an extraordinary remedy. "The petitioner's right to relief must be clear and there must be no other adequate remedy." Ex parte Harrington Manufacturing Co., 414 So. 2d 74, 76 (Ala. 1982). Mandamus is not a substitute for appeal. Ex parte South Carolina Insurance Co., 412 So. 2d 269 (Ala.1982).
In view of the fact that an order denying a motion in limine is reviewable on appeal, a mandamus petition seeking to have that order vacated cannot be granted. As this Court has stated, "[W]e are not inclined to issue the writ of mandamus in this discretionary area of evidence when the [party seeking it] has a remedy by appeal." Ex parte Houston County, 435 So. 2d 1268, 1271 (Ala.1983). However, this Court will grant the writ to direct the trial court to limit the issue on retrial to the contract claim only, because petitioner has no adequate remedy other than mandamus.
We therefore grant the writ of mandamus as to the Credit Union's first two offered grounds, but deny the writ as to the evidentiary question.
WRIT GRANTED IN PART, AND DENIED IN PART.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ. concur. | October 4, 1985 |
72d69c27-3d43-490b-9905-9ddf2e7e8539 | Autrey v. Blue Cross & Blue Shield of Alabama | 481 So. 2d 345 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 345 (1985)
Harold AUTREY
v.
BLUE CROSS AND BLUE SHIELD OF ALABAMA and Don Lawhorn.
84-243.
Supreme Court of Alabama.
November 8, 1985.
*346 Bob Sherling of Drinkard & Sherling, Mobile, for appellant.
J. Edward Thornton and William A. Kimbrough, Jr., Mobile, for appellees.
HOUSTON, Justice.
Harold Autrey appeals from a summary judgment granted in favor of Blue Cross-Blue Shield and Don Lawhorn in this action to recover damages for breach of an insurance contract and reckless misrepresentation. We affirm in part, reverse in part, and remand for further proceedings.
In late April or early May 1983, Autrey discussed with Lawhorn[1] the possibility of purchasing a group policy of hospital insurance for his company. On May 5, 1983, Lawhorn prepared an enrollment agreement for Autrey and furnished application cards for him and two of his employees to complete and return. The application cards, in pertinent part, read as follows:
The Hospital Service Certificate, for which application was made, provides for its issuance "in consideration of the application of the Subscriber for this Certificate and of the payment in advance of the applicable fees." Section VI of the Certificate, entitled "Fees And Term," reads, in part:
Section VIII, subpart 3, entitled "Varying Terms of Contract," reads:
Although disputed by Lawhorn, Autrey contends that he offered to pay an initial premium on May 5, but that Lawhorn represented to him that coverage would be *347 effective as of that date if he returned the application cards and initial premium anytime during the month of May. Five days later, on May 10, Autrey's wife, Carolyn, was hospitalized. It is undisputed that at the time of her admittance, the application cards and initial premium had not been returned by Autrey to either Lawhorn or Blue Cross. In her affidavit, submitted in opposition to the motion for summary judgment, she states that she was informed by officials at the hospital that coverage had been confirmed with Blue Cross and, consequently, no payment was required upon her release. Blue Cross subsequently refused to pay for Mrs. Autrey's May 10 hospitalization and Autrey filed this suit, alleging breach of contract and reckless misrepresentation.[2]
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
It is well recognized that an application for insurance is a mere offer which does not ripen into a contract unless, and until it is accepted by the insurance company. Liberty National Life Insurance Co. v. Smith, 356 So. 2d 646 (Ala.1978). Furthermore, an agent whose authority is limited to soliciting insurance, delivering policies, and collecting premiums has no power to make a binding contract of insurance or to change stipulations in a contract of insurance. To do so, he must either be a general agent or be specially so authorized, or his course of dealing to that extent must have been ratified expressly or impliedly by the company. Liberty National Life Insurance Co. v. Staggs, 242 Ala. 363, 6 So. 2d 432 (1942).
Summary judgment on the contract claim was proper in the present case because the application cards and initial premium were not returned by Autrey to either Lawhorn or Blue Cross prior to Mrs. Autrey's hospitalization. Moreover, Lawhorn, being only a soliciting agent, had no authority to vary the terms of the contract and thus bind Blue Cross. Autrey's contractual claim, which is based upon alleged misrepresentations made by Lawhorn and by someone at Blue Cross (according to the affidavit of Mrs. Autrey), is, therefore, foreclosed to him. Watson v. Prudential Insurance Co., 399 So. 2d 285 (Ala.1981). The affidavit of Mrs. Autrey, which was submitted in opposition to the motion for summary judgment, was insufficient as failing to meet the requirements of Rule 56(e), Ala.R.Civ.P., in that it was not made on personal knowledge of the facts. See also Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979). She states in the affidavit, "I was advised by the hospital that coverage had been confirmed." She failed to state that she knew personally that coverage had been confirmed or the substance of any conversation which might have taken place between officials at Blue Cross and officials at the hospital.
However, even though Lawhorn lacked the authority to bind Blue Cross in contract, this fact is not conclusive in proof to extinguish its liability for his alleged reckless misrepresentation. This Court has previously stated:
National States Insurance Co. v. Jones, 393 So. 2d 1361, 1367 (Ala.1980) (quoting from Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 296 So. 2d 183, 186 (1974)).
In the present case, there is sufficient evidence to raise an issue of fact as to whether Lawhorn, acting within the scope of his employment, represented to Autrey that coverage was effective on May 10, 1983. Therefore, summary judgment in favor of Blue Cross and Lawhorn was improper with regard to the issue of reckless misrepresentation.
The judgment of the trial court is affirmed as to the contract claim and reversed as to the claims of reckless misrepresentation, and the cause is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and ALMON, SHORES and BEATTY, JJ., concur.
MADDOX and JONES, JJ., concur specially.
FAULKNER, J., recused.
JONES, Justice (concurring specially).
I write separately to emphasize one point. While the law recognizes a subtle distinction between liability of a principal based on the application of the law of agency on the one hand and on the application of "respondeat superior" on the other, this distinction rarely arises; for, ordinarily, the same circumstances that give rise to the authority of an agent to bind his principal for tortious conduct also give rise to liability for breach of contract. Here, however, the written contract, delivered by the agent to the alleged insured, by its term restricted the agent's authority to vary the condition of the policy respecting its acceptance or rejection by the insurer. Nonetheless, as the opinion so states, this does not preclude, as a matter of law, the application of the principle of "respondeat superior" so as to hold the insurer liable for the wrongful conduct of its agent while acting within the course and scope of its agent's employment.
MADDOX, J., concurs.
[1] Lawhorn is a marketing representative with Blue Cross in its Mobile office. His authority is limited to soliciting enrollment agreements, taking application cards, and collecting premiums, which then must be forwarded to the home office in Birmingham. There, the decisions are made to accept or reject the applications and, if accepted, to issue each covered individual an identification card and certificate of coverage.
[2] In his complaint, in addition to the named defendants, Autrey stated a cause of action for reckless misrepresentation against certain fictitious parties in confirming to his wife and/or the hospital officials prior to her admittance that she was covered. | November 8, 1985 |
b7ae2e8d-22db-46ab-aba5-e4346d913c30 | Ex Parte Regional Dialysis of Anniston | 480 So. 2d 1229 | N/A | Alabama | Alabama Supreme Court | 480 So. 2d 1229 (1985)
Ex parte REGIONAL DIALYSIS OF ANNISTON.
(Re REGIONAL DIALYSIS OF ANNISTON v. NORTHEAST ALABAMA KIDNEY CLINIC, INC.)
84-1280.
Supreme Court of Alabama.
November 8, 1985.
J. Donald Reynolds, Montgomery, for petitioner.
Arthur F. Fite, III of Merrill, Porch, Doster & Dillon, Anniston, for respondent.
SHORES, Justice.
By denying the petition, we do not intend to be understood as agreeing that administrative agencies are restricted by the Administrative Procedure Act, §§ 41-22-1, et seq., Code 1975, to legal rules of evidence. The Act itself provides:
§§ 41-22-13, Code 1975.
We agree, however, with the holding of the Court of Civil Appeals, 480 So. 2d 1226.
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES and HOUSTON, JJ., concur. | November 8, 1985 |
5a84b684-9f21-4ca5-a3ef-903c2bd42acb | State Farm Mut. Auto. Ins. Co. v. Auto-Owners Ins. Co. | 252 So. 2d 631 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 631 (1971)
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
v.
AUTO-OWNERS INSURANCE CO.
6 Div. 643.
Supreme Court of Alabama.
September 9, 1971.
*632 Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.
London, Yancey, Clark & Allen, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a decree rendered in a declaratory judgment proceeding which was instituted for the purpose of obtaining judicial declarations as to the liability and priorities of two automobile liability insurance policies issued by different companies.
The facts out of which this litigation arose were stipulated and are substantially as set out below.
On May 7 or November 7, 1966, Hiram Dodd, Jr., while operating a 1965 Pontiac automobile with the permission of its owner, Patricia Jones, was involved in an accident in which a passenger in the Pontiac, Carl Rouss, received personal injuries. We cannot be certain of the month in which the accident occurred. In some places in the record May 7, 1966, is the day it is said the accident occurred, while in other places November 7, 1966, is said to have been the day on which the accident happened. The briefs make no reference to this discrepancy.
As a result of the accident, two damage suits were filed against Hiram Dodd, Jr., and Patricia Jones, one by Carl Rouss, a minor, and the other by Jack Rouss, the father of Carl Rouss.
At the time of the accident Auto-Owners Insurance Company had in force and effect an automobile liability policy wherein Patricia Jones was the named insured and the 1965 Pontiac was the described automobile. According to the declarations part of the policy, coverage for personal injury to each person was limited to $10,000 and coverage for such injuries was limited to $20,000 for each accident.
Coverage A of the Auto-Owners policy relates to bodily injury liability and as to such coverage the company agreed to defend with counsel of its own choice in the name of the assured and on her behalf any suit against her alleging personal injury and seeking damages on account thereof "when the company is liable to the assured in case of judgment. * * *"
In the policy the word "Assured" was defined in a clause frequently referred to as the omnibus clause, in part as follows:
Condition 16 in the Auto-Owners policy in pertinent part reads:
The language just quoted constitutes what is often referred to as a pro rata clause and we will sometimes hereinafter so refer to it.
On the day of the accident, Mrs. Mary Martin Dodd, mother of Hiram Dodd, Jr., had an automobile liability policy in force with State Farm Mutual Automobile Insurance Company wherein in regard to bodily injury to other persons (Coverage A Insuring Agreement I) the Company obligated itself "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons; * * * and to defend any suit against the insured alleging such bodily injury * * * and seeking damages which are payable hereunder * * *."
By virtue of the provisions of "Insuring Agreement IINon-owned Automobiles" of the State Farm policy, Coverage A applied to the use by Hiram Dodd, Jr., of a non-owned automobile (the Pontiac), since he was a resident of the household of his mother, Mrs. Mary Martin Dodd, who was the person named in the declarations part of the policy.[1] The declarations page of the State Farm policy shows, among other things, that the described automobile is a 1963 Chevrolet and that the limits of liability are $50,000 for injury to each person and $100,000 for each accident.
As to Insuring Agreements I and II, the State Farm policy contained the following language in Condition 14:
Clause (b), supra, constitutes what is commonly referred to as an "excess" clause.
It is apparent that Auto-Owners and State Farm, like many other liability insurance companies, have sought to limit their *634 coverage where, in their opinion, their policy overlaps with a policy issued by another company. This effort to limit liability has created much confusion and has been the source of much litigation.
Auto-Owners and State Farm each claimed the other should defend the lawsuits brought by Carl and Jack Rouss and pay any judgment or judgments rendered therein. Being unable to resolve this dispute, Auto-Owners filed this bill for declaratory judgment against State Farm, Hiram Dodd, Jr., Carl Rouss and Jack Rouss, and by amendment against Patricia Jones.
In its bill Auto-Owners prayed that the court decree that State Farm is bound and obligated to defend Hiram Dodd, Jr., and to pay all expenses and any judgment rendered therein against him, or in the alternative that the Auto-Owners policy be declared excess over coverage afforded by State Farm, or in the alternative that the policies of each insurer be declared to be pro rata with the other.
Answers of the individual respondents did not enter into the controversy to any appreciable extent, containing no more than general admissions and denials of allegations, but the answer of State Farm set forth policy provisions relied upon, asserting that by virtue of provisions of both policies, Auto-Owners was the primary insurer and coverage under the State Farm policy would be excess only, and not available until the limits of liability under the Auto-Owners policy had been exhausted.
The cause was submitted on an agreed stipulation of facts filed in writing on behalf of all parties, incorporating as exhibits copies of the two policies and the complaints in the two damage suits. No testimony was offered by deposition or otherwise.
The trial court rendered a final decree, which in pertinent parts reads as follows:
After its application for rehearing was overruled, State Farm appealed to this court, asserting that the trial court erred
(1) in requiring the two insurers to pay any judgments rendered against Hiram Dodd, Jr., on a pro rata basis, five-sixths by State Farm and one-sixth by Auto-Owners;
(2) in failing to hold that Auto-Owners was the primary insurer and that State Farm provided only excess insurance which would not be applicable until the limits of liability under Auto-Owners' policy had been exhausted; and (3) in failing to hold that State Farm provided only excess or secondary insurance which would not be applicable until the limits of liability under the Auto-Owners policy had been fully exhausted.
After the appeal was taken to this court, a settlement agreement was reached between all the parties which disposed of the law suits for a sum less than the limits of liability under the Auto-Owners policy. The agreement reserved for the decision of this court the liability of the respective insurers for payment of the settlement agreed upon. The defense costs issue has not been argued.
Since we are concerned on this appeal with a dilemma which arises when the same tort-feasor may be covered by insurance policies issued by different insurance companies, each of which policies contains provisions which are referred to loosely or in a generic sense as "other insurance" clauses, we deem it appropriate to quote an annotator's introductory observations which show the different kinds of clauses which are sometimes referred to as "other insurance" clauses. We quote from 76 A.L. R.2d at p. 503:
In United States Fire Insurance Co. v. Hodges, 275 Ala. 243, 154 So. 2d 3, referred to hereinafter as the Hodges case or as Hodges, three insurance policies were involved, two of which contained provisions which we denominated "other insurance" clauses, but which were of the type frequently referred to as "pro rata" clauses.
The trial court ignored the "pro rata" clauses because the two policies did not cover the same interest, the same subject matter, the same risk and the same insured. The trial court did not prorate liability between the two companies, United States Fire and Jefferson Mutuals, but made United States Fire, whose policy covered the *636 boat which caused the injury, the primary insurer and Jefferson Mutuals the secondary insurer.
On appeal to this court, United States Fire, the appellant, contended that liability, if any, should be prorated but the appellees, including Jefferson Mutuals, took the position that the "pro rata" clauses should not be held applicable for the reasons stated by the trial court.
We affirmed, thereby ignoring the "pro rata" clauses, saying:
In the Hodges case we dealt with several questions, but hereinafter when we refer to the Hodges holding we have reference to the holding to which we have already alluded, that is, that "other insurance" clauses come into play only when there are two or more insurance policies covering the same interest, the same subject matter, the same risk, and which policies were issued to the same named insured.
We applied the Hodges holding in Southern Guaranty Ins. Co. v. Jones, 279 Ala. 577, 188 So. 2d 537, decided on June 16, 1966. Hodges was decided on May 30, 1963.
It would appear from the references made in the second paragraph of the decree here under review to Hodges and to Southern Guaranty that the trial court concluded that those cases dictated the conclusions which it reached. But we are not certain. If the court concluded that those cases required it to ignore the "other insurance" clauses in the policies of Auto-Owners and State Farm, it would seem that the court would have apportioned liability in the same manner as it did in Hodges by making Auto-Owners, which had issued the policy covering the automobile involved in the accident, the primary insurer and State Farm the secondary or excess insurer. But such is not the case. As appears from the decree, the trial court prorated liability between the two companies according to the ratio which the limits of their respective policies bore to the total coverage of the two policies. We do not understand why the trial court followed that course, but we see no benefit to be derived from an effort to rationalize the manner of proration of liability spelled out in the decree with the references in the decree to Hodges and to Southern Guaranty.
The decree in this case was rendered on September 6, 1968, after we had delivered the opinion in State Farm Mutual Auto. Ins. Co. v. General Mutual Ins. Co., 282 Ala. 212, 210 So. 2d 688, to which we will sometimes refer hereinafter as General Mutual. In that case we quoted from the opinion in Hodges but not in connection with the Hodges holding with which we are presently concerned. In fact, we made no mention of that holding in General Mutual, although the two insurance policies there involved were not issued to the same named insured and they both contained certain of the so-called "other insurance" clauses. General's policy, according *637 to the opinion, contained an "excess insurance" clause, while State Farm's policy contained a "pro rata" clause and by an endorsement an "excess insurance" clause. If we had followed Hodges, we would have ignored those pro rata and excess clauses and in that event we would not have held that there could be proration between the two insurance carriers. But we did consider those clauses and we held that the "excess insurance" clause and the "pro rata" clause in State Farm's policy were contradictory; that the controlling provision in State Farm's policy was the "excess insurance" clause; that the "excess insurance" clauses in the two policies were mutually repugnant and that the loss should be prorated according to policy limits, following Lamb-Weston, Inc., v. Oregon Auto. Ins. Co., 219 Or. 110, 341 P.2d 110, 346 P.2d 643, 76 A.L.R.2d 485.
After the decree in this case was rendered by the trial court, we decided three cases wherein certain types of so-called "other insurance" clauses were involved. In none of them did we apply the Hodges holding.State Farm Mut. Auto. Ins. Co. v. De La Cruz, 283 Ala. 167, 214 So. 2d 909; American Mut. Liability Ins. Co. v. Milwaukee Ins. Co. of Milwaukee, 283 Ala. 414, 218 So. 2d 129; Continental Nat. American Group v. Burleson, 283 Ala. 671, 220 So. 2d 611.
