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4461bfb4-5c72-405e-aef1-9a90295bef6b | Nicholson v. Lockwood Greene Engineers, Inc. | 179 So. 2d 76 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 76 (1965)
Patricia Elaine NICHOLSON et al., pro ami
v.
LOCKWOOD GREENE ENGINEERS, INC., et al.
7 Div. 675.
Supreme Court of Alabama.
September 30, 1965.
*77 Henry E. Simpson, Birmingham, and Donald Lang, Sylacauga, for appellants.
Joe R. Wallace, Davies, Williams & Wallace, Birmingham, for Lockwood Greene Engineers.
Deramus & Johnston, Birmingham, for Bagby Elevator and Electric Co. and Lindsey A. Dean.
HARWOOD, Justice.
On 15 April 1963 Patricia Elaine Nicholson and Jeffrey Anita Nicholson, minor dependent children of J. D. Nicholson, deceased, who sued by their next friend and mother, Mrs. Juanita T. Nicholson, filed suit against Lockwood Engineers, Inc., Bagby Elevator and Electric Company, and Lindsey A. Dean, seeking damages for the alleged negligent death of their father, J. D. Nicholson.
The suit was filed under the provisions of Section 312, Title 26, Code of Alabama 1940, as amended, which section provides for suits against parties other than the employer where injury or death for which compensation is payable under Article 2 of our Workmen's Compensation Act was caused under circumstances also creating liability on the part of parties other than the employer.
Count 1 avers that on 18 February 1957, J. D. Nicholson, in the performance of his duties as an employee of Beaunit Mills, Inc., was electrocuted while working with an extension cord plugged into an outlet installed by the defendants Bagby and Dean under the supervision of the codefendant Lockwood Greene; that in 1951 Lockwood Greene contracted with Beaunit Mills to design and construct a plant for Beaunit, the electric systems of said plant to be used by the employees of Beaunit and without an inspection by Beaunit.
Count 1 further alleges that Bagby and Dean in 1952, installed the electrical system in the plant under the supervision of Lockwood Greene; that the defendants knew that if such electrical system was not properly installed it would be imminently and latently dangerous to the employees using same; that the defendants negligently installed the electrical system in a defective condition in that certain outlets, including the one used by J. D. Nicholson at the time of his death, were so connected as to cause electric current to be upon wires that should have been neutral and without current, thereby causing the shell of the electric light socket to be energized; that as a proximate result of such negligence, the death of J. D. Nicholson was caused when he received an electric shock in undertaking to replace a bulb in the socket of the extension light being used by him.
Count 2 adopts count 1 except that the words "knew, or should have known" are substituted for the word "knew" as it appears in count 1.
Count 3 adopts count 1 except that the words "that as a proximate consequence of the concurring negligence of the defendants aforesaid" are substituted for the words "that as a proximate consequence of said negligence" as they appear in count 1.
Count 4 adopts count 1 with certain minor changes not material.
The defendants demurred to the complaint, and to each count thereof separately and severally, and among the grounds assigned in support of the demurrers, and here argued, are:
The lower court sustained the demurrer to the complaint. Thereupon the plaintiffs took a nonsuit and this appeal is on the ruling to the demurrer.
While it is true that where a statute of limitations is sought to be interposed as a bar to an action at law, it must be specially pleaded and cannot be raised by demurrer (See Ellis v. Black Diamond Coal Mining Co., 265 Ala. 264, 90 So.2d 770), it was held in Woodward Iron Company v. Craig, 256 Ala. 37, 53 So. 2d 586, that there is no statute of limitations applicable to actions brought under Section 123, Title 7, Code of Alabama 1940, our wrongful death statute, notwithstanding Section 25, Title 7, Code of Alabama 1940, providing for a statute of limitations of two years for an action to recover damages for a wrongful act, omission, or negligence causing death.
Section 312, Title 26, Code of Alabama 1940, gives to the dependents of an employee killed under circumstances creating liability against a third party a right to bring an action against such third party.
Such action, when brought, must be deemed to arise under the wrongful death statute, (Section 123, Title 7, Code of Alabama 1940), for there can be only one action for wrongful death. Liberty Mutual Ins. Co. v. Lockwood Green Engineering Co., Inc., 273 Ala. 403, 140 So. 2d 821.
The last sentence of Section 123, supra, reads:
In Louisville and N. R. R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681, it is stated:
In Parker v. Fies and Sons, 243 Ala. 348, 10 So. 2d 13, it is stated that the two year period provided in the wrongful death statute within which a wrongful death action must be brought "is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof."
Counsel for appellants, plaintiffs below, argue that because of the provisions of Section 36, Title 7, Code of Alabama 1940, the appellant minors should be given the period allowed by law for the bringing of their action after the termination of their disability of nonage.
The fallacy of this argument is that Section 36, supra, relates to statutes of limitation, and not to actions, such as the present one, where the time within which the statutorily created cause of action is fixed in the act creating the right, and is of the essence of the right.
In Larry v. Taylor, 227 Ala. 90, 149 So. 104, the court stated that the chief contention was that the statute of limitations of one year as provided in Section 7570, Code of 1923, was not a bar to an action by dependent minor children of tender years at the time of their father's death. Section 7570, supra, now appears as Section 296, Title 26 of our present code.
It was argued that the one year limitation provided in Section 7570 was arbitrary, discriminatory and void under the Fourteenth Amendment of the Federal Constitution, and Sections 1, 6, and 22, of our Constitution *79 of 1901. In holding this argument untenable the court wrote:
The doctrine of this case would necessitate the conclusion that the ruling of the lower court was correct. Particularly is this true since there is no saving clause in Section 123, Title 7, or in Section 312, Title 26, suspending or excepting the operation of the two year requirement in which suit must be brought under Section 123, supra, (Wrongful Death Action Statute), even as to those claimants under disability at the time the cause of action accrues.
In the absence of a saving clause, expressed or implied, in a wrongful death act creating an otherwise nonexisting cause of action, it seems to have been the unanimous view of the courts of our sister states that minority of the plaintiff is not tolled by virtue of the provisions relating to general statutes of limitations wherein such minority does toll the operation of a pure statute of limitations. This for the reason that the time provision within which a wrongful death act is of the essence of the action, and also, such limitation affects the liability itself, and not merely the remedy. See Anthony v. St. Louis I. M. and S. R. Co., 108 Ark. 219, 157 S.W. 394; Elliott v. Brazil Block Coal Co., 25 Ind.App. 592, 58 N.E. 736; Goodwin v. Bodcaw Lumber Co., 109 La. 1050, 34 So. 74; Foster v. Yazoo and M. V. R. Co., 72 Miss. 886, 18 So. 380; Rutter v. Missouri P. R. Co., 81 Mo. 169; The Katahdin, D.C., 4 F. Supp. 180. See also 132 A.R.R. 293 for full annotation of cases dealing with exceptions to limitation prescribed by death statutes or survival statutes creating cause of actions.
In the present case the death of Mr. Nicholson for which damages are now sought occurred on 18 February 1957. Suit seeking damages was filed on 15 April 1963, over six years later. Under the governing legal principles this was too late by some four years. The judgment below is due to be affirmed.
Since the rights of the plaintiffs to damages given by Section 123 had expired two years after the death of Mr. Nicholson, the remedy also expired. This principle is totally dispositive of this review and we therefore refrain from consideration of the other points argued in briefs.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | September 30, 1965 |
05c2573d-0c87-4498-922c-df93b1ca9767 | Strickland v. State | 189 So. 2d 771 | N/A | Alabama | Alabama Supreme Court | 189 So. 2d 771 (1965)
William R. STRICKLAND
v.
STATE of Alabama.
6 Div. 226.
Supreme Court of Alabama.
September 30, 1965.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for petitioner.
Olin W. Zeanah, Tuscaloosa, opposed.
MERRILL, Justice.
The State petitioned for a writ of certiorari to the Court of Appeals, and we granted the writ. The defendant Strickland had appealed from a judgment of the Circuit Court of Tuscaloosa County denying his petition for writ of error coram nobis, and the Court of Appeals reversed the judgment on the ground that the circuit court accepted a plea of guilty without first ascertaining that the defendant had made an intelligent waiver of counsel.
*772 The defendant was indicted for escaping from custody (Tit. 14, § 153, as amended, Code 1940), was arraigned on May 26, 1961, and on arraignment, was asked if he wanted counsel and "he said, in effect, that he would arrange for his own lawyer by the time for trial." We note that this took place in 1961, nearly two years before the decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, which was decided on March 18, 1963, and one year before the Federal Supreme Court said, in Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962), that: "The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver." (We do not raise the point of retrospectivity of the Federal cases, but merely to show that the trial court was offering counsel to the accused even before those decisions).
We take the following language from the opinion of the Court of Appeals to mean that that was such an intelligent and understanding waiver: "Here, while it can be fairly said that Strickland waived the appointment of counsel on his original arraignment, nevertheless the next critical step leading to his conviction was when he changed his plea to guilty."
The sequence of events follows: Strickland had been convicted of assault with intent to murder, sentenced to two years in the penitentiary on December 31, 1960, placed on probation, which was revoked in April, 1961, and he was being held in the Tuscaloosa County jail, from which he escaped on May 16, 1961. He was apprehended, indicted for the offense of escaping and, on arraignment, intelligently and understandingly waived appointment of counsel to represent him, which was noted on the trial docket. On arraignment, he pleaded not guilty. Three weeks later, on June 13, 1961, he changed his plea from not guilty to guilty and was sentenced to four years. On July 22, 1963, he filed a petition for writ of error coram nobis, counsel was appointed for him; the cause was heard in March, 1964, and after making findings and conclusions of law, the trial court denied the petition; and petitioner appealed and was represented by appointed counsel on his appeal to the Court of Appeals and on the writ of certiorari in this court.
The question for decision here is whether the burden remains on the State to show affirmatively that the accused had counsel at every stage of the proceedings in his criminal case, when the accused made a competent, intelligent and voluntary waiver of counsel at the first stage of the proceedingshis arraignmentand the waiver was recorded on the trial docket.
We think the facts in this case justify a holding that the burden shifted to the defendant to request counsel if he desired one at a later proceeding in the same case.
The law, though not settled when the defendant was convicted of being an escapee, is now settled that he had a right to counsel beginning with his arraignment, and at every stage of the proceedings, including his plea of guilty unless he has made a competent, intelligent and voluntary waiver. But once he has made such a waiver, the burden ought to be on the defendant to show that he has changed his mind and desires the services of counsel.
A recent case of this court illustrates the wisdom of such a holding. The accused, represented by counsel, was convicted of robbery and, within six months, gave notice of appeal in writing and requested counsel and a transcript on appeal. The trial court denied the request and the defendant, in the penitentiary, petitioned this court for relief. When we had verified his account of the trial court's action, we reversed the judgment and remanded the cause to the trial court for proper action. Keeton v. State, 278 Ala. 81, 175 So. 2d 774. The defendant was not represented by counsel. This was a step or a stage in the proceedings *773 against him, but we did not consult with or ascertain from him as to whether he wanted counsel. We found merit in his petition and ordered remedial steps to insure that his case could be properly reviewed on appeal. Could it be reasonably asserted at some later time that he was deprived of his constitutional rights because he had no counsel in the proceeding before this court? We do not think so.
And just as we consider that Keeton was not deprived of a constitutional right when he had no counsel in his proceeding here, just so do we think that Strickland was not deprived of any constitutional right when he pleaded guilty to the escape charge without counsel after he had effectively waived right to counsel on arraignment and had not subsequently made a request that counsel be furnished him.
We think the case of Palumbo v. State of New Jersey, 3 Cir., 334 F.2d 524, is distinguishable from the instant case. There, one Mr. Armstrong had represented Palumbo in one case and the county prosecutor had asked him to represent Palumbo in two other cases. But the court did not assign these cases to Mr. Armstrong and Mr. Armstrong was present on the day of the trial and notified the court that he was not representing Palumbo. The court later received Palumbo's plea of guilty without appointing counsel. There, Palumbo had never had counsel in the two cases. Here, there had been an effective waiver by Strickland on the first occasion that he would have needed counsel to represent him.
One other matter deserves mention. The defendant was indicted under Tit. 14, § 153, as amended, Code 1940, which reads:
The opinion of the Court of Appeals contains the following:
1 Contrast Bradford v. State, 140 Ala. 150, 41 So. 471 (Anderson, J., for a unanimous court), with Bradford v. State, 149 Ala. 1, 42 So. 990 (Tyson, C. J., for the court, Anderson and McClellan, JJ., dissenting). These two cases have never been reconciled.
The offense denounced by Tit. 14, § 153, as amended, is essentially the same as in Sec. 4707, Code 1896, except that reference to hiring convicts is eliminated. It is true that the case of Bradford v. State, 146 Ala. 150, 41 So. 471, casts some doubt as to a conviction under Sec. 4707, but this court removed any doubt in the same case, Bradford v. State, 149 Ala. 1, 42 So. 990, and, after discussing the doubtful point said: "It follows, therefore, the former opinion in this case is wrong, and must be overruled." There has never been any need to reconcile the two cases; the latter simply overrules the former as to whether the indictment charged an offense under Sec. 4707, Code of 1896.
The judgment of the Court of Appeals is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, GOODWYN, COLEMAN and HARWOOD, JJ., concur. | September 30, 1965 |
15395241-1955-4f9a-9367-257aec812d5d | Anderson v. Howard Hall Company | 179 So. 2d 71 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 71 (1965)
Leona ANDERSON
v.
HOWARD HALL COMPANY, Inc.
6 Div. 897.
Supreme Court of Alabama.
June 24, 1965.
Rehearing Denied October 21, 1965.
John J. Smith and Geo. S. Brown, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a judgment of nonsuit taken on account of the sustaining by the trial court of defendant's demurrer to the complaint as amended. § 819, Title 7, Code 1940.
The judgment will support the appeal in that after sustaining the demurrer and noting the motion of the plaintiff for a nonsuit, it recites: "It is ordered and adjudged by the court that this motion be and the same is hereby granted and a nonsuit is ordered and the case is dismissed; costs taxed against the plaintiff for which execution may issue." While it is usual for such judgment entries to contain the words, "let the defendant go hence," that is the legal effect of the judgment in the instant case, though it is not so recited in terms. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Potts v. Ellis, 238 Ala. 155, 190 So. 73; Carter v. City of Gadsden, 264 Ala. 544, 88 So. 2d 689.
On April 5, 1958, Mrs. Leona Anderson was injured and her automobile damaged in a collision with a truck tractor being driven by its co-owner, one James Earl *72 Haynes. The truck tractor had been leased by James Earl Haynes and Glenora T. Haynes to Howard Hall Company, Inc., a corporation, on April 4, 1958.
Mrs. Anderson brought suit in the Circuit Court of Jefferson County against Howard Hall Company and against James Earl Haynes to recover for personal injuries which she suffered in the collision on April 5, 1958. Howard Hall Company was sued on the theory that at the time of the collision Haynes was an employee of that company who was then acting within the line and scope of his employment. In that case, No. 42927-X in the Circuit Court, Mrs. Anderson recovered a judgment against Haynes in the amount of $5,500. There was a verdict in favor of the defendant Howard Hall Company in accordance with the direction of the trial court. From a judgment in favor of Howard Hall Company, Mrs. Anderson appealed to this court. We affirmed. Anderson v. Howard Hall Co., Inc., et al., 272 Ala. 466, 131 So. 2d 417.
The execution which was issued on the judgment in favor of Mrs. Anderson against Haynes was returned "No Property Found."
Thereafter Mrs. Anderson brought this suit against Howard Hall Company to recover the amount of her judgment against James Earl Haynes on the theory that she was a third party beneficiary of an agreement by Howard Hall Company to procure public liability and property damage insurance covering the truck tractor which was involved in the collision.
The lease agreement, made an exhibit to the amended complaint, provides in pertinent parts as follows:
The amended complaint alleges that the policy of public liability insurance which the defendant Howard Hall Company carried on its own equipment at the time of the "injury complained of" contained provisions for coverage of bodily injury and property damage.
It is further alleged in the amended complaint that "the defendant breached said contract [lease agreement] by failing to provide Public Liability and Property Damage Insurance of the same type and limits as was carried on its own equipment," and that the plaintiff, Mrs. Anderson, "was at the time of said collision a member of the public and entitled to the protection of the quoted provision of said contract and that if the defendant had not broken its contract with the said James E. Haynes by failing to provide him with `Public Liability and Property Damage * * * insurance of the same type and limits as carried on its own equipment,' the plaintiff would have been protected by the coverage afforded the said James Earl Haynes."
The demurrer of Howard Hall Company takes the point that the amended complaint fails to show the right of Mrs. Anderson to maintain an action on the lease agreement under a claimed status as a third-party beneficiary.
The rule in this state, which is in accord with the great weight of American authority, is that a third person may enforce a promise made for his benefit even though he is a stranger both to the contract *73 and the consideration. Barlowe v. Employers Ins. Co. of Alabama et al., 237 Ala. 665, 188 So. 896; Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Fite v. Pearson, 215 Ala. 521, 111 So. 15; Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So. 2d 459; Mutual Benefit Health and Accident Ass'n of Omaha v. Bullard, 270 Ala. 558, 120 So. 2d 714.
But the question frequently arises as to when a contract will be considered made for the benefit of a third person, and the effect of our holdings is that the contract must have been intended for the direct benefit of the third person, as distinguished from a mere incidental benefit to him, in order to entitle such third person to sue for a breach of the contract. Wolosoff v. Gadsden Land & Building Corp., 245 Ala. 628, 18 So. 2d 568; Fidelity & Deposit Co. of Baltimore, Md., v. Rainer, 220 Ala. 262, 125 So. 55, 77 A.L.R. 13; Lovejoy v. Bessemer Waterworks Co., 146 Ala. 374, 41 So. 76, 6 L.R.A.,N.S., 429; Gulf Compress Co. v. Harris, Cortner & Co., 158 Ala. 343, 48 So. 477, 24 L.R.A.,N.S., 399; Shine v. Nash Abstract & Investment Co., 217 Ala. 498, 117 So. 47.
So the question is presented as to whether the amended complaint with the exhibit thereto shows that the promise of Howard Hall Company to provide "Public Liability Property Damage insurance" to cover the truck leased by it from the Hayneses was intended for the direct benefit of the public.
In connection with the argument that the question just posed should be answered in the affirmative, Mrs. Anderson in her brief cites and quotes from four of our cases. Barlowe v. Employers Ins. Co. of Alabama, supra; Tennessee Coal, Iron & Railroad Co. v. Sizemore, supra; Employers Ins. Co. of Alabama v. Johnston, supra; Fite v. Pearson, supra. The opinions in all of those cases are authority for the proposition for which they were cited above, that is, a third party may enforce a promise made for his benefit even though he is a stranger both to the contract and the consideration. But they are not helpful in answering the question presently before us, because in those cases all the instruments involved contained express language to the effect that they were made for the benefit of a class to which the plaintiffs belonged, while the lease agreement here sued on contains no such express language.
Mrs. Anderson, the plaintiff, relies upon two cases from other jurisdictions, James Stewart & Co., Inc., et al. v. Law et al. (Tex.Ct. of Civ.App.), 228 S.W.2d 601, affirmed by the Supreme Court of Texas, 149 Tex. 392, 233 S.W.2d 558, 22 A.L.R.2d 639; and Johnson v. Holmes Tuttle Lincoln-Mercury (1958), 160 Cal. App. 2d 290, 325 P.2d 193.
In the Stewart case, a corporationthe ownerentered into a contract with a contractor for the erection of certain buildings. The contract expressly obligated the contractor to maintain certain insurance, and also provided that in case any part of the contract was sublet by the contractor the latter should require of its subcontractor the maintenance of automobile liability insurance. The contractor sublet part of the work to a subcontractor, who in turn contracted with a truck owner for the hauling of gravel in connection with the performance of his subcontract. Neither the contractor nor the subcontractor required his respective subcontractor to carry automobile insurance and none was carried by the truck owner. While hauling gravel, the latter injured an employee of the owner, and the employee brought suit against the contractor to recover damages on the theory that the contractor had breached its contract with the owner by failing to see that all subcontractors carried automobile liability insurance and that he, the employee, was a third-party beneficiary of such contract. The court held the injured employee was a third-party beneficiary under the contract and as such entitled to maintain suit against the contractor.
*74 In the Johnson case, Phillip Caldera and his wife purchased an automobile from Holmes Tuttle Lincoln-Mercury. Shortly thereafter Phillip Caldera, while driving the automobile, was involved in an accident wherein Johnson and one Jones were injured and Johnson's car was damaged. Johnson and Jones filed separate actions against Caldera. Judgments were entered in each case against Caldera. These judgments remained unsatisfied. Johnson and Jones then brought an action against Holmes Tuttle Lincoln-Mercury, as third-party beneficiaries of an alleged oral agreement by Holmes Tuttle Lincoln-Mercury to provide public liability insurance on the automobile it sold to Caldera. Holmes Tuttle Lincoln-Mercury contended that it made no such oral agreement and defended on the further ground that even if it had made such an agreement, Johnson and Jones could not maintain actions thereon as third-party beneficiaries. The California court ruled against Holmes Tuttle Lincoln-Mercury on both grounds of its defense. In regard to the contention that Johnson and Jones could not sue as third-party beneficiaries, the California court, citing the Stewart case, supra, said:
The Stewart case, supra, was cited with approval in United Pacific Insurance Co. v. Meyer, 9 Cir., 305 F.2d 107, and the annotator in 22 A.L.R.2d at page 648 made this observation about the Stewart case:
The case of Mowrer v. Poirier & McLane Corp., 382 Pa. 2, 114 A.2d 88, seems to hold contrary to the Stewart and Johnson cases. It was decided after Stewart and before Johnson. The Mowrer case makes no reference to the holding in the Stewart case and the Johnson case does not refer to the Mowrer case. The Mowrer case is treated in an article in 17 Pittsburg University Law Review at page 483. In the Mowrer case the defendant contractor, Poirier & McLane Corporation, entered into a contract with the Commonwealth of Pennsylvania to construct a new dam. Plaintiff, Mowrer, bailed a tractor to the Hamilton Construction Company, one of the subcontractors on the project. The tractor was damaged, and plaintiff recovered a judgment against Hamilton, who was execution-proof. Thereafter, plaintiff sued to recover from defendant under the terms of the latter's contract with the Commonwealth of Pennsylvania, the theory being that plaintiff was a third-party beneficiary of the contract. The relevant portion of the contract was that defendant was obligated to take out and maintain such insurance as would protect it (the contractor) and any subcontractor from claims for personal injury and property damage which might arise from operations out of the contract. The defendant contractor did provide an insurance policy, but by virtue of an exclusion clause it did not cover the damage to plaintiff's tractor. The trial court found for the plaintiff. The Supreme Court of Pennsylvania reversed, finding that plaintiff was not a party intended to be benefited by the terms of the contract and that the insurance provision accrued to the benefit of plaintiff only as an incidental beneficiary with no right of action against either party.