In American Mutual Liability Ins. Co. v. Milwaukee Ins. Co. we affirmed a decree of the trial court which prorated liability between the two companies according to the ratio which the limits of their respective policies bore to the total coverage of the two policies. The policies were not issued to the same named insured and each of them apparently contained a pro rata type "other insurance" clause. The Hodges holding, if it had been applied, would not have justified an affirmance of the trial court's decree of proration if the matter of allocating liability between the two companies was directly at issue.
In De La Cruz and Burleson we refused to apply the Hodges holding on the ground that the "other insurance" clauses in the policies involved in those cases were different from the "other insurance" clauses set out in the opinion in Hodges. We refused to apply the Hodges holding because of that distinction, although the policies involved in De La Cruz and those involved in Burleson were not issued to the same named insured.
The so-called "other insurance" clauses with which we are concerned in this case are equally as distinguishable from the clauses considered in the opinion in Hodges and we could avoid the application of the Hodges holding here in the same way as we did in De La Cruz and in Burleson, but we are of the opinion that in view of the fact that we have not applied the Hodges holding since Southern Guaranty, we should face up to the question as to whether or not the Hodges holding should be expressly overruled. In Hodges, in regard to the "other insurance" clause question, we noted that "there is a diversity of opinion on this question in other jurisdictions." Since this new question was not the main or controlling point raised in Hodges, we entertained the view at the time that the adoption of the same interest, the same subject matter, the same risks and the same named insured rule made for certainty and would simplify the determination of like questions with which the bar and bench would inevitably be confronted.
But with the changing of policy provisions and the testing of the rule in Hodges, as shown above, we are now convinced that the Hodges holding with which we are concerned here is too narrow and should not be followed. That holding is hereby overruled.
With the Hodges holding out of the way, we come to the question as to the extent of liability, if any, of Auto-Owners and State Farm in this case.
Both policies contain a pro rata clause. Those clauses, standing alone, for present purposes can be said to be so worded as to convey the same meaning and have the same effect.
*638 As heretofore shown, Auto-Owners' policy covered the automobile which was involved in the accident. In the omnibus clause in Auto-Owners' policy coverage was afforded to Hiram Dodd, Jr., because the "actual use" of the automobile at the time of the accident was with the permission of the named assured, Patricia Jones, unless such coverage was excluded by virtue of proviso (a) of the omnibus clause, to which proviso we have heretofore referred as an escape clause and which has been set out above, but which we again quote in pertinent part: "The provisions of this paragraph [omnibus clause] shall not apply: (a) to any person or organization with respect to any loss against which he has other valid and collectible insurance, * * *" (Emphasis supplied)
State Farm's "other insurance" clause contains provisions which we have heretofore referred to as an "excess clause" and which has been quoted above, but which we deem it appropriate to quote again. In pertinent part it reads:
We entertain the view that our case of Continental Nat. American Group v. Burleson, supra, dictates that the decree of the trial court here under review must be reversed. The facts in Burleson, with one or two exceptions which we do not believe to be material, are substantially like those in the case at bar.
Harry Ellis, Jr., while operating a vehicle owned by one Henson, collided with a vehicle occupied by Burleson and one Glover, who brought damage suits against Harry Ellis, Jr., and his father, Harry Ellis, Sr. Ellis, Jr., at the time of the accident, was driving Henson's car with Henson's permission. Henson was insured under a policy issued by Continental, which extended coverage to Ellis, Jr., under an omnibus clause. Ellis, Sr., had a family automobile policy issued by Alabama Farm Bureau Mutual Casualty Insurance Company, which extended coverage to Ellis, Jr., for the operation of non-owned automobiles. Thus, Ellis, Jr., who had not purchased either policy, was in a position comparable to that of Hiram Dodd, Jr., in the case at bar. Continental and Alabama Farm Bureau each claimed that the other was primarily liable, just as do Auto-Owners and State Farm in this case.
In a declaratory judgment proceeding instituted by Continental, the trial court held Continental to be the primary insurer and Alabama Farm Bureau to be the excess insurer. We affirmed.
Continental's policy contained a pro rata clause substantially identical to the pro rata clauses involved in the policies in the case at bar. Alabama Farm Bureau, relying on its excess clause, took the position that a non-ownership policy with an "excess clause" did not constitute "other valid and collectible insurance" within the meaning of that term as used in the Continental policy.
In resolving that controversy, Mr. Justice Bloodworth, writing for the court, said as follows:
We take note of the fact that in Continental's policy was a provision which does not appear in Auto-Owners' policy, in that immediately following the Continental pro rata clause is this sentence: "The above shall not apply with respect to other insurance stated to be applicable to the loss only as excess insurance over any other valid and collectible insurance or on a contingent basis." (283 Ala. 675, 220 So.2d 615)
Referring to that clause, the opinion in Burleson says: "This clause simply provides that it [the pro rata clause] does not apply when other insurance involved is excess insurance." (283 Ala. 675, 220 So. 2d 615)
The absence of the clause last quoted above from Auto-Owners' policy does not affect this case, in our opinion. The clause is unnecessary, the same result being reached without it, as is recognized in the Burleson opinion in the following language:
The reason why the clause last quoted above from the Continental policy makes no difference is that in reality we are simply confronted with the question as to whether the excess insurance provided by State Farm's policy in its "excess clause" constitutes "other valid and collectible insurance" as used in Auto-Owners' "escape clause." The vast majority of the courts have said that it does not, holding in effect that where one policy contains an "escape clause," and the other contains an "excess clause," the primary insurer is the company issuing the policy with the escape clause because excess insurance simply is not other valid and collectible insurance. This is in accord with the same reasoning which has already been approved by this court in Burleson. See 16 Couch on Insurance 2d, § 62:76, p. 521; 46 A.L.R.2d 1163, 1165.
The decree of the trial court is reversed and the cause is remanded with directions to enter a decree in accordance with the views expressed in this opinion.
Reversed and remanded with directions.
All the Justices concur.
[1] "If the named insured is a person or persons and if during the policy period such named insured owns an automobile covered by this policy and classified as `pleasure and business' such insurance as is afforded by this policy with respect to the owned automobile under:
"(1) coverages A and B applies to the use of a non-owned automobile by (a) the first person named in the declaration or,
"(b) if residents of the same household, his spouse or the relatives of either, * * *" | September 9, 1971 |
c9033e9d-cf60-41a0-b1aa-80ee19d97172 | Ex Parte Newco Mfg. Co., Inc. | 481 So. 2d 867 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 867 (1985)
Ex parte NEWCO MANUFACTURING COMPANY, INC.
(In re Patricia E. SMITH, Administratrix of the Estate of James David Smith, Deceased v. SOUTHERN RAILWAY COMPANY, et al.)
84-1339.
Supreme Court of Alabama.
November 22, 1985.
*868 Harold A. Bowron, Jr. and James M. Proctor, II, of Balch & Bingham, Birmingham, for petitioner.
Jerry D. Roberson and Duncan Y. Manley of Rives & Peterson, Birmingham, for respondents.
JONES, Justice.
Defendant Newco Manufacturing Company, Inc. (Newco), filed a petition for a writ of mandamus to issue to the Honorable Stuart A. Leach, Circuit Judge, directing him (I) to quash the service of process on Newco or dismiss Plaintiff's cause of action against Newco for lack of in personam jurisdiction, or (II) to enter summary judgment in favor of Newco on the ground that Plaintiff's complaint failed to state a cause of action against Newco for which relief could be granted. We deny the writ.
The cause of action giving rise to this petition was filed by Plaintiff, Patricia E. Smith, on August 26, 1983, in Jefferson County Circuit Court, for the wrongful death of her husband, James David Smith, on July 25, 1983, in Knoxville, Tennessee. Smith was fatally injured when he was struck by a falling grit blast machine, a piece of equipment weighing several tons. At the time of the accident Smith was employed by Southern Railway Company (Southern) for the purpose of making repairs on the grit blast machine.
Plaintiff's original complaint named as parties defendant Southern; the Pangborn Company (Pangborn), manufacturer and installer of the machine; and various fictitious defendants. On June 27, 1984, Plaintiff substituted Newco, manufacturer of thimble clamps which were components of the grit blast machine, and Harnischfeger Corporation (Harnischfeger), manufacturer of other component parts of the grit blast machine, as parties defendant.
Plaintiff and her husband were residents of Knoxville, Tennessee, and the accident occurred in Knoxville. Plaintiff brought *869 the action in the Jefferson County Circuit Court under the Federal Employers' Liability Act against Southern, and under the Tennessee products liability act (Tenn.Code Ann. § 29-28-101, et seq. (1978)) against the remaining defendants. Newco filed a motion to dismiss for lack of in personam jurisdiction and a motion for summary judgment based on the 10-year statute of repose contained in the Tennessee statute. Both motions were denied and Newco filed its petition for writ of mandamus in this Court.
In its petition, Newco devotes a great deal of discussion to which it claims indicate a lack of the requisite minimum contacts with Alabama, as the forum state, to justify in personam jurisdiction over Newco under A.R.Civ.P. 4.2(a)(2). We find, however, that Newco's dealings with customers in Alabama do, indeed, provide sufficient contacts to support the denial of Newco's motion to dismiss for lack of jurisdiction.
It is not contested that the clamps manufactured by Newco were sold in Maryland to Pangborn for inclusion in the grit blast machine. Nor is it contested that Newco does not have a registered agent in Alabama and conducts its Alabama sales either through an independent manufacturer's representative (who is under no direction from Newco) or through telephone and mail contacts which result in orders shipped F.O.B. Kansas City, the headquarters of Newco.
We agree with Newco that, because the allegedly defective clamps were not sold in Alabama and because the decedent's fatal accident did not occur in Alabama, the instant lawsuit does not relate to or arise from Newco's contacts with Alabama; therefore, Newco is not subject to "specific" jurisdiction in Alabama. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 413, 104 S. Ct. 1868, 1872, f. 8, 80 L. Ed. 2d 404 (1984). We must determine, then, whether sufficient contacts exist between Alabama and Newco so that due process is not offended in subjecting Newco to Alabama's "general" jurisdiction. Helicopteros, 466 U.S. at 413, 104 S. Ct. at 1872, f. 9. In other words, the nature of the contacts between the forum state and the party over whom jurisdiction is sought must be examined to determine whether those contacts constitute continuous and systematic general business contacts which would support a reasonable exercise of jurisdiction by the forum state. Helicopteros, supra; see, also, Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952).
We find that Newco engages in that continuous and systematic course of conduct in Alabama, albeit through an independent manufacturer's representative or the telephone and mail services, that will support a reasonable exercise of jurisdiction by the courts of Alabama. Newco's annual sales in Alabama during the period of January 1979 to December 1984 ranged from $65,000 to $85,000, with a total of 2,000 transactions. Newco's contacts with Alabama are deliberate rather than fortuitous and, therefore, it was reasonably foreseeable that Newco, in purposefully doing business in Alabama, would at some point both need the protection and invoke the jurisdiction of the courts of Alabama. See Pedalahore v. Astropark, Inc., 745 F.2d 346 (5th Cir.1984). Newco avails itself of the privilege of making sales (and profits) in Alabama in a continuous and systematic course of merchandising. For the privilege of conducting such activities, Newco must bear the burden commensurate with the benefits received from its sales in Alabama.
Burger King Corporation v. Rudzewicz, ___ U.S. ___, 105 S. Ct. 2174, 2185, 85 L. Ed. 2d 528 (1985).
There is no more clearly stated rule in Alabama law than that mandamus may not be used as a substitute for appeal. Ross v. Luton, 456 So. 2d 249 (Ala.1984). In its Mandamus petition as addressed to its motion for summary judgment based on the statute of repose contained in the Tennessee products liability act, Newco seeks "to do by mandamus that which can be done on appeal." Ex parte South Carolina Insurance Company, 412 So. 2d 269 (Ala.1982).
WRIT DENIED.
TORBERT, C.J., and MADDOX, SHORES and ADAMS, JJ., concur. | November 22, 1985 |
6c4429ea-abe6-40a1-8447-a23680461fa7 | Ex Parte Seay | 479 So. 2d 1343 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1343 (1985)
Ex parte John Barry SEAY
(In re John Barry Seay v. State of Alabama).
84-1271.
Supreme Court of Alabama.
November 1, 1985.
Gary W. Alverson, Tuscumbia, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
PER CURIAM.
The petition for writ of certiorari is denied.
In denying the petition for 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, 479 So. 2d 1338. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
TORBERT, C.J., and FAULKNER, ALMON, BEATTY and HOUSTON, JJ., concur. | November 1, 1985 |
d60978c8-2e83-49ed-9afe-a779678a932b | Matthews v. Matthews | 477 So. 2d 391 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 391 (1985)
Robert Harlan MATTHEWS
v.
Martha K. MATTHEWS.
84-584.
Supreme Court of Alabama.
October 4, 1985.
*392 Thomas E. Bryant, Jr. and Mark R. Ulmer of Bryant & McKnight, Mobile, for appellant.
Caroline Wells Hinds of Brown, Hudgens, Richardson, Mobile, for appellee.
TORBERT, Chief Justice.
This is an appeal by the executor of the estate of Harlan Matthews from a decision by the Probate Court of Mobile County that a certain legacy of stock was a general bequest. The sole issue on appeal is whether the probate judge correctly concluded that this legacy was a general bequest and not a specific bequest subject to ademption. We reverse.
The testator, Harlan Matthews, died on July 13, 1984, leaving a last will and testament that had been executed on September 29, 1983. Contained in that will is the following provision:
This will was admitted to probate in the Mobile Probate Court on September 20, *393 1984. At that time, letters testamentary were issued to Mr. Matthews's nephew, Robert Harlan Matthews, as executor of the estate.
At some point thereafter, it was discovered that the 150 shares of Litton Industries stock bequeathed to Martha K. Matthews were not in the estate. The parties soon learned that Litton Industries had redeemed those shares of stock one month prior to the testator's death for $3,750. The executor, who is also the residuary legatee, claimed that this legacy of stock was a specific bequest which had been adeemed by the corporate redemption. Mrs. Matthews filed a petition to have the court construe the will and took the position that the legacy was a general bequest which entitled her to take the redemption proceeds.
The Mobile Probate Court held a hearing on this issue and determined that the legacy was a general bequest. This, the trial court determined, entitled Mrs. Matthews to the proceeds of the redemption, since a general bequest cannot be adeemed.
The law with respect to ademption of a bequest is well settled. A specific bequest adeems if the property specified is not a part of the estate upon the death of the testator. Conversely, a general bequest does not adeem in this situation. Rowe v. Newman, 290 Ala. 289, 300, 276 So. 2d 412, 422 (1972); Ullmann v. First National Bank of Mobile, 273 Ala. 154, 157, 137 So. 2d 765, 767 (1961).
A specific bequest is defined as "a bequest of a particular article or specific part of the testator's estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified." Rowe, 290 Ala. at 299, 276 So. 2d at 421; Ullmann, 273 Ala. at 157, 137 So. 2d at 767.
On the other hand, a general bequest is "a bequest chargeable upon the general estate, and not so given as to be distinguishable from other parts of the estate of the same kind, or, as otherwise defined, a general legacy is one of quantity merely, and includes all legacies not embraced within the definitions of specific and demonstrative legacies." Rowe, supra; Ullmann, supra.
We recognize that, in the construction of wills, the law favors the finding of a general bequest rather than a specific bequest. Ullmann, supra; Willis v. Barrow, 218 Ala. 549, 552, 119 So. 678, 680 (1929). However, this rule yields to the primary rule that the polestar to guide a court in the construction of a will is the intent of the testator. McLean v. Brasfield, 460 So. 2d 153, 155 (Ala.1984); Rowe, 290 Ala. at 300, 276 So. 2d at 422; Ullmann, 273 Ala. at 157, 137 So. 2d at 767; Code 1975, § 43-8-222.
In the present case, the testator possessed 150 shares of preferred stock in Litton Industries at the time of the execution of the will, and no more. When he bequeathed "150 shares of preferred stock in Litton Industries," he must have specifically intended to be disposing of the same 150 shares he had in his possession. These shares were described sufficiently to distinguish them from any other property the testator owned at that time, and they were capable of being identified. See, Ullmann, supra. There could be little doubt as to what specific property the testator intended to bequeath to his ex-wife.
The Georgia Supreme Court recently decided a very similar case. In Dubose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980), the testator bequeathed "FOUR HUNDRED SEVENTY-TWO (472) shares of common stock of National Distillers and Chemical Company" to a named individual in Item III; "FIVE THOUSAND EIGHT HUNDRED (5,800) shares of the Common Stock of The Coca-Cola Company" to his stepgranddaughter in Item IX; "FIVE THOUSAND EIGHT HUNDRED (5,800) shares of the Common Stock of The Coca-Cola Company" to his stepgrandson in Item X; and, "FIVE THOUSAND EIGHT HUNDRED (5,800) shares of the Common Stock of The Coca-Cola Company" to another stepgranddaughter in Item XI. The court *394 held these bequests to be specific bequests, and reasoned as follows:
Dubose, 246 Ga. at 666, 273 S.E.2d at 108.
In determining the intent of the testator, this Court will consider the instrument as a whole and not just a single bequest. McLean, 460 So. 2d at 155. The bequests of stock by the testator are included in the same sentence of the will with the bequest of "One (1) Bedroom suite, mahogany, consisting of bedstead, mattress and springs, 6-drawer chest, 4-drawer chest and nite table; and my stereo with the cabinet and all records." These are specific bequests of specific personal property bequeathed to his ex-wife, and their inclusion in this same sentence of the will is a further indication of the intent of the testator. See, Matter of Howe's Will, 15 A.D.2d 396, 398, 224 N.Y.S.2d 992, 994, aff'd 12 N.Y.2d 870, 187 N.E.2d 794, 237 N.Y.S.2d 343 (1962). Also, the fact that these bequests are set apart from the general bequest of the residue of the estate is another factor relevant in the determination of the testator's intent. O'Neill v. Alford, 485 S.W.2d 935, 940 (Tex.Civ.App. 1972). By considering the whole instrument, we believe the bequest was of a "specific part of the testator's estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified." Ullmann, supra, 273 Ala. at 157, 137 So. 2d at 767. Therefore, we conclude that the bequest of "150 shares of preferred stock in Litton Industries" was a specific bequest.