*75 In Mutual Benefit Health & Acc. Ass'n of Omaha v. Bullard, 270 Ala. 558, 567, 120 So. 2d 714, 723, we said: "The intention of the parties disclosed by the writing and surrounding circumstances known to the parties, and not their motives, determines the rights of the third-party beneficiary. Rainer case, supra; 81 A.L.R. 1287."
In Fidelity & Deposit Co. of Baltimore, Md., v. Rainer, 220 Ala. 262, 266, 125 So. 55, 58, 77 A.L.R. 13, we observed:
It is reasonable to conclude that the Hayneses and Howard Hall Company realized at the time the lease contract was executed that the provisions therein requiring Howard Hall Company to provide liability insurance could prove beneficial to third persons. But that conclusion does not, in our opinion, justify the further conclusion that the requirements as to liability insurance were inserted into the lease contract for the direct benefit of such third persons, as distinguished from a mere incidental benefit. Wolosoff v. Gadsden Land & Building Corp., supra.
There is no language in the lease contract which justifies the conclusion that the requirements as to liability insurance were inserted for the direct benefit of third persons, and there are no averments as to "surrounding circumstances" which justify such a conclusion.
In Lovejoy v. Bessemer Waterworks Co., 146 Ala. 374, 41 So. 76, 6 L.R.A.,N.S., 429, we held that a resident of a city could not recover of a water company, under contract with the city to furnish water for fire extinguishment purposes, for damages by fire to his home occasioned by a failure of the water company to furnish water in accordance with the contract. We pointed out that there was a "want of privity" between the homeowner, the plaintiff, and the defendant water company. We quoted with approval from Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S.W. 784, 23 L.R.A. 146, as follows: "* * * the rule is not so far extended as to give to a third person, who is only indirectly and incidentally benefited by the contract, the right to sue upon it." (146 Ala. 381, 41 So., 77)
The contract which the City of Bessemer entered into with the waterworks company was unquestionably for the benefit of the citizens and taxpayers of the city, but the effect of our holding is that the benefit was incidental and not direct and since Lovejoy was not a privy to the contract he could not maintain a suit for property destroyed by fire by reason of the water company violating the contract with the City. Lovejoy's benefit under the contract might have been sufficient to have enabled him to maintain an appropriate action to compel the water company to perform a duty owing him under its franchise. See Alabama Water Co. v. City of Jasper, 211 Ala. 280, 100 So. 486, where that distinction was made after approval was given to the holding in the Lovejoy case, supra.
We think our holding in the Lovejoy case, supra, which has been followed and cited with approval in a number of our cases, is controlling here. We cannot say that the amended bill and the exhibit thereto shows that the parties to the lease contract intended that the requirement that Howard Hall Company provide liability insurance for the leased truck tractor was for the direct benefit of third persons.
In regard to the Stewart (Texas) and Johnson (California) cases, supra, we point out that no distinction is drawn in those cases between direct and indirect or consequential beneficiaries, while that distinction is pointed out in the Mowrer (Pennsylvania) case, supra.
*76 Mrs. Anderson not being a third-party beneficiary to the contract sued upon and having no other connection therewith, the court below acted correctly in sustaining the demurrer of Howard Hall Company to the amended complaint.
The judgment is affirmed.
Affirmed.
GOODWYN, MERRILL, COLEMAN, and HARWOOD, JJ., concur. | June 24, 1965 |
dd15546c-1257-49a5-a1b6-52aafc69b582 | State Farm Mutual Automobile Ins. Co. v. Vails | 177 So. 2d 821 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 821 (1965)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
J. G. VAILS et al.
6 Div. 839.
Supreme Court of Alabama.
August 12, 1965.
*822 Dominick, Roberts, Davidson & Donald, Tuscaloosa, and Rives, Peterson, Pettus & Conway, Birmingham, for appellant.
Clement, Rosen, Hubbard & Waldrop, Tuscaloosa, for Vails and Meaney.
E. W. Skidmore and Mize, Spiro & Phelps, Tuscaloosa, for Sauls, Adm'x.
GOODWYN, Justice.
This is an appeal by the complainant insurance company (State Farm) from a final decree in a declaratory judgment proceeding determining coverage under an automobile liability insurance policy issued by State Farm.
Two questions are presented, viz: Whether the trial court correctly held (1) that there was coverage and (2) that State Farm should pay attorneys' fees to the solicitors of two of the respondents in the declaratory judgment proceeding.
The named insured, M. J. Meaney, operates a flower shop in Tuscaloosa, Alabama, which adjoins his home. He employed William Henry Sauls and utilized his services both in his home and in the flower shop. Approximately 80% of Sauls' work was of a purely domestic character, while the remaining 20% was for the flower shop.
Meaney was one of ten persons who organized Tenfrenco Incorporated, a corporation engaged in selling and installing swimming pools. Tenfrenco had certain material and equipment located in a warehouse in Tuscaloosa which it wanted moved to property owned by George W. Dockery, Jr., one of the incorporators and president of Tenfrenco. In a conversation with Dockery, Meaney agreed to lend his truck, insured under the policy in question, to Tenfrenco for the purpose of moving this material and equipment, and agreed to obtain someone to help load and unload the truck. To this end, Meaney directed Sauls to help J. G. Vails, a regular employee of Tenfrenco, move the material and equipment.
On the morning of the accident here involved, Meaney accompanied Vails and Sauls to the warehouse and instructed them in their duties. Later in the day, when Vails and Sauls were hauling a load of the material and equipment, Sauls fell from the bed of the truck, sustaining the injuries from which he died. There was evidence that Sauls worked under the direction of *823 Vails while doing the moving. There was also testimony to the effect that Sauls was to be paid by Tenfrenco for the time spent in moving the material and equipment belonging to it. However, no payment was ever made by Tenfrenco. Meaney paid approximately one month's wages to Sauls' widow after Sauls' death. Sauls was not covered by workmen's compensation.
Lola Sauls, as administratrix of Sauls' estate, brought suit against Vails and Tenfrenco seeking damages under the homicide statute. State Farm then initiated the declaratory judgment proceeding now before us seeking a declaration that it is not obligated to defend said suit. Meaney, Vails, Tenfrenco, and Lola Sauls, as administratrix, were made respondents to the bill.
State Farm's insistence that the trial court erred in holding there was coverage is based on the following exclusionary provisions of the policy, viz.:
"EXCLUSIONSINSURING AGREEMENTS I and II
"This insurance does not apply under:
As we understand State Farm's position, its denial of coverage is based on two grounds: First, Sauls was Tenfrenco's employee at the time of the accident and coverage is excluded under clause (e) because Sauls was injured by another employee (Vails) of the same employer (Tenfrenco), Tenfrenco being an additional insured under the policy; and, second, even if Sauls was still in Meaney's employ at the time of the accident, coverage is excluded under clause (f) because the injury did not arise out of and in the course of Sauls' domestic employment.
As to the first ground, State Farm asserts that the trial court erred in finding that Sauls was employed by Meaney at the time of the accident. The applicable portions of the findings are as follows:
"5. The Court further finds that on December 22, 1959, the date of the *824 motor vehicle accident, the named insured, M. J. Meaney, allowed and consented for Tenfrenco, Incorporated, one of the Respondents in this cause, to borrow and use the motor vehicle insured under the aforesaid policy of insurance, namely the 1959 Chevrolet pickup truck; and said motor vehicle was delivered by the named insured, M. J. Meaney, to the Respondent J. G. Vails, who was then and there an employee of the Respondent, Tenfrenco Incorporated, and the Court finds that under the aforesaid circumstances while the Respondent, Tenfrenco Incorporated, a Corporation, had said pickup truck under the exclusive care, custody and control of its employee, J. G. Vails, the said William Henry Sauls, a domestic employee of the named insured, M. J. Meaney, suffered personal injuries resulting in his death, caused by a motor vehicle accident arising out of the use of the insured motor vehicle as aforesaid. The Court specifically finds that on December 22, 1959, and prior thereto, the said J. G. Vails by the great preponderance of the evidence was the employee of the Respondent, Tenfrenco Incorporated, a Corporation, and was acting within the line and scope of his employment for the Respondent, Tenfrenco Incorporated, a Corporation, at the time of the motor vehicle accident on December 22, 1959, resulting in personal injuries and death to William Henry Sauls, the domestic employee of the named insured, M. J. Meaney.
We think the trial court's determination was correct. Its finding that there was no consensual relationship between Sauls and Tenfrenco, sufficient to create an employer-employee relationship between them, finds support in the evidence. For a new relationship to be created there must be an agreement between the employee and the new employer. We find no such agreement between Sauls and Tenfrenco. As said in Jeffrey Manufacturing Company v. Hannah, 268 Ala. 262, 265-266, 105 So. 2d 672, 674:
"* * * It seems to be quite generally agreed that in order to transfer the employer-employee relationship from the general employer to the one to whom the employee is loaned there must be some consensual relationship between the loaned employee and the employer whose service he enters sufficient to create a new employer-employee relationship. Where an employee enters the service of another at the command and pursuant to the direction *825 of the master, no new relationship is necessarily created, * *."
In United States Steel Corp. v. Mathews, 261 Ala. 120, 124, 73 So. 2d 239, 242, we had occasion to review the law in this field. Especially applicable to the case at bar is the following:
Here, Sauls was performing the business entrusted to him by Meaney. We see nothing in the evidence sufficient to rebut the inference that he remained in Meaney's employ.
Appellant makes much of the fact that Sauls performed the work under the direction of Vails, Vails concededly being an employee of Tenfrenco. We do not feel that this point is decisive. As was said in Mathews, supra (261 Ala., at 123-124, 73 So. 2d 239, 242):
Here, of course, there was no large undertaking; but the distinction between the reserved right of authoritative control and the mere giving of directions is nonetheless valid. In Alabama Power Company v. Smith, 273 Ala. 509, 521, 142 So. 2d 228, 239, we said that "[t]he fact that the borrower gives information and directions to the servant as to details of work or the manner of doing it does not make this general servant of the employer the servant of such other person."
*826 Appellant next insists that coverage is excluded by clause (f). In this connection, and for the purpose of this argument, State Farm does not dispute the trial court's finding that Sauls was a domestic employee within the meaning of the term as used in the policy and does not deny that the injury arose out of and in the course of Meaney's employment. Rather, the contention is that there is no coverage because the injury did not arise out of and in the course of Meaney's domestic employment; that is, coverage is excluded unless the employee is actually engaged in domestic work at the time of the accident. Such result would require the following construction of the clause, viz.:
Appellees, on the other hand, contend that the correct construction is as follows, viz.:
We feel that the clause is reasonably susceptible to either interpretation. In that situation, the rule is that the construction which is favorable to the insured will be adopted. See: State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. 32(4), 166 So. 2d 872. We hold that exclusion clause (f) does not require that the injury arise out of and in the course of domestic employment as a condition to coverage, that Sauls was a domestic employee of Meaney, and that his injury arose out of and in the course of Meaney's employment.
We find no error in the trial court's decree declaring that State Farm is obligated, under the provisions of its policy, to defend the suit at law and to pay, to the extent of the limits of the policy, and judgment rendered therein.
The other question presented is whether it was error to award attorneys' fees to the solicitors for the respondents Meaney and Vails. The holding in the recent case of Clark v. Exchange Insurance Association, 276 Ala. 334, 161 So. 2d 817, resolves this issue against the making of such award.
The decree will be modified so as to disallow the award of the attorneys' fees. As so modified, the decree is affirmed.
Modified and affirmed.
LAWSON, SIMPSON and COLEMAN, JJ., concur. | August 12, 1965 |
a4ff13bd-af54-48ad-aceb-d4fc76eb40e7 | Boatright v. Dothan Aviation Corporation | 176 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 500 (1965)
Deloris B. BOATRIGHT et al.
v.
DOTHAN AVIATION CORPORATION, Inc.
4 Div. 174.
Supreme Court of Alabama.
June 17, 1965.
*501 Merrill & Harrison, Dothan, for appellants.
Lee & McInish, Dothan, for appellee.
LIVINGSTON, Chief Justice.
The appeal is from a judgment for the defendant in a workmen's compensation case. It is admitted that the elective compensation laws of Alabama, Secs. 253-313, Title 26, Code of Alabama 1940, are applicable to the parties to this proceeding.
The defendant, Dothan Aviation Corporation, Inc., is a corporation engaged in, among other things, the business of crop dusting. It owned and operated several airplanes which it used in its crop dusting, and employed several commercial pilots to operate these dusting machines. Bobby Jack Boatright was employed by defendant as a mechanic's helper. He also received flying instructions from some of the commercial pilots. These instructions were given to Boatright during his off hours from his work as a mechanic's helper, that is to say, during his lunch hours and on Saturdays and Sundays. It is immaterial for the purposes of this case as to how the defendant was compensated, if it were compensated, for these instructions.
On May 27, 1960, the president of the defendant company gave Boatright instructions *502 not to fly these planes solo again until he had had more dual-control instruction. The next day, May 28, 1960, Boatright took one of the planes up during his lunch hour contrary to these instructions. The plane crashed and Boatright was killed. He was survived by his widow and two dependent children. The widow and two dependent children filed this suit under the Workmen's Compensation Act.
The complaint so far as material here, alleged, in substance, that Boatright was killed while acting in the line and scope of his employment with said defendant; that he suffered an accident which arose out of and in the course of said employment, resulting in his death; that the said defendant has had due notice of said accident and the resulting death of said Boatright; the said accident being occasioned by the falling of an airplane owned by the said Dothan Aviation Corporation, Inc., a Corporation, and being piloted or driven by the said Boatright, deceased, which fell between Dothan, Alabama, and Headland, Alabama, and Boatright was instantly killed.
To the complaint, the defendant interposed a plea denying all of the allegations of the complaint. The defendant also filed a plea which, in substance, alleged that the death of Boatright resulted from the operation of an airplane, the property of the defendant, without permission of the defendant and contrary to specific instruction of Hugh W. Wheelless, President of the defendant corporation, not to fly said airplane "solo" again until he had received further dual-control instruction. Defendant further avers that the said Boatright willfully breached said instruction which was a reasonable rule, instruction or regulation of his employer, and which said instruction Boatright had knowledge. Defendant further averred that the death of Bobby Jack Boatright was caused by the willful misconduct of the said Bobby Jack Boatright in operating said airplane in an unsafe and dangerous manner in that he was making low passes at an altitude of approximately 20 to 30 feet above a cotton field contrary to safe operating procedure, and which was known to said Boatright and which was done outside the course of his employment and which did not arise out of his said employment.
The evidence was heard ore tenus before the trial court which found the following facts, among other facts not here material:
It is axiomatic that on certiorari to review judgments in compensation cases, this Court will not look to the weight of the evidence as to any fact found by the trial court, but simply to see if there is any evidence to support the facts found by the trial court, and this applies when the award of compensation is denied as well as where there has been a judgment favorable to the plaintiff. Our review here on certiorari *503 is confined to questions of law apparent from the face of the record. Where testimony is conflicting but there is testimony supporting the finding of the trial court in proceedings under the Workmen's Compensation Act, such finding is conclusive. Bass v. Cowikee Mills, 259 Ala. 391, 67 So. 2d 12, and cases therein cited.
Section 304, Title 26, Code of Alabama 1940, provides that the judgment "shall contain a statement of the law and facts and conclusions as determined by said judge."
This Court, in reference to this section, has said that there must be a finding of every fact necessary to sustain the judgment of the court except what is admitted in the answer.
The statute contemplates not a recital of the evidence, with its conflicting lights and tendencies, but a determination by the trial judge of the facts established by the evidence, responsive to the issues presented, with the conclusion as to whether the facts found establish or fail to establish the liability asserted; and there should be a finding of every fact necessary to sustain the judgment of the court. Head v. Triangle Construction Company, 274 Ala. 519, 150 So. 2d 389, and cases therein cited.
Sec. 270, Title 26, Code of Alabama 1940, provides that:
The section further provides that if the employer defends on the ground that the injury arose in the above-stated way, the burden of proof shall be on the employer to establish such defense.
Section 254, Title 26, Code of Alabama 1940, provides, in pertinent part:
Appellant argues that the facts found by the trial court are based on evidence that was inadmissible under Sec. 433 of Title 7, Code of Alabama 1940, commonly known as the dead-man's statute. This argument is based on the premise that the evidence concerning the giving of the order or instruction by Mr. Wheelless to Boatright not to fly the plane again "solo" until he had received further dual-control instruction was inadmissible, and was admitted over the timely objection of appellant.
The evidence was admissible for the simple reason that an action under the Workmen's Compensation Laws is purely statutory and the estate of the deceased is not interested in the results of the suit. Sec. 253, Title 26, Code 1940; Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So. 2d 21. It is also argued by appellant that said instruction was merely advisory, or meant to be persuasive only, and did not arise to the dignity of an order, instruction or regulation by the employer. Suffice it to say, that the trial court found contrary to this argument and there is ample evidence to support his finding.
Assuming for the sake of argument only that the employee was performing services for the employer in the line and scope of his authority, and that the accident *504 which killed Boatright arose out of and in the course of his employment, the evidence is ample to support a finding by the trial court that at the time Boatright was killed he was knowingly violating a reasonable rule, regulation or order of his employer which constituted willful misconduct of the deceased. Sections 254 and 270, Title 26, Code of Alabama 1940.
We have pretermitted the consideration of appellee's motion to dismiss because our affirmance of the case renders it unnecessary.
There is no sort of doubt but that the trial court found every fact necessary to sustain the judgment of the court below and the judgment is due to be, and is, affirmed.
Affirmed.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | June 17, 1965 |
7817afda-2920-4643-a885-f5d1bfd3612d | State v. Air Conditioning Engineers, Inc. | 174 So. 2d 315 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 315 (1965)
STATE of Alabama
v.
AIR CONDITIONING ENGINEERS, INC.
1 Div. 194.
Supreme Court of Alabama.
April 15, 1965.
*316 Richmond M. Flowers, Atty. Gen., Willard W. Livingston and Herbert I. Burson, Jr., Asst. Attys., Gen., for the State.
Vickers, Riis, Murray & Curran, Mobile, for appellee.
HARWOOD, Justice.
The sole question involved in this review is whether an air conditioning contractor must pay a sales tax only upon the value of the sheet metal he uses in constructing a completed air conditioning duct system, or is the tax to be computed upon the value of the parts and components in their changed state after the contractor has bent, crimped, and partially shaped the sheet metal as component parts of the finished duct system, which partially finished parts are later taken to the job site where they are further shaped, bent, fitted, and connected into the finished duct system which is affixed to realty.
Section 786(2) (m) of Title 51, Code of Alabama 1940, (Sales Tax Statutes) provides:
The lower court found that the appellee, Air Conditioning Engineers, Inc., in such process "is not a manufacturer within the meaning of said statute," (Sec. 786(2) (m), supra, "in that it does not manufacture a finished product the reasonable value of which can be ascertained, but that appellant" (appellee here) "in fact is a contractor using building materials in the performance of a construction contract, which building materials are taxable to *317 appellant" (appellee here) "at the cost price to it under Title 51, Section 786(2) (j), and therefore the court is of the opinion that the assessment of the additional sales tax cannot be sustained."
Section 786(2) (j), supra, in parts pertinent to this review provides:
In the proceedings below J. H. Hastie, President of the appellee company testified that the appellee company is the sub-contractor for the installation of air conditioning duct systems, and as such it is charged with the responsibility of making a complete installation of a duct system in a particular building. An architect prepares the general contract drawings, as well as a mechanical consultant. These plans are for a specific duct system. From these drawings the appellee makes up shop drawings for the metal that would be applicable. The appellee's shop then takes these drawings and will form, in the shop, certain portions of the duct system. The duct system cannot be made in the shop because it could not be assembled there. When these parts go to the job they are in various forms and shapes, "either knocked down, not seamed together, sometimes they are round, sometimes they are welded together." When these parts arrive on the job, in pieces, they are put together. Frequently they fit, and quite frequently they do not. If they do not fit, they have to be reshaped and trimmed. Quite frequently they have to be thrown away.
Where standard lengths of ducts are available on the open market, it is economically advisable to buy such standard shapes, and this is done when feasible. The parts which are prepared in the shop are those which are made according to the specifications of the particular job and are not standard due to the peculiarities of the specifications.
The items produced in the shop are not finished products, and there are no retail sales made of these items. Where, due to human error, a component of a certain duct system does not fit, it is good for nothing except the trash pile and is thrown away.
Mr. Hastie further testified that the method of partially preparing the component parts such as is done by the appellee, is known in the air conditioning contracting business as fabricating rather than manufacturing.
The application of taxing statutes must be bottomed upon, and considered in the light of each particular situation, bearing in mind that in case of doubt a tax law should be liberally construed in favor of the taxpayer. Montgomery Aviation Co. v. State, 275 Ala. 266, 154 So. 2d 24.
Counsel for the state have set forth in their brief a large number of definitions of the word "manufacture" taken from the cases from which the definition is quoted. These may be found in 26 Words and Phrases, and we see no need to quote these definitions in extenso. The term "manufacture" in its broadest sense implies any change wrought by hand. Such a broad implication serves no useful purpose in a solution of the present question. In taxation statutes the word "manufacture" is generally given a narrower meaning. *318 Armature Exchange v. United States, D.C., 28 F. Supp. 10, and several of the definitions of "manufacture" assert that the transformation into a new form must be such as the new article has a "distinctive name, character, or use" (Charles Marchand Co. v. Higgins, D.C., 36 F. Supp. 792; City of Louisville v. Ewing Von-Allmen Dairy Co., 268 Ky. 652, 105 S.W.2d 801) or "into a suitable form for use" (Cullom v. Stevens, D.C., 46 F.Supp. 73).
Counsel for the respective parties have cited, excerpted, and argued many authorities to sustain their respective contentions that the objects prepared by the appellee were or were not "manufactured." We see no need to resort to these decisions however, for in our opinion the clear language and import of the language of the statutes is fully supportive of the conclusions reached by the court below.
The evidence shows without dispute that the partially fabricated components of a specific air conditioning duct system have no use or value in their individual state, and are useful only when integrated into a completed duct system and affixed to realty. The appellee is not manufacturing a finished product saleable on the market and having any market value. The sheet metal used by the appellee in partially fashioning these component parts and upon which the appellee has paid all sales taxes due, is "used and consumed" in such operation at this juncture.
The evidence further shows that the appellee is a contractor who purchases and pays a sales tax upon sheet metal for use in affixing it to real estate. Section 786(2) (j), supra, is clear that such withdrawal and use of the sheet metal constitutes the retail sale, with the sales tax being determined upon the value of the sheet metal at the time of this retail sale.
It is also to be noted that the Department of Revenue has promulgated certain Rules and Regulations implementing Sections 786(2) (j) and 786(2) (m), supra.
These rules are entirely too long to set out in full in this opinion, and we therefore will set forth only those provisions material to this review.
The Rule on Building Materials, implementing Section 786(2) (j) in part provides:
The Rule and Regulation (B 27-081) implementing Section 786(2) (m) in part provides:
"Section 1(m) applies to metal awnings (A23-012), metal car ports, and other similar permanently attached additions to buildings when the components are prefabricated at the shop, plant, or mill of the contractor. This *319 subsection does not apply when the materials are cut and fitted on the job site for attachment as construction progresses. Examples of materials not coming within the provisions of Section 1(m) are siding, roofing, flooring, inside trim, except where the contractor is the manufacturer from raw materials of such siding, roofing, flooring."
It is clear under these rules that one manufacturing a standard finished product, and who as a contractor installs such finished product is liable for a sales tax on the value of the completed and finished product. The examples set forth in the rule of metal awnings, car ports, etc., which are completely finished and standard items, represent the ideas of the Revenue Department, and distinguish such products completely from items only partially fabricated, and entirely unusable until integrated into a completed whole, and usable product, in this case a completed air duct system.
It appears that the above mentioned Rules and Regulations, promulgated by the Department of Revenue can only be rationally considered as reinforcing the correctness of the trial court's conclusions.
The appellant argues that because the appellee kept no record as to the market value of the partially fabricated components of the air duct system, the appellee should suffer the penalty of non-compliance in the matter of keeping such tax records, a burden placed upon the taxpayer by Section 786(8), Title 51, Code of Alabama 1940.
Mr. Wayne L. Long, a Revenue Examiner for the State Revenue Department, and who audited and examined appellee's records, testified that the records kept by the appellee were excellent, except in their failure to show the market value of the component parts of the air duct system in their partially completed state.
Since these parts are not to be considered as "manufactured" and since under the undisputed evidence these parts are useless until they become a part of a completed air duct system, and in their individual state have no market value, there was no duty on the part of the appellee to reflect a non-existent market value on such items in its records.
The decree of the lower court is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | April 15, 1965 |
3ac8e7b1-0c84-4ec6-abb0-a841cd568c28 | Howell v. Hallett Manufacturing Co. | 178 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 94 (1965)
Howard L. HOWELL et al.
v.
HALLETT MANUFACTURING CO., Inc.
1 Div. 286.
Supreme Court of Alabama.
August 5, 1965.
Rehearing Denied September 2, 1965.
*95 Howell, Johnston & Langford, Mobile, for appellants.
J. Jeptha Hill and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellee.
MERRILL, Justice.
This appeal is from that part of a decree which established a materialman's lien in the amount of $4,113.63 on an undivided one-half interest in a house and lot, known as Lot 22 in the Belle Chene Subdivision in Mobile.
Appellee Hallett Manufacturing Company, Inc., the materialman, sold lumber and building materials to William G. Choron, Jr., a contractor, who was building four or five houses at the same time, one of which was on Lot 22, the property here involved. At the time the materials were delivered, title was in Choron and wife. On April 17, 1963, Choron and wife transferred title to appellants, Howard L. and Lulie J. Howell. The Howells financed the purchase of the house by executing a mortgage to appellant Molton, Allen & Williams for $21,000, on April 17, 1963.
Appellee filed its claim of lien in the probate court on June 24, 1963, and filed suit on August 22, 1963. The court granted the lien on an undivided one-half interest in the amount of $4,113.63 and entered judgment against Choron for a similar amount. Choron did not appeal the judgment against him.
The most important question is presented by assignments of error one and two, which charge that the court erred in decreeing a lien against the Howell's interest because the suit was not filed within six months from the time that the indebtedness, which is the foundation of the claim, had matured as required by Tit. 33, § 42, Code 1940.
Appellants contend that the date the last material was furnished to the contractor on the job on Lot 22 was February 14, 1963, and since suit was filed on August 22, 1963, more than six months elapsed between those two dates, and no suit was commenced within six months after the maturity of the entire indebtedness secured thereby.
We have said that to secure enforcement of his remedy under Tit. 33, § 42, the mechanic or materialman must (1) file notice of his lien claim within six months, and (2) commence suit within six months after the maturity of the entire indebtedness. We also said that a debt is mature when it accrues so as to be due and payable. Home Federal Savings & Loan Ass'n v. Williams, 276 Ala. 37, 158 So. 2d 678.
Appellants also rely on the statement in Lane & Bodley Co. v. Jones, 79 Ala. 156:
Appellants insist that since both Choron and Hallett testified that the indebtedness matured from the delivery of the last item, and that date was February 14, 1963, the lien could not be enforced against appellants.
Appellee argues that the whole record and course of dealing of the parties show that the indebtedness was not intended to mature until the construction on each house was completed, which was in April; or upon a full statement of the account to Choron, or at least until the discount date which on many bills was "2% 10 days;" and a final contention that the last item was delivered on February 22, 1963, which was within the six months' period.
*96 We pretermit discussion of any of appellee's contentions except the last. As we view the evidence, it was strictly a question of fact whether the last materials were delivered on February 14 or February 22. The evidence was conflicting on this point and there was evidence to support delivery on February 22.
A reviewing court must indulge all reasonable presumptions in favor of the trial court's findings when evidence is heard ore tenus, and this court will not substitute its judgment for that of the trial court on the effect of conflicting evidence dealing with a pivotal question of fact. Teague Hardware Co. v. Bankhead Development Co., 274 Ala. 697, 151 So. 2d 611, and cases there cited. The finding of the trial court is supported by the evidence and is not subject to revision here. Hughes v. McAnnally, 272 Ala. 169, 130 So. 2d 176.
Appellants also contend that the court erred in decreeing the lien because appellee failed to prove the material allegations of the complaint that the articles furnished by appellee were actually used in the building constructed on Lot 22.
We have held that for a mechanic's or materialman's lien to attach, the materials must not only be furnished, but be used or become a part of the improvement. Wade v. Glencoe Lumber Co., 267 Ala. 530, 103 So. 2d 730.
It is undisputed that appellee was also furnishing materials to Choron at other sites while the building was being constructed on Lot 22.
The record and the invoices show that the materials were designated to job 24 at Lot 22. Most of the invoices were signed by T. C. Cooley, the foreman. A few were signed by B. G. Eddins or James Wright, who were carpenters on the job. Proof was made of delivery to the job, of the fact that no complaint was made that the materials ordered were not delivered to the job, and that materials of the same type as those listed in the invoices were used on the job.
The burden on the materialman claiming a lien is, at most, to "show with reasonable satisfaction that the goods were used in the building." May & Thomas Hardware Co. v. McConnell, 102 Ala. 577, 14 So. 768; Robinson v. Crotwell Bros. Lumber Co., 167 Ala. 566, 52 So. 733.
The rule in most jurisdictions seems to be that proof of delivery of materials to the building site constitutes prima facie evidence, or creates a presumption, of their use in the improvement, particularly where supported by other circumstantial evidence of actual use, and thereafter the owner has the burden of showing that they were not used, if such was the case. Annotation 39 A.L.R.2d 427, B. § 9 [a], citing cases from fifteen jurisdictions.
Here, the foreman testified that he did not remember whether any materials were moved from the job at Lot 22 to other jobs or not, but he and Choron testified that the remaining shingles, bricks, etc. left from one job were transferred to another. There was vague testimony as to whether one disappearing stairway was moved to another job, but it was not certain or satisfactory.
It is common knowledge that on any sizeable construction job every brick, every piece of lumber, every inch of pipe, etc. is not used. But neither this court nor any other court is going to be so technical as to require an audit of every piece of material sent out on a job by a materialman before establishing a lien on property.
The trial court was not so impressed with the claims that all the property was not used in the construction that the amount of the lien was reduced, and we cannot say that the conclusion reached was improper or unjust. It results that the part of the decree appealed from should be affirmed.
*97 Appellant Molton, Allen & Williams has adopted the assignments of error and arguments of appellants Howell. Of necessity, the decree is also affirmed as to this appellant.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | August 5, 1965 |
81a14290-61ed-4cec-b959-4a65aa1a9927 | Ex parte J. C. Franklin Samuels. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: J. C. Franklin Samuels v. State of Alabama) (Marshall Circuit Court: CC-10-258; Criminal Appeals : CR-13-0103). Writ Denied. No Opinion. | N/A | 1131202 | Alabama | Alabama Supreme Court | Rel: 09/26/2014
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
SPECIAL TERM, 2014
____________________
1131202
____________________
Ex parte J.C. Franklin Samuels
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: J.C. Franklin Samuels
v.
State of Alabama)
(Marshall Circuit Court, CC-10-258;
Court of Criminal Appeals, CR-13-0103)
PARKER, Justice.
1131202
WRIT DENIED. NO OPINION.
Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
2
1131202
MOORE, Chief Justice (dissenting).
J.C. Franklin Samuels was convicted of the murder of his
son, Gregory Samuels ("Gregory"), and was sentenced to 45
years' imprisonment. Samuels claimed that he was acting in
self-defense, which resulted in the unintentional killing of
his son. Samuels objected to the jury instruction on self-
defense, but on appeal the Court of Criminal Appeals held in
an unpublished memorandum that Samuels's objection was not
sufficiently specific to preserve the issue for appellate
review. Samuels v. State (No. CR-13-0103, June 6, 2014), ___
So. 3d ___ (Ala. Crim. App. 2014) (table). I believe that
there is a probability of merit to one of Samuels's claims,
and I would grant certiorari review to address it. Therefore,
I respectfully dissent from this Court's denial of the writ.
Sometime in the late summer or early fall of 2009, 35-
year-old Gregory came to live with his father, 60-year-old
Samuels,
allegedly
to
avoid
parole-violation
and
child-support
charges in the State of New York. Gregory was 5'9", 195
pounds, and was alleged to have been a former professional
boxer. Samuels was 6'2", 145 pounds, and had recently
undergone treatment for cancer.
3
1131202
Gregory exhibited violent behavior toward his father
while he was living with him. Gregory assaulted Samuels on one
occasion, punching him in the face while Samuels was on his
riding lawnmower and knocking him to the ground. As Samuels
laid on the ground, Gregory stood over him and said, "What are
you going to do now, old man?" David Smith, Samuels's nephew
and Gregory's cousin, testified that Gregory became violent
when he was drinking, especially when he was around Samuels.
According to Smith, Gregory was disrespectful to Samuels and
constantly threatened to "bash" his brains out or to "bash"
his face in. Smith testified that he was afraid of Gregory and
that Samuels appeared to be "very afraid" of Gregory.
On the evening of September 9, 2009, Gregory, Samuels,
and Smith returned to Samuels's house after the men had been
drinking and shooting pool. Smith testified that Gregory and
Samuels got into an argument, after which Gregory called his
brother in Indiana and told him that he was going to "give his
dad a good ole a–- whooping." His brother replied, "Give him
one for me." Smith, who overheard the conversation between
Gregory and his brother because Gregory's cellular-telephone
speaker was on, testified that the men did not appear to be
4
1131202
joking. Smith took Gregory to the store to buy beer, believing
that getting him away from Samuels would calm him down. Before
Gregory and Smith left, Gregory told Samuels that he was going
to bash his face in when he returned. Samuels told his wife
that if Gregory attempted to bash his face in when he
returned, he would kill him.
When the men returned, Gregory jumped out of the truck
and started running toward the house, allegedly telling
Samuels, who was about 25 feet away, that he was going to bash
his brains out. Samuels replied that this was the last time
Gregory would bash his brains out, and then he shot him in the
chest with a .22 caliber rifle. Gregory died from injuries
inflicted by the gunshot. Samuels told the police that he
meant to shoot Gregory in the stomach and that he did not mean
to kill him by shooting him in the chest.
Samuels was tried for murder. At trial, Samuels objected
to the following jury instruction: "An assault with the hand
or fist, under ordinary circumstances, neither justifies nor
excuses the use of a deadly weapon." Samuels objected to this
instruction "as not being good law, and ... to the 'under
ordinary circumstances' not being further defined." The trial
5
1131202
court overruled
Samuels's
objection, noting
that
the
instruction would be given in conjunction with the following
instruction: "[Y]ou are allowed to consider the difference in
size, strength, and the difference in the ages of Gregory
Samuels and J.C. Samuels in determining the reasonableness of
the belief of J.C. Samuels of the imminent use of unlawful
physical force by Gregory Samuels."
The jury found Samuels guilty of murder, and he was
sentenced to 45 years' imprisonment. On appeal to the Court of
Criminal
Appeals,
Samuels
challenged
the
jury
instruction.
The
Court of Criminal Appeals held that his objection was not
sufficiently specific to preserve the issue for appellate
review.
Samuels alleges, among other things, that the Court of
Criminal Appeals' decision conflicts with George v. State,
[Ms. CR-12-0642, March 14, 2014] ___ So. 3d ___ (Ala. Crim.
App. 2014). In that case, Keith George was charged with
murdering a man who had been assaulting him. The trial court
gave the jury the following instruction:
"'The
defendant is
not
justified in
using
deadly
physical force upon another person and cannot
prevail on the issue of self-defense if it
reasonably appears or the defendant knows that he
6
1131202
can avoid the necessity of using such force with
complete safety by retreating.'"
George, ___ So. 3d at ___. George objected that the
instruction was based on an outdated version of § 13A-3-23,
Ala. Code 1975, which had been revised to eliminate the duty
to retreat. The trial court overruled George's objection, and
George was convicted of murder. On appeal, the Court of
Criminal Appeals reversed the conviction, noting that the
statute had been amended to allow a defendant to stand his or
her ground. Consequently, the court concluded that "'the
circuit court's jury instruction
regarding the duty to retreat
was an incorrect statement of the law and should not have been
given.'" George, ___ So. 3d at ___ (quoting Blake v. State, 61
So. 3d 1107, 1109 (Ala. Crim. App. 2010)).
Like the trial court in George, the trial court in this
case gave an instruction that did not accurately reflect the
law. At the time of the offense, § 13A-3-23 provided, in
relevant part:1
"(a) A person is justified in using physical
force upon another person in order to defend himself
or herself ... from what he or she reasonably
Section 13A-3-23 was amended effective August 1, 2013.
1
See Act No. 2013-283, Ala. Acts 2013. The quoted material
remains the same.
7
1131202
believes to be the use or imminent use of unlawful
physical force by that other person, and he or she
may use a degree of force which he or she reasonably
believes to be necessary for the purpose. A person
may use deadly physical force, and is legally
presumed to be justified in using deadly physical
force in self-defense ... if the person reasonably
believes that another person is:
"(1) Using or about to use unlawful
deadly physical force.
"....
"(3) Committing or about to commit ...
assault in the first or second degree ...."
The jury instructions in this case mentioned nothing about the
legal presumption of justification under the circumstances
listed in the statute, most notably when the aggressor is
about to commit second-degree assault. On the contrary, the
2
trial court instructed the jury that a person is not justified
Section 13A-6-21, Ala. Code 1975, provided, in relevant
2
part:
"(a) A person commits the crime of assault in
the second degree if the person does any of the
following:
"(1) With intent to cause serious
physical injury to another person, he or
she causes serious physical injury to any
person."
(Section 13A-6-21 was amended in 2010 and 2011. The quoted
material has not changed.)
8
1131202
in using a weapon "under ordinary circumstances." This vague
instruction probably led the jury to presume that Samuels was
not justified in using deadly force, whereas the statute says
that the jury should have presumed that he was justified in
using such force if he reasonably believed Gregory was about
to commit an assault in the second degree. Samuels objected
that the phrase "under ordinary circumstances" was not
sufficiently defined and that the instruction was based on bad
law. I agree with Samuels's objections and believe they were
sufficiently specific to preserve the issue for appellate
review; therefore, it appears to me that the Court of Criminal
Appeals' decision conflicts with George.
Because I am persuaded that there is a probability of
merit in Samuels's assertion that the Court of Criminal
Appeals' decision conflicts with George, I would grant the
writ. Therefore, I respectfully dissent.
9 | September 26, 2014 |
8386cdf0-7562-48fa-88b1-05cb86c246dd | Howard v. State | 178 So. 2d 520 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 520 (1965)
Roosevelt HOWARD
v.
STATE of Alabama.
3 Div. 162.
Supreme Court of Alabama.
June 30, 1965.
Rehearing Denied September 30, 1965.
*521 Solomon S. Seay, Jr., Montgomery, for appellant.
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
MERRILL, Justice.
This appeal is from a death sentence after a conviction of murder in the first degree; and comes to this court under the Automatic Appeal Statute, approved June 24, 1943, and listed as Tit. 15, § 382(1)-382(13), 1958 Recompilation.
This is the second appeal in this case. Appellant appealed the death sentence in his first trial and we affirmed, Howard v. State, 273 Ala. 544, 142 So. 2d 685. Later, he filed application for leave to file a writ of error coram nobis, the chief reason being the alleged systematic exclusion of Negroes from grand and petit juries in Butler County. The State concurred in the request to grant leave, and it was so ordered in Ex parte Howard, 275 Ala. 449, 155 So. 2d 927 (1963). The trial court heard the matter in January, 1964, and set aside the judgment of conviction and the sentence, held the indictment to be void, and ordered appellant held in jail until another grand jury could consider the charge against him.
Appellant was reindicted, and, attended by his retained counsel, was arraigned in open court, where he pleaded not guilty and not guilty by reason of insanity.
Appellant had filed a motion for change of venue, a motion for the appointment of a lunacy commission and a motion to quash the indictment, all of which were overruled.
The motion for a change of venue was properly overruled. The evidence did not support the motion and the trial court would have erred had the motion been granted.
The testimony in support of the motion for the appointment of a lunacy commission in no way indicated that appellant was of unsound mind either when the crime for which he was convicted was committed or at his trial. The great preponderance of the evidence was that he was sane.
Moreover, the court is under no duty to appoint a lunacy commission or to procure a report of the Superintendent of the Alabama State Hospital under Tit. 15, § 425, Code 1940. The court has simply the right to seek these aids for advisory purposes when the court, in its discretion, thinks such aids will be helpful. Campbell v. State, 257 Ala. 322, 58 So. 2d 623; Oliver v. State, 232 Ala. 5, 166 So. 615.
Considerable testimony was presented on the motion to quash the indictment, and by stipulation, that same evidence was the basis for submission on motions of appellant to quash the venire and the motion to declare void the composition of the jury.
In Swain v. State, 275 Ala. 508, 156 So. 2d 368, we said:
This case was affirmed in Swain v. State of Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759.
The evidence on the motion to quash the indictment showed that 1455 names were in the jury box of Butler County, which has a male population, 21 years of age and above, of 6,053. This means that 24% of those old enough for jury duty were in the jury box.
Grand jury lists from 1961 to 1964 were introduced, showing that persons known to be Negroes had been on 28% of the grand jury lists. Petit jury lists from 1961 to 1964 showed that persons known to be Negroes appeared on all but one of the venires. On one petit jury, all 12 members were Negroes.
Since the year 1960, there have been no means by which a prospective juror could be denoted as to his race and this accounts for the term "known member of the Negro race." Each list above was examined by the testifying witness and the number of persons said to be Negroes was based only upon his personal knowledge. Of the 16 lists, the names of known Negroes appear on 15 for a percentage of 93. This figure indicates no systematic exclusion in relation to the percentage of Negroes (known Negroes) whose names were in the jury box. Testimony was elicited that of the 1455 names in the jury box, 196 were known to be Negroes. This is a known percentage of 14 plus. The record also shows that at least 6 members of the appellant's race were on a list of 75 names from which the grand jury that indicted him was selected. This is 8% of the total names on that list. The percentages that have been listed include venires beginning in the year 1961. In January, 1964, the trial court found the venires from 1961 to 1964 insufficient. The evidence shows without dispute that the names of many more Negroes had been added to the jury roll prior to the drawing of the grand and petit juries for this case.
In addition to these figures and percentages, the testimony of the jury commissioners for Butler County was not indicative of any design to exclude Negroes from the jury roll, but to the contrary. Each testified that he had never refused to place the names of qualified Negroes *523 in the box and various means of procuring additional names were testified to. Appellant offered no testimony to refute these claims nor was there evidence to prove systematic exclusion. The U. S. Supreme Court has said in the Swain case, supra, "* * * purposeful discrimination may not be assumed or merely asserted. * * * It must be proven, * * *." The evidence fails to make out a prima facie case and the trial court did not err in its rulings in these matters. We think the Swain case, supra, supports the overruling of the motions.