Having made this determination, we must decide what the specific devisee, Mrs. Matthews, is entitled to receive. Code 1975, § 43-8-226, governs the disposition of specific bequests of stock. Section (a) of this code section states:
At the time of the testator's death, all 150 shares of the Litton Industries stock that were specifically bequeathed to Mrs. Matthews had been redeemed by the corporation. Thus, there were no securities of this type in the estate at the time of death, no other securities of the same entity, no securities of another entity derived from those securities, and no additional securities of the entity owned by the testator in a plan of reinvestment. Therefore, under § 43-8-226, Mrs. Matthews was not entitled to receive any part of that stock, including the proceeds of the redemption, upon the death of the testator. This requires that the proceeds of the redemption be included in the testator's estate as part of the residue under Code 1975, § 43-8-225.
For the reasons stated above, the judgment of the Probate Court of Mobile County is reversed and this cause remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
*395 FAULKNER, JONES, ALMON, SHORES and HOUSTON, JJ., concur.
MADDOX and BEATTY, JJ., dissent.
MADDOX, Justice (dissenting).
My analysis of the principles of law set forth in this Court's opinion and the application of those principles to the instant gift lead me to the firm conclusion that "Being a divorced man, I give, devise, and bequeath to my former wife, MARTHA K. MATTHEWS, ... 150 shares of preferred stock in Litton Industries" is a general bequest.
"[A] bequest of a stated number of shares of stock of a certain corporation, without any further reference to or description of the particular shares intended to be bequeathed," is usually regarded as being simply a reference to quantity and, therefore, a general legacy. Annot., 15 A.L. R.2d 1038, 1051 (1967). See also, 80 Am. Jur.2d Wills, §§ 1525 and 1534 (1975) ("[T]he doctrine is well established that bequests... of a stated number of the shares of the stock of ... a [particular] corporation ... [are] in the absence of contrary testatorial intention, to be regarded as general or demonstrative rather than specific"). This is the instant case. The bequest states only the number of shares and the corporationnothing more.
Moreover, "[t]he most direct evidence of intent available to the court in legacy classification cases is the language used by the testator to describe the gift," Paulus, Special and General Legacies of Securities Whither Testator's Intent, 43 Iowa L.Rev. 467, 478 (1958), and as I read the language of this bequest, I find absolutely no language indicating that this testator intended a specific bequest. Possessory language (e.g., "`my X shares of Y stock,' `X shares of Y stock now possessed by me and standing in my name,' * * * `X shares of Y stock which I now hold,' ... `all my shares in Y corporation'") in a bequest generally indicates a specific legacy. Id. at 479. And, yet, I see no possessory language in the instant bequest.
Additionally, I note that this legacy is a gift of stock in Litton Industries, a large publicly held corporation. If the instant legacy had been a gift of privately held stock, it might indicate that the testator had some special attachment to this particular stock, and was thinking of it in that manner, rather than simply in terms of its monetary value.[1] This, however, was a gift of stock in a large, publicly held corporation. Thus, the nature of the issuing corporation in this case provides no basis for an inference that the testator thought of his 150 shares of Litton stock in terms of anything other than its easily determined market value.
As the majority points out, in Ullmann v. First National Bank of Mobile, 273 Ala. 154, 156, 137 So. 2d 765, 766 (1961), we held that the following legacy was specific:
Because the Ullmann legacy states the municipality name, face amount, interest rate, and maturity date, it is, in my opinion, considerably more particular in description than the present legacy of "150 shares of preferred stock in Litton Industries." I feel that this gap in particularity necessitates opposite results in the two cases. The instant legacy is unarguably one of corporation name and share number only, and, thus, falls within "the general principle that a legacy designated primarily by quantity or amount is prima facie general." 80 Am.Jur.2d, supra, at § 1534 (emphasis added).
Finally, the application of the polestar principle of will construction, that the intention of the testator is paramount, Rowe v. Newman, 290 Ala. 289, 300, 276 So. 2d 412, 422 (1972), and the principle that the law favors general rather than specific bequests, Ullmann, supra, 273 Ala. at 157, 137 So. 2d at 767, only strengthens my resolve that the instant gift is a general bequest. The testator, in beginning the bequest with the phrase "Being a divorced man," revealed his recognition of his ex-wife's lack of legal claim on his estate and his concern for her well-being. Such language indicates the testator's intent to provide his ex-wife with some financial security, not just this specific stock.
Considering the nature of the institution issuing the securities, and the fact that the stock could be purchased on stock exchanges, I believe the testator was thinking in terms of value when he made the bequest. To hold otherwise seems to mean that, in Alabama, all gifts of stock are specific. I believe that more particularity in a description of a gift of stock is required before it can be classified as a specific bequest. Consequently, I must respectfully dissent.
BEATTY, J., concurs.
[1] See, generally, Paulus, supra, 43 Iowa L.Rev. at 477:
"For several reasons it is imperative for the court to consider the nature of the corporation issuing the securities if the intent of the testator is not clear. Corporations should be classified in accordance with the availability of their stock. A trichotomy of `public,' `semi-private' and `private' appears to be acceptable. If the stock can be purchased on the public exchanges the testator is conceivably thinking in terms of value when he makes the gift, since the value of the stock can be readily ascertained and the stock probably has no intrinsic significance to the testator. A bequest of stock issued by a small corporation tends to suggest specificity rather than pecuniary value even though the stock may be available `over-the-counter.' Stock of a `private' or `closed' corporation is normally not available and has a definite ownership and control connotation. Its unavailability negates the validity of an assertion that the testator intends to have his executor obtain the stock on the market, and the control element of the stock suggests uniqueness on a par with `my old gray horse.' The desire to give specific stock to a specific person is obvious." | October 4, 1985 |
9b86e0cb-af2d-4afc-9853-41a343adfca4 | Ex Parte Cochran | 500 So. 2d 1179 | N/A | Alabama | Alabama Supreme Court | 500 So. 2d 1179 (1985)
Ex parte James Willie COCHRAN.
(Re: James Willie Cochran v. State of Alabama)
83-1044.
Supreme Court of Alabama.
November 8, 1985.
Rehearing Denied January 10, 1986.
*1180 Richard S. Jaffe for Jaffe, Burton & DiGiorgio, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little and David Bjurberg, Asst. Attys. Gen., for respondent.
TORBERT, Chief Justice.
James Willie Cochran was convicted in the Jefferson County Circuit Court of the capital offense of robbery when the *1181 victim is intentionally killed. Code 1975, § 13A-5-31(a)(2) (Repealed).[1] This appeal is based upon defendant's third trial. His first trial ended in a mistrial, and the conviction in the second trial was reversed on authority of Beck v. State, 396 So. 2d 645 (Ala.1980). At the end of the third trial, defendant was sentenced to death under the procedures outlined in Beck, and both his conviction and sentence were affirmed by the Court of Criminal Appeals. Cochran v. State, 500 So. 2d 1161 (Ala.Crim.App. 1984).
Only a brief summary of the facts is presented here, so that the facts most pertinent to each issue may be discussed separately. For a more detailed statement of the facts, see the opinion of the Court of Criminal Appeals. A little before 10:00 p.m. on November 4, 1976, a lone black male entered the A & P Grocery Store in Homewood, Alabama, and demanded that all the money from the store safe and cash registers be placed in a grocery sack. At the time, an assistant manager and a store clerk, along with several customers, were inside the store. After receiving the money, the robber left the store and was followed by the assistant manager. The men were observed going through a "stop and go" motion, in that the robber would go a short distance, and then stop and point his gun at the assistant manager and then turn and continue on, repeating this every few steps. Following the report of the robbery, the police surrounded the immediate vicinity to search for the robber. At least one gunshot was heard by the officers during their search. Soon thereafter, the police apprehended defendant and, during a full search of him at the police station, they seized a large amount of money wrapped in an A & P band. Later that night, the police found the assistant manager dead.
Defendant presents ten issues on appeal.
The first issue is whether this Court's actions in Beck v. State, 396 So. 2d 645 (Ala.1980), violated the Alabama Constitution of 1901 and the United States Constitution. We have previously dealt with this question and have decided that the actions taken in Beck are constitutional. Ex parte Potts, 426 So. 2d 896, 900 (Ala.1983).
The second issue is whether defendant's Fifth Amendment right not to be placed in jeopardy twice for the same offense was violated when he was retried following a mistrial in his first trial.
During defendant's first trial, the judge brought to defense counsel's attention the fact that one of the state's witnesses had been undergoing psychological treatment. This witness, and a second witness, had already testified in the trial and had identified defendant as the person who had robbed the store, although neither of them had been able to identify him prior to trial. Defense counsel moved for a mistrial based on the state's failure to notify defendant of the psychological treatment of the witness. The trial judge, stating he was doing so for reasons of necessity, granted defendant's motion.
Defendant argues that the failure of the state to provide him the information on the witness is the type of conduct known as "prosecutorial overreaching," which was condemned in United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976), and he argues that it precludes a retrial. However, the most recent opinion on this subject, Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), expressly rejects this standard in determining whether a second trial is barred following a defendant's motion for mistrial. In Kennedy, the Court stated:
456 U.S. at 679, 102 S. Ct. at 2091.
Reviewing the facts in light of this standard, we are unable to characterize the prosecutor's conduct as the kind that would be intended to provoke a defendant into moving for a mistrial. The prosecutor clearly stated his reasons for not informing the defense counsel of the two items complained of, and the trial judge made a detailed explanation for the record as to the reasons why he granted the mistrial. Neither in the in-chambers discussions with counsel nor in his explanation for the record, did the trial court indicate that he found that the prosecutor intended to cause defendant to move for a mistrial, and we find no basis for such a finding either.
Even under the more stringent Alabama law on this subject, defendant's argument is without merit. In Woods v. State, 367 So. 2d 982, 984 (Ala.1978), this Court held that if a high degree of necessity for the mistrial could be demonstrated, then a second trial would not be prohibited. In the present case, the trial judge found the requisite "high degree" of necessity for the mistrial in defendant's argument in support of his request for the mistrial. In his explanation for the record, the trial judge indicated that he was granting the mistrial because defendant's counsel wanted additional time to determine how to cross-examine the witness who had undergone the psychological treatment and because two witnesses for the state, who had been unable to identify defendant prior to trial, had done so at trial. Since it is within the trial judge's broad discretion to decide whether the high degree of necessity has been met, we will not interfere with that discretion unless there is a clear abuse. Woods, 367 So. 2d at 984. There is no such abuse present in this case, and defendant's subsequent trials were not barred.
The third issue is whether the trial court committed error when it failed to grant defendant's motion to suppress as to the items found in an automobile located near the crime scene.
On the same night that the robbery took place, a Homewood police officer was sent to the parking lot of the A & P and other nearby stores to look for cars that were "out of place." At the time of this search of the parking lot, the officer was unaware of the name of the suspect who had been arrested. Although the parking lot covers a relatively large area, there were not many cars there at that time of night. After looking at the cars and running a license plate check on a couple of them, the police officer noticed that one of the cars was unlocked, had the keys in the ignition, and had a billfold lying in the front seat. He opened the car door and looked in the billfold, where he found a Social Security card in defendant's name. He then replaced the card and the billfold and left them as he had found them.
Upon discovering nothing of a suspicious nature, the officer returned to city hall and asked the name of the suspect arrested in the A & P robbery. When he learned that the suspect's name matched the name on the card he had found, he informed his superior, who then ordered him to return to the car and have it impounded. The next morning the contents of the car were inventoried at the police impoundment lot, and the items in the car were later produced at trial as evidence against defendant.
Defendant argues that the items found in the car should have been suppressed because the police officer did not have probable cause for the initial entry into the car and because no search warrant was issued for the later inventory. A threshold question is whether defendant has standing to assert a violation of the Fourth Amendment *1183 for an allegedly illegal search and seizure.[2]
In the decision of Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court stated that only those individuals whose own Fourth Amendment rights may have been violated have standing to challenge the legality of a search and seizure. The burden of showing that his individual Fourth Amendment rights were violated rests on the person who is seeking to suppress the evidence obtained in the search. Rakas, 439 U.S. at 131 n. 1, 99 S. Ct. at 424 n. 1. Absent this showing, the trial court is not in error when it does not suppress the evidence.
The facts produced at the hearing on the motion to suppress and at defendant's trial indicate that defendant did not meet his burden of establishing that his individual rights were violated. At the hearing on the motion to suppress, defendant did not offer any proof that he had a legitimate expectation of privacy in the car; specifically, no attempt was made to show who owned the car, or that defendant had permission to use the car. At defendant's trial, the testimony showed that Ms. Bobbie Burpo owned the car at the time of the robbery, although title to the car remained in the name of another person from whom she had just bought the car. Ms. Burpo was the niece of defendant's wife, and had loaned the car to her aunt while Ms. Burpo was in the hospital. On cross-examination by the defense, Ms. Burpo testified that she did not know who had driven the car while she was in the hospital or how the car had got to the A & P parking lot. No other testimony was produced to show that defendant had a legitimate expectation of privacy in the car at the time of the search.
Based on these facts, we find that defendant failed to establish that his own individual rights were violated. Therefore, we need not address whether the search and seizure were valid.
The fourth issue is whether the trial court erred when it excused juror Elvira Cochran for cause.
During the voir dire examination of jurors, the prospective jurors were asked whether any of them were related to defendant. One juror, Elvira Cochran, raised her hand and said she was not sure if she was or not. Upon further questioning, Mrs. Cochran stated that this was her married name, and that although she did not recognize defendant as a member of the family, it was possible that he could be. Mrs. Cochran was then asked if this possible relationship might influence her decision, and she responded that it might. Then the following took place:
Defendant contends that Mrs. Cochran should not have been excused for cause because it was not proven that she and defendant were related within the degree specified in Code 1975, § 12-16-150. However, the grounds for disqualification found in that section are not exclusive and other grounds which indicate any probable prejudice will also lead to a disqualification of a juror. Ex parte Nettles, 435 So. 2d 151, 153-54 (Ala.1983). Because the qualification of a juror is a matter within the discretion of the trial judge, on appeal this Court will look to the questions asked and the answers given only to see if the trial court's discretion was properly exercised. Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala.1976). After reviewing the whole record of the questions asked to, *1184 and the answers given by, Mrs. Cochran, we find that the trial judge properly exercised his discretion and was not in error for excusing her for cause.
The fifth issue is whether the pretrial identification procedures were unnecessarily suggestive so as to lead to a substantial likelihood of misidentification.
About three days after the A & P robbery and murder, the store clerk who had been in the store at the time of the robbery viewed a lineup at the police station. Although defendant was in the lineup, the clerk identified another man as the A & P robber. At defendant's preliminary hearing, the clerk was asked whether she could identify the person who had entered the store and later robbed it. At that time, she was also unable to positively identify any person in that respect, although defendant was the lone black male seated at the counsel table. At defendant's first, and second trials, and subsequently at his third trial (the basis of this appeal), the clerk was able to positively identify defendant as the person who had robbed the A & P. A second witness for the state who identified defendant at trial had also identified another person at a lineup. Based on this, defendant argues that these identification procedures were unnecessarily suggestive so as to lead to a substantial likelihood of misidentification and that the in-court identifications should have been suppressed.
The issue of whether or not pretrial identification procedures have been unnecessarily suggestive has generally been raised where photographic identifications, showups, or unreasonable lineups have been involved. See e.g., Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). The facts presented to the Court do not indicate that any such unnecessarily suggestive identification procedures occurred in this case. Although the circumstances surrounding the identification of defendant are troublesome, the determination of the credibility of the identification is to be left to the decision of the jury. Allen v. Estelle, 568 F.2d 1108, 1112 n. 6 (5th Cir. 1978); see also, United States v. Blasco, 702 F.2d 1315, 1332 n. 28 (11th Cir.1983). This is true even where a witness has identified a person other than the defendant in the lineup, since this kind of information would go to the weight to be accorded to, and not the admissibility of, the identification. Agee v. State, 424 So. 2d 1368, 1370 (Ala.Crim.App.1982). In this case, the nonidentification of defendant at the lineup could have been explained to the jury's satisfaction by the photographs of defendant taken at the time of his arrest and at the time of the lineup. These photographs show that at the time of his arrest, defendant had a bushy hairstyle, a mustache, and a small amount of hair on his chin, whereas at the time of the lineup, none of these features was present. The jury could have reasonably concluded that this change in appearance caused the witnesses' inability to identify defendant. Therefore, the trial judge did not err when he did not suppress the in-court identifications.
The sixth issue is whether the trial court committed error by failing to furnish transcripts of defendant's first trial and other proceedings without cost to defendant.
Defendant requested that he be given transcripts of his first trial and of the other prior proceedings so that he could effectively cross-examine and impeach the state's witnesses at the subsequent trial. The trial court denied the request for a complete transcript on the basis that defense counsel had had the opportunity to hear the earlier testimony of the state's witnesses and had taken a large number of notes during their testimony. Although defendant had several attorneys representing him throughout his litigation, the record on appeal reflects that one of those attorneys represented him from the preliminary *1185 hearing through the third trial. It also appears from the record that defense counsel had at least some transcription of the testimony of several witnesses, since he referred the witnesses to their previous testimony on several occasions during cross-examination.
Based on our decision in Ex parte Lindsey, 456 So. 2d 393 (Ala.1984), we believe the trial court did not commit an error in failing to grant defendant's request. There we said:
456 So. 2d at 394.
Therefore, the decision of the trial court not to grant defendant's request was not error.