On the oral motion of the State, the judge struck paragraph eight of the motion to quash the indictment. This paragraph raised in issue the constitutional competency of the judicial officials of Butler County to try the appellant in that members of the Negro race had been denied the right to vote and the exercise of this power would deprive the defendant of due process of law and the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. Appellant argues that the granting of the State's oral motion to strike was error.
The three cases cited by appellant do not support his claim of error. While they do hold that motions to strike should be in writing, it is not mandatory, and "the fact that the State's motion to strike was oral should not work a reversal of this cause if in fact the grounds of the motion to quash the indictment which were stricken were without merit." Aaron v. State, 271 Ala. 70, 122 So. 2d 360; W. L. Weller & Sons v. Rensford, 185 Ala. 333, 64 So. 366; Southern R. Co. v. Penny, 22 Ala.App. 199, 114 So. 15.
There was no merit in the contention that because Negroes had not voted on the court officials that they were not qualified to try him. If that were the law, no state could ever legally convicted a nonresident who violated the laws of that state because the accused had not participated in the election at which the officials were elected.
The evidence offered by the State in this case, although circumstantial, was convincing beyond any doubt that the appellant was the person who killed Vandiver Lazenby. Briefly stated, Lazenby was shot in the back and killed as he sat in the office of a store operated by him in Butler County, Alabama, between the hours of 2:00 and 3:00 P.M. on January 9, 1960. The appellant and the deceased had argued earlier on that day about the amount of credit that the appellant could receive. Witnesses testified that the appellant left the store with them after the argument. These same witnesses testified they later encountered the appellant on the road leading toward Lazenby's store with a .22 rifle and asked him to return home. During this encounter, the rifle was discharged and one of the witnesses was struck by the bullet. The appellant told the witnesses to leave him alone and proceeded on toward Lazenby's store. A short time later, a shot from the direction of the store was heard. J. R. Callins, a clerk in the store, testified that when he heard the shot, he entered the office and found Lazenby attempting to get up from his chair. He went to a window in the rear of the office and saw the appellant running away from the rear of the store. Another witness testified she had seen the appellant go behind the store with a rifle, and then a second afterwards heard a shot. She did not know the appellant's name, but she did identify him as the same person she had earlier seen leave the store in the company of two other colored boys. These two boys had identified the appellant as the person who had left the store with them. No evidence was presented by the defense to rebut the State's evidence or to in any way discredit it.
The only evidence taken on the motion for a new trial related to ground six of the motion which charged error in the denying of appellant's motion to desegregate the *524 courtroom during the trial. The only evidence in support of the charge that any segregation of the races was practiced was that the sheriff asked three Negro boys to move from one side of the courtroom to the other.
After the noon recess on the first day of the trial, before the judge or the jury had returned to the courtroom, and before the jurors not selected to try this case had been excused, the sheriff asked the three boys to move from the crowded side to the less crowded side and, after a protest, they complied with his request. When the afternoon session of the trial was begun, the trial court dismissed all the jurors not sitting on the case and instructed them that they could go to the clerk's office to be paid. When they left, most of their seats were occupied by spectators, mostly Negroes, who had been standing. At that time and throughout the trial, Negroes sat on both sides of the center aisle of the courtroom and no segregation of the races was compelled, forced or observed. A majority of the spectators throughout the trial were Negroes and they sat where they pleased in the courtroom.
The same three boys came to the courtroom the next day, sat in the same seats they had been asked to vacate the day before and remained there during part of the morning session while the trial was in progress.
When the motion to desegregate the courtroom was made, the trial court, Honorable Werth Thagard, made the following statement to all within the courtroom:
We hold that the trial court correctly denied the motion because there was no involuntary segregation of the races being enforced in the courtroom during the trial.
We are not to be understood as holding that it is illegal to ask persons in a courtroom to vacate their seats temporarily while a jury is being qualified and selected. We judicially know that many trial judges desire that jurors summoned for the week sit in a body while they take the oath and are being qualified. At that time it may be necessary for parties, witnesses and spectators to move temporarily in order that the venire may sit together. Asking anyone in the courtroom to move or vacate their seat under such circumstances would not be compelled segregation. On the other hand, there cannot be sections reserved for any persons when race is the basis of the reservation.
The Federal Supreme Court has said that it is no longer open to question that a State may not constitutionally require segregation of public facilities; and State-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws. Johnson v. State of Virginia, 373 U.S. 61, 83 S. Ct. 1053, 10 L. Ed. 2d 195.
We have discussed some questions not called to our attention because it is *525 our duty, in cases of this character, to examine the record for reversible error. We have dealt with all questions calling for discussion. We find no reversible error in the record and the judgment is due to be, and is, affirmed.
Affirmed.
All the Justices concur. | June 30, 1965 |
0364146e-f3b4-447c-9cf3-653e3dc318cc | Brunson v. Brunson | 176 So. 2d 490 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 490 (1965)
Mary S. BRUNSON
v.
L. B. BRUNSON et al.
4 Div. 162.
Supreme Court of Alabama.
June 17, 1965.
*492 E. C. Boswell, Geneva, H. E. Lane, Enterprise, and J. Hubert Farmer, Dothan, for appellant.
A. A. Smith, Hartford, and Jas. W. Kelly, Geneva, for appellees.
COLEMAN, Justice.
Proponent appeals from an adverse judgment in a will contest. Proponent filed in probate court her petition to probate a certain writing as the will of her deceased husband. They had no children. A brother and three sisters of the husband are contestants. On demand of contestants, the cause was transferred to the circuit court and tried before a jury. Verdict was for contestants.
By the writing offered for probate, dated 1957, testator devised all his property to proponent. Contestants contend that the 1957 will was revoked by a later will executed in 1961.
The grounds of contest submitted to the jury presented three issues: (1) undue influence, (2) execution of will was not according to law, and (3) the instrument offered for probate had been revoked prior to testator's death.
Apparently no objection was interposed to test the sufficiency of the pleading of the grounds of contest. As to ground III, see Daggett v. Boomer, 210 Ala. 673, 676, 99 So. 181; Mindler v. Crocker, 245 Ala. 578, 580, 18 So. 2d 278.
Proponent argues that the court erred in overruling her motion to exclude all the evidence offered by contestants and to direct the jury to find the verdict for proponent.
In civil cases, such a motion by defendant has been condemned; the trial court will not be reversed for refusing such a motion; and, therefore, defendant can take nothing by such assignment of error. Snow v. Allen, 227 Ala. 615, 619, 151 So. 468.
Here the motion is made by plaintiff. No authority is cited to show why a different rule should apply when such motion is made by plaintiff and no reason is advanced why a different rule should apply to plaintiff. We hold that proponent can take nothing by assignment 11.
Proponent asserts that the court erred in refusing her requested charge as follows:
Proponent seeks to probate a writing dated August 17, 1957. The writing bears the names of W. S. Huey and R. E. Maddox as attesting witnesses. Testator, J. S. Brunson, died August 19, 1962.
R. E. Maddox testified that he saw testator on August 17, 1957, in the office of W. S. Huey, who was a lawyer; that testator and Huey were in the office, and no other person was present when Maddox went in. He testified further:
"A. Well, when I went in the office Mr. Huey and Mr. Brunson were in there; I spoke to them and they spoke to me. Mr. Huey sitting at a type-writer and Mr. Brunson was standing right behind him, and after the greetings, Mr. Brunson said to me: `I am having a will made, it is something I *493 have been wanting to get done and at last I am getting to it.' Mr. Huey spoke up then and said: `I am just getting through with it,' and said: `You are just in time to witness it.'
Maddox and Huey were brothers-in-law. Proponent was Huey's sister-in-law. After will was executed, Maddox left the office first. He did not know how long testator stayed at Huey's office.
Mrs. W. S. Huey testified that she was familiar with her husband's handwriting and that the signature on the writing offered for probate is the signature of her husband, W. S. Huey, who had been dead about two and a half years. Mrs. Huey testified also that she was familiar with testator's signature; that his signature was on the paper offered for probate; that testator was her brother-in-law; and that proponent is her sister.
Mrs. Huey testified that she had received a subpoena duces tecum to bring certain papers to court and that she had answered the subpoena by saying that she did not have any of the papers listed; that on the night testator died, proponent had some papers in the car; that testator had no children; that testator and proponent were married eleven years.
The proponent testified that testator, two days before he died, told proponent to go home and get those papers and take them with her everywhere she went because "he did not want them to get them"; that she got the papers out of a chest in the house; and that the will offered for probate was among the papers.
As we understand the record, the foregoing is substantially all the testimony relating to the execution of the will and the issue of undue influence.
*494 On the issue of undue influence over a testator, this court has said that confidential relations and activity in the execution of the will by a favored beneficiary therein are stressed. This raises a prima facie presumption of undue influence, casting on proponent the burden of proof on this issue. Who is a favored beneficiary within this principle? One who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty. That a wife has received more under the will than under the dower, homestead, and distribution laws in case of intestacy is not the test. Undue influence involves moral coercion, the will of the wife dominating the husband and destroying his free agency in that respect. Cook v. Morton, 241 Ala. 188, 192, 1 So. 2d 890.
The rule in this state as to a presumption of undue influence and the burden of proof is settled to be that confidential relations, accompanied with activity of a favored beneficiary in the preparation and execution of a will, raise a presumption of undue influence and cast the burden of proof on proponent. Activity must be more than conduct referable solely to a compliance with or obedience to the free and voluntary instructions or directions of testator. Mindler v. Crocker, 245 Ala. 578, 582, 18 So. 2d 278.
On the issue of undue influence, we have repeatedly held that the burden is on contestants, in order to raise a presumption of undue influence, to prove a dominant, confidential relationship and undue activity in the execution of a will by or for a favored beneficiary. Hyde v. Norris, 250 Ala. 518, 519, 35 So. 2d 181; Lackey v. Lackey, 262 Ala. 45, 49, 76 So. 2d 761.
Contestants appear to argue that proponent's Charge 2 is improper in form for failure to refer to the proponent by name. In Moore v. Heineke, 119 Ala. 627, 631, 24 So. 374, 376, proponent requested charge 31, which recites:
On appeal by proponent, this court said:
Charge 31 in Heineke is substantially the same as Charge 2 in the case at bar and we are of opinion that Charge 2 is not improper in form.
Contestants argue that a jury question on the issue of undue influence was presented because the evidence shows that testator and proponent were husband and wife and were also cousins, that the will was prepared by proponent's brother-in-law, that brother-in-law was also the brother-in-law of the other attesting witness, and that proponent had testator's papers immediately after his death but denies knowledge of the will allegedly executed by testator in 1961. Contestants say that these facts "AFFORDED A REASONABLE INFERENCE OF A DOMINATING CONFIDENTIAL RELATIONSHIP BENEFICIAL TO THE FAVORITE AND ONLY BENEFICIARY THEREUNDER, BEING MARY S. BRUNSON, AND THE TESTIMONY AS A WHOLE IN THIS CASE, AFFORDED A JURY QUESTION RELATING TO THE ISSUE OF UNDUE INFLUENCE . . ."
There is no evidence that proponent had any connection with or knowledge of the execution of the will. There is no evidence *495 that the draftsman, or the other attesting witness, or any one else, exercised any influence whatever over the mind or will of testator in the procurement or drafting of the will.
Because there is nothing in the evidence which has the slightest tendency to show that proponent, or any other person, exercised any influence whatever over the testator in the matter of executing the will, much less undue influence, proponent was entitled to have Charge 2 given and its refusal was error to reverse. Mindler v. Crocker, supra.
Proponent contends that the court erred in refusing her requested charge which recites:
Ground IV of contest recites:
No authority is cited to support the giving of Charge 10. We incline to the view that the charge was refused without error because it is misleading.
We are of opinion that proponent's Charge 3 was also refused without error because it is misleading and omits, among other things, any reference to the requirement that the attesting witnesses subscribe in presence of testator.
Charge 3 recites:
Proponent says that the court erred in admitting into evidence a paper which contestants claim is a carbon copy of a later will executed by testator on December 30, 1961. Proponent argues that admission of the copy over her objection was error because contestants had not laid a proper predicate to authorize the admission of secondary evidence of the contents of the 1961 will.
As we understand the evidence, it shows that the original of the 1961 will was last seen in the possession of testator on the day he is alleged to have signed it. We do not understand that contestants insist that the evidence shows that any search for the 1961 will has been made.
Contestants say that the admission of the copy of the 1961 will can be sustained on three theories, "THE FIRST THEORY BEING AS HEREINABOVE SET FORTH AND CITED IN THE CASE OF LOVELL VS. LOVELL, SUPRA."
Contestants set forth in brief a quotation from Lovell v. Lovell, 270 Ala. 720, 722, 121 *496 So. 2d 901, 902, which is itself a quotation from Jaques v. Horton, 76 Ala. 238. In the Lovell case, the opinion recites: ". . . . a search was instituted for his will. It was not in the safe, nor in a box of papers to which only he and his wife had the keys and which was kept in the bank at Springville, nor in their safety deposit box in a bank in Birmingham. . . . ." There is no testimony showing that such a search was made in the instant case. We do not think Lovell is authority that secondary evidence of the contents of a writing may be admitted without showing that a sufficient search has been made for the original writing.
In Jaques v. Horton, supra, this court reversed for error in allowing a witness, for the purpose of refreshing his memory, to inspect a paper purporting to be a copy, but which was not known or recognized by the witness, nor verified as a true copy of the original.
We are of opinion that neither Lovell nor Jaques justify admission of secondary evidence without accounting for absence of original writing.
Contestants say the second theory justifying admission of the copy is under the authority of § 487, Title 7, Code 1940, as amended, as to which this Court has held that upon notice to produce being given according to the purview of said section, and the document not being produced, then, in that event, secondary evidence can be introduced.
In Woodmen of the World v. Maynor, 206 Ala. 176, 179, 89 So. 750, this court held that after demand of defendant for the original papers, and they were not all produced, it was proper to allow parol evidence as to contents of originals not produced in court; citing § 4058, Code 1907; now § 487, Title 7. See Sovereign Camp, W. O. W. v. Ward, 196 Ala. 327, 71 So. 404.
The instant record contains a motion by attorney for contestants, whereby proponent is moved to produce, inter alia, all papers of a testamentary nature signed by testator. For answer, proponent says the will of testator dated August 17, 1957, was filed in the office of the Judge of Probate and that no other instrument of a testamentary nature, signed by testator, is in proponent's "possession, custody, control or power."
Proponent testified that the only will of testator of which proponent knows is the one she filed for probate and that she did not have knowledge of any other will testator had made.
There is no evidence that proponent ever had possession, custody, or control of or power over the writing dated December 30, 1961, which contestants contend testator executed on that day.
With reference to § 487, Title 7, Code 1940, this Court has noted with approval that the conditions named as precedent to the exercise by the Court of the power and authority there conferred are ". . . fourth, that such opposite party has the possession, custody, or control of, or power over such books, etc." Ex parte Rowell, 248 Ala. 80, 83, 26 So. 2d 554, 557.
Because the fourth condition has not been met, we do not think contestants laid proper predicate for introduction of the alleged copy of the 1961 will under § 487, Title 7.
We do not understand the substance of contestant's third theory.
"While no general rule can be laid down as to the degree of diligence to be used in making search for the original document, in order to lay a predicate for the introduction of secondary evidence of the contents thereof, it depending largely upon the circumstances of the case and the character of the document, yet the loss should invariably be proven by the custodian. `The loss must be proved, if possible, by the person in whose custody it was at the time of the loss, if such person is living, and, if dead, application should be made *497 to his representative and search made among his documents.' 26 Am. & Eng. Enc. Law, 167, and cases cited; O'Neal v. McKinnon, 116 Ala. 606, 22 South. 905." Alabama Construction Co. v. Meador, 143 Ala. 336, 337, 39 So. 216, 217.
See: Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596, and authorities there cited.
Other errors noted will doubtless not occur on another trial.
For error in refusing proponent's Charge 2 and in admitting copy of 1961 will, the judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | June 17, 1965 |
01abdf1f-abdc-490c-8836-2c9ecd5e3328 | Otinger v. Water Works and Sanitary Sewer Board | 177 So. 2d 320 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 320 (1965)
S. J. OTINGER, Jr.,
v.
WATER WORKS AND SANITARY SEWER BOARD.
3 Div. 157.
Supreme Court of Alabama.
July 15, 1965.
*321 Jerry L. Coe, Montgomery, for appellant.
Jones, Murray & Stewart, Montgomery, for appellee.
HARWOOD, Justice.
In the proceedings below S. J. Otinger, doing business as S. J. Otinger Construction Company, filed a complaint claiming $3,872.45 due from the Water Works and Sanitary Sewer Board of the City of Montgomery, Alabama, hereinafter called the Board, for work and labor done.
The Board filed its answer denying any indebtedness to Otinger, and also by way of counterclaim sought recovery of $2,627.55, it had allegedly overpaid Otinger.
The case was heard by the court without a jury, and after hearing, the court adjudged that neither party should recover of the other, and taxed the costs equally between the parties.
Otinger's motion for a new trial being overruled, he perfected this appeal from that part of the judgment denying his claim. The Board has not appealed.
In its counterclaim the Board averred that the plaintiff, Otinger, had entered into a written contract with the Board for the construction of trunk sewers, force mains, and a lift station in the area of Catoma Creek, and a copy of said contract was attached to and made a part of the counterclaim. It was further averred that the "plaintiff commenced the work to be performed under the contract on, to-wit: October 17, 1961, after being sent a written order of the defendant"; that the plaintiff did not complete the contract within 120 consecutive days from commencement of the work, but 250 consecutive days thereafter, thereby exceeding the contract time by 130 days; that the contract provided for $50.00 a day as reasonable liquidated damages if plaintiff exceeded 120 days in completing the contract; that "the defendant has fully performed all of its obligations under the contract, and the plaintiff has fully performed the work required of him, but exceeded the time limit imposed by the contract by 130 days;" and under the contract the defendant was entitled to withhold $6,500 damages, which amount the defendant offered to offset against the demand of the plaintiff, and the Board claimed an excess of $2,627.55.
The counterclaim further avers that upon completion of the work, the Board withheld $3,872.45, representing additional engineering fees paid its consulting engineers, which additional fees resulted from delay in completing the contract.
In brief counsel for appellant, Otinger, argues that the court erred in overruling appellant's demurrer to the counterclaim in that under the contract the Board was to give notice of the time of beginning of the work, and the complaint fails to allege the date for the commencement of the work. The counterclaim does allege that the plaintiff "commenced the work to be *322 performed on, to-wit: October 17, 1961, after being sent a written order of the defendant." We consider this a sufficient averment of the giving of the notice.
Further, the counterclaim avers that the "defendant has fully performed all of its obligations under the contract * * *." The discharge of the burden on the plaintiff to aver performance on his part, of a condition precedent to the accrual of a claim, is met by averring that he has met all of the provisions of the contract. Floyd v. Pugh, 201 Ala. 29, 77 So. 323.
The court therefore did not err in overruling appellant's demurrer to the counterclaim in this aspect.
Counsel for appellant further contends that the court erred in overruling appellant's demurrer to the counterclaim in that ground 12 of the demurrer is to the effect that it affirmatively appears that the basis of appellee's claim is a contractual provision for a penalty.
The provision of the contract relating to payments for delay in completion of the contract is as follows:
Counsel's argument is that the fact that since Sundays and holidays are included in the time limit, this demonstrates that the provision is for a penalty and not for liquidated damages.
It has been consistently held by this court, and our Court of Appeals, that when a contract is entered into, and the nature and amount of damages resulting from a breach thereof are conjectural and uncertain, the parties have a right to fix the same by contract, and having employed language showing an intention to fix the damages for a breach of the contract and if reasonable, the courts are not authorized to abrogate such provision by declaring it a penalty. Stratton v. Fike, 166 Ala. 203, 51 So. 874; World's Exposition Shows v. B. P. O. Elks, etc., 237 Ala. 329, 186 So. 721; Lobman v. Sawyer, 37 Ala.App. 582, 74 So. 2d 502.
The total amount to be paid for the work by the Board under the contract was $118,648.75. The damages to the Board if the contract was not completed in time were uncertain and conjectural. The amount fixed as liquidated damages in relation to the amount involved under the contract does not appear unreasonable. The fact that Sundays and holidays were included in the limitation fixed in which the contract was to be completed, cannot be deemed to change the amounts fixed as liquidated damages into a penalty. The parties were legally competent to contract. Their intent was clear. If the provision including Sundays and holidays in the limitation was hard or improvident, courts are unauthorized to grant relief merely on such basis. Henderson v. Murphree, 109 Ala. 556, 20 So. 45. We find no basis for disturbing the lower court's conclusion that the provision of the contract relating to liquidated damages was a valid and enforceable provision.
Counsel for appellant further contends that the facts presented below show that the Board by its action waived the time limit provided for in the contract.
This argument is based upon correspondence between appellant and the Board. By letter dated 19 February 1962, addressed *323 to the Board, the appellant stated he "would like to request at this time that the City Water and Sanitary Board give every consideration that they possibly can to our request for an extension of time to complete the project we are engaged in on the Catoma Creek Outfall and Pump Station."
To this the Board replied:
"I was directed to write you that since the completion date (Feb. 4, 1962) has passed, that you proceed with the unfinished work with reasonable and continual progress until the project has been completed and approved by the Consulting Engineers, J. B. Converse and Company.
As we read the above letter from the Board, it is a denial of the request for a waiver of the time limit, though a statement that such matter would be considered upon completion of the contract. This the Board apparently did, and instead of withholding from the appellant the full amount of the liquidated damages, it withheld only the additional engineer fees it had incurred as a result of the delay.
Where a contract fixes the time for completion of work and makes time of the essence, the obligee does not waive nonperformance within the specified time by merely allowing the work to go on to completion after expiration of the time limit. A waiver must operate by way of an estoppel or be supported by a valuable consideration to be binding. Huntsville Elks Club v. Garrity-Hahn Building Co., et al., 176 Ala. 128, 57 So. 750; Bellview Cemetery Co. v. Faulks, 6 Ala.App. 137, 60 So. 461.
It is next contended by appellant that he was excused from performance within the time limit of the contract by an act of God, i. e., the flood conditions of Catoma Creek during the progress of the work.
Where an obligation is imposed by law, such as the obligation of a common carrier, the law will excuse a failure to perform resulting from an act of God. On the other hand, where one by his contract creates an absolute obligation in which the obligation rests on himself, he is bound to perform within the terms of the contract, or answer in damages despite an act of God, unexpected difficulty, hardship, or inevitable accident, since he should have provided against such contingencies by his contract. Partridge v. Forsyth, 29 Ala. 200; Capital Fertilizer Co. v. Ashcraft-Wilkinson Co., 202 Ala. 92, 79 So. 484.
Particularly is this doctrine applicable where the contingency could reasonably have been foreseen and guarded against. (See 15 Ala.Law Rev. p. 582, and cases and texts discussed therein.) The senior engineer for J. B. Converse and Company, consulting engineers for the Board, testified flood conditions were not unusual at Catoma Creek, and further, that "it is a known fact that here in Montgomery during the winter months that Catoma Creek does get up and spread out." No merit attaches to the contention of appellant that the flood conditions of Catoma Creek furnished to him an excuse for non-performance within the time limits fixed by the contract.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 15, 1965 |
2461e40f-c8c8-4c82-a297-ad2ae1f688c3 | Mockridge v. Mockridge | 175 So. 2d 772 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 772 (1965)
Oscar Alling MOCKRIDGE
v.
Dominique Lathrop MOCKRIDGE.
6 Div. 156.
Supreme Court of Alabama.
May 27, 1965.
Bryan A. Chancey, Birmingham, for appellant.
Whitmire, Morton & Coleman, Birmingham, for appellee.
*773 MERRILL, Justice.
This appeal is from a decree modifying that part of an original divorce decree dealing with the custody, visitation rights and support and maintenance of the parties' small daughter, who was seven months of age when the original decree was rendered on June 7, 1961, in favor of the mother on the ground of cruelty.
An agreement of the parties, made a part of the original decree, gave custody of the child to the mother, appellee here, with the right of reasonable visitation accorded to the father, appellant here. It also provided that when the child reached the age of three years and thereafter, the child should spend "three weeks of each year" with appellant. The sum of $125 per month was awarded appellee for the support and maintenance of the child.
Appellant's petition to modify prayed:
(a) That the award to appellee for the support and maintenance of the child be reduced;
(b) That the custody of the child be awarded to appellant, the father;
(c) That in the event the custody of the child is not awarded appellant that the child be required to spend three months of each year with appellant;
(d) That the visitation period granted appellant be specifically defined; and
(e) That during the period of visitation appellant be allowed to visit the child alone.
Appellee filed a cross petition seeking sole custody of the child with right of reasonable visitation and general relief including solicitor's fees.
The trial court, after a hearing with the witnesses before him, decreed in part:
Appellant argues that the court erred, not only in refusing to reduce the payment of $125 per month, but by raising it to $150 per month effective July 1, 1965.
One change in circumstances was that appellant had remarried. The fact that a divorced husband has remarried is a circumstance that may be considered in weighing the equities of the situation when he requests the court to reduce support and maintenance payments for minor children. But the fact that the husband has remarried, and thereby increased his expenses, is not such a change in the condition of the parties as to justify a modification *774 of the original support decree. Mencer v. Mencer, Ala., 174 So. 2d 319; Stewart v. Stewart, 261 Ala. 374, 74 So. 2d 423, and cases there cited in support of both statements.
The other significant change was the change in appellant's financial status. When the original decree was rendered, he was the owner of $45,000 worth of securities and received the income from another $45,000 worth of securities. Between then and the time he filed for a modification, he became the sole owner of this second $45,000 worth of securities. Also, he was expecting to finish school in June, 1965, and become regularly employed.
The fact that the former husband's income has increased materially since the making of the original agreement for the support of his minor children is a weighty factor in sustaining the trial court when, in his discretion, he declines to reduce a previous award, or increases it. Mencer v. Mencer, Ala., 174 So. 2d 319; Stewart v. Stewart, 261 Ala. 374, 74 So. 2d 423.
In the original decree in the instant case, the court expressly reserved the right to review and revise the "amount of support and maintenance herein provided." We have held that the court has this power without expressly reserving it. Manery v. Manery, 256 Ala. 441, 55 So. 2d 194. We find no abuse of discretion in this action by the trial court.
We have considered the evidence, but find no need to set it out in detail. Both parents are of good character and we are satisfied that each loves the child. Much discretion is left with the trial court in the settlement of visitation rights and lengths of custody in each parent when that custody is divided between the parents.
Each case of this kind must be decided on its own peculiar facts and the personalities involved. The personal contact of the trial court with the litigants and the witnesses gives the trial court an opportunity for personal observation which we do not have, and which accounts for the presumption we accord its decrees. Sneed v. Sneed, 248 Ala. 88, 26 So. 2d 561.
The trial court can, in its discretion, modify an original award of alimony or support in a divorce decree on proof of changed circumstances of the parties, one or both, but unless the discretion is abused, an order will not be reversed on appeal. Mencer v. Mencer, Ala., 174 So. 2d 319; Hartsfield v. Hartsfield, 261 Ala. 386, 74 So. 2d 420; Jones v. Jones, 251 Ala. 179, 36 So. 2d 310. Again, we find no abuse of discretion and it follows that the decree should be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | May 27, 1965 |
87616f5b-3281-400d-942d-f2427e15fb08 | Anonymous v. Anonymous | 173 So. 2d 797 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 797 (1965)
ANONYMOUS
v.
ANONYMOUS.
7 Div. 642.
Supreme Court of Alabama.
March 18, 1965.
Rehearing Denied April 22, 1965.
*799 Sirote, Permutt, Friend & Friedman, Birmingham, for appellant.
Merrill, Merrill, Vardaman & Williams, Anniston, for appellee.
LAWSON, Justice.
This case involves the custody of the young adopted son of the appellant, father, and appellee, mother. The boy is now between five and six years of age.
Suit was instituted by appellee against appellant on April 18, 1962, seeking, among other things, a divorce and custody of the minor child. An agreement of the parties was filed in the cause, which provided in part as follows:
The cause was submitted for final decree on answer and waiver of the respondent, the testimony of the complainant, and the agreement of the parties; whereupon, on April 20, 1962, a decree was rendered granting a divorce to complainant, appellee, and awarding to her the custody of the minor child, with the respondent, appellant, being given the right of visitation in accordance with the agreement of the parties.
Appellee married another man on January 19, 1963.
On September 24, 1963, the appellant, the respondent in the divorce proceeding, filed his petition to modify the custody provisions of the decree of April 20, 1962, which petition was subsequently amended. In his amended petition, the father prayed that he be awarded the care, custody and control of the minor child for the following reasons:
The appellee filed her answer to the petition for modification, wherein she denied its material allegations.
*800 The cause came on for hearing before a circuit judge specially assigned to try the cause, at which hearing a considerable amount of testimony was taken ore tenus. Following the hearing, the trial court took the matter under advisement and on January 9, 1964, denied the relief prayed for in the petition for modification and dismissed it for want of proof. From that decree this appeal was prosecuted by the father.
When a proceeding is instituted to determine the custody of a child, the child at once becomes a ward of the court. Department of Pensions and Security v. Oswalt, 275 Ala. 63, 152 So. 2d 128.
In a proceeding of this kind, where the matter of custody has already been determined by a court of competent jurisdiction, with all interested parties before the court, a change of custody may be accomplished only by modification of the prior decree. Messick v. Messick, 261 Ala. 142, 73 So. 2d 547.
The former decree fixing custody of a minor is conclusive of the interests of the child and the rights of the parents, so long as the status at the time of the decree remains without material change, or unless pertinent facts existing, but not disclosed, at the time of the final decree are brought to light. Messick v. Messick, supra.
A prior decree of custody is attended by all reasonable presumptions, and the burden of showing such changed conditions or other substantial reason for its modification rests upon the party seeking a change of custody. Sparks v. McGraw, 270 Ala. 159, 117 So. 2d 372.
The question of rightful custody of the child is never res judicata. Horton v. Gilmer, 266 Ala. 124, 94 So. 2d 393.
But a prior decree is not subject to be challenged by the mere desire or changed attitude of one of the contesting parents. Messick v. Messick, supra.
An agreement by a parent for the custody of a child cannot bind a court of equity. Horton v. Gilmer, supra.
The foregoing principles, all firmly established by this court, are some of those which the trial court applied in arriving at his decision in this case.
There are other principles equally as well established which govern our review of this type case.
Where evidence in a child custody case was heard orally before the trial court, as it was in this case, the trial court's findings as to the facts will not be disturbed on appeal unless plainly erroneous or palpably and manifestly wrong. Long v. O'Mary, 270 Ala. 99, 116 So. 2d 563; Wilkes v. Wilkes, 270 Ala. 341, 118 So. 2d 906.
It is not necessarily a question as to what view this court might have of the evidence; if, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm it. Wilkes v. Wilkes, supra.
However, when we are convinced that the trial court has erred in the application of sound principles of law to the facts as found, we must so hold and reverse the decree. Payne v. Payne, 218 Ala. 330, 118 So. 575; Chandler v. Whatley, 238 Ala. 206, 189 So. 751.
There was no effort on the part of the trial court to confine the testimony offered by appellant to matters, facts and circumstances which arose subsequent to the decree of April 20, 1962, wherein custody of the minor child was awarded to appellee. The evidence was permitted to take a wide range and depicts in somewhat detail the lives of appellant and appellee since they met in college in 1951. The lives of their parents, particularly those of appellee's parents, were laid bare and the social life and conduct of appellee was described in considerable detail.
*801 However, we gather from the decree that the trial court entertained the view that none of the evidence which related to conduct prior to the original custody decree, which was known by appellant at that time, could be considered in the determination of the question as to whether there should be a decree of modification. Perhaps the court's view was based on his construction of the words which we italicize in the following quotation from Messick v. Messick, supra:
The italicized words have reference to facts disclosed to the court and upon which it acted in decreeing custody originally. Those facts cannot be rehashed in a subsequent proceeding for modification. "Courts disfavor oft-repeated, harassing litigation over the custody of infants." Greene v. Greene, 249 Ala. 155, 30 So. 2d 444. But facts which were known but not disclosed to the trial court in the original proceeding may be considered in a proceeding for modification, for neither the silence of the parties to the original proceeding nor any agreement entered into by them can prevent a court from looking after the interests of its ward. In Sparkman v. Sparkman, 217 Ala. 41, 43, 114 So. 580, 581, we said:
See Perez v. Hester, 272 Ala. 564, 133 So. 2d 199.
As we have indicated, the custody provisions of the decree of April 20, 1962, were based on the agreement of the parties. The appellant apparently offered no testimony and submitted on answer and waiver. Under such circumstances the testimony as it relates to matters, facts and circumstances which occurred prior to the original decree, whether known by the appellant or not, will be considered by us in arriving at our conclusion.
We will not undertake in this opinion to discuss in detail the evidence contained in this voluminous record. It would serve no useful purpose to the parties, their families or to the profession. But the record has been carefully read and studied and we are constrained to the conclusion that under the evidence presented, including that relating to appellee's association with her present husband prior to her divorce from appellant, which the trial court apparently did not think should be considered, it would be to the best interest of the minor child here involved to award its custody to the father.
The evidence as it bears on appellee's relationship with her present husband prior to her divorce from appellant is not sufficient to support a finding that she committed *802 adultery with him. But that conduct was certainly not to the best interest of her young adopted son and it was such as to create suspicion in the mind of appellant and to cause him to question her loyalty to him and their son. It may well have been the reason for the events which led up to conduct on the part of appellant which appellee used as a ground for divorce from appellant. Tendencies of the evidence are to the effect that appellee began to correspond with her present husband after the separation and before the divorce. Appellee concedes that in November and December of 1962, following her divorce from appellant in April of that year, she had premarital sexual relations with her present husband. As a result appellee became pregnant. She married her present husband on January 19, 1963, and the child was born on September 5, 1963.
In support of his conclusion that this conduct was not sufficient to justify a change of custody, the trial court cited Whitten v. Whitten, 214 Ala. 653, 108 So. 751, and Edwards v. Sessions, 254 Ala. 522, 48 So. 2d 771. Those cases are authority for the proposition that an act of immorality on the part of the mother is not necessarily determinative of her right to the custody of her children and in those cases the custody of the child or children was left with the mothers. While we reaffirm the principle that an act of immorality on the part of the mother should not in and of itself deprive her of custody, such an act must be taken into consideration with all the other facts and circumstances present in the particular case to determine whether the child would be better off with its father, if he is shown to be of good character and able to care for the child. In the Whitten case, supra, the father, who was contesting with the mother for the custody of the child, was shown to have been guilty of immoral acts; and in the Edwards case, supra, the other party to the litigation was not the father, but an outsider with whom the child had been left.
We do not base our decision that the decree of custody should be modified or changed only on the testimony as it relates to appellee's relationship with her present husband. But it has played a part in our decision.
Appellant is shown to be a fine young man, who enjoys a splendid reputation in the community where he lives. The evidence also shows that his parents, with whom he now lives and in whose home he and his son will live, are highly regarded in the community. They are among the most highly respected citizens of the community and, like appellant, love the young boy who is the unfortunate subject of this litigation. Their home is commodious. They have servants. Appellant's father is a successful businessman with considerable holdings. Appellant earns a good living working for or with his father. True, appellant is a victim of paralysis, contracted while a student in a preparatory school. He is confined to a wheel chair. But the evidence shows, and it seems to be admitted by appellee, that he is able to administer to the needs of the child. Appellant drives an automobile and seems to be able to perform his work without difficulty. Appellant and the child, living in the home of the former's parents, will have their attention and care. Appellant's parents are slightly over sixty years of age. Because of his physical disabilities appellant can father no children even if he should remarry. His foster son will have his undivided love and attention, as well as be the only recipient of his material resources.
Appellee and her present husband have another child or children. While appellee's husband has a good job, his earnings at this time are not too large and until he receives a promotion, it seems to us that he would be hard pressed to adequately care for his wife, the child in question, and his own child or children. Appellee's parents are shown to be socially prominent in the community where they live, but the record does not indicate that they contribute financial support to appellee and *803 her family or that they are in a position to do so.
The evidence shows that appellee's husband is fond of her foster son and solicitous of his welfare. But he has a child or children which he has fathered and it seems to us that this adopted child would be better off in the care and custody of his foster father who, as we have indicated above, can give him his undivided love and attention, whereas appellee and her present husband must of necessity share their love, as well as their limited means, with their own child or children.
In comparing the financial situation of appellant and appellee, we have not overlooked the principle that the financial standing of the parents is not the controlling question in a case of this kind. But it is a circumstance to be considered.
Custody cases present for trial courts and for appellate courts grave and difficult questions for decision. No court can ever know with certainty that the action which it takes relative to the custodial disposition of a young child is correct. We can only make that disposition after a careful and prayerful consideration of the evidence presented. We have so considered the record before us and have come to the conclusion that the decree should be reversed.
We are fully mindful that conclusions of the trial judge, earnestly arrived at after hearing and seeing those involved, is to be given due weight. Sometimes he is said to have a discretion. If a discretion, in the ordinary sense, it is a judicial, reasonable discretion. It is a judicial finding upon a most delicate farreaching issue.
But we cannot and should not evade responsibility, letting it rest with the trial court. When convinced that he has erred, not so much in his finding of facts as in the application of sound principles of law in such cases, we must so hold. The foregoing is the language of Chandler v. Whatley, supra.
The decree of the court below is reversed and the cause is remanded with directions to enter a decree modifying the original decree so as to award the custody of the minor child to appellant, with the appellee being given such rights of visitation as the trial court deems wise. Of course, the trial court will have the right to make further modifications as changed circumstances may dictate.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur. | March 18, 1965 |
b452af3b-bdd5-41c4-bb37-31640274f2c9 | Ex Parte Campbell | 176 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 242 (1965)
Ex parte Charles R. CAMPBELL.
6 Div. 208.
Supreme Court of Alabama.
May 27, 1965.
Charles R. Campbell, pro se.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
Charles R. Campbell, a convict under a life sentence, has filed a petition for leave to file a writ of error coram nobis in the Circuit Court of Tuscaloosa County where his trial was had.
Heretofore this petitioner had filed a petition for a writ of mandamus to compel the Circuit Court of Tuscaloosa County to hear a petition for writ of error coram nobis which he had filed in that court. This petition was dismissed since no leave had been granted by this court to file the petition. See Ex parte Campbell, 276 Ala. 407, 162 So. 2d 617.
In the opinion of dismissal of the petition for mandamus it is set forth:
In the present petition for leave to file a writ of error coram nobis, the petitioner, among other things, asserts that he was never taken before a committing magistrate, and was never given a preliminary hearing prior to his trial.
The appellant and his companions were apprehended in Delhi, Louisiana, on 16 July 1951. They were of course at this time escaped convicts and fugitives from *243 justice. An indictment charging rape was returned against petitioner on 3 August 1951, and he was arraigned on 6 August 1951, at which time counsel was appointed and a plea of not guilty was entered. On 8 August 1951, additional counsel was appointed to assist in the defense. Campbell v. State, 257 Ala. 322, 58 So. 2d 623.
As we gather from petitioner's document he is laboring under the erroneous belief that he was entitled to a preliminary hearing as a matter of right, as though he was charged by a complaint rather than by indictment.
Even under these conditions no constitutional right of an accused is violated in not giving him a preliminary hearing. Green v. Bomar (6 Cir.) 329 F.2d 796; Woodard v. State (Ala.) 171 So. 2d 462. However, as before stated, this petitioner was held under an indictment.
A person accused by an indictment is not entitled to a hearing in advance of trial. This for the reason that there is no constitutional requirement, either federal or state, that there be two inquiries into probable cause. A sovereignty having once satisfied the provision for an inquiry as to probable cause by presenting the matter to a grand jury and obtaining an adjudication of the existence of probable cause, is entitled to bring the accused to trial without further litigation of this question. See United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 55 S. Ct. 781, 79 L. Ed. 1501; Beavers v. Henkel, 194 U.S. 73, 24 S. Ct. 605, 48 L. Ed. 882. No merit therefore attaches to petitioner's contention that he was denied any constitutional right by not having been accorded a preliminary hearing.
Petitioner further asserts that he was put to trial with an invalid venire in that the names of only 65 jurors were on the venire. Petitioner claims he was "entitled to a venire of not less than 75 nor more than 100 jurors."
The provision for a special venire in capital cases is found in Section 63, Title 30, Code of Alabama 1940. This section reads:
The judgment entered shows that 60 regular jurors had been drawn for the week of this trial and that the court in open court and in the presence of the petitioner (defendant) drew the names of 5 additional jurors, making a total of 65 jurors to constitute the special venire to try the petitioner. Thus Section 63, supra, was fully complied with, and no merit attached to this contention of the petitioner.
Further, the original record on appeal discloses that no objection was taken in the trial below as to the venire. This matter cannot be raised for the first time on appeal, no constitutional question being involved. Taylor v. State, 249 Ala. 130, 30 So. 2d 256; Davis v. State, 229 Ala. 674, 159 So. 209; Hollander v. State, 27 Ala.App. 454, 173 So. 891. It follows that this matter must be deemed as waived in the absence of any objection prior to trial and is not now to be considered.
The remaining allegations of the petitioner are mere generalizations that his constitutional rights were denied in his trial, or concern matters fully litigated in his trial and adjudicated adversely to the petitioner in his trial and by this court upon review. No useful purpose would be served by writing to these palpably specious contentions.
*244 The petition is due to be denied, and it is so ordered.
Petition denied.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | May 27, 1965 |
76e5bcc6-25d8-46a6-b7e6-ca0d72b43aeb | Alabama Power Co. v. ALABAMA PUBLIC SERVICE COM'N | 179 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 725 (1965)
ALABAMA POWER COMPANY
v.
ALABAMA PUBLIC SERVICE COMMISSION et al.
3 Div. 132.
Supreme Court of Alabama.
September 2, 1965.
Rehearing Denied November 18, 1965.
*726 Steiner, Crum & Baker, Montgomery, and Martin, Balch, Bingham & Hawthorne, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., Robt. D. Bradley, Asst. Atty. Gen., and Jas. M. Wright, Sp. Asst. Atty. Gen., for appellee.
John Chason, Bay Minette, T. E. Martin, Montgomery, Carl S. Farmer, Abbeville, E. C. Orme, Troy, Edwin C. Page, Jr., Evergreen, A. A. Smith, Hartford, Adams, Gillmore & Adams, Grove Hill, John W. Coleman, Talladega, James W. Kelly, Geneva, J. M. Williams, Jr., Rushton, Stakely & Johnston, Montgomery, for intervenors-appellees.
MERRILL, Justice.
This appeal is from a decree of the Montgomery County Circuit Court, in Equity, sustaining an order of the Alabama Public Service Commission permitting appellant to issue bonds in the amount of $16,000,000 to provide funds for acquiring or constructing plants, properties, permanent improvements, *727 extensions or additions to be used in its public utility business.
The Public Service Commission granted the request but imposed a condition or limitation and inclusion of the condition caused the appeal to the circuit court, and then to this court when the condition was sustained by the circuit court.
Appellant's petition to the commission was required by Tit. 48, §§ 309 and 310, Code 1940, as amended, which provide:
The commission imposed this condition:
The Public Service Commission permitted several Rural Electrification Cooperatives and Alabama Electric Cooperative to intervene and one of appellant's assignments of error is that the court erred in allowing them to intervene.
We think the statute, Tit. 48, § 65, Code 1940, is a complete answer to appellant's contention. It reads:
*728 The REA cooperatives are taxpayers of the State, customers and competitors of appellant. They showed a direct financial interest as well as a personal interest in the proceeding. The mere fact that they are not subject to regulation by the Public Service Commission is no bar to the obvious right given by the statute, and there was no error in permitting them to intervene and become parties to the proceeding.
We come now to the important and decisive questions in the case: (1) did the commission have the power to impose the condition or limitation in a proceeding seeking approval for the issuance and sale of securities, and (2) was this condition or limitation supported by legal evidence of substantial weight and probative force?