The seventh issue is whether the trial court committed error when it failed to grant defendant's motion for a directed verdict based on his contention that the "intentional killing" occurred after the "robbery" was complete.
At the close of the state's evidence, defendant moved for a directed verdict. The basis for his motion was that the testimony of the state's witnesses indicated that the intentional killing he was charged with committing occurred some time after the robbery was complete, and that therefore he could not be guilty of the capital offense charged. The defendant was charged with "Robbery or attempts thereof when the victim is intentionally killed by the defendant," Code 1975, § 13-11-2(a)(2) (Repealed). This crime has been defined by this Court in Ex parte Baldwin, 456 So. 2d 129, 133 (Ala.1984). There we said:
(Quoting Baldwin v. State, 372 So. 2d 32, 33 (Ala.1979).)
The facts presented at defendant's trial indicated that after the robber received the store money, he left the store and was followed outside by the assistant manager. The assistant manager was then observed following the robber until the two men were out of the witness's sight. Within a period of twenty minutes, a gunshot was heard in the area in which the police were searching for the robber. In less than an hour after the robbery, the police had arrested defendant and had found the body of the assistant manager. Based on these facts, we are of the opinion that the "beginning" act of robbery was sufficiently close in proximity to the "culminating" act of the intentional killing to establish the elements of the capital offense defendant was charged with. Therefore, the motion for directed verdict was properly denied.
Finally, we add one further point with respect to defendant's conviction. We initially note that the evidence presented in this case is not unlike that produced in Ex parte Jones, 450 So. 2d 171 (Ala.1984), where we affirmed both the defendant's conviction and his sentence of death. With respect to the evidence presented here, we have reviewed the record and we find that there was sufficient evidence from which the jury could exclude every reasonable hypothesis except that of defendant's guilt. Cumbo v. State, 368 So. 2d 871, 874 (Ala. Crim.App.1978).
*1186 The final three issues raised by defendant are concerned with the sentencing phase of his trial.
The eighth issue is whether the trial judge incorrectly instructed the jurors that the defendant had the burden of establishing the mitigating circumstances that were in his favor.
The death penalty statute under which defendant was convicted, Code 1975, § 13A-5-31, et seq. (Repealed), did not provide who had the burden of establishing the mitigating circumstances. Although this Court has not specifically decided this issue, several Justices in concurring opinions have addressed it. See, Cook v. State, 369 So. 2d 1251, 1258 (Ala.1978) (Bloodworth, J., concurring specially); Jacobs v. State, 361 So. 2d 640, 647 (Ala.1978) (Torbert, C.J., concurring in part; dissenting in part). We believe that what was said by Justice Maddox in his special concurrence in Cook v. State, 369 So. 2d at 1260, is the best explanation of the law as it was at the time of defendant's conviction: "I disagree with any suggestion that the burden is on the state or the judge to proffer mitigating evidencethe only obligation on the state is, as Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978),] holds, to permit the defendant to present mitigating evidence." In the present case, the trial judge's instructions to the jury merely stated that defendant was the one required to present evidence of mitigating circumstances. We find no error in this instruction.
The ninth issue is whether the trial court erred by not giving instructions to the jury on the specific mitigating factors offered by defendant.
During the sentencing hearing, defendant offered the testimony of a former employer to establish mitigating circumstances in his favor. Also in closing argument, his defense counsel argued that the circumstances of the crime itself should be considered as mitigating circumstances in defendant's favor. In the instructions to the jury, the trial judge instructed the jurors on their duty regarding mitigating circumstances, listing the statutory mitigating circumstances and telling them that they could find any other mitigating circumstance, but he did not instruct them as to the specific circumstances offered by defendant. Defendant claims this was error.
In Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978), the Supreme Court said that the sentencer in a death penalty case could not be precluded from considering any mitigating circumstance. The Court did not require that instructions be given to the sentencer on the specific mitigating circumstances offered by a defendant. In another recent case in which the Supreme Court was discussing the Georgia death penalty statute that was upheld in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the Court stated:
Eddings v. Oklahoma, 455 U.S. 104, 111, 102 S. Ct. 869, 875, 71 L. Ed. 2d 1 (1982).
The language in Lockett and Eddings indicates that so long as the sentencer is not precluded from considering any mitigating factor, the requirements of the Constitution have been satisfied. See, Tucker v. Zant, 724 F.2d 882, 892 (11th Cir.1984). Therefore, the trial court did not commit error by not instructing the jury on the specific mitigating factors defendant claimed were present.
The tenth issue is whether the trial judge erred when he found that there were no mitigating circumstances.
With respect to the sentencing of defendant, the final order of the trial judge stated the following:
Based on the reasons set forth below, we are required to remand this case for a new sentencing hearing so that the trial judge may enter specific written findings of fact on the mitigating circumstances offered by defendant.
In Clisby v. State, 456 So. 2d 99 (Ala. Crim.App.1983), aff'd, 456 So. 2d 105 (Ala. 1984), the Court of Criminal Appeals dealt with a similar situation. There, the defendant offered the testimony of a psychiatrist at his sentencing hearing to show that he had had a mental deficiency at the time of the crime. This testimony was introduced for the purpose of showing a mitigating circumstance. The trial judge, in his final order, found no mitigating circumstances and sentenced the defendant to death. The Court of Criminal Appeals remanded the case for a new sentencing hearing, stating: "His finding `that there are no mitigating circumstances' requires that this cause be remanded in light of Eddings v. Oklahoma, [supra]." 456 So. 2d at 100.
The Court of Criminal Appeals remanded Clisby based on the admonition of the U.S. Supreme Court in Eddings that "the sentencer [may not] refuse to consider, as a matter of law, any relevant mitigating evidence." 455 U.S. at 114, 102 S. Ct. at 877 (emphasis in original). Based upon the written findings of the trial judge, the Court of Criminal Appeals could not determine whether the trial judge "considered the defendant's mental deficiency as a mitigating circumstance and then determined that the degree of mental deficiency was simply insufficient ... or whether he merely decided that the defendant's mental deficiency could not be considered as a mitigating circumstance as a matter of law...." 456 So. 2d at 102 (emphasis in original).
We are in a similar position in this case. The trial judge's order does not state whether he considered the evidence offered by defendant and then determined that it was insufficient or whether he merely precluded it without consideration. Without knowing what the trial judge did, we are unable to properly review his sentencing decision. Therefore on remand, the trial judge should enter specific written findings on the existence or nonexistence of each of the statutory mitigating circumstances, see Code 1975, § 13A-5-33(2) (Repealed), and of any additional mitigating circumstances of which evidence is offered.[3]
For the reasons stated in parts one (I) through seven (VII), we affirm the conviction of defendant. For the reasons stated in part ten (X), we remand this cause to the Court of Criminal Appeals for that court to order a new sentencing hearing, at which the trial judge is required to issue specific written findings on all evidence of mitigating factors.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur.
[1] The death penalty statute that was in effect at the time of this crime, Code 1975, § 13A-5-30, et seq., was repealed effective July 1, 1981. However, the repeal did "not affect the application of pre-existing law to conduct occurring before 12:01 A.M. on July 1, 1981." Code 1975, § 13A-5-57. Therefore, the provisions and requirements of § 13A-5-30, et seq., are controlling in this case.
[2] Defendant submits that the state waived the argument that he did not have standing to challenge the search and seizure by not raising the issue at trial. See Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). However, the record clearly indicates that in the habeas corpus hearing of April 1, 1977, the district attorney presented the argument that defendant lacked standing to challenge the search.
[3] We note that at the original sentencing hearing the trial court could have considered all the circumstances presented during the guilt phase of the trial that might be relevant to the sentencing decision. | November 8, 1985 |
3f7ebefd-6745-4618-96f1-00975a66ca28 | Joyner v. AAA Cooper Transp. | 477 So. 2d 364 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 364 (1985)
Timothy L. JOYNER, Thomas Earl Hall and Danny Wyatt
v.
AAA COOPER TRANSPORTATION, a corporation.
83-340.
Supreme Court of Alabama.
October 4, 1985.
L. Gilbert Kendrick of Moore, Kendrick, Glassroth, Harris, Bush & White, Montgomery, for appellants.
Harry L. Hopkins and John B. Tally, Jr. of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
ALMON, Justice.
This case involves actions for assault and battery and trespass to the person. The circuit court granted a directed verdict for the defendant.
The plaintiffs, Timothy L. Joyner, Thomas Earl Hall, and Danny Wyatt, were, at the time of the incidents complained of, employees of AAA Cooper Transportation in Montgomery, Alabama. They testified that the terminal manager of AAA, Horace G. Wilhoite, committed assault and battery or trespass to their persons by forcing or attempting to force them to engage in homosexual acts with him. Their action against Wilhoite was settled for $2,000. Plaintiffs here pursue their action against *365 AAA, contending that AAA was responsible for the actions of its terminal manager.
For AAA to become liable for these alleged intentional torts of its agent, the plaintiffs must offer evidence that the agent's wrongful acts were in the line and scope of his employment, Jessup v. Shaddix, 275 Ala. 281, 154 So. 2d 39 (1963); Railway Express Agency v. Burns, 255 Ala. 557, 52 So. 2d 177 (1950); Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1938); Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 150 So. 709, cert. denied, 227 Ala. 469, 150 So. 711 (1933); or that the acts were in furtherance of the business of AAA, Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130 (1924); Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970); or that AAA participated in, authorized, or ratified the wrongful acts, Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211, 105 So. 2d 852 (1958); C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So. 2d 166 (1961).
Neither Hall nor Wyatt reported any of these incidents to Wilhoite's superiors. Joyner informed Earl Dove, an officer of AAA, about the advance Wilhoite made to him. Dove immediately informed William Buntin, the general manager over all AAA terminals, of Joyner's complaint. Buntin conducted an investigation and informed Wilhoite that if another complaint of this nature came to his attention he would lay off Wilhoite and conduct a full scale investigation. Buntin told Joyner that an incident of this nature would not occur again, and Joyner testified that another incident, in fact, did not occur. The conduct of AAA, when confronted with this complaint, can certainly not be characterized as ratification of Wilhoite's activities.
Furthermore, a careful search of the record fails to reveal even a scintilla of evidence to indicate that Wilhoite's acts were within the line and scope of his employment or that they were in furtherance of AAA's business.
Because there is not a scintilla of evidence to support any of the plaintiffs' theories of recovery against AAA, we find that the trial court properly granted the motion for a directed verdict. Hickox v. Vester Morgan, Inc., 439 So. 2d 95 (Ala.1983); City of Birmingham v. Wright, 379 So. 2d 1264 (Ala.1980); Crigler v. Salac, 438 So. 2d 1375 (Ala.1983). Therefore, the judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | October 4, 1985 |
71cc2167-9d2e-42c8-b0f3-f128ed1d2350 | Cornelius v. Green | 477 So. 2d 1363 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 1363 (1985)
C.C. CORNELIUS, Jr., et al.
v.
Alvin GREEN, et al.
83-1187.
Supreme Court of Alabama.
October 11, 1985.
Walter W. Kennedy III of Nash, Walker & Kennedy, Oneonta, for appellants.
Robert C. Tinsley, Pell City, for appellees.
PER CURIAM.
The opinion of this Court dated July 19, 1985, is withdrawn and the following opinion substituted in its place.
The plaintiffs, C.C. Cornelius, Jr., Sharon Cornelius, C.C. Cornelius III, Bernadette Cornelius, Juanita Cornelius, Oneta C. Rhea, and Kathy Regina Cornelius (hereinafter "the Corneliuses"), appeal from a denial of a motion for relief from a judgment. Their claim is that the trial court was without jurisdiction to reduce the width of a previously declared right-of-way from 30 feet to 15 feet.
The Corneliuses have owned land in Blount County for about 70 years. This property is bounded by water on three sides and on the fourth side adjoins the property owned by the defendants, Alvin Green, Nancy Green, Robert Charles Tinsley, and Betty Lynn Tinsley. The only means of access to a public road from the Corneliuses' land is across the defendants' property. An old road over the land has been in existence and used by the Corneliuses and the general public for over 65 years.
The defendants constructed a new roadway approximately five years before trial and had placed a steel fence and locking gate around the original roadway. The Corneliuses brought suit, contending that they had adversely used the original road and requested that the court declare the original road to be a 30-foot right-of-way in their favor. The suit also requested that the defendants be ordered to remove all obstructions from that road.
After a trial on the merits, the court issued an order, dated November 19, 1981, in favor of the Corneliuses, and established the right-of-way. The court also ordered the defendants to remove portions of the fence that were blocking the road. After a court-ordered survey, a final judgment was entered on May 25, 1982, which stated that the easement established "lies 15 feet on either side of the centerline of the easement."
When the defendants failed to remove the fence, the Corneliuses filed a petition alleging that the defendants were in contempt of court. On December 3, 1982, the defendants filed a document entitled "Petition Court to Alter Decree," which asked the court to change the width of the easement from 30 feet to 12 feet. The Corneliuses filed a motion to dismiss this "petition" on the grounds that the time to file a motion to alter the judgment had expired.
In response to the contempt proceedings and the defendants' motion ("petition"), the court, on January 4, 1983, amended its earlier judgment. The court stated, "[t]he order of this Court fixing the right-of-way as being fifteen feet on each side of the centerline is erroneous and the result of a mistake on the part of this Court," and the court modified the right-of-way to 7.5 feet on either side of the centerline.
The Corneliuses thereafter filed a "Motion for Relief from Judgment" under Rule 60(b)(4), A.R.Civ.P., on the grounds that the amended judgment was void. The court denied the Corneliuses' motion. The court found that its judgment of May 25, 1982, was in error and had been properly altered or amended after the judge had personally viewed the premises in response to the defendants' petition. The Corneliuses then brought this appeal.
The issue on this appeal is whether the trial court lacked jurisdiction to alter its original judgment declaring a 30-foot right-of-way. The Corneliuses contend that the defendants' document styled "Petition Court to Alter Decree" was either a Rule 59(e) motion to alter or amend the judgment or a Rule 60(b)(1) motion for relief from the judgment due to a mistake. They argue that, under either kind of motion, the time for making such a motion had expired and the court was without jurisdiction to grant relief from the final judgment. We agree with their contention.
In both form and substance, the "petition" filed by the defendants to alter the judgment was a Rule 59(e) motion. The petition did not allege any of the 60(b) *1365 grounds, and the defendants did not establish any of the six enumerated grounds justifying relief under 60(b). Therefore, the "petition" should have been treated by the trial court as a Rule 59(e) motion. City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981). Since this motion was not filed within 30 days of the May 25, 1982, judgment, the trial court did not have jurisdiction to amend that judgment.
The defendants contend that the trial judge considered their "petition" as a Rule 60(b)(6) motion and that he thereby had jurisdiction to relieve them from the judgment. However, even if the trial court could have properly considered the defendants' petition as a Rule 60(b) motion, it could not have characterized it as a 60(b)(6) motion. In Nowlin v. Druid City Hospital Board, 475 So. 2d 469 (Ala.1985), this Court set forth a very strict standard for granting relief under a Rule 60(b)(6) motion. The Court held that since the ground could have been raised in a Rule 59(e) motion or on appeal, the defendant was not entitled to Rule 60(b)(6) relief. Nowlin, supra. This is precisely the case here, since the defendants could have appealed the trial court's judgment or could have sought a modification of that judgment through a timely filed Rule 59(e) motion.
In this case, the defendants simply waited too long before seeking relief from the trial court's judgment establishing the 30-foot right-of-way. The defendants had 30 days within which to file a motion to alter the judgment or to move for a new trial, Rule 59(b) and (e). Having failed to do that, they had 12 more days within which to file an appeal. Rule 4(a), A.R. A.P. Upon the expiration of the 12 days, they then had approximately two and onehalf more months, i.e., four months from the date of the judgment, to file a Rule 60(b)(1) motion seeking relief from the judgment.[1] There was no Rule 59 motion, no notice of appeal, and no Rule 60(b)(1) motion until more than six months after the final judgment. A trial court may not extend the time for taking action under Rules 59(e) and 60(b). Rule 6(b), A.R.Civ.P.
Because the defendants' "petition" was not filed in a timely manner, the amended judgment the Corneliuses attacked is void and they are entitled to Rule 60(b)(4) relief.
REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.
FAULKNER, J., dissents.
[1] In response to the defendants' motion to alter or amend the judgment, the trial judge, in his own words, admitted that the judgment declaring a 30-foot right-of-way was "erroneous and the result of a mistake on the part of this Court." Mistake is a ground for Rule 60(b)(1) relief. | October 11, 1985 |
95f87850-3033-4836-bb74-383e9fa4f032 | Ex Parte Day | 481 So. 2d 1169 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 1169 (1985)
Ex parte: John P. DAY.
(Re: John P. Day v. State.)
84-869.
Supreme Court of Alabama.
November 8, 1985.
*1170 Ian F. Gaston, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for respondent.
SHORES, Justice.
Petitioner John P. Day was convicted of theft in the first degree, under Code 1975, § 13A-8-3, and sentenced to a term of ten years' imprisonment. The Court of Criminal Appeals, 481 So. 2d 1164, affirmed Day's conviction and denied his application for a rehearing and his Rule 39(k), A.R. A.P., motion to supplement the facts stated in that court's opinion. Subsequently, Day submitted to this Court a petition for writ of certiorari, which we granted.[1] We reverse the judgment below.
Briefly stated, the facts are as follows: Judy Hix, an undercover FBI agent, learned that Day wanted to sell diamonds allegedly won in a poker game. Hix approached Day through a go-between, and Day eventually offered to sell Hix a 1.3-carat diamond for $3,300. Hix purchased the stone, which turned out to be a zirconia stone, not a diamond. Day was subsequently arrested and charged with theft by deception.