Appellant is subject to regulation by the Public Service Commission, and we stated its right to regulate in Murray v. Service Transport, Inc., 254 Ala. 683, 49 So. 2d 221, as follows:
Title 48, §§ 309 and 310, make it abundantly clear that the commission has the authority to specify the purposes for which any such securities or the proceeds thereof may be used by the utility making such application and "may grant it with such modification and upon such terms and conditions as the commission may deem necessary or appropriate in the premises."
The intervening cooperatives insisted that appellant should be prohibited from using the proceeds to duplicate the lines and facilities of the cooperatives and that the commission should require appellant to secure a certificate of convenience and necessity before making extensions which would duplicate the lines and facilities of intervenors in areas where they are now serving customers with electric energy.
The order of the commission did not state the reasons for the imposition of the condition or limitation, but we think the reason is obvious. The statute, Tit. 48, § 309, places the duty on the commission to investigate "the purposes and uses of the proposed issue" and approve the issuance of the securities only if four prerequisites are found to be present, one of which is that it "is compatible with the public interest."
There was evidence before the commission that appellant had duplicated the lines of intervenors and appellant's president stated to the commission that duplication would continue if an industrial load was involved. It is common knowledge that appellant and the intervenors have fought each other for years, both before the commission and in the courts. If a large portion of the proceeds of the proposed bond issue were used to duplicate the lines and services of the intervenors, both appellant and intervenors could be hurt financially, the investors and the customers of each could be hurt and the service to the public by each could be impaired. It is not difficult to see that unrestricted duplication of lines would not be in the public interest, or, as stated in the statute, would not be "compatible with the public interest." But the commission recognized that in some instances duplication might be warranted, and *729 made provision in the limitation that appellant could seek approval of the commission where duplication was thought to be necessary.
Appellant argues that one of our cases supports its contention that the commission is without the power and authority to put such a limitation or condition upon a proposed mortgage of a utility to raise money. The case is Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872 where this court held that a limitation of the commission that the utility could not issue bonds under a second mortgage in excess of 80% of the value of its property was not a "reasonable exercise of the police power under the relevant and material facts and circumstances entering into the right of alienation sought." There, the commission inserted the condition or limitation because it was a provision in the "underlying mortgage of 1910" which was not before this court on appeal from a decree overruling the demurrer to the bill. This court said, "We are not impressed that the action of the Commission may be justified by such contract provisions of said mortgage." The point was also made that the mortgage on which the commission was acting would be subordinate to the 1910 mortgage. This court also said that "the propriety of the issuance of securities by different public utilities will depend upon the facts in each particular case." We do not think the Mobile Gas case is apt authority here.
We conclude that the commission did have the authority to impose the limitation.
Appellant also argues that the commission is not empowered to impose the condition or limitation because it is in violation of the exception in Tit. 48, § 332, which provides that a public utility must secure a certificate of convenience and necessity for construction "except ordinary extensions of existing systems in the usual course of business." Appellant contends that our case of Alabama Power Co. v. Southern Pine Electric Cooperative, 270 Ala. 453, 118 So. 2d 907, confirms its argument.
This court has never defined "ordinary extension of existing system in the usual course of business." The majority opinion in Alabama Power Co. v. Southern Pine Electric Cooperative, supra, was limited to the facts in that case and the "majority of the court expressly refrained from deciding the issue" of defining the exempting provision in Tit. 48, § 332, Clarke-Washington Electric Membership Corporation v. Alabama Power Co., 272 Ala. 598, 133 So. 2d 488. And in this last cited case, this court once again reached a decision without defining the clause.
In the instant case, we follow the previous decisions and do not attempt to apply the exemption clause to situations which might arise in the future. The clause applies not only to electric utilities, but also to gas, water or steam utilities and street or interurban railways. We hold here that the limitation or condition imposed by the commission does not restrict appellant from making "ordinary extensions of existing systems in the usual course of business."
The next important argument is that there is no evidence in the record to support the imposition of condition or limitation. We cannot agree.
The manager of Alabama Electric Cooperative, Basil Thompson, testified that appellant is now serving hundreds of meter services that were formerly served by REA Cooperatives; that duplications occurred around Brewton, the Pollard Oil Field, near Jackson and at Evergreen, Samson Enterprise, Prattville and Goodwater. Suits involving duplications have been resolved in this court.
Some of this evidence was based upon hearsay. The witness was not personally familiar with all the facts in every instance. However, this objection is not fatal where there is also legal evidence. *730 We have said that "the commission may receive and consider evidence shedding some light on the issue, although not admissible under the general rules of evidence." (Citing 42 Am.Jur., Public Administrative Law, §§ 129 and 132.) In this connection it may be observed that members of the commission are not required to be learned in the law of evidence. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183. There was no absence of legal sworn testimony to support the order of the commission.
The first sentence of Tit. 48, § 82, Code 1940, relating to appeals from orders of the Public Service Commission reads: "The commission's order shall be taken as prima facie just and reasonable." The commission is a special tribunal set up as a permanent body to deal with special problems. Capable, understanding people, free of all interest save the performance of public duty, weighing evidence in the light of experience, is the setup contemplated by law. "Courts should not and do not overturn their findings save upon a clear conviction that their orders are wrong and unjust." North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183.
We have held that a finding of the commission will not be overturned if supported by legal evidence of substantial weight and probative force. Smith Transfer Co. v. Alabama Public Service Commission, 271 Ala. 177, 123 So. 2d 28, and cases there cited.
The commission is "a body of experts," Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; and "the Courts must be careful in reviewing the conclusions of fact of an important administrative body, to guard against a substitution of the Court's own judgment of findings of fact for that of the administrative authority." Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721.
Appellant argues that there is no evidence in the record to support the setting of two-tenths of a mile as the maximum distance to be allowed for extension of duplicating lines in some instances, or as to the reasonableness or unreasonableness of such distance. We cannot agree that either appellant, the intervenors or the commission is unacquainted with that terminology or its application. This is the standard distance used in contracts between appellant and the cooperatives in Alabama where the parties contract between themselves, not to duplicate their lines, and the condition is filed with the commission. We had the standard section (16) of the contract before us in Clarke-Washington Electric Membership Corporation v. Alabama Power Co., 272 Ala. 598, 133 So. 2d 488, and Alabama Power Co. v. Central Alabama Electric Cooperative, Ala., 177 So. 2d 441. We understand, and we are confident the parties understand, that two-tenths of a mile is the maximum length of a secondary and service line. We consider the use of this distance as technical nomenclature clearly understood by all parties, and considered by all parties as reasonable distance under the subject of duplication.
Appellant further argues that the order of the commission would require it to violate Tit. 48, § 34 and Tit. 10, § 187, the first requiring it to "render adequate service to the public" and the second requiring it to sell power to any persons etc., requesting or demanding it.
Appellant is not under a statutory duty to serve every individual in Alabama who requests electric service. If this were so, the electric cooperatives would never have been formed because there would have been no need for them. This argument is without merit.
Finally, appellant argues that it was denied due process of law in that the hearing was concluded more than sixty days after the filing of the petition with the commission in violation of Tit. 48, § 312, Code *731 1940, and that it was deprived of the right of adequate cross-examination.
Appellant's original application was filed on February 5, 1963, but an amendment, drastically changing the scope of the application, was filed on March 1, 1963. The commission's order was granted April 25, 1963, less than sixty days from the filing of the amended application. There was no denial of due process.
We have read carefully the record of the alleged denial of the right of cross-examination. We find no denial of any right of appellant and no abuse of discretion in terminating the hearing.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | September 2, 1965 |
363b6bef-3e67-414f-8d8f-09e3fcf7a7c9 | City of Foley v. Terry | 175 So. 2d 461 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 461 (1965)
CITY OF FOLEY
v.
Carlie B. TERRY et al.
1 Div. 109.
Supreme Court of Alabama.
May 20, 1965.
*462 Paul W. Brock, Donald F. Pierce and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
James A. Brice, Foley, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a judgment for the plaintiffs, the dependent surviving spouse and two dependent surviving children of Tom Terry, deceased, against the City of Foley, Alabama, a Municipal Corporation, under a complaint filed in a workmen's compensation case. Sections 253-313, Title 26, Code of Alabama 1940.
The trial court found the following facts:
"The defendant hired the decedent to work for it at a regular salary of $40.00 per week; that on May 4, 1959, the decedent was placed in the swimming pool to clean and disenfect the swimming pool and in so doing used a commercial compound containing chlorine gas; that the defendant [decedent] was under the direct supervision and subject to the orders of Mr. Roberts, who was an agent of the defendant, acting within the line and scope of his employment; that said employment was also under the supervision of Mr. Roger Lee Kirkland, a member of the Town Council of the defendant; that the decedent worked all day on May 4, 1959, and at the end of the work day found that his breathing was affected; that he immediately called Doctor Julius Michaelson, complaining of his injuries; that the following morning he reported his condition to the said Mr. Roberts, who placed him in the hospital at Foley, Alabama, under the care of Doctor Julius Michaelson; that his condition continued and grew worse from time to time until September 7, 1959, when he died; that the defendant [decedent] was in and out of the hospital during his lingering illness, and was in the hospital at the time of his death; that prior to May 4, 1959, the *463 decedent was an athletic type, robust man, in apparent good health; that according to the testimony of Doctor Michaelson, decedent was affected in his breathing capacity, and that his condition was caused or aggravated by the inhalation of chlorine gas; that there were x-rays made; however, there is shown by the record quite a confusion as to an x-ray made in January of 1959, which has never been accounted for, nor established when it was taken and by whom; that the decedent died on September 7, 1959; that the decedent left surviving him his widow and two dependent children; that the decedent was a resident of Foley, Baldwin County, Alabama, at the time of his injury and also at the time of his death;
The complaint in this cause was filed in the Circuit Court of Baldwin County, Alabama, on May 26, 1960. On March 22, 1961, the complaint was amended. Demurrers were filed to the original complaint and overruled. The demurrers were refiled, with amendments thereto, to the complaint as amended, and were also overruled. The defendant then interposed its answer admitting certain allegations of the amended complaint and denying others. The answer also raised legal questions which we will dispose of herein below. Suffice it to say, the evidence introduced in the court below is sufficient to sustain the finding of facts made by the lower court, except as herein noted. The rule has long been settled that on certiorari to review judgments in compensation cases, this court does not look to the weight of the evidence as to facts found by the trier of facts, and will only determine if there is any evidence, or reasonable inference therefrom, to support the finding. Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So. 2d 756.
There are numerous assignments of error but only those argued in brief will be treated in the opinion. Assignments not argued in brief are presumed waived. Rule 9, Revised Rules of the Supreme Court of Alabama.
We will now dispose of the legal questions presented by the record.
*464 Subsection (d) of Section 262, Title 26, Code of 1940 (1958 Recompiled Code of Alabama) provides as follows:
Section 263 of Title 26, Code of 1940 (1958 Recompiled Code of Alabama), provides:
Admittedly, at all times pertinent to this review the City of Foley was operating under the Alabama Workmen's Compensation Act. However, the City claims that the Workmen's Compensation Act did not cover the employees of the new Foley Park. But there is nothing in the record to support this contention. In other words, there is no evidence to indicate that the City of Foley made any attempt to classify its employees, admitting, for the sake of argument only, that it could do so. We do not think the legislature intended to limit the application of the Compensation Act to municipalities while engaged only in proprietary functions.
In 54 A.L.R. 788, Annotation "Municipal corporation as an employer within Workmen's Compensation Act," it is stated:
This Court is in agreement with the reasoning in the above-cited case of Hughes v. City of Buffalo, supra, which was a proceeding under the Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, where the New York Supreme Court (Appellate Div.) said:
Appellant cites many cases to the effect that municipalities are immune from suit by third parties for injuries or death caused by the negligence of municipal employees while said employees are acting in a governmental capacity. These authorities are inapt. This argument seems to be based on the theory that Section 14 of Article I of the Constitution of Alabama 1901 provides that the state can never be made a party-defendant in any court of law or equity, and that a municipality is a mere agency of the state. The argument is fallacious. Our decisions are to the effect that municipalities are such agencies of the state *465 as may be subject to suit. Such constitutional immunity was intended for the protection of "immediate and strict governmental agencies of the State, as its State Board of Administration, State Docks Commission, Alabama Polytechnic Institute, the University of Alabama, the State Insane Hospital, and other mere governmental agencies." See Ex parte Board of School Commissioners of Mobile County (Daves et al. v. Rain), 230 Ala. 304, 161 So. 108, and cases therein cited.
It is true that the operation of a swimming pool is generally considered under our cases as a governmental function. City of Decatur v. Parham, 268 Ala. 585, 109 So. 2d 692. Mathis v. City of Dothan, 266 Ala. 531, 97 So. 2d 908. See also "Municipal operation of bathing beach or swimming pool as a governmental or proprietary function, for purposes of tort liability" in 55 A.L.R.2d 1434. It is also true that the trial court found that the operation of the swimming pool in question was a proprietary function. But whether or not the operation of the swimming pool was a governmental function or a proprietary function makes no difference, as we have demonstrated. The finding of the trial court of the fact that the operation of the swimming pool was a proprietary function was, at most, harmless error.
Appellant contends that no claim was presented to the City of Foley as provided by Sec. 476, Title 37, Code of 1940, and that no sworn statement was filed showing the day, time, place and manner of injury, as well as the damages claimed, as required by Sec. 504, Title 37, Code of 1940. Obviously, the complaint, as amended, which was sworn to, did comply with Sec. 296 of Title 26, Code 1940, and, as a consequence, a holding by this Court that Tom Terry was covered by the Workmen's Compensation Act of Alabama renders Sections 476 and 504, supra, inapplicable. Moreover, we are clear to the conclusion that under the facts of this case notice of the accident was waived by the City of Foley's admission that Tom Terry's immediate supervisor took Terry to the hospital the day after he was injured, and the City, through its workmen's compensation insurance carrier, paid a part of his doctor, medical and hospital bills until Terry died. So, if Terry was covered by the Workmen's Compensation Act, the complaint and the amendment thereto were filed in time, Davis v. Standard Oil Co., 261 Ala. 410, 74 So. 2d 625, and it was not necessary to comply with either Sections 476 or 504, supra.
Appellant filed several special pleas. Appellees demurred to each plea but obtained no ruling thereon, and joined issue. Appellant contends that the pleas were proven, and, even if the pleas are found to be immaterial, judgment should have been entered for the appellant thereon. We see little merit in this argument. We adhere to the principle declared in Ex parte National Pipe & Foundry Co., 213 Ala. 605, 105 So. 693, that the compensation law should be liberally construed in furtherance of the humanitarian purposes leading to its enactment; and that pleading under the act was not intended to be cast in the technical precision of the common law, or tested by the refined objections of hypercriticism. See also Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289, and Ex parte Taylor, 213 Ala. 282, 104 So. 527; Ex parte Coleman, 211 Ala. 248, 100 So. 114.
We find no error in the record and the case is due to be, and is, affirmed.
Affirmed.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | May 20, 1965 |
471a1966-eeef-4b23-a901-0048cf6394c2 | City of Mobile v. Scott | 178 So. 2d 545 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 545 (1965)
CITY OF MOBILE
v.
J. G. SCOTT et al., Members of Personnel Board for Mobile County.
1 Div. 141.
Supreme Court of Alabama.
September 9, 1965.
Wm. R. Lauten and Ralph Kennamer, Mobile, for appellant.
Mylan R. Engel, Mobile, for appellees.
COLEMAN, Justice.
The Personnel Board for Mobile County filed, in equity, a bill for declaratory relief against the City of Mobile.
*546 The board alleged that it was created pursuant to Act No. 470, Local Acts 1939, page 298, and that, under said act, the board is empowered to govern, by civil service rules, all employees of the City "in the Classified Service"; that by resolution dated December 12, 1961, the City authorized execution, in the name of the City of a contract employing one Helveston as "Administrative Assistant" to the Board of Commissioners of the City and that the contract was executed and Helveston employed thereunder commencing January 1, 1962.
The board alleged that the position of Administrative Assistant is a position within the classified service and should be filled by examination and appointment under the rules of the board.
In its answer, the City alleged that Helveston was "employed as an independent contractor," and that even if he be an employee of the City, and subject to Act No. 470, he is not in the classified service or subject to the authority of the board.
The bill of complaint was filed February 8, 1962.
By amendment to the City's answer, filed November 21, 1962, the City alleged that by Act No. 39, approved June 28, 1962; 1962 Acts, Special Session, page 50; the legislature authorized the City to appoint an administrative assistant on such terms as the governing body of the City may provide; that the City, on July 1, 1962, pursuant to the act, appointed Helveston as Administrative Assistant and terminated the contract of employment set forth in the bill of complaint; and that the question before the court was no longer justiciable but had become moot. The cause was submitted on bill and sworn answer.
The court rendered decree declaring that the city did not have authority to hire an administrative assistant outside of the classified service. The court, in the decree, took note of Act No. 39, but deemed a declaration of rights in the case essential for guidance of municipalities in Mobile County, citing Stone v. State, ex rel. O'Conner, 30 Ala. App. 500, 8 So. 2d 210.
The City says there was no justiciable controversy when the decree was rendered, and, therefore, that the court erred in rendering the decree because the court no longer had jurisdiction so to do.
The rule is, that ". . . . there must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under declaratory judgment statutes. (Citations Omitted.)" Shadix v. City of Birmingham, 251 Ala. 610, 611, 38 So. 2d 851.
If there was no justiciable controversy existing, according to the averments of the bill, when the suit was commenced, the trial court had no jurisdiction according to the rule quoted above from Shadix. Under that circumstance, the decree of the trial court would be void. An appeal will not lie to reverse a void decree. Capps v. Norden, 261 Ala. 676, 75 So. 2d 915. An appeal from a void decree must be dismissed. Shade v. Shade, 252 Ala. 134, 39 So. 2d 785.
It seems to us, however, that there was a justiciable controversy alleged and existing when the bill was filed. The court, then, did have jurisdiction when the suit was commenced. Whether that jurisdiction was subsequently lost or not, we will not decide, because we are of opinion that, in either case, the appeal must be dismissed because it seems clear that there is no justiciable controversy existing now.
The contract made by the City with Helveston has been terminated. The record does not show any facts which present an existing controversy between the City and the board. No existing conflict between them as to the exercise of authority is shown by this record. The record shows no clash between the parties as to any employee, present or prospective. No action *547 to hire or fire anybody depends on this decision.
There is now no justiciable controversy in this case and this court will not make a declaration in a declaratory judgment proceeding which will be futile. This court will not render a purely advisory opinion nor decide moot questions under the guise of a declaratory judgment. Homan v. Beard, 268 Ala. 22, 104 So. 2d 914.
It is the general rule that appellate courts do not sit to give opinions on moot questions or abstract propositions. Our authorities are also to the effect that it is not customary to decide moot questions merely to ascertain who is liable for costs. Lewis v. Head, 238 Ala. 151, 189 So. 886.
Where the chief of police sought restoration to the office from which he allegedly had been wrongfully removed, this court dismissed his appeal where he had been legally removed from office after the appeal was taken. State ex rel. Case v. Lyons, 143 Ala. 649, 39 So. 214. The court there said:
Whatever may have been the situation when the instant suit was commenced or when the decree was rendered, the case is now moot, and, for that reason, the appeal is due to be and is dismissed.
Appeal dismissed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | September 9, 1965 |
3b0d1d5e-33df-4eed-8240-7118390eff40 | Pate v. Law | 173 So. 2d 596 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 596 (1965)
Virginia PATE et al.
v.
Berenice LAW.
4 Div. 202.
Supreme Court of Alabama.
March 11, 1965.
Rehearing Denied April 15, 1965.
Prestwood & Prestwood, Andalusia, and Alvin T. Prestwood, Montgomery, for appellants.
Tipler & Fuller, Andalusia, for appellee.
HARWOOD, Justice.
In the proceedings below Virginia Pate, Edith McElreath and Hubert Law, who are sisters and brother, filed a bill against Berenice Law, their sister-in-law, alleging *597 that the complainants and respondent each owned an undivided one-fourth interest in three tracts of land. It was averred that the property could not be equitably divided, and complainants prayed for a sale of the lands and a division of the proceeds.
The respondent filed an answer and cross bill in which it was admitted that as to two of the tracts the complainants were owners of an undivided one-fourth interest, but asserting that the respondent was the sole owner of the third tract which is referred to in the testimony as the Diamond Place. This litigation concerns only the Diamond Place insofar as the interests of the respective litigants are concerned.
The evidence below was by agreement of the parties taken before a commissioner.
There is no note of submission of this evidence by the complainants, appellants here. The record does show, however, that the respondent filed her note of submission, and therein submitted for consideration of the court a stipulation of the parties, together with all exhibits referred to in said stipulation; a stipulation of payment of taxes by Lamar Law, deceased husband of the respondent; objections of respondent to testimony of appellants; evidence elicited on cross examination of complainants' witnesses; the testimony of Ray Walker, the attorney who prepared and notarized the deed conveying the questioned property to Lamar Law; and the tax assessment receipts of taxes paid on said property.
Equity Rule 57, Title 7, Appendix, Code of Alabama 1940, requires that a note of submission, signed by each party to the submission, or his attorney of record, showing the proof upon which he rests his case, be filed by the Register at the time of submission for a final decree, and provides that the court shall not consider anything not noted on the note of submission. The rule further provides that it is not necessary to note any testimony given orally before the judge in open court.
Since this rule was not complied with by the appellants, we cannot consider any testimony not noted by them, though it may appear in the transcript forwarded to this court, and even though it may have been considered by the court below. Campbell v. Rice, 244 Ala. 144, 12 So. 2d 385; Weatherwax et al. v. Heflin et al., 244 Ala. 210, 12 So. 2d 554.
Upon submission, the court entered a decree reciting, among other things:
The court found that one of the tracts involved in the complaint was, by agreement of the parties, withdrawn from the suit.
As to the Diamond tract, the court found that the complainant, Hubert Law, owned an undivided 9/80 interest therein, and the respondent, Berenice Law, owned an undivided 71/80 interest.
The court further found that the solicitors for the complainants were entitled to a reasonable attorney's fee in the premises.