Day argues that the Court of Criminal Appeals erred in holding that the defendant's intent is the paramount consideration in theft by deception, codified at Code 1975, § 13A-8-2(2), and that the victim's reliance on the deception is not an element of the offense. Day asserts that: (1) reliance is an element of the offense; (2) Hix did not rely on Day's false representations; and (3) the trial court erred by refusing to charge the jury on the reliance element. Thus, the issue presented is whether reliance is an element of theft by deception. We have not directly addressed the issue since the legislature revised the Criminal Code in 1977, effective January 1, 1980. We address the issue now to eliminate confusion and uncertainty in the appellate decisions below.
Section 13A-8-2(2) provides:
Code 1975, § 13A-8-2(2). Section 13A-8-1 defines deception:
Code 1975, § 13A-8-1.
Under this definitional language, subsections (a), (b), and (c) require the existence of a false impression in the victim's mind due wholly or partly to the perpetrator's words, acts, or omissions. Therefore, reliance is obviously a necessary element under the first three subsections. On the other hand, subsections (d), (e), and (f) omit the phrase "false impression" and, thus, seem to indicate that the victim's awareness or nonawareness of the deception is not critical. However, not to require a victim's reliance under the latter three subsections would render the former three subsections practically meaningless; in particular, subsection (f) could almost subsume the other subsections. Therefore, in order to read all parts of the statute together and give each word meaning and effect, we hold that reliance is an element of the offense of theft by deception. The following review of authorities reinforces our reading of the statute.
The former general false pretense statute punished anyone "who, by false pretense or token and with the intent to injure or defraud, obtain[ed] from another any money or other personal property." Code 1975, § 13-3-90. In applying the statute, the courts read a reliance requirement into the law. The pretense itself must be a material one, furnishing an inducing, controlling motive for the victim in parting with his property, Ex parte Thaggard, 276 Ala. 117, 159 So. 2d 820 (1963), though it need not be the sole or exclusive cause for the loss. Franklin v. State, 44 Ala.App. 521, 214 So. 2d 924 (1968). The fact that the victim was not diligent, but imprudent, will not negate his reliance if the misrepresentation would have caused a reasonably prudent person to act. Elmore v. State, 138 Ala. 50, 35 So. 25 (1903). The gist of the offense is the deception imposed upon the victim's confidence which causes him to intend to part with his property (title) without a fair opportunity to bargain. See Carlisle v. State, 76 Ala. 75 (1884).
Despite its holding in the present case, the Court of Criminal Appeals, on at least one occasion, has followed the above-quoted pre-Criminal Code case law in regard to reliance. Last year in McMurphy v. State, 455 So. 2d 924 (Ala.Crim.App.1984), the court held that the giving of a check, without contrary explanation, was a representation that the defendant had sufficient funds on hand and that the representation operated as an inducement for the injured party to part with the goods. The court added, "[T]he seller was thereby deceived...." 455 So. 2d at 928. According to the McMurphy court:
455 So. 2d at 927.
The theft by deception statute is based on § 223.3 of the Model Penal Code, which brought the common law offenses of larceny by trick and false pretenses under the general heading of theft by deception. W. LaFave and A. Scott, Jr., Handbook on Criminal Law § 91, at 677-78 (1972). Comment 1 of § 223.3 of the Model Penal Code addresses the role of the perpetrator's misrepresentations on the victim. The relevant portion of Comment 1 reads:
Model Penal Code, § 223.3 (Proposed Official Draft 1982), at 181.
As mentioned previously, this Court has not directly addressed this issue. In Ex parte Williams, 451 So. 2d 253 (Ala.1984), this Court quashed a writ as improvidently granted where venue was at issue under § 13A-8-2(2). However, Chief Justice Torbert, joined by Justices Maddox and Beatty, dissented and made the following observations concerning § 13A-8-2(2):
451 So. 2d at 254-55.
It is clear from the above discussion of authorities that the legislature did not intend to eliminate reliance as an element of theft by deception. The revision was meant only to erase the archaic distinctions among the common law offenses that allowed some to escape sanction because of improper forms of proof. See Commentary, Code 1975, §§ 13A-8-2 through 13A-8-5, "Larceny," at 266 (1982 repl. vol. 12). We can fairly assume that the legislature intended the elements of the offense to remain intact under the new Criminal Code.
In the case before us, all but one of the elements of theft by deception were present. Day made false representations; he knew of their falsity; and he had the intent to defraud. However, Day did not obtain Hix's money because she was deceived. The facts of the court's opinion below indicate that Hix, instead, was conducting a "sting" operation and did not actually rely on Day's misrepresentations when she purchased the stone. Because there was no reliance, the more appropriate charge would have been attempted theft by deception.
Neither Andersen v. State, 418 So. 2d 967 (Ala.Crim.App.1982), nor Deep v. State, 414 So. 2d 141 (Ala.Crim.App.1982), cited by the Court of Criminal Appeals, stands for the proposition that reliance by the victim on the perpetrator's misrepresentations is not an element of § 13A-8-2(2). Deep did not *1173 involve the theft by deception statute, but, instead, concerned the constitutionality of the general theft statute, Code 1975, § 13A-8-2(1). Andersen, although involving theft by deception, focused almost exclusively on intent; reliance was not an issue in the case.
In light of the above discussion, we reverse the judgment below.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, BEATTY and HOUSTON, JJ., concur.
ADAMS, J., not sitting.
[1] Petitioner did not comply with Rule 39(k), A.R.A.P., in seeking to have supplemental facts considered with his petition for writ of certiorari. Specifically, he failed to include the additional facts in his petition to this Court, although he did include them in his brief in support of the petition. However, this failure is not fatal, in that the opinion of the Court of Criminal Appeals contains facts sufficient for our review of the issue raised.
[2] The defendant in Smith was charged and tried under the former general false pretense statute. The new Criminal Code became effective January 1, 1980. | November 8, 1985 |
2e933729-c11c-4072-8eb4-81887a87a942 | Cobbs v. Fred Burgos Const. Co. | 477 So. 2d 335 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 335 (1985)
Henry L. COBBS, Jr.
v.
FRED BURGOS CONSTRUCTION COMPANY.
83-747.
Supreme Court of Alabama.
September 27, 1985.
*336 Kenneth L. Thomas of Massey, Means & Thomas, Montgomery, for appellant.
C. Lanier Branch of Copeland, Franco, Screws & Gill, Montgomery, for appellees.
ALMON, Justice.
This is an appeal from a judgment finding that the Appellant, Henry L. Cobbs, Jr., had breached a written contract in which he had agreed to purchase a residential house and lot in Montgomery, Alabama.
On March 7, 1983, Cobbs contracted to purchase a house for $67,300; the house was to be built by Fred Burgos Construction Company (BCC) at 4612 Young Farm Court. The contract called for BCC to build a house in accordance with its stock house plan 300B. It further provided that any changes in the stock plan must be mutually agreed upon and that the additional costs of these changes were to be *337 paid by Cobbs in advance of the commencement of work on the house.
The contract provided that the sale was subject to Cobbs's obtaining a "VA 100% loan" in the amount of $67,300. Of this amount, $300 was a financing fee. It also provided that Cobbs and BCC were "to exert all reasonable effort and diligence for Purchaser to obtain such loan...."
On March 8, 1983, Cobbs made application through Real Estate Financing, Inc., for a VA (Veterans Administration) loan in the amount of $67,300. During the ensuing months Cobbs decided on the changes he desired, priced certain items, and consulted with the architect.
On June 16, 1983, Cobbs met with Joe Harwell of Montgomery Metro Realty, Inc., and agreed on the changes he desired and their price of $9,837. However, Cobbs at that time decided that he did not want to pay this amount in advance as the contract provided, because he did not want to tie up his money and because he wanted the contract to reflect the full purchase price of the home.
Cobbs then embarked on a series of negotiations with BCC in an attempt to modify the contract so that his desired changes would not be payable in advance. Cobbs offered to increase the binder from $1,000 to $2,000 and BCC counter-offered that the binder be increased to $3,000. They were unable to reach an agreement, but Cobbs left a $1,000 check with Joe Harwell and then departed from Montgomery for an extended trip abroad, apparently leaving instructions that any negotiations be conducted through his attorney. On June 23, 1983, after learning through a telephone conversation with Joe Harwell that BCC considered the additional $1,000 check insufficient, Cobbs stopped payment on the check.
On July 12, 1983, an appraisal from the VA, requested by Real Estate Financing, Inc., as necessary for the loan application, arrived. The appraisal valued the house at approximately $2,950 less than the total cost to Cobbs for the house. BCC then notified Cobbs, through his attorney, that for a total binder of $2,950 it would modify the contract.
On July 19, 1983, BCC poured the concrete for the slab foundation, after receiving word that these terms were agreeable to Mr. Cobbs and that a check for $2,950 was forthcoming. Merrily Burgos also testified that it was essential that the slab be poured at that time because the house was on a cul-de-sac and, because of space limitations, it was necessary to coordinate the installation of sewers, laterals, and water lines with those of surrounding houses or else the lot would have to be left vacant.
The check for $2,950 never arrived. Cobbs arrived back in Montgomery in late July or August. On August 24, 1983, a meeting was held at which Cobbs said he was willing to pay a total binder of $3,000 in order to modify the contract. BCC, however, requested that the binder be increased to $6,000. Being unable to reach an agreement to modify the contract, Cobbs, at the conclusion of the meeting, tore up the $1,000 check that he had previously given Joe Harwell. The next day, August 25, 1983, Cobbs called Real Estate Financing, Inc., and gave instructions to cancel the whole deal. A loan officer from Real Estate Financing, Inc., testified that Cobbs would have definitely qualified and obtained the loan for $67,300 had the loan process been completed.
BCC declared Cobbs in breach of the contract, alleging that he had repudiated it in its entirety. The trial court's judgment in favor of BCC awarded it $15,759 for damages, interest, and costs.
At the outset, we note that because this is an ore tenus case, the trial court's findings of fact are favored with a presumption of correctness and a judgment based on them will not be disturbed absent a showing that they are palpably wrong, without supporting evidence, or manifestly unjust. Gertz v. Allen, 376 So. 2d 695 (Ala.1979); Sudduth v. Sudduth, 366 So. 2d 1102 (Ala. 1979).
Cobbs contends that the contract with BCC was subject to two conditions precedent *338 which never occurred and, therefore, that he should not be held liable.
The first clause Cobbs contends was a condition precedent was "This sale is subject to a purchaser obtaining a VA 100% loan ... in the approximate amount of .... $67,300." BCC admits that this is a condition precedent, but points to the next sentence, which contains a provision that "Purchaser and Seller agree to exert all reasonable effort and diligence for Purchaser to obtain such loan...." BCC argues that Cobbs cannot raise his failure to obtain financing as a failure of a condition precedent because he withdrew his loan application. According to BCC, the failure to obtain financing under these circumstances does not excuse Cobbs from his duties under the contract.
BCC's position amounts to an argument that Cobbs breached his promise to exert all reasonable efforts to obtain financing. Whether a party has substantially performed a promise under a contract is a question of fact to be determined from the circumstances of each case. Bruner v. Hines, 295 Ala. 111, 324 So. 2d 265 (1978).
It was Cobbs's duty under the contract to exert all reasonable effort and diligence to secure a VA loan in the amount of $67,300. Cobbs could not withdraw from this contract simply because an agreement was never reached on a modification which would allow him to finance the changes he desired in the stock plan. On August 25, 1983, when Cobbs called Real Estate Financing, Inc., and told them to withdraw his application for VA financing, he breached the contract provision concerning financing, and thus the trial court's ruling was correct.
The second condition precedent is alleged to be found in the clause which provides that "Changes are to be mutually agreed upon by purchaser and seller and additional cost thereof paid by purchaser in advance of commencement of work." Cobbs apparently contends that because he never made payment for the additional costs, the contract should never have become binding.
It is well settled that whether a provision in a contract is or is not a condition precedent is dependent not upon formal words but upon the intent of the parties, to be deduced from the entire instrument. Gertz, supra; Fidelity & Casualty Co. of New York v. DeLoach, 280 Ala. 497, 195 So. 2d 789 (1967); Floyd v. Pugh, 201 Ala. 29, 77 So. 323 (1917).
The record indicates that BCC required the inclusion of this clause with the intention of protecting itself, because it did not want to be left with a highly specialized house that would be difficult to market. The record also indicates that BCC abandoned this requirement upon an understanding that Cobbs was forwarding a check for $2,950 and because it was necessary to coordinate the installation of utilities with other houses in order that the lot not have to be left vacant. As noted earlier, this $2,950 check never arrived.
In light of these facts the trial court's finding that the contract was valid and thus that this clause was not a condition precedent to formation seems well supported by the evidence.
Cobbs lastly contends that the trial court erred in finding that BCC was entitled to damages.
It is well settled that damages awarded for breach of contract should return the injured party to the position he would have been in had the contract been fully performed. Comeq, Inc. v. Mitternight Boiler Works, Inc., 456 So. 2d 264 (Ala.1984); Files v. Schaible, 445 So. 2d 257 (Ala.1984); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979). The proper measure of damages in cases such as this is the difference between the price agreed upon in the contract and the cost of performance or, in other words, the profit. Whiting v. Dodd, 39 Ala.App. 80, 94 So. 2d 411 (1957); J.B. Anderson & Co. v. Brammer, 4 Ala.App. 596, 58 So. 941 (1912); Danforth v. Tennessee & C.R. Co., 93 Ala. 614,11 So. 60 (1896); George v. Cahawba & M.R. Co., 8 Ala. 234 (1845).
*339 Merrily Burgos testified that the contract price of the house was $67,000 and that the cost of completion was $56,200. The difference in these two amount is $10,800. She further testified that the exact lost profit was $10,827 and this was the amount awarded as damages by the trial court. The amount of damages awarded by the trial court is supported by the evidence. Likewise, interest and costs awarded in the amount of $4,932 were reasonable and proper.
The judgment is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | September 27, 1985 |
83d34e97-33fc-4c89-8934-49e09ec17ae5 | Empiregas, Inc. of Ardmore v. Hardy | 487 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 487 So. 2d 244 (1985)
EMPIREGAS, INC. OF ARDMORE
v.
Vernon HARDY.
EMPIREGAS, INC. OF ARDMORE
v.
Linda Gail COFFMAN.
Nos. 84-834, 83-1102.
Supreme Court of Alabama.
November 8, 1985.
Rehearing Denied December 20, 1985.
Certiorari Denied May 19, 1986.
*246 John F. Kizer, Jr., Birmingham, for appellant.
Jimmy E. Alexander of Alexander, Corder & Plunk, Athens, for appellees.
Certiorari Denied May 19, 1986. See 106 S. Ct. 1973.
MADDOX, Justice.
Defendant Empiregas of Ardmore appeals from judgments based on adverse jury verdicts rendered in these two cases, which were consolidated for trial. The jury found that Empiregas wrongfully interfered with plaintiffs' employment opportunities. The jury found that Empiregas fraudulently induced plaintiffs Linda Gail Coffman and Vernon Hardy into signing employment contracts with non-competition clauses in them, and that, therefore, Empiregas could not legally assert against plaintiffs the covenants not to compete contained in those contracts. The jury further found that Empiregas was liable for fraud because it concealed material information from plaintiffs. We affirm.
Empiregas hired Hardy on November 16, 1971, and Coffman on September 1, 1972, to work in its Ardmore plant. Empiregas, a subsidiary of Empire, Inc., in Lebanon, Missouri, retails liquified petroleum gas in north Alabama. Plaintiffs' contracts with Empiregas contained covenants not to compete that prohibited plaintiffs, upon termination with Empiregas, from seeking employment with any other liquified petroleum gas company within a fifty-mile radius of Ardmore for a period of three years. Empiregas required plaintiffs to sign new contracts each year. All of these contracts contained the same noncompetition provision.
After working for Empiregas for ten years, plaintiffs acquired fully vested interests in shares of Empire, Inc., stock as part of an employee stock ownership incentive plan. On December 6, 1982, Empire, Inc., and Exco Acquisition Corporation entered into an agreement and plan of merger. Under this agreement, the employees' stock in the incentive plan was to be sold and replaced with cash and a debenture due after the year 2000.
In February 1983, Paul Stallman, an agent of Empiregas, informed plaintiffs of a meeting on the merger, and asked them to return the proxy cards they would receive and to vote in favor of the merger. Stallman informed them that if the shareholders approved the merger, each employee would receive $20.00 for each share he owned "within sixty days." However, the merger agreement itself stated that no employee could receive any cash from the sale of his stock until after his termination or retirement. In May 1983, plaintiffs received the proxy cards and a statement setting out the conditions of the merger. This statement, however, only reflected that, upon finalizing the merger, the shareholders would receive instructions as to how to claim the cash to be received for their shares. This notice did not reflect the fact that no employee would be paid until his retirement or termination, as called for by the merger agreement. Plaintiffs returned the proxy cards and voted in favor of the merger. Plaintiffs never received the money they were promised, even after requesting their share after being terminated.
Plaintiffs signed their last employment contracts with Empiregas in April 1983. At the time of signing, plaintiffs were informed by an Empiregas agent, just as they had been each time they signed the earlier contracts with Empiregas, that the covenant not to compete was "not worth a damn," that the contract was "just a piece of paper," and that "it won't hold up in court."
In May 1983, plaintiffs sought other employment, and contacted J & J Oil Co. in Ardmore. Plaintiffs received prospective employment with Sisco Gas, J & J's plant in Huntsville. Sisco Gas is within the fifty-mile radius of Ardmore, but does not directly compete with Empiregas. Upon learning of the prospective employment, Empiregas wrote J & J and informed it of plaintiffs' covenant not to compete with Empiregas for three years. Empiregas threatened to sue J & J if it hired plaintiffs. *247 Based on this letter, J & J decided not to hire plaintiffs.
Plaintiffs sued Empiregas and Empire, Inc., alleging wrongful interference with employment opportunities, alleging that defendants fradulently induced them to sign the employment contracts, and alleging that material information concerning the employee stock ownership plan had been concealed from them. Empire, Inc., was dismissed after showing it did no business in Alabama. Plaintiffs' actions were consolidated for trial, and proceeded against Empiregas. The jury found in favor of both plaintiffs on all counts, assessing damages for Coffman at $3,670 on the interference claim, and $29,670 on the fraud claim and for Hardy at $16,200 on the interference claim, and $70,822.15 on the fraud claim. Defendant appeals.