The court ordered the lands to be sold by the Register, and upon the confirmation of the sale that the Register hold a reference to determine the distributive shares of each party, and also ascertain a reasonable attorney's fee to be paid the solicitors for the complainants.
Pursuant to such order, the Register sold such lands. The undisputed tract was sold for $25,700 and the Diamond Place was sold for $39,750, and report thereof made to the court.
The Register further reported that the solicitors for the complainants should be allowed a total fee of $6,400, of which *598 $2,500 should be charged against the proceeds of the undisputed tract, and $3,900 should be charged against the proceeds of the Diamond Place. The attorneys' fees were fixed by the Register after a hearing.
An exception to the report of the Register was made by the respondent insofar as the amount of attorneys' fees was concerned, the respondent asserting the fees were excessive.
After hearing, the court denied the exceptions, and confirmed the Register's report in all respects, and ordered that all monies be disbursed in accordance with the decree of the court and the report of the Register.
In reaching its conclusion, the lower court apparently considered all the evidence taken before the commissioner. Even so, it found and decreed as above set forth. Properly, the lower court should have considered only that part of the evidence taken before the commissioner which was noted by the respondent on submission. This is all the evidence we can consider on this review. Campbell v. Rice, supra.
This evidence tends to show:
1. That the disputed tract was owned in 1938 by Maurice Law, a brother of the complainants and Lamar Law, and that in 1938 this land was mortgaged by Maurice Law to B. C. Diamond, which mortgage was assigned to Lamar Law on his payment of the mortgage indebtedness on 12 March 1941; that the heirs at law of Maurice Law were the complainants and Lamar Law and his mother, Mrs. Jennie Law, and two other sisters who died intestate and without issue; that Maurice Law died intestate and without issue on 4 November 1949, at a time that the record title to the land was vested in him, and by the statutes of descent and distribution the title to the land vested jointly in Jennie Law, his mother, and the complainants and Lamar Law as surviving brothers and sisters.
2. That by warranty deed Edith McElreath, and Virginia Pate, and their respective spouses, and Mrs. Jennie Law, their mother, conveyed the disputed property to Lamar Law. In this deed the above parties, and Hubert Law are named as grantors. The deed was executed by all the parties in 1951, except Hubert Law, who never signed the deed. The deed as executed was recorded on 9 February 1954.
3. Lamar Law, husband of the respondent, died on 27 March 1957, bequeathing all of his property to his wife, the respondent, Berenice Law.
4. Ray Walker Murphy, a practicing attorney, testified for the respondent that he knew Mrs. Jennie Law and Edith McElreath quite well, and was friendly with them, and that they executed the deed to Lamar Law without any reservations and after he had explained to them that it was a deed to the property in dispute. Mr. Murphy further testified that the deed recited all the heirs which included Hubert Law, to assist anyone abstracting the title at a later date. On cross examination Mrs. McElreath testified that she would not deny that Mr. Murphy told her the full import of the deed.
5. B. C. Diamond testified on cross examination that the disputed property was worth approximately the amount of the mortgage indebtedness at the time he took the mortgage in 1938, and had appreciated in value only a small amount at the time Lamar Law acquired the mortgage.
6. The tax records of Covington County show that the property was assessed in the name of Lamar Law from the date he acquired the mortgage in 1941, until his death in 1957, and thereafter in the name of Lamar Law's estate. In 1942 the property was assessed in Lamar Law's name by Mrs. Jennie Law, one of the grantors of the deed to Lamar Law.
The above evidence was ample in its tendencies showing that Mrs. Pate and Mrs. McElreath had alienated their interests in the disputed land. It was also ample in its tendencies showing that Berenice Law *599 and Hubert Law owned interests in the tract. There is no argument in appellants' brief questioning the calculation of interests found to be owned by Hubert Law and Berenice Law if the deed to Lamar Law be valid. Appellant's argument is directed only toward the alleged invalidity of such deed. The evidence presented by complainants-appellants in this regard cannot be considered as aforesaid.
Since appellants' arguments under all five of their assignments are posited on the alleged invalidity of Lamar Law's deed, they must be deemed without merit.
By cross assignments the appellee has asserted as error the fees allowed counsel for appellant because of the alleged excessiveness of the fees.
The matter of the allowance and amount of fees to be awarded was referred to the Register for a determination.
At the reference hearing before the Register, the appellants offered testimony to the effect that ten percent of the sales price of all the land involved in the litigation, that is, $6,400, would be a reasonable fee to be allowed the attorneys for the complainants.
The appellee offered testimony to the effect that a ten percent fee on the undisputed tract, which was sold by the Register for $25,700, would be a reasonable fee, that is a fee of $2,500, approximately. Appellee's witness, however, was of the opinion that a fee of ten percent on the sales price of the disputed land which sold for $39,750, was a "little high," and that a fee of five percent of the sales price of this land would be more appropriate.
After the hearing the Register found, and reported to the court, that a fee of $6,400 would be a reasonable fee to be awarded the attorneys for the complainants, and the report of the Register in this regard was confirmed by the court.
We excerpt the following, amply supported by authorities, from Sims "Chancery Pleading and Practice in Alabama," Section 607:
This principle negatives the efficacy of those cross assignments asserting error because of the denial by the court of exceptions taken to the Register's report as to the attorney's fee allowed complainant's attorneys.
Cross appellant's (respondent's) assignment of error No. 2 asserts:
It appears that the court held a hearing upon the above motion, thereafter denied the motion. At this hearing the attorney for the respondent testified, and the direction of his testimony may be gathered from the following portion of his testimony:
"It is my feeling that in equity a fee should be awarded Prestwood and Prestwood insofar as the sale of the Law property" (undisputed tract) "is concerned because that was just an ordinary sale for division, and my services were not necessary in that case insofar as that land was concerned, but insofar as the River property" (Diamond Place) "is concerned I feel that *600 the Register should hear evidence to ascertain what services were rendered, and that appropriate fees should be awarded from the interest of the party represented by the attorney. That is to say that a fee should be awarded me for services rendered on that property insofar as the interest of Berenice Law is concerned, and charged against the sale of the property, and the Prestwoods for services rendered Hubert Law, since he was the only other owner the Court's decree after litigation, and that his services should be taken insofar as that portion is concerned from the proportionate share due Hubert Law.
Appellee's argument in support of assignment 2 is largely consonant with his above testimony.
Section 63, Title 46, Code of Alabama 1940, provides that:
The allowance of attorney's fees under the above statute is on the basis of, and solely for, benefits inuring to the common estate, and the tenants in common. Owens v. Bolt, 218 Ala. 344, 118 So. 590; Dent v. Foy, 214 Ala. 243, 107 So. 210; Snead v. Lee, 218 Ala. 44, 117 So. 469. This does not include a controversy as to the respective rights or interests of the tenants in common, and to permit counsel for respondent to have a fee out of the common estate, he must have been employed to render, and did perform some service for the common estate, which in due course of the proceeding other counsel had not been employed to perform. Matthews v. Lytle, 220 Ala. 78, 124 So. 197.
Mr. Tipler's testimony on the hearing before the court, and his argument in brief, fails to establish that counsel for complainants did not render services of benefit to the common estate, but is directed toward the fairness of permitting attorney's fees for establishing the individual interests of respective co-tenants, that is for services rendered to the individual litigants rather than to the common estate. While counsel has presented his theory in a forceful manner, such is not the doctrine of our decisions, as shown above.
Further, it appears that the respondent could have obtained all the relief to which she was entitled under her answer, and the original bill, and therefore was not entitled to a solicitor's fee for filing and prosecuting her cross bill. See Pritchett v. Dixon, 222 Ala. 597, 133 So. 283.
We conclude that cross appellant's assignment of error number 2 is without merit.
The judgment and decree appealed from is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | March 11, 1965 |
939da159-be93-4752-bd5f-dfdc5b868491 | Hatas v. Partin | 175 So. 2d 759 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 759 (1965)
Mary B. HATAS
v.
Edward Grady PARTIN et al.
2 Div. 470.
Supreme Court of Alabama.
May 27, 1965.
*760 Robt. S. Vance and Hogan, Callaway & Vance, Birmingham, for appellant
Izas Bahakel, Birmingham, for appellees Partin and Local Union.
Beddow, Embry & Beddow, Birmingham, Pruitt & Pruitt, Livingston, and Williams, Wadden & Stein, Washington, D. C., for appellee Teamsters Union.
MERRILL, Justice.
This appeal is from a judgment sustaining pleas in abatement by the defendants, Edward Grady Partin, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local Union No. 5, and dismissing the case.
Appellant, Mary B. Hatas, styling herself "The mother of and the special administratrix of the estate of her deceased son, William Andrew Hatas," filed this suit under the wrongful death statute, Tit. 7, § 123, Code 1940, seeking damages for the death of her son who was killed when an automobile in which he was riding was allegedly struck by an automobile driven by defendant Partin, who allegedly was the agent, servant or employee of the International Union and the Local Union. The cause was removed to Federal Court and later remanded to the Circuit Court of Sumter County.
The three defendants filed two pleas in abatement, Pleas A and B. The trial court did not consider Plea B because Plea A was sustained. The basis of Plea A was that the plaintiff has no status to sue in the courts of this state because she has not caused herself to be appointed personal representative of the estate of her deceased son in the State of Alabama.
The primary question to be decided is this: Can a foreign administrator bring a wrongful death action in this state without first going through the ancillary procedures set out in Tit. 61, §§ 143 and 146, Code 1940? The trial court answered the question in the negative.
This is a case of first impression in this court and we have reached the conclusion that the question posed should be answered in the affirmative.
We start with the proposition that at common law no suit can be maintained by an administrator in his official capacity except within the limits of the state from which he derived his authority; Jefferson v. Beall, 117 Ala. 436, 23 So. 44; Lawrence v. Nelson, 143 U.S. 215, 12 S. Ct. 440, 36 L. Ed. 130; and a second proposition that in Alabama a cause of action for wrongful death is not property. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912, and Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4 So. 2d 315. Unless our statutes give a foreign administrator permission to file and maintain a suit under a wrongful death statute, the trial court was correct in sustaining the pleas in abatement.
We look first at the wrongful death statute, Tit. 7, § 123, Code 1940:
"A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere *761 for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate."
The words "personal representative" are broader in some respects, but when used in this statute, they can only mean the executor or administrator of the injured testator or intestate.
This statute authorizes suit to be brought by the personal representative for a definite legislative purposeto prevent homicide. In prosecuting such actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy, * * And the right is vested in the personal representative alone. No one else, under any circumstances except in the case of the death of a minor child, where Tit. 7, § 119 gives a preferred right to the father or mother, can maintain the action in any forum. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912. "The only right or duty the administrator has is to maintain the suit, and collect the damages and pay them over to the distributees. He is a mere agency and conduit, provided by the statute for bringing the suit, collecting the damages, and passing them over to those entitled thereto." Kennedy v. Davis, 171 Ala. 609, 55 So. 104.
The following excellent annotation is found in 52 A.L.R.2d 1057:
"From the cases cited above, it appears that the reason for allowing a foreign personal representative to sue under a death statute, notwithstanding the rule that a personal representative as such may not sue outside of the jurisdiction in which he is appointed, without ancillary appointment in the state of the forum, is that under statutes like Lord Campbell's Act, creating a new cause of action (as distinguished from one merely preserving the right of action in favor of the deceased to his personal representative), the recovery to go not to the estate to be distributed as a part thereof, but to designated beneficiaries, the personal representative sues not in his capacity as such, but in the capacity of a trustee for such beneficiaries, and, as the doctrine denying the personal representative the right to sue in a jurisdiction other than that of his appointment is predicated on the idea that local creditors must be *762 first satisfied before the representative may be permitted to recover local assets and remit them to another jurisdiction, the reason for the rule ceases to exist when the recovery is not subject to claims of deceased's creditors, but is to be distributed among the statutory beneficiaries."
See also, Ghilain v. Couture, 84 N.H. 48, 146 A. 395, 65 A.L.R. 553, and the annotation following the report of the case.
But we do not have to rely on these authorities alone because we think specific authority is granted in Tit. 61, § 151, Code 1940, which provides in part:
This section definitely permits a foreign executor or administrator to maintain a suit in the courts of our state prior to qualifying in this state.
Appellees argue that Tit. 61, § 151 applied only to property when it was enacted, applies only to property now and that the later enactment of the wrongful death statute has no effect on § 151 because the cause of action created was not property.
We assume that this argument is the basis for the decision of the learned trial judge in sustaining the plea in abatement, and he was fortified by the caption of § 151 which reads: "When foreign representative may sue for and recover, or receive property."
What is now Tit. 61, § 151, was first enacted in 1821 and gave a personal representative, appointed outside this state, the right to maintain suits, and the title to the section in Toulmin's Digest was: "Executors appointed by other states may sue." In the 1852 Code the caption was: "Actions, how maintained, or property recovered by a foreign administrator." The 1876 Code added "or executor" to the caption and it so remained until the 1887 Code where the present caption was first used. During the time from 1821 to the present, the statute has been amended, but without effect on the provisions here pertinent. Prior to the change in the caption in 1887, the section itself gave to foreign personal representatives, or administrators or executors, the right to maintain suits in this state, and the wording of the section today gives that right subject to certain conditions to be met prior to judgment.
The caption or title at the beginning of a section of the Code is not a part of the section, and a change in the caption or title by the codifiers does not affect the body of the section where it has remained unchanged. Ex parte Byrd, 172 Ala. 179, 55 So. 203.
And although a difference in phraseology and arrangement may be made by the codifiers, this does not necessarily work a change of construction. Unless the alteration is of such character as to manifest a clear intent to make a change in the construction and operation, effect will be given to the statute as originally framed by the Legislature. Rodgers v. Meredith, 274 Ala. 179, 146 So. 2d 308; Miller v. State ex rel. Peck, 249 Ala. 14, 29 So. 2d 411, 172 A.L.R. 1356.
We, therefore, place no significance on the change of the title to the section, noting merely that the title earlier than 1887 was more nearly correct than the one used since then in the various Codes.
Discussing this section in 1898, this court in Grayson v. Robertson, 122 Ala. 330, 25 *763 So. 229, in an opinion prepared by Chief Justice Brickell, said:
And prior to the Grayson case, supra, this court had said that this section confers on the foreign executor or administrator the privilege or liberty of suing in our courts without taking out new letters here, and to exercise all the rights and privileges which he would have done if duly appointed and qualified in this state, subject to the restrictions imposed in the section. Harris v. Moore, 72 Ala. 507; Hatchett v. Berney, 65 Ala. 39; Manly's Adm'r v. Turnipseed, 37 Ala. 522; Harrison v. Mahorner, 14 Ala. 829.
The mere fact that there was no statutory action for wrongful death prior to 1911 does not mean that the section should not apply if such a cause of action was created. The statute had been construed as conferring the right to maintain any action in the courts of this state. We find no limitation or suggestion that the section applies only to property except in the caption of § 151.
We hold that the administratrix of William Andrew Hatas had the right to file this action under the wrongful death statute (Tit. 7, § 123) without complying with the provisions of Tit. 61 §§ 143 and 146.
Having reached this conclusion, it is not necessary to decide whether appellees Partin or Local No. 5, one or both, had waived their right to plead in abatement after entering a general appearance by the filing of a demurrer to the complaint.
Appellees Partin and Local No. 5 contend that the complaint is faulty because it fails to show that the plaintiff sues "as" administratrix, citing Lucas v. Pittman, 94 Ala. 616, 10 So. 603. The Lucas case also holds that a complaint with this fault may be amended, and later cases held not only that the defect is amendable, but the court may look to the pleading as a whole to determine in what capacity the party sues, and if it appears therefrom that he sues in his representative capacity, the pleading will be sustained, even on demurrer. Baber v. McEntire, 223 Ala. 263, 135 So. 581, and cases there cited. This contention is without merit.
Appellee, International Teamsters, filed cross-assignments of error charging that the trial court erred in refusing to quash service on them which was effected pursuant to the provisions of the nonresident motor vehicle statute, Tit. 7, § 199, Code 1940. The motion to quash was supported by affidavits denying ownership, operation or agency in connection with the vehicle driven by appellee Partin.
These matters are involved in the question of liability and are not to be determined before the parties are before the court. All of them are potentially jury questions and the trial court properly overruled the motion to quash. Dealer's Transport Co. v. Reese (CCA-5) 138 F.2d 638; Staunton v. Robbins, 136 Misc. 197, 239 N.Y.S. 565; Moorer v. Underwood, 194 S.C. 73, 9 S.E.2d 29.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | May 27, 1965 |
32f3501f-8e64-41fc-b148-e17b8f788ee0 | Queor v. State | 174 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 687 (1965)
Henry Andrew QUEOR, Jr.
v.
STATE of Alabama.
1 Div. 283.
Supreme Court of Alabama.
April 22, 1965.
*688 Henry Andrew Queor, Jr., pro se.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
GOODWYN, Justice.
Appellant petitioned the circuit court of Baldwin County for a writ of error coram nobis to set aside a judgment of that court rendered on September 24, 1958, adjudging him guilty of murder in the first degree and sentencing him to life imprisonment. After an oral hearing on the petition, the circuit court rendered a judgment denying the petition. This appeal is from that judgment. See: Blauvelt v. State, 276 Ala. 671, 166 So. 2d 399; Ex parte Wilson, 275 Ala. 439, 440(2), 155 So. 2d 611; Ex parte Keene, 275 Ala. 197, 153 So. 2d 631.
An indictment charging appellant with first degree murder was returned by a Baldwin County Grand Jury on September 10, 1958. He was arraigned on September 11, 1958, and tried on September 24, 1958. On both occasions, he was represented by two court-appointed attorneys. Upon arraignment, appellant entered a plea of "not guilty." At his trial, he changed his plea to "guilty" under an agreement he would receive a life sentence.
The coram nobis petition was filed in the circuit court on January 5, 1965, and heard on January 22, 1965. At appellant's request, the trial court appointed an attorney to represent him at the hearing.
As we understand the petition, it is based on appellant's charge that he was coerced into changing his plea from "not guilty" to "guilty" and was denied the effective assistance of counsel at his trial.
The evidence taken at the coram nobis hearing fully supports the trial court's conclusion that appellant's change of plea was voluntary and not the result of threats and coercion. In fact, the evidence shows the change was made at appellant's insistence after an agreement had been worked out (also at appellant's insistence) whereby appellant would receive a sentence of life imprisonment. There is no indication from the evidence that appellant did not completely understand the effect of changing his plea.
The evidence shows that appellant was adequately represented by competent counsel throughout the several proceedings, that is, at his arraignment, at his trial, and at the coram nobis hearing.
Point is made that appellant had no preliminary hearing. As to this, the record is silent. But even if there was no preliminary hearing, such fact would have no bearing on the validity of the indictment and subsequent proceedings incident thereto, i. e., the arraignment and trial. See: Mills v. State, 277 Ala. 455, 171 So. 2d 844, 845; Aaron v. State, 271 Ala. 70, 122 So. 2d 360; Green v. Bomar, 6 Cir., 329 F.2d 796; Latham v. Crouse, 10 Cir., 320 F.2d 120.
*689 As said in Green v. Bomar: "Assuming the appellant was not given a preliminary hearing, his constitutional rights were not violated. This does not constitute a denial of due process of law. * * *"
The judgment denying coram nobis is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | April 22, 1965 |
9b1fe17e-d162-477f-a9e1-9f74600b1a19 | Tiger Motor Company v. Winslett | 176 So. 2d 39 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 39 (1965)
TIGER MOTOR COMPANY, Inc.
v.
Audrey C. WINSLETT.
5 Div. 802.
Supreme Court of Alabama.
May 27, 1965.
*41 Brown & McMillan, Opelika and Auburn, for appellant.
Walker & Hill, Opelika, for appellee.
PER CURIAM.
This is a workmen's compensation case (Code 1940, Tit. 26, § 253 et seq., as amended) brought here by certiorari on petition of the defendant below to review a judgment of the circuit court of Lee County awarding compensation to the employee.
Under the provisions of Title 26, § 262, Code 1940, "injuries by an accident arising out of and in the course of his employment" do not include "an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment * * *."
The only controverted question in the instant case is whether the injuries suffered by plaintiff (Winslett)wounds inflicted upon him by one A. C. Eason in the course of an assault and battery made by Eason with his fists on plaintiff, as shown by the findings of the trial courtarose out of plaintiff's employment, within the restrictive definition of § 262(j), as quoted above, and construed in connection with the legal meaning of § 253, Tit. 26, Code of 1940. Jett v. Turner, 215 Ala. 352, 110 So. 702(1) (2).
From the finding of facts made by the trial court, it appears that the plaintiff (Winslett) was employed by defendant, Tiger Motor Company, Inc., as a mechanic on September 19th and 20th, 1963, under agreement whereby "he was paid 55% of one-half of the scheduled job price for servicing and repairing automobiles, published by the manufacturer and used by the defendant, being paid on Saturdays on pay rolls made on Fridays from preliminary or tentative pay rolls submitted late on Thursdays"; that "plaintiff maintained his own stubs or `hard board' records of the work he did"; that "A. C. Eason was service manager for defendant"; that "on Thursday afternoon September 19, 1963 there was a `come back' `transmission job' worked earlier that week by plaintiff, to be reworked; that when the preliminary or tentative pay roll sheet for that week was submitted to Mr. Winslett and he checked it against his stubs the `come back' `transmission job' was marked through; that plaintiff was dissatisfied with pay accorded him for a `ring' or `motor' job he had worked; plaintiff went to Eason and complained about the pay accorded him on the `ring job' and Eason told plaintiff that the pay accorded for the `ring job' was correct *42 under the schedule of pay and he could approve no more but if Mr. Gunter, defendant's president and general manager, would pay him more it would be all right with Eason; that plaintiff admits the pay accorded for the `ring job' was correct; that plaintiff told Eason that he would not work that cheap and would quit and come back the next day and get his tools; that thereupon Eason asked plaintiff what he was going to do about the `come back' `transmission job', and plaintiff said he would come back the next morning and work it; that plaintiff came back Friday, September 20, 1963, pulled the `transmission job' automobile into his work stall, and got another employee, Ogletree, to help him take the transmission out and place it on his work bench; that without doing any work on the transmission, he left the defendant's place of business, and returned thereto between 10:30 and 11:30 that morning."