The issue central to a decision in this case is whether there was sufficient evidence to present the question of fraud to the jury. Empiregas contends that there was not enough evidence to support instructing the jury as to fraud. We disagree. There was evidence presented to support the jury verdict finding that Empiregas both fraudulently induced plaintiffs to sign employment contracts and concealed material information concerning the merger of Empire, Inc., and Exco.
The critical elements of an action for fraud under the terms of Code 1975, § 6-5-101, are: (1) a false representation; (2) concerning a material existing fact; (3) which the plaintiff relies on; (4) to his injury, regardless of whether the representations were made wilfully, recklessly, or mistakenly. Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348, 1353 (Ala. 1982). We are satisfied from the record in this case that each of these elements is present and, therefore, that the trial court correctly submitted the issue of fraud to the jury. Further, it is the function of the jury "to resolve controverted issues of fact," and where evidence is conflicting the reviewing court "will not substitute its judgment for that of the trier of facts." Goodson v. Elba Baking Co., 408 So. 2d 498, 499 (Ala.1981); Shiver v. Waites, 408 So. 2d 502, 504 (Ala.1981).
Coffman testified that when she signed her last contract with Empiregas, the following transpired:
On this testimony, there was sufficient evidence to allow the jury to find that Empiregas fraudulently induced plaintiffs into signing employment contracts. Empiregas contends that the statements were not made, but that if they were, they pertained to matters of law, and not fact, and thus that the issue of fraud should not have been presented to the jury. In Best v. Best, 247 Ala. 627, 629, 25 So. 2d 723, 725 (1946), this Court held:
Quoting Clayton v. Glasscock, 221 Ala. 3, 127 So. 538 (1930).
Similarly, the Court of Civil Appeals held in Spry Funeral Homes, Inc. v. Deaton, 363 So. 2d 786, 789 (Ala.Civ.App.1978), that a misrepresentation of law constituted actionable *249 fraud where the defendant had his attorney draft a void contract and "the defendant then induced plaintiff to sign the agreement in reliance on the fact that the contract was legally binding and enforceable." In Arkel Land Co. v. Cagle, 445 So. 2d 858 (1983), this Court found actionable fraud where an attorney acting as the agent of the defendant intentionally misled the plaintiff lessors as to the legal effect of two mining leases in order to induce them to sign the leases.
Empiregas also contends that the misrepresentations were merely its opinion. The Court of Civil Appeals, in Jackson Co. v. Faulkner, 55 Ala.App. 354, 362, 315 So. 2d 591, 598 (1975), recognized that "whether a representation is an expression of opinion or a statement of fact depends upon all the circumstances of a particular case, such as the form and subject matter of the representation and the knowledge, intelligence and relation of the respective parties." However, the form of the representation as opinion or fact "`is not in itself conclusive, and in cases of doubt the question should be left to the jury.'" Jackson Co. v. Faulkner, 55 Ala.App. at 363, 315 So. 2d at 599, quoting Fidelity & Cas. Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943). A representation becomes a statement of fact "`[w]henever a person states a matter which might otherwise be only an opinion, not as a mere expression of his own opinion but as an existing fact material to the transaction, so that the party may reasonably treat it as a fact.'" Jackson Co. v. Faulkner, 55 Ala. App. at 363, 315 So. 2d at 599, quoting Fidelity & Cas. Co., supra.
The evidence presented at trial tended to show that agents of Empiregas told plaintiffs the noncompetition provisions "were not worth a damn" in order to induce plaintiffs to sign the contracts. Further, the evidence showed that they acted under instructions from superiors. Plaintiffs testified that they would not have signed the contracts if they believed the covenants not to compete were valid. Therefore, the jury could have determined, as it did, that Empiregas fraudulently induced plaintiffs to sign the contracts.
There was also evidence to support the finding that Empiregas fradulently concealed the effect of the merger on plaintiffs' shares of stock in Empire, Inc. Hardy testified that a meeting was held with Paul Stallman in February 1983:
Further, the 140-page prospectus regarding the merger which was mailed to the shareholders along with their proxy cards, does not mention the fact that disbursement of funds was to occur only upon the employee's retirement or termination. Only one paragraph, on page 39, reveals that the employees did not have an immediate right to the funds. That paragraph states:
However, Stallman testified that his understanding of the effect of the merger was different:
This conflict in the testimony raised an issue for the jury to resolve. The trial court, therefore, was correct in presenting the issue of fraud to the jury.
Empiregas also contends that plaintiffs' theory of wrongful interference with plaintiffs' employment opportunities should not have been presented to the jury because it was merely pursuing its legal rights under the contracts. In Polytec, Inc. v. Utah Foam Products, Inc., 439 So. 2d 683, 689 (Ala.1983), this Court stated:
In Thompson, the defendant contended that the plaintiff's complaint was deficient because it did not allege that the defendant acted without justification. The Fifth Circuit Court of Appeals held:
Thompson v. Allstate Ins. Co., 476 F.2d at 748.
Empiregas's contention that it acted pursuant to its legal rights is evidence of its attempt to justify its actions, but is not conclusive of the issue. The *251 burden is upon Empiregas to prove that its actions were justified. Here, the jury, having found that plaintiffs' contracts with Empiregas were fraudulently induced, invalidated Empiregas's justification.
Empiregas also contends that it was error for the trial court to permit plaintiffs' attorney to cross-examine Larry Ellison regarding his interest in Empire, Inc. Empiregas contends that Empire, Inc., was not the defendant in this case, and thus, that his interest was irrelevant. However, Ellison testified on direct examination that he was a senior vice president of Empire, Inc., and that his duties included administering the financial affairs of all subsidiaries of Empire, Inc., including Empiregas. Ellison testified on direct examination that he felt the merger was good for the shareholders and that he had informed them of this fact. On cross-examination, questioning revealed that the sale of Ellison's stock in Empire, Inc., resulted in a personal profit of over $440,000.
The trial court held that this line of questioning was proper because it revealed any bias Ellison might have. It is in the trial judge's discretion to determine whether facts tending to show bias or interest should be admitted into evidence. Osborne v. Cobb, 410 So. 2d 396, 398 (Ala.1982). Generally, counsel is given wide latitude to reveal any bias on the part of a witness on cross-examination. International Union, United Automobile, Aircraft & Agricultural Implement Workers v. Russell, 264 Ala. 456, 472, 88 So. 2d 175, 188 (1956). Ellison's personal interest in Empire, Inc., increased substantially as a result of the merger between Empire, Inc., and Exco. We feel that the trial judge did not abuse his discretion by allowing plaintiffs' counsel to question Ellison regarding his interest in Empire, Inc., especially in light of Ellison's direct examination testimony, which opened the door for plaintiffs' cross-examination.
Empiregas also contends that the trial judge did not make available to counsel the written interrogatories propounded to the jury prior to final arguments, as required by Rule 49(d), Ala.R.Civ.P.
Plaintiffs' counsel strongly contests this argument. Further, this Court will not assume error, and the burden is on the appellant "to affirmatively demonstrate from the record that an error was committed by the trial court." Chestnut Hills Civic Ass'n v. Dobbins, 361 So. 2d 1043, 1044 (Ala.1978); Coastal Realty & Mortg., Inc. v. First Ala. Bank, N.A., 424 So. 2d 1315, 1317 (Ala.Civ.App.1982). An appellate court "cannot presume the existence of facts as to which the record is silent and make it a ground for reversal." Davis v. State ex rel. Davis, 420 So. 2d 278, 279 (Ala.Civ.App.1982). Appellate courts are "prisoners of the record and occurrences in chambers and off the record are outside [the court's] purview unless the trial court or attorneys made certain that [the court] is privy to them." Stephens v. Central of Georgia R.R. Co., 367 So. 2d 192, 194 (Ala. 1978). The trial court is presumed to have acted correctly "unless the contrary is made to appear from the record." Johnson v. Fishbein, 289 Ala. 328, 334, 267 So. 2d 405, 410 (1972). In order to properly preserve this question for our review, Empiregas's counsel should have objected to the giving of these interrogatories to the jury. He was presented with an opportunity to do that after the judge instructed the jury, yet he failed to do so. In Elliott v. Elliott, 372 So. 2d 846, 848 (Ala.1979), this Court held in an analogous situation that where the appellant does not object to the trial court's failure to inform the attorneys of its proposed action on requested jury charges as required by Rule 51, Ala.R. Civ.P., no error is preserved for review. Here, counsel for Empiregas was presented the opportunity to state any objections he had to the charge as given, which contained the written interrogatories, at the end of the jury charge. He failed to do so. Therefore, there is nothing for this Court to review on this issue.
Finally, Empiregas contends that the damages are excessive because the trial court improperly instructed the jury as to awarding punitive damages and the jury did not consider plaintiffs' duty to mitigate their damages. First, Empiregas made no objection to the trial judge's charge on punitive damages; thus, any objection it may have had is waived. Loch Ridge Construction Co. v. Barra, 291 Ala. 312 at 320, 280 So. 2d 745 at 751 (1973); William Wilson Enterprises, Inc. v. Napier, 395 So. 2d 89, 90 (Ala.Civ.App.1981).
As to Empiregas's claim that the jury did not properly consider the plaintiffs' duty to mitigate their damages, we note that the trial court properly charged the jury regarding that duty. Empiregas contends that the judge's instructions were ignored by the jury; however, error will not be presumed on appeal, and "a party cannot be permitted to speculate on the results of a court's instruction or claim error with regard thereto without an affirmative showing that such an instruction was ignored by the trier of fact or caused an improper verdict." Citizens Bank v. Routh, 351 So. 2d 594, 597 (Ala.Civ.App. 1977). We are of the opinion that no such showing has been made on the facts presented.
The judgment of the Circuit Court of Limestone County is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | November 8, 1985 |
f289e70e-1cb0-4b73-805d-08e9f11f59e6 | Berryhill v. Mutual of Omaha Ins. Co. | 479 So. 2d 1250 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1250 (1985)
Richard BERRYHILL
v.
MUTUAL OF OMAHA INSURANCE COMPANY and L.R. Chapman.
84-683.
Supreme Court of Alabama.
November 1, 1985.
John L. Sims, Hartselle, for appellant.
*1251 Hobart A. McWhorter, Jr. and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellees.
HOUSTON, Justice.
Richard Berryhill appeals from a summary judgment granted in favor of Mutual of Omaha Insurance Company and L.R. Chapman in this action to recover damages for the breach of an employment contract and bad faith discharge. We affirm.
The record presented to this Court on appeal does not contain the depositions and exhibits upon which the trial court based its judgment. Where all the evidence is not in the record, it will be presumed that the evidence was sufficient to sustain the verdict or judgment. City of Scottsboro v. Johnson, 436 So. 2d 859 (Ala.1983); Valley Mining Corp. v. Metro Bank, 383 So. 2d 158 (Ala.1980); Park v. Elliott, 282 Ala. 110, 209 So. 2d 393 (1968). Therefore, the judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur. | November 1, 1985 |
d625ad8a-15cd-49dc-9f2d-3e98eab964d8 | Russell v. Mullis | 479 So. 2d 727 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 727 (1985)
William Evans RUSSELL, Donna C. Russell, Herbert G. Russell, Jr., and Sharon A. Russell
v.
Jonnie Lee MULLIS.
84-535.
Supreme Court of Alabama.
November 1, 1985.
*728 Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellants.
L.P. Sutley of Murchison & Sutley, Foley, for appellee.
HOUSTON, Justice.
In this case, the plaintiffs sought injunctive relief to enforce two covenants not to compete in the convenience store business. The case was presented to the court ore tenus, and the court granted the injunction against Jack F. Mullis, Jr., who had signed sales agreements containing the covenants, but denied the relief against Jonnie Lee Mullis, who had not signed the agreements. The plaintiffs appeal from the denial of the injunction as to Jonnie Lee Mullis. There is no cross appeal by Jack Mullis. We affirm.
William Evans Russell, a licensed real estate agent familiar with real estate contracts, owned a convenience, store in the Gulf Shores area, and entered into separate contracts with Jack Mullis for the purchase of his two convenience store businesses, "Easy D" # 1 and "Easy D" # 2 located on Highway 59 South in Gulf Shores and Highway 98 in Foley, respectively. The businesses were owned solely by Jack Mullis, but the real estate upon which the businesses were operated was owned jointly by Jack Mullis and his wife, Jonnie Mullis. Jack Mullis signed the two sales contracts; however, his wife did not. Each of the sales contracts contained the following provision: "Seller will not compete for 10 years and within 10 miles of store."
Subsequently, two deeds were executed by the Mullises, who used a portion of the money received from the sale to purchase property within eight miles of the two stores they had sold to the plaintiffs. The property was purchased in both Jack and Jonnie Mullis's names. Jonnie Mullis used a portion of the money received from the sale to erect a building in which she now operates a convenience store, under the name "Dixieland." She used some of the proceeds from the sale to purchase her beginning inventory for "Dixieland." Jack Mullis did oversee the building of the store, ostensibly to make certain that the construction did not adversely affect a part of the property on which he plans to erect a recreational vehicle park.
Section 8-1-1, Code of Alabama, 1975, provides in pertinent part as follows:
*729 The contracts involved in this case do not use the word "good will." However, in order for a covenant not to compete to be valid when executed in connection with the sale of a business, it is not necessary that the contract of sale specifically state that the transaction includes a sale of the good will. Files v. Schaible, 445 So. 2d 257 (Ala.1984). Maddox v. Fuller, 233 Ala. 662, 173 So. 12 (1937). The contracts do state that the plaintiffs purchased the exclusive rights and privileges to operate under the existing name "Easy D" and each contract contained a covenant not to compete. Under these circumstances, a sale of the good will was clearly implied.
Jonnie Mullis was not a party to either contract. "`A person who has not executed or signed the contract or covenant is not bound by the stipulation against engaging in business, and he may not be enjoined from competing with the covenantee. He may, however, be restrained from engaging in the business in partnership with, or as an employee of, the covenantor or seller.' " Yost v. Patrick, 245 Ala. 275, 280, 17 So. 2d 240, 244 (1944). In the case of Daughtry v. Capital Gas Company, 285 Ala. 89, 229 So. 2d 480 (1969), this court quoted with approval the following excerpt from the annotation at 94 A.L.R. 345 (1935):
The plaintiffs contend that Jonnie Mullis has been aiding her husband in violating the covenants and, therefore, should be enjoined. We disagree.
The trial court, in the present case, heard the witnesses, considered the evidence, and found that Jonnie Mullis should not be enjoined from operating her store, Dixieland. Where a trial court has heard ore tenus testimony, its judgment or decree based upon that testimony is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment or decree is found to be plainly and palpably wrong. Thompson v. Hartford Accident and Indemnity Co., 460 So. 2d 1264 (Ala.1984). Ross v. Luton, 456 So. 2d 249 (Ala.1984). There is substantial evidence to show that Dixieland is owned and operated solely by Jonnie Mullis. All of the licenses were issued in her name. She made the arrangements to borrow the additional money necessary to establish the business, and there was no co-signer on her loan. She negotiated with the companies from whom she purchased products. Her husband had not purchased goods for the store, nor had he aided his wife in keeping up with the inventory, or in marketing, or otherwise by working as an employee.
This case is clearly distinguishable from the Daughtry case, supra, wherein a supplier of liquid petroleum was enjoined from selling wholesale products to, and from employing as a salesman, one who was violating a covenant not to compete. Here, there is no evidence that Jonnie Mullis has employed her husband to work in the convenience store. Also distinguishable is the case of Files v. Schaible, supra, in which there was evidence that Files, who had entered into an agreement with Schaible not to compete in the restaurant business, told a number of people prior to opening a competing restaurant (the "Ellis V") that he had managed to find a way to get around the noncompetition agreement. The chef at the Ellis V testified that he was instructed by Files to take orders from no one except Files. Files owned all of the restaurant equipment used at the Ellis V, and he negotiated for the purchase of the building in which the Ellis V was to be *730 located. Hunt, in whose name the Ellis V was operated, actually had been employed by Files as a waitress, and the evidence showed that Files managed the restaurant without her help. In that case, this Court held: "The transcript is full of evidence that Files had complete control and ownership of Ellis V and that Hunt was merely a front for Files in order to avoid the noncompetition clause in his agreement with Schaible." In this case, there is no evidence that Jonnie Mullis is a front for Jack Mullis.
The plaintiffs also contend that the contracts which they entered into with Jack Mullis were also for the benefit of his wife. They argue that, even though she did not sign the contracts, she received a portion of the sales proceeds pursuant thereto and that she must assume the burden of the non-competition covenants contained therein. Again, we disagree. Under the doctrine of "merger," ordinarily, in the absence of fraud or mistake, when a contract to sell and convey real estate has been consummated by the execution and delivery of a deed, as in this case, the preliminary contract becomes functus officio, and the deed becomes a sole memorial of the agreement, and upon it the rights of the parties rest; but the doctrine may be inapplicable to cases in which stipulations of the preliminary contract, instead of becoming merged in the deed, are incorporated therein and thus survive to confer independent causes of action, and in such instances the intentions of the parties is of paramount importance. Alger-Sullivan Lumber Co. v. Union Trust Co., 207 Ala. 138, 92 So. 254 (1922); Roberts v. Peoples Bank and Trust Co., 410 So. 2d 393 (Ala.1982).
The record on appeal does not contain the deeds that were executed by the Mullises;[1] therefore, we are unable to determine whether any references were made therein to the sales contracts. However, because the requested injunctive relief was denied, it is presumed that the trial court, upon examination, found that there were no such references. Aetna Insurance Co. v. Spring Lake, Inc., 350 So. 2d 397 (Ala. 1977). As a joint owner of the real estate sold, Jonnie Mullis was entitled to receive a portion of the sale proceeds.
Therefore, the judgment of the trial court is affirmed. AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., concur.
[1] Prior to this Court's receipt of the record, these exhibits were apparently misplaced. Our attempt to locate them proved unsuccessful. | November 1, 1985 |
ed65de87-cf3d-4e09-bcd1-c896c6c04749 | LEVERETTE BY AND THROUGH GILMORE v. Leverette | 479 So. 2d 1229 | 79-148 | Alabama | Alabama Supreme Court | 479 So. 2d 1229 (1985)
Melanee LEVERETTE, a non compos mentis, By and Through her guardian, Irene GILMORE
v.
Kyle R. LEVERETTE, as Executor of the Estate of Willie Wilkerson Leverette.
83-990.
Supreme Court of Alabama.
November 1, 1985.
*1230 Myron K. Allenstein, Gadsden, for appellant.
John B. Crawley, Troy, for appellee.
ALMON, Justice.
This appeal raises an issue of collateral estoppel. A consent judgment was entered in one of two consolidated cases. The trial court later granted summary judgment in the other case on the grounds that the consent judgment had disposed of both cases.
On September 25, 1978, Willie W. Leverette died, leaving a will. The executor named in the will, Kyle R. Leverette (a nephew of the testator), filed the will for probate. The probate court granted letters *1231 testamentary to Kyle Leverette and admitted the will to probate as the duly proved last will and testament of Willie W. Leverette.
On March 9, 1979, Melanee Leverette, the widow of the testator, filed a petition for removal of the estate from probate to circuit court and simultaneously filed a dissent from the will. The circuit clerk gave this action the docket number 79-148. We shall hereinafter refer to case number 79-148 as the estate action.
On August 24, 1979, the circuit court awarded the widow $50,000 as her distributive share of the estate and appointed commissioners to allot dower and homestead. On September 5 and October 12, the court entered orders confirming the reports of the commissioners. The executor filed a petition on October 26 for partial payment of executor's fees in the amount of $5,000. The court granted this petition on October 30. Further partial payments were made during the course of administration.
On July 18, 1980, the widow's attorneys withdrew as counsel. Her present counsel entered an appearance on August 28 and on that date filed a request for a hearing for the redetermination of the widow's distributive share as being all of the personal property of the estate, for a reconsideration of dower and homestead, and for an award of $2,000 as the widow's personal exemption under § 6-10-64, Code 1975.[1]
On November 26, 1980, the widow filed two subpoenas duces tecum to be served upon the First National Bank of Brundidge[2] and the Brundidge Banking Company, requesting production of certified copies of all accounts in the name of Willie W. Leverette and/or Melanee Leverette. The information disclosed by the banks revealed that they had paid large sums of money into the estate from accounts owned jointly by Willie and Melanee Leverette. First National Bank of Brundidge had held $52,599 in joint accounts at the date of the testator's death. Brundidge Banking Company had held approximately $94,137.
On February 17, 1981, the executor filed a proposed settlement of the estate. On the same day, the court set April 22 as the day for a hearing on this settlement.
On March 24, the two banks filed a complaint naming the widow and the executor as defendants. The circuit clerk gave this case the docket number 81-80. We shall refer to it as the banks' action. The parties refer to it as a declaratory judgment action, but the face of the complaint reveals it to be an action for an accounting of the money paid by the banks to the estate, with a prayer that the court would adjust the equities.
The complaint raised the proposition that, if this money were paid to the widow in her capacity as surviving joint tenant of the accounts, her separate estate would be larger than the distributive share and dower interest which she had received. It recited that she would not be entitled to these statutory interests and that the value she had received thereunder, $50,000 and the use of the real property endowed to her for life, should be credited against the amount due from the estate back to the banks and from them to the widow. The complaint alleged that the $50,000 distributive share had been paid out of the money the estate received from the banks. The banks' complaint, therefore, raised issues regarding the money from the bank accounts, the $50,000 distributive share, and the rental value of the lands awarded as dower.
On April 14 the widow filed in the estate action a paper by which she requested a redetermination of her distributive share, offered to do equity, and requested permission to reserve the right to revoke her dissent from the will. This paper recited that the executor had wrongfully seized from the banks about $150,000 which belonged to the widow, that from this money he had wrongfully paid executor and attorney fees, that repayment of this money *1232 might constitute a separate estate requiring a redetermination of personal property distribution, and that the widow would return any overpayment found by the trial court.
On the same day, the widow filed in the banks' action an answer to the complaint, a counterclaim against the banks, and a cross-claim against the executor. The counterclaim recited that the banks' payments to the estate constituted conversion, negligence, and/or breach of contract, and a willful or wanton disregard of the widow's rights; sought the return of the sums paid to the estate, plus $100,000 for mental distress, loss of income, and attorney fees, and $500,000 punitive damages; and included a demand for a jury trial on the issue of liability and damages, but not on the issue of how much money the banks had wrongfully paid to the estate. The banks filed motions to dismiss the counterclaim, and later filed answers.
The widow's cross-claim in the banks' action recited that the executor wrongfully took approximately $150,000 of the widow's money from the banks; that he had refused to return the money to the widow; that he had received interest on the money; that he had wrongfully paid executor and attorney fees from the money; and that his actions constituted conversion, negligence, and/or breach of duties of an executor, with willful and wanton disregard of the widow's rights. The cross-claim sought $300,000 compensatory and $500,000 punitive damages, and demanded a jury trial except on the accounting aspect. The executor filed a motion to dismiss and later an answer.
Also on April 14, the executor filed a motion to consolidate the estate action and the banks' action. On April 17, the court ordered "that Civil Actions CV 81-80 and CV 79-148 are consolidated for trial and disposition" and that the April 22 settlement hearing in the estate action would be continued to a later date. The clerk's office continued to keep separate records in the two cases.
On April 22, the executor filed an answer to the banks' complaint, admitting the allegations thereof, and a cross-claim against the widow, demanding the same relief as prayed for in the complaint.
Also on April 22, 1981, the widow filed in the estate action a revocation of her dissent from the will, stating that the executor had concealed from her the fact that she owned the deposits at the bank and that if she were deemed to have a separate estate it would be to her advantage to take her share under the will. The record in the estate action contains no further significant filings until March 1983. The principal causes of this lapse appear to be the declining health of the widow and the parties' concentration on the banks' action.
The record in the banks' action reflects that on May 14, 1981, the executor filed a notice to the widow to appear for her deposition at a certain office on June 17. On June 1, the widow filed a motion for a summary judgment against the banks ordering them to pay her the money from the accounts plus interest. On June 4, she filed a notice that she would be unable to appear for the deposition, attaching her doctor's certificate stating that she "has severe pulmonary and cardiac problems and frequent episodes of mental confusion." The banks opposed her summary judgment motion on the grounds that they could not ascertain essential facts until they took her deposition.
On October 1, 1982, the widow filed a request that the trial court set a trial date in the banks' action. On November 3 she filed a motion seeking to require the banks to pay funds into court on the grounds that they admitted they were holding over $100,000 of her money but disputed the exact amount, and that she needed the money for basic support because she was residing in a nursing home at an expense of $1,225 per month. On December 10 she filed a motion to sever the banks' complaint from her counterclaim and cross-claim, on the grounds that she needed the money for support and care, that the banks' complaint contained no jury issues but her jury trial *1233 demands were delaying the adjudication on the complaint, and that resolving the issues on the complaint would simplify the issues and save time.
The court ordered on December 14, 1982, "that all pending motions in the above civil actions [the order included the styles and docket numbers of the banks' action and the estate action] will be argued and submitted for ruling on Wednesday, January 5, 1983, at 9:00 A.M." At this hearing, the parties reached an agreement, which they executed on February 4. On that date Irene Gilmore filed a probate court order appointing her as guardian of the widow, the parties entered into a settlement agreement, and the circuit court entered judgment on the settlement agreement.
The trial court entered judgment on the agreement: it allowed the withdrawal of the dissent, set aside the awards of dower and homestead, vested the title to the lands in the estate, observed that the bank account sums had been paid to the clerk, and ordered the dismissal of the banks' action, including all counterclaims and crossclaims.
On March 15, 1983, the widow's guardian filed a petition in the estate action, requesting the following:
The will bequeaths all household and personal items to the widow; devises the couple's residence (this was not the house which had been allotted as homestead) as set out in paragraph 2, with remainder to the testator's brothers and sisters, per stirpes; and sets up two trusts to be established from the remainder of the estate. Trust A is to consist of
The trustee is instructed to pay to the widow the income and such portions of the principal as it deems necessary or desirable. She is to have a testamentary power of appointment over the principal remaining at her death. If she fails to effectively exercise this power, the principal is to pass into Trust B.
Trust B is to consist of the balance of the residuary estate, after payment of estate taxes. The Trustee is given the discretion whether to pay out or accumulate income. Income may be paid to the widow, brothers, sisters, nieces, or nephews of the testator, in the trustee's discretion. Upon the death of the widow, the trustee is to divide the principal among the brothers and sisters of the testator, per stirpes.
On May 19, 1983, the widow's guardian requested a hearing on her March 15 petition, adding a request for return of attorney and executor fees. The trial court set this petition for hearing on June 16. On June 15, the executor filed a motion to dismiss "the pleading filed herein by [the widow's guardian] because it fails to state a claim upon which relief can be granted."
On July 25, the widow's guardian filed another petition seeking property due her from the estate, including the personal property due her under the will, rents for the homeplace and the portion of the real estate which belongs in Trust A, interest on the $50,000 which she had credited back to the estate, and "[h]er share of interest earned by Executor on money mistakenly paid into estate." She contested (1) the past award of attorney fees and commissions calculated on the mistaken belief that the bank account sums belonged to the estate and (2) a debt owed to Brundidge Banking Company. Finally, she requested the division of the lands into the trusts and the settlement of "any other matters ... which may arise."
The executor moved to dismiss this petition, and then moved for a more definite statement. The guardian made each item more specific. As to the interest on the $50,000, she averred that as part of the settlement, the widow credited interest on this money from October 1979 to January 1, 1983, to the estate, but that this money should be returned to her because she was entitled to the $50,000 during that period. As to the debt owed the bank, the guardian averred that she had learned that the executor had borrowed money to pay the settlement, and this was not a just debt of the estate.
The executor filed an answer on December 22 and a motion for summary judgment on January 27, 1984. In support of the motion, the executor stated in an affidavit that "All of the facts and issues raised in this petition and amendment thereto were raised, discussed, negotiated, and disposed of by the ... JUDGMENT dated February 4, 1983 in case No. CV 81-80." He also stated that the widow's attorney was aware at the time of the settlement that the estate would have to borrow some of the money. Finally, his affidavit stated that the testator's will
The widow filed a response to the motion for summary judgment, stating, inter alia, that the parties to the settlement had agreed and announced in open court that the banks' action would be settled but not the estate action. It included affidavits to this effect. The response also stated that no interpretation of the trust provisions of the will had been made.
The widow also filed a proposed settlement with a hypothetical balance of $31,418.84. Most of this related to interest earned by the executor while holding the bank account money, the interest on the $50,000 which the widow had credited to the estate along with the $50,000, and rents received by the widow while holding the property awarded as dower and homestead. The proposed settlement also mentioned, however, that the trusts needed to be set up, that the legitimacy of the loan used to pay the settlement in the banks' action needed to be determined, and that the issue of whether real property should be sold needed to be addressed.
Finally, the widow filed one more petition, seeking reimbursement from the estate of the taxes she had paid on the dower and homestead property while she had held them.
After all these proceedings the trial court granted summary judgment for the estate:
The court entered a Rule 54(b), A.R.Civ.P., order of finality, and the widow filed a timely notice of appeal to this Court.
The late Justice Bloodworth, writing for the Court, set out the elements of res judicata and collateral estoppel in Wheeler v. First Ala. Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978):
*1236 (Citations omitted.) See Fisher v. Space of Pensacola, Inc., 461 So. 2d 790 (Ala.1984); Dominex, Inc. v. Key, 456 So. 2d 1047 (Ala. 1984); Amoco Production Co. v. White, 453 So. 2d 358 (Ala.1984); Abel v. Waters, 373 So. 2d 1125 (Ala.Civ.App.1979).
The causes of action in the two suits were different. The banks' action requested an accounting of the money mistakenly paid from the joint accounts to the estate and an adjustment of the equities. The widow's claims in the estate action derived from the probate of the will. Nevertheless, some issues arose in both suits, so the question before this Court is whether collateral estoppel precludes the widow from raising the claims of her petitions in the estate action.
The executor's brief discusses the issue as though the judgment on the settlement agreement decided both the estate proceedings and the banks' action and treats the petitions filed after that judgment as a new action. The record does not support such a position. The judgment recites that the banks' action is dismissed, together with all counterclaims and cross-claims filed in that action, but makes no disposition of the estate action. The subsequent petitions and other papers filed by the widow bear the same docket number as the original petition for removal of the estate into circuit court. The status of the case might have been clearer if the widow had denominated her filings as amendments of prior filings (especially of the original dissent) or as motions. See Rule 7, A.R.Civ.P. The substance of these petitions appears in their texts, however, as the foregoing detailed account attempts to show.
The foremost issue that was not resolved in the settlement agreement is the widow's share passing under the will. This was squarely at issue in the estate action after the revocation of the dissent, but not at all in the banks' action. The widow filed her request to revoke the dissent at the same time the banks filed their action, so her assertion, that if the bank accounts were deemed her separate estate she preferred to take under the will, was pending in the estate action during the entire course of the banks' action. The issue of what property she took under the will could not have been litigated in the banks' action.
For the judgment on the settlement to resolve this issue, it would have had to include adjudicatory language relating to the widow's rights in the estate action. The settlement could have recited that the widow waived her right to take any further property under the will, or that she agreed to the dismissal of her claims against the estate, but it did not. "Where several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment. Ala.R.Civ.P. 42(a) and Committee Comments." League v. McDonald, 355 So. 2d 695, 697 (Ala.1978).
The parties initially took this view of the settlement and judgment. The widow reactivated her claims under the will in the estate action within six weeks of the judgment dismissing the banks' action. The executor responded as though the widow's claims in the estate action were still pending. His motion for summary judgment, filed more than ten months after the widow's petition, appears to be an afterthought, not in keeping with the understanding of the parties to the settlement agreement.
For these reasons, the trial court erred in granting summary judgment against the widow on her claims for the testamentary life estate in the home and two acres, for the personal property due her under the will, for the establishment of the trusts, and for the claim of a $2,000 personal property exemption. The executor may be correct in saying that the listing of the joint property as a marital deduction in the estate tax return substantially decreases the amount of property passing into Trust A, but the will specifies that the trusts are to take effect as of the date of death. It therefore appears that the interest on the bank accounts earned after this date *1237 should not be counted against the amount to be placed in Trust A, so the issue is not ripe for summary judgment. In any event, the widow is a contingent beneficiary under Trust B, and the will requires the setting up of that trust for the widow's lifetime.
The properties received under the statutory rights of homestead, dower, and distributive share were at issue in the banks' action, however, because the widow offered to return these in the accounting necessitated by the discovery of her joint interest in the bank accounts. Because the settlement decided all of the rights and liabilities arising from the mistaken claim for and award of these statutory interests, the widow's various claims for rents, interest, and reimbursement of taxes must be deemed to be subsumed in that judgment and barred by collateral estoppel. Furthermore, the necessity of borrowing money to pay the settlement arose as a direct result of the consent judgment, so collateral estoppel applies to bar the widow from challenging this loan. As to executor and attorney fees, these are properly part of the estate action and were not decided in the consent judgment. Only issues actually decided in a former action are subject to collateral estoppel.
The trial court committed no error in granting summary judgment on the claims relating to the accounting of the bank deposits, the adjustments for the return of the properties taken pursuant to the dissent, and the loan for payment of the settlement. The trial court should have granted only partial summary judgment, however, because all of the widow's claims against the estate were not decided in the consent judgment. The judgment is therefore affirmed in part and reversed in part, and the cause remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and FAULKNER, BEATTY and HOUSTON, JJ., concur.
[1] Now repealed by 1982 Ala.Acts No. 82-399, p. 578.
[2] Kyle Leverette, the executor, was an officer of First National Bank of Brundidge, and was served the subpoena to that bank. | November 1, 1985 |
cd1091ef-3445-4234-b423-f956715358fc | Johnson v. Ala. Agr. & Mechanical University | 481 So. 2d 336 | N/A | Alabama | Alabama Supreme Court | 481 So. 2d 336 (1985)
Doris JOHNSON
v.
ALABAMA AGRICULTURAL AND MECHANICAL UNIVERSITY.
84-194.
Supreme Court of Alabama.
October 4, 1985.
Rehearing Denied January 10, 1986.
*337 Joseph L. Battle, Huntsville, for appellant.
Roscoe Roberts, Jr., Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
FAULKNER, Justice.
Doris Johnson filed an action against the Alabama Agricultural and Mechanical University, its president, and its trustees, seeking a declaratory judgment as to the validity of her removal from the faculty of that University. The trial court ruled that the plaintiff was not entitled to relief, and she appeals.
Johnson was a tenured member of the University's faculty. Her relationship with the school was governed by a faculty handbook, which provided the following procedure for terminating a tenured faculty member:
Mrs. Johnson was informed of the proposed termination by a letter from the University's vice president for academic affairs. The letter stated that Johnson had been charged with insubordination, disrespect for the dean of her department, refusal to follow approved procedures in addressing department affairs, and inability to cooperate with faculty and students. It listed the names of five persons as prospective members of a hearing committee which would determine Johnson's guilt or innocence of the charges. It informed Johnson that the president would choose three persons from among the names listed, unless Johnson voiced an objection to any of the prospective panel members by notification of the vice president's office. Although Johnson was allowed to present witnesses and cross-examine the University's witness, Johnson was not allowed to have legal representation during the hearing. The letter stated that the associate dean of Johnson's department would present the case against her; it gave a list of witnesses and it stated which of the charges each witness's testimony would relate to.
Johnson did not register objection to any of the prospective panel members. A hearing committee was chosen and it conducted a four-hour-and-fifteen-minute inquiry into the charges. The panel then rendered a written decision finding Johnson guilty of each charge. In light of Johnson's fourteen years of service to the University, the committee recommended that Johnson be allowed one more opportunity to correct the problems underlying the charges prior to terminating her.
The committee's findings were forwarded to the president, who presented the question of what action to take on the hearing committee's finding of guilt to a committee called the "Executive Officers for Planning" (E.O.P.). The E.O.P. is a committee charged with advising the president about goals, policies, procedures, and regulations for the University. The president, who is chairman of the committee, is not bound by the committee's decisions. He merely looks to it for advice. The E.O.P. sent Johnson a letter stating that it had decided to place her on "strict probation" and that she was to "cease and desist from" the behavior which led to the charges. The president testified that the letter constituted his decision.
Following the E.O.P.'s letter to Johnson, the associate dean of Johnson's department wrote the president a letter requesting a reconsideration of the E.O.P.'s decision. *338 The president then contacted Johnson and asked her if she agreed with the E.O.P.'s decision, and she replied that she did not. When asked if she would like to appear before the E.O.P. and explain her position, Johnson replied that she would. Johnson and the assistant dean were allowed to appear before the E.O.P. on separate occasions.
After the E.O.P. reconsidered the case, the president sent Johnson a letter dated February 4, 1983, stating that he had decided to postpone any action on the charges. The letter informed Johnson that pending a final decision she was relieved of her duties with pay. The letter purported to take the place of the earlier letter from the E.O.P.
On May 30, 1983, the president sent Johnson a letter stating that he had decided that the best interests of the University would be served by making the separation permanent. Johnson was officially terminated as of May 31, 1983.
On appeal Johnson argues that the University's policy of not allowing grievants to be represented by lawyers at termination hearings constituted a violation of her due process rights, citing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Board of Education v. Kennedy, 256 Ala. 478, 55 So. 2d 511 (1951).
This issue was not preserved by any ruling below and is, therefore, not before us. We observe, however, that it is undisputed that Johnson's tenured status constituted a property interest which was terminable only in accordance with due process of law. Due process requirements are not fixed; they vary according to the circumstances. Determining the due process rights of a grievant in an administrative hearing requires weighing the importance of the property right at stake and the possible value of any additional procedural safeguards against the government's interest in providing an efficient mechanism for determining the parties' rights. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). In this case we must weigh the value of legal counsel in protecting Johnson's reasonable expectations of future employment against the University's interest in having an efficient process of ridding itself of faculty members who are incompetent or who violate established rules and procedures.
The question of whether the due process guarantees of the Fifth and Fourteenth Amendments afford the right to legal counsel in an administrative proceeding is not susceptible to a simple answer. See 3 Davis, Administrative Law Treatise, § 14:17 (1980); Annot., Right to Assistance by Counsel in Administrative Proceedings, 33 A.L.R.3d 229 (1970). For instance, a recipient of assistance under the Aid to Families with Dependent Children program is entitled to a hearing at which counsel must be allowed to appear on the recipient's behalf before the aid can be terminated. Goldberg v. Kelly, 397 U.S. 254, 270, 90 S. Ct. 1011, 1021, 25 L. Ed. 2d 287 (1970). On the other hand, prison inmates do not have a right to be represented by counsel in prison disciplinary hearings. Baxter v. Palmigiano, 425 U.S. 308, 314-15, 96 S. Ct. 1551, 1555-56, 47 L. Ed. 2d 810 (1976); Wolff v. McDonnell, 418 U.S. 539, 570, 94 S. Ct. 2963, 2981, 41 L. Ed. 2d 935 (1974).
The authority on the question of the right of college professors to counsel in termination hearings is scant. In Frumkin v. Board of Trustees, Kent State University, 626 F.2d 19 (6th Cir.1980), the university allowed the professor to have an attorney present at the termination hearing but did not allow him to cross-examine witnesses or object to the introduction of evidence. His only role was to consult and advise his client and to present a closing argument. In ruling that the procedure did not violate the grievant's due process rights, the court agreed with the university's argument that due process did not require it to conduct a "full-fledged adversary trial." Since the university afforded the professor an ample opportunity to present his case to the hearing committee in a manner calculated to achieve a fair result, his due process rights were not violated. *339 The case of Toney v. Reagan, 467 F.2d 953 (9th Cir.1972), involved a non-tenured professor who claimed that he had been terminated as a result of the exercise of his First Amendment rights. Although he was not tenured, the professor was entitled to a termination hearing under state law. Although the grievance procedure specifically excluded lawyers from the proceeding, the court ruled that, in the absence of a showing of a special need for a lawyer by the grievant, the procedure was adequate.
In addition to the protections of the United States Constitution, the Alabama Constitution of 1901, Art. I, §§ 6 and 13, provides that persons are not to be deprived of property rights except by due process of law. Several Alabama cases have considered questions regarding procedural due process in administrative hearings, and there are dicta in some of those opinions from which an argument could be made for the proposition that under Alabama law the right to legal representation at administrative hearings is an incident to the right to due process. See Medical Services Administration v. Duke, 378 So. 2d 685, 686 (Ala.1979); Katz v. Alabama State Board of Medical Examiners, 351 So. 2d 890, 892 (Ala.1977); Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 482, 55 So. 2d 511, 514 (1951). The right to counsel was not at issue in those cases, however, so any language to the effect that there must be a right to counsel in order for there to be minimal compliance with due process guarantees is dictum.
All that is necessary to satisfy minimal due process requirements is that a person in jeopardy of serious loss be given notice of the charges against him and that he be afforded a meaningful opportunity to present his case to a qualified, impartial decision maker. The judicial model of a full-blown evidentiary hearing is not always required. "All that is necessary is that the procedures be tailored, in light of the decision to be made, to `the capacities and circumstances of those who are to be heard.'" Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 909, 47 L. Ed. 2d 18 (1976), quoting Goldberg v. Kelly, 397 U.S. at 268-69, 90 S. Ct. at 1020-21. In this case the University informed Johnson of the charges and of the names of adverse witnesses; it gave her an opportunity to object to any of the prospective panel members, to cross-examine adverse witnesses, and to present witnesses and evidence on her behalf. The only aspect of the procedure which arguably denied her a meaningful opportunity to present her case was the refusal to allow her to have legal representation. She did not, however, object to the absence of counsel prior to the hearing, and there is nothing in the record to indicate that she had any special need for representation. For these reasons, we do not reach the question of whether due process requires that a person be allowed legal representation if it is properly insisted upon. We agree with some of our sister states that college professors as a class are far less likely than welfare recipients, prison inmates, or other less educated persons to require the services of an attorney in holding a fair hearing. While the right to counsel may exist under these facts, it does not appear that Johnson preserved the issue for review.
Following the hearing committee's finding of guilt and its recommendation of probation, the E.O.P. and the president reviewed the case in order for the president to determine what course of action to take. In the course of reviewing the case, the president examined Johnson's personnel file and relied in part on the information in that file in deciding to terminate her. Johnson argues that the president of the University violated her due process rights by reviewing her personnel file. She argues that the president should not have been allowed to go beyond the record of the hearing in making his decision whether to terminate her or place her on probation.
The handbook provides that upon a determination of culpability by the hearing committee the president will make a decision as to the action to be taken. Since *340 the panel found Johnson guilty of offenses which constituted cause for her termination, the president was entitled at that point to terminate her if he had chosen to do so. Surely Johnson was not prejudiced by the president's action of reviewing her file before making a decision. With regard to the requisites of due process, it is not necessary in an administrative proceeding that the decision maker consider only evidence which would be admissible in a court of law. It is sufficient to consider evidence that "reasonable men are accustomed to rely on" in making rational decisions. Toney v. Reagan, supra, at 958. It stands to reason that the purpose of keeping personnel files is to provide information to be used in making decisions on employment matters such as this. Johnson had copies of most of the contents of the file and much of the file consisted of letters she had written and evaluation forms which contained her comments.
Finally, Johnson argues that the University was bound by the E.O.P.'s original decision placing her on probation and that since she did not violate the probation the president should not have terminated her.
Johnson's argument ignores the fact that she agreed to allow further hearings on the question of her status after the letter in question was sent. Implicit in her request to appear before the E.O.P. was a recognition that further hearings might result in a new decision by the president. Having sought relief from the original decision, she cannot now complain that a different decision was issued.
The trial court's judgment is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
ALMON, J., concurs in the result. | October 4, 1985 |
79ddd1b0-40ce-45f0-aea6-1d4d3db61dc2 | Gradco, Inc. v. St. Clair Cty. Bd. of Educ. | 477 So. 2d 365 | N/A | Alabama | Alabama Supreme Court | 477 So. 2d 365 (1985)
GRADCO, INC., et al.
v.
ST. CLAIR COUNTY BOARD OF EDUCATION.
83-589.
Supreme Court of Alabama.
October 4, 1985.
*366 John F. De Buys, Jr. of Corley, Moncus, Bynum & De Buys, Birmingham, for appellant Gradco, Inc.
Foster Etheredge and Ann McMahan Perry, of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellant U.S. Fidelity & Guar. Co.
William J. Trussell, Church, Trussell & Robinson, Pell City, for appellee.
ALMON, Justice.
The St. Clair County Board of Education (the Board) brought this action for breach of contract against Gradco, Inc., and its surety, United States Fidelity & Guaranty Company (USF & G). After a non-jury trial, the court awarded $55,254.39 to the Board against both defendants.
Gradco had contracted with the Board to perform landscaping work around the St. Clair County schools. After numerous delays, the Board terminated Gradco's right to proceed and hired another contractor to finish the job. The damages awarded were the increased cost of the new contract, plus liquidated damages based on the length of the delay, minus the retained amount owed to Gradco. Gradco argues that the Board prevented it from curing its breach by not considering a subcontract offer, that by this unreasonable refusal the Board failed to mitigate its damages, and that the liquidated damages provision in the contract imposed a penalty, not damages.
On October 5, 1977, Gradco entered into a contract with the Board whereby Gradco was to improve the sidewalks, curbs, grass, and general appearance of the grounds of the public schools in St. Clair County for $211,540.66. USF & G executed a performance bond and a payment bond on Gradco's behalf. The Soil Conservation Service (SCS) of the United States Department of Agriculture had prepared the plans for the work and supplied the form on which the contract between Gradco and the Board was written. SCS employees supervised Gradco's work and progress.
The Board gave Gradco notice to proceed on October 24. The contract called for work to be completed within 208 calendar days but also provided for winter shutdowns, which were not to be counted in the 208 days. Gradco began work in November and worked until the SCS declared a winter shutdown on November 21. The schedule called for Gradco to have performed 23% of the work by that time, but it had only completed 1.5%.
Before resuming in the spring, Gradco submitted a revised construction schedule. By May 27, 1978, Gradco should have finished 31% of the work, but had only finished 5.3%. On June 13, Gradco met with Jimmy Lee, the Board representative, and SCS employees to discuss the schedule. Mike Summers, the president of Gradco, explained that he was having difficulty finding a subcontractor to do the concrete work. The Board and the SCS gave him ten days to submit proposals for how he *367 could meet the schedule. Gradco sent a letter on June 22 listing steps that it would take to improve progress. Although it made these changes, Gradco continued to fall behind.
The parties held another meeting on August 25. Gradco was told to submit another revised schedule and that its work would be reviewed in another ten days. The SCS informed Gradco that if progress was not satisfactory at that time, Gradco's right to proceed would be terminated. Gradco submitted a revised schedule on August 30. On September 11, it had completed 23.3% of the work. The revised schedule called for completion of 35.8% by that time; the original schedule had called for 76%. On September 13, Jimmy Lee mailed a letter (dated September 12) terminating Gradco's right to proceed. Gradco received this letter on September 15. The Board also sent a copy of the letter to USF & G.
In August, Gradco had started talking to Ben Miree of Miree Construction Company about Miree's completing the work under a subcontract. They prepared such a subcontract, and Miree submitted it to the Board for approval by letter dated September 13. Larry McRae, the SCS inspector, had known since September 6 or 7 of Miree's interest in subcontracting the remaining work, but had refused to allow Miree's representatives to inspect the job sites. When Lee received the proposed subcontract, McRae told him not to sign anything and did nothing to ascertain whether Miree would be an acceptable subcontractor.
After terminating Gradco's right to proceed under the contract, the Board sent a letter to six or eight contractors requesting bids on the remaining work. The only bid it received was from Miree. The Board rejected this bid and sent another letter to the same contractors inviting negotiations. Again, Miree was the only bidder. The Board and Miree entered into a contract on January 18, 1979, whereby Miree was to complete the work for $212,726.15. Miree began work in April of that year and finished on January 7, 1980.
The Board filed this action against Gradco and USF & G, as surety, on September 2, 1980. After discovery, the parties tried the case without a jury. The trial court entered final judgment for the Board on November 7, 1983, awarding $55,254.39, against both defendants. Gradco and USF & G filed a timely notice of appeal to this Court.
The contract between Gradco and the Board gave the Board the right to terminate Gradco's right to proceed with the work if Gradco "fail[ed] to prosecute the work ... with such diligence as will insure its completion within the time specified in this contract, or any extension thereof...." The contract further provided:
The contract provided for liquidated damages in the amount of $83.00 per day, which was the amount the SCS calculated for the pay and expenses of its supervising personnel assigned to the job. The Board had contracted with the SCS for the supervision of this project, and these personnel expenses were part of the consideration the Board had to pay the SCS.
The damages awarded are exactly those calculated by the Board. The Board calculated its increased cost from having Miree complete the job at $52,423.29. It fixed the number of days of delay at 192. Gradco's completion date was November 17, 1978, and the winter shutdown date that year was December 10. The Board added these 24 days of delay to the 168 days that Miree took to complete the contract. Multiplied by $83.00 per day, this amount of delay resulted in $15,936.00 liquidated damages. The total of these two figures is $68,359.29. The Board owed Gradco $13,104.90 at the *368 time of termination, however, so the net amount of damages was $55,254.39.
The provision of the contract regarding subcontractors includes the following:
Gradco cites authorities for the proposition that "A contracting party obligates himself to cooperate in the performance of his contract, and the law will not permit him to take advantage of an obstacle to performance which he has created or lies within his power to remove." The actual statement in the cases cited is, "[A] party to a contract who has caused a failure of performance by the other party cannot take advantage of that failure." Dixson v. C. & G. Excavating, Inc., 364 So. 2d 1160, 1162 (Ala.1978); Lovoy v. Ratliff, 276 Ala. 156, 159 So. 2d 857 (1964); Selman v. Bryant, 261 Ala. 53, 72 So. 2d 704 (1954); World's Exposition Shows, Inc. v. B.P.O. Elks, No. 148, 237 Ala. 329, 186 So. 721 (1939).
The cited principle does not apply to this case. The Board did not prevent Gradco's performance; it cooperated over a period of eight months or more in allowing Gradco to try to accelerate its performance and to revise the schedule for the remaining work. The Board did not prevent Gradco's performance by refusing to consider Gradco's offer to subcontract the whole project when 76% of the work, but only 65 of the original 208 days, remained. Gradco's obligation was to perform the work, not to find a subcontractor. The Board had no obligation to accept a proposed subcontract in any event, and particularly not after the difficulty it had had with Gradco's performance.
Gradco further argues that the Board should have mitigated its damages by accepting the Miree subcontract. Gradco alleges that under the subcontract the Board would not have paid Miree any more than the remainder of the agreed consideration in Gradco's contract and could have avoided most of the delay in performance. The difficulty with this argument is that the Board had no way of knowing at the time it refused to consider Miree's subcontract that Miree would be the only bidder when the Board renegotiated the contract or that Miree's bid would increase the price by such a substantial amount. The Board might reasonably have decided not to risk accepting Gradco's offered subcontractor, considering, inter alia, that Gradco's principal excuse for delay was its inability to find a good subcontractor to do the concrete work. A party is obligated to mitigate damages only if they are reasonably foreseeable and the effort to avoid them will not entail undue risk. Neumiller Farms, Inc. v. Cornett, 368 So. 2d 272 (Ala.1979).
Finally, Gradco argues that the liquidated damages clause provides a penalty, not payment for damages. It further states that one of the requirements for a liquidated damages provision to be enforceable is that the actual damages are uncertain. Otinger v. Water Works and Sanitary Sewer Board, 278 Ala. 213, 177 So. 2d 320 (1965); Keeble v. Keeble, 85 Ala. 552, 5 So. 149 (1888). Gradco points out that the liquidated damages were calculated from the wages and expenses of the SCS employees assigned to the job, and argues from this that the actual damages could have been calculated from the number of extra days these persons worked.
The liquidated damages are not objectionable on either of these grounds. First, $83.00 per day of delay on a $212,000.00 contract is not an unreasonable amount. Otinger, supra. Second, the derivation of the figure from the SCS employees' compensation does not invalidate the damages on the grounds that the actual compensation was ascertainable. These figures provided a convenient point of reference and to some degree corresponded to the expense of the Board's having to pay for extra days of these persons' time. To the extent the liquidated damages did not actually *369 correspond to the expenses for SCS supervision, the difference is attributable to such intangible damages as the inconvenience to the St. Clair County students of having their school grounds in disrepair for an extended time.
USF & G has filed a separate brief, but the only separate issue which it raises concerns the letter by which the Board notified USF & G of Gradco's termination and gave USF & G the opportunity to take over Gradco's performance. USF & G argues that it refused to execute the take-over agreement because it would have impaired USF & G's rights under its bonds. The letter and the refusal had no effect on USF & G's obligation under its bonds, however, and the issue raised presents nothing upon which to reverse the trial court.
For the foregoing reasons, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, SHORES and HOUSTON, JJ., concur. | October 4, 1985 |
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