That "the evidence of the relevent (sic) material events subsequent to plaintiff's return to and including an altercation with Eason, within the hour, is in utter conflict or contradiction. Plaintiff's version is that on him (sic) so returning, he went into the front and obtained the pay roll sheet from Mr. Cecil Ward, and saw that the transmission job was still marked through," that "he returned to the service shop to see Eason, who was not in, and plaintiff returned to his work bench and started working on the transmission job again; that in 15 to 20 minutes Eason returned and plaintiff went to Eason at his desk and asked if Eason had marked the job off his pay roll sheet; that Eason said he had; that plaintiff said to Eason that `Since you done that you just pay me for pulling the transmission and disassembling it and I'll take my tools and go home'; that Eason, using a curse word, said he was not going to pay him anything; that plaintiff said, using a vulgar designation of himself, that he was not going to work for nothing; that plaintiff turned to go see Mr. Gunter, defendant's president, and Eason grabbed plaintiff and hit plaintiff on the forehead, with his fist, knocking plaintiff to the floor, and getting on plaintiff and hitting him some more; that plaintiff fell on his back and the rear pressure point of a spring metal hernia truss he was wearing injured his backbone. * * * At some point of his testimony on cross-examination, plaintiff admitted he had said he did not like Eason, and Eason did not like him, and that there was `bad blood' between them.
That "Defendant's version of the altercation, testified by Eason, is that when plaintiff came to Eason's desk at the time and place of the altercation, plaintiff with a curse word and criticism accused him of holding out pay on the transmission job and with threat of violence, by vulgar words and acts demanded pay now, and Eason told plaintiff he would get pay when he got through with the job, and that plaintiff then called Eason a ____ liar, and Eason his plaintiff, knocking him down, got down and continued to hit plaintiff several times."
The court concluded that the plaintiff and defendant were subject to Workmen's Compensation Laws of Alabama, and that "the plaintiff at the time of his injury suffered an accidental injury which arose out of and in the course of his employment," and awarded compensation to the plaintiff in an amount that is not challenged by this review. Defendant does contend by assignment of error that the trial court erred in finding as a matter of law that the injury suffered by plaintiff, Winslett, and inflicted by Eason, an employee of Tiger Motor Company, Inc., was an accident arising out of and in the course of plaintiff's employment.
The trial court further observed in its opinion, consonant with the decisions of this court, "That the Workmen's Compensation Laws are special and remedial and to be construed and applied liberally to effect the beneficent purposes, and that reasonable doubts are to be resolved in favor of claimants * * *."
*43 We quoted in Sloss-Sheffield Steel & Iron Co. v. Harris, 218 Ala. 130, 117 So. 755, from Ex parte Coleman, 211 Ala. 248, 100 So. 114, as follows:
It also has been thoroughly and finally settled by decisions of this court that:
We said in Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 224, 225, 96 So. 188.
"To bring plaintiff's case within the scope of the act it must appear, not only that his injury was caused by accident, but that it arose out of and in the course of his employment. As to this, the fact that both plaintiff and his assailant employee were at the time on defendant's premises, and engaged in the performance of work for defendant, is not at all conclusive. It cannot be intended as matter of law or fact that LeFergie, when he willfully and wantonly struck plaintiff, was in the performance of defendant's work. * * * Liability to an assault of the character shown must have been a hazard or risk of the work. The act provides that an accident arising out of and in the course of the employment `shall not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, *44 and not directed against him as an employee, or because of his employment,' * * * It results that, if an assault on an employee is committed by another, whether co-employee or stranger, solely to gratify personal ill will, anger, or hatred, the injury done cannot be said to arise out of the employment within the meaning of the Workmen's Compensation Act. 15 A.L.R. p. 594. To justify recovery `The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.' Madden's Case, 222 Mass. 487, 495, 111 NE. 379, 383 (L.R.A.1916D, 1000). In Hinchuk v. Swift & Co., 149 Minn. 1, 182 N.W. 622, it is said that the principle applicable to cases like that at bar is that the injury is included within the statute if there is some causal relation between the employment and the injury; the court adding:
In the case at bar, it is our opinion that the assault and resultant injuries arose from a risk that was incidental to employment. Eason was the person to whom appellant intrusted the duty of assigning repair work on motor vehicles to the employed mechanics. It was Eason's duty to supervise the mechanics, check the payroll sheets for accuracy and to remove therefrom any listing of mechanical work improperly or erroneously listed. Mechanics had the right, under their method of employment, to discuss their grievances concerning the payroll with Eason, and to protest his action adversely affecting the mechanic's compensation claim. Winslett's protest originated during his employment and while on duty.
It would be fair to observe that Winslett's use of the epithet, whether directed at Eason or at Winslett himself, triggered an immediate excuse for the assault and battery. But we cannot ignore the other evidence, take the epithet out of context, freeze the motivation for the assault and battery to the one incident, and thereby make the unlawful conduct of Eason in committing the assault and battery a purely personal matter. Such isolation of the one incidentthe use of the epithet would not be consonant with the rule of res gestae.
We cannot say, under the evidence as reported in the trial court's opinion, that the grievance which Winslett communicated to Eason, was divorced from the employment, and that the epithet used, although implicational and unnecessary, did not have a connection with the grievance.
We would not be willing to say that Eason's anger, culminating in the physical attack on Winslett, was not in some degree generated by the emphatic protest taking place before the utterance of the epithet. We think that a reasonable view of the evidence would suggest that Eason's conduct in committing the assault was partly induced by a temper that was kindled and set in motion when Winslett, maybe untactfully, accused Eason of wrongfully removing the `transmission' listing on the payroll. We, therefore, trace the resultant injuries to a proximate cause set in motion by the employment, and not by some other agency.
The employer should be responsible for the conduct of an excitable and impetuous supervisor in the prosecution of his duties, until there is sufficient interruption in the performance of such duties to justify the conclusion that the supervisor had abandoned his employment, and that the assault was an independent and undivided act, free from any association or connection with his employment.
*45 The judgment of the trial court is due to be affirmed; and it is so ordered.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | May 27, 1965 |
0b2daab9-8fcc-4d8e-b8e7-d0a72b2b9453 | Bernhard v. Bernhard | 177 So. 2d 565 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 565 (1965)
Joanna T. BERNHARD
v.
Charles B. BERNHARD, Jr.
6 Div. 167.
Supreme Court of Alabama.
July 15, 1965.
Corretti & Newsom, Birmingham, for appellant.
Cato & Hicks, Birmingham, for appellee.
SIMPSON, Justice.
The parties to this litigation are husband and wife. The wife lives in the home of the parties which they bought in 1957. The deed under which they took title to the property conveyed the same to them as joint tenants with right of survivorship. These parties are now estranged but not divorced and the husband no longer lives in the home. He filed a bill seeking to have the property sold for division. The trial court, after oral hearing, ordered the property sold. The wife appealed.
*566 The habendum clause in the deed under which the property was conveyed is as follows:
The sole question to be decided is whether property held under a joint tenancy deed with the aforesaid right of survivorship may be sold for division at the instance of one of the tenants over the objection of the other. The question is not without difficulty and has not heretofore been decided in this state.
Joint tenancies as known to the common law have been abolished by statute in Alabama:
In 1852, this Court noted:
The statute referred to and quoted above was subsequently amended by adding immediately after the language above, the following:
Did the legislature then intend that persons could by express provision in the instrument create an estate with all of the incidents of the common law joint tenancy? At common law for joint tenancy to exist the four unities of time, title, interest and possession had to be present at the creation of the estate and any event which destroyed one of the unities destroyed the estate. Each tenant was seized per my et per tout, i. e., each owned one half, while at the same time, he owned the whole. Walthall v. Goree, 36 Ala. 728; 48 C.J. 808, 70 C.J.S. 449. There were no cross contingent remainders. The death of the first tenant simply removed the impediment to *567 a complete title in the survivor. The survivor had owned the whole as well as the half by virtue of the instrument itself. He actually took nothing by "survivorship".
Did the legislature intend that this estate could be created by the parties voluntarily by express language in the instrument? Or did they intend to provide for a means of adding the survivorship incident to some different estate?
We must give effect to the intention of the parties as determined from the language which they use in the deed. What estate was created? It is our opinion that the parties here involved intended to create and did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor. They carefully said that if neither survived the other, then in that event their property was to descend as if held by them as tenants in common. Such we think is consistent with the intentions of the legislature as expressed in the above quoted statute. Survivorship is allowed, if expressed, as an incident to the estate of tenancy in common. Each does not own the whole, while at the same time owning the half. Rather, each owns an undivided one-half interest in the property for life, plus the right to own the unencumbered whole if he survives his co-tenant.
Under these circumstances then, can there be a sale for division over the objection of one tenant during the joint lives? We think not. Such a result seems to be dictated when giving full consideration to the intention of the parties as expressed. We think the language used and our cases indicate that a division may be had during the joint lives only with the consent of all grantees. We have held that an interest in remainder is not subject to division, and this is the estate which we think is created under the deed involved: a tenancy in common during the joint lives of the tenants with a remainder to the survivor in fee simple. Such a construction is in accord with that of other jurisdictions. Finch v. Haynes, 144 Mich. 352, 107 N.W. 910, and is not inconsistent with our holdings in related cases. In Kelly v. Deegan, 111 Ala. 152, 20 So. 378, we specifically held that an interest in a remainder is not subject to division over the objection of one tenant. There we said:
*568 The decree appealed from is reversed and rendered.
Reversed and rendered.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | July 15, 1965 |
3bcbe712-3b5a-4532-891b-313b4ec2040c | Alabama Power Company v. Thompson | 178 So. 2d 525 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 525 (1965)
ALABAMA POWER COMPANY
v.
C. G. THOMPSON.
6 Div. 81.
Supreme Court of Alabama.
September 9, 1965.
*526 Fite & Thomas, Hamilton, and Martin, Balch, Bingham & Hawthorne, Birmingham, for appellant.
Guin, Guin & Cleere, Russellville, Nelson Vinson, Hamilton, for appellee.
LAWSON, Justice.
The complaint in this case was amended so as to exclude all counts except Count X, upon which the jury returned a verdict for plaintiff. The reporter will set out Count X.
This count alleges that defendant willfully or wantonly failed to provide certain working space, according to promise of defendant's alleged vice-principal, near the power house project upon which plaintiff was engaged by a general contractor to do some work as a subcontractor incident to the completion of said power house project for appellant; that the promise to provide this space near the project was made as an inducement to appellee to enter into said subcontract and was relied upon by plaintiff to his detriment. There was no allegation of any contract between plaintiff and defendant to do this work, but only an alleged promise of the alleged vice-principal to furnish the space, which operated as an inducement to plaintiff to enter into the subcontract.
Plaintiff does not assert on this appeal that he had any contract with defendant, *527 nor does he assert that Count X is for a breach of a contract, but contends that this count is in trespass in that the wrongful failure to provide the space is a direct injury. Appellee further asserts here:
But do the allegations of the complaint show that the failure of defendant to provide the space, according to the alleged promise of its alleged vice-principal, was an actionable interference with the conduct of plaintiff's business arising out of the subcontract? In other words, can a tort action for interference with the operation of a legitimate business as here conducted by plaintiff be predicated on the nonperformance of a promise to do a certain thing as an inducement to plaintiff to enter into a valid contract with a third person? To sustain a tort action must there be an affirmative interference as distinguished from mere failure to fulfill a promise made without consideration therefor? We are cited no case nor do we find one holding that a willful or wanton indifference to the fulfillment of such a promise constitutes actionable interference with the operation of a lawful business.
Appellee cites several cases which he contends support his contention that the willful or wanton failure of appellant to provide the space constitutes actionable tort. However, we do not agree with appellee's application of these cases. We refer to some of these cases.
In Sparks v. McCreary, 156 Ala. 382, 47 So. 332, 22 L.R.A.,N.S., 1224, we said:
In the case at bar, the allegations that the conduct of defendant in its failure to provide the space was willfully or wantonly done is to charge circumstances for the imposition of exemplary damages if the complaint stated a cause of action. These words would not convert the count into trespass. It would be necessary for the pleader to allege facts that constitute a trespass.
*528 This court also held in Alcazar Amusement Co. et al. v. Mudd & Colley Amusement Co., 204 Ala. 509, 86 So. 209, that a bill possesses equity which sought to restrain the exhibition by respondents of a motion picture which plaintiff claimed to have the exclusive right to exhibit as a first-run in the locality. It was further held that a third party who knowingly interferes with the performance of a valid contract between others, or who contributes to the impairment of the rights of a party thereto, commits a tort, and may be enjoined in equity if the remedy at law is insufficient.
The case of Carter v. Knapp Motor Co., 243 Ala. 600, 11 So. 2d 383, 144 A.L.R. 1177, involved a bill filed by an automobile dealer praying injuctive relief against wrongful interference with the dealer's lawful business, good will and good name of its products by driving an automobile of which make the complainant sold, on which a white elephant had been painted. We held that one's employment, trade or calling is a "property right," the wrongful interference with which is an actionable wrong. So again there was an affirmative interference.
Also see Bowen v. Morris et al., 219 Ala. 689, 123 So. 222, where we held that employment, trade, or calling is a property right, the wrongful interference with which is an actionable wrong and to protect which equitable remedy of injunction is available, where there is no adequate remedy at law. Here there was a threatened issuance of a writ of garnishment that was calculated to get complainant fired from his job. Again the threatened conduct of respondent was positive and active.
There are numerous other decisions of this and other courts which make actionable as torts any wrongful interference in the operation of a person's lawful business, trade or profession, but in each of the cases we have reviewed there was an affirmative or threatened act of interference by the defendant, and not as here alleged a refusal or failure to carry out a promise.
Plaintiff here attempts to create an action of trespass by alleging that defendant willfully or wantonly injured plaintiff by failing to carry out its alleged promise to provide reasonably adequate and convenient working space in the execution of a contract with a general contractor, citing Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211, 105 So. 2d 852, from which we quote:
But the averments must show a factual situation between the plaintiff and defendant out of which trespass may spring or evolve. This plaintiff attempts unsuccessfully to do in the case at bar.
There is no insistence, in fact plaintiff disclaims that Count X is in assumpsit. It cannot be in assumpsit, otherwise it would be necessary for the count to state truly the consideration for the alleged promises of defendant to provide the space. There is no principle of the common law better settled than that a promise, to be binding, must be made upon a legal and valid consideration; and without such consideration no action will lie. The consideration, therefore, must be alleged, unless it be a case where the promise is evidenced by a writing which imports a consideration. Newton v. Brook, 134 Ala. 269, 32 So. 722. Appellee says in his brief: "The promises by Mr. Wagoner [the project superintendent] do not constitute a contract. They do constitute a part of the wrongful interference, wantonly or wilfully committed, which caused the law suit."
We also agree with appellee that Count X does not allege an action of trespass on the case. We think the several grounds of demurrer adequately point to defects in the complaint that cause us to conclude that Count X does not state a cause of action. The demurrer should have been sustained and for failure to do so the trial court committed reversible error, which works a reversal of the judgment.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | September 9, 1965 |
c7da8193-5167-4b87-b073-6d81285fadf5 | Guardian Builders, LLC v. Uselton | N/A | 1121534 | Alabama | Alabama Supreme Court | REL: 04/11/2014
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, 2013-2014
____________________
1121534
____________________
Guardian Builders, LLC, and E. Wayne Tackett
v.
Randy Uselton and Melissa Uselton
Appeal from Madison Circuit Court
(CV-09-901074)
STUART, Justice.
Guardian Builders, LLC, and E. Wayne Tackett (hereinafter
referred to collectively as "Guardian") appeal from an order
of the Madison Circuit Court denying their motion to vacate or
1121534
modify an arbitration award entered in favor of Randy Uselton
and his wife Melissa Uselton. We reverse and remand.
I.
This Court previously dismissed a premature appeal filed
by Guardian in this action. Guardian Builders, LLC v.
Uselton, 130 So. 3d 179 (Ala. 2013). At that time, we
summarized the history of the parties' dispute as follows:
"In April 2010, the Useltons sued Guardian in
the Madison Circuit Court, alleging several claims
arising from Guardian's construction of a house for
the Useltons. Guardian subsequently filed a motion
to compel arbitration, and the circuit court granted
that motion in October 2010. On December 21, 2011,
the arbitrator entered a final award in favor of the
Useltons in the amount of $452,275.20. On January
11, 2012, Guardian filed with the circuit court a
motion to vacate or modify the arbitration award, to
which it attached a copy of the arbitration award.
On May 15, 2012, the Useltons filed a 'motion to
confirm' the arbitration award and a response to
Guardian's motion to vacate or modify. On May 31,
2012, the circuit court entered an order purporting
to deny Guardian's motion to vacate or modify the
arbitration award, purporting to grant the Useltons'
motion to confirm the arbitration award, and
purporting to order Guardian to pay $1,421.75 in
Better Business Bureau fees and facility costs
related to the arbitration. Guardian appealed."
130 So. 3d at 180. However, before this Court considered the
merits of Guardian's arguments in that appeal, we noted that
the clerk of the Madison Circuit Court had never entered the
2
1121534
arbitration award as the judgment of that court; therefore,
the trial court's order purporting to deny Guardian's motion
to vacate or modify the arbitration award –- the order being
appealed –– was void. 130 So. 3d at 184. See Rule 71B(f),
Ala. R. Civ. P. (stating that, after an appeal of an
arbitration award is initiated in the circuit court, "[t]he
clerk of the circuit court promptly shall enter the award as
the final judgment of the court"). Accordingly, we vacated
the trial court's order and dismissed Guardian's appeal,
noting
that,
"[e]ssentially,
Guardian's
appeal
remains
pending
in the circuit court, awaiting further procedures under Rule
71B." 130 So. 3d at 184.
On September 30, 2013, following our decision in Guardian
Builders, the circuit court clerk entered the arbitration
award in favor of the Useltons as the final judgment of the
court pursuant to Rule 71B(f); on that same date Guardian
moved the trial court to vacate or modify the award. Also
that same day, the trial court denied Guardian's motion and
Guardian filed its notice of appeal to this Court.
3
1121534
II.
Guardian argues that the trial court erred by denying its
motion to vacate or modify the arbitration award returned in
favor of the Useltons and that, pursuant to the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"), the
judgment adopting the arbitration award should be reversed.
"In R.P. Industries, Inc. v. S & M Equipment
Co., 896 So. 2d 460 (2004), this Court reviewed the
trial court's order granting a motion to confirm an
arbitration award and denying the opposing party's
motion to vacate that award. We stated:
"'"Where parties, as in this case,
have agreed that disputes should go to
arbitration, the role of the courts in
reviewing
the
arbitration
award
is
limited.
Transit
Casualty
Co.
v.
Trenwick
Reinsurance
Co.,
659
F.
Supp.
1346
(S.D.N.Y. 1987), affirmed, 841 F.2d 1117
(2d Cir. 1988); Saxis Steamship Co. v.
Multifacs International Traders, Inc., 375
F.2d 577 (2d Cir. 1967). On motions to
confirm or to vacate an award, it is not
the function of courts to agree or disagree
with the reasoning of the arbitrators.
Application of States Marine Corp. of
Delaware, 127 F. Supp. 943 (S.D.N.Y. 1954).
Courts are only to ascertain whether there
exists one of the specific grounds for
vacation of an award. Saxis Steamship Co.
A court cannot set aside the arbitration
award just because it disagrees with it; a
policy allowing it to do so would undermine
the federal policy of encouraging the
settlement of disputes by arbitration.
United
Steelworkers
of
America
v.
4
1121534
Enterprise Wheel & Car Corp., 363 U.S. 593,
80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960);
Virgin
Islands
Nursing
Association's
Bargaining Unit v. Schneider, 668 F.2d 221
(3d Cir. 1981). An award should be vacated
only where the party attacking the award
clearly establishes one of the grounds
specified [in 9 U.S.C. § 10]. Catz
American
Co.
v.
Pearl
Grange
Fruit
Exchange, Inc., 292 F. Supp. 549 (S.D.N.Y.
1968)."'
"896 So. 2d at 464 (quoting Maxus, Inc. v. Sciacca,
598 So. 2d 1376, 1380-81 (Ala. 1992)). The standard
by which an appellate court reviews a trial court's
order confirming an arbitration award under the
Federal Arbitration Act is that questions of law are
reviewed de novo and findings of fact are reviewed
only for clear error. See Riccard v. Prudential
Ins. Co., 307 F.3d 1277, 1289 (11th Cir. 2002)."
Hereford v. D.R. Horton, Inc., 13 So. 3d 375, 378 (Ala. 2009).
On appeal, Guardian does not take issue with the essence
of the decision made by the arbitrator: That Guardian
Builders
negligently
constructed
and
delivered
to
the
Useltons
a house containing substantial defects and deficiencies and,
as a result, the Useltons were entitled to certain damages.
Rather, Guardian objects only to a subset of the damages that
were awarded the Useltons that were not directly related to
the poorly constructed house, specifically, attorney fees and
arbitration fees (including both the arbitrator fee and the
5
1121534
forum fee charged by the Better Business Bureau of North
Alabama ("the BBB"), which administered the arbitration).
When the arbitrator issued his interim decision on
November 22, 2011, he awarded the Useltons $305,711.05 in
damages, a sum that included a $10,311.05 arbitrator fee. The
arbitrator further stated in that decision that Guardian
would
be liable for the Useltons' reasonable attorney fees and for
the forum fee paid the BBB, and the arbitrator gave the
Useltons 30 days to submit evidence of those costs. The
Useltons'
attorney
subsequently
submitted
to
the
arbitrator
an
affidavit indicating that his contract with the Useltons
entitled him to 45% of any amount recovered and the repayment
of all expenses; accordingly, he requested an additional
$137,569.97 for his contingency fee and $8,994.21 in
litigation expenses, which included $1,121.50 for the forum
fee paid to the BBB. On December 21, 2011, the arbitrator,
over Guardian's objection that he lacked authority to award
attorney and arbitration fees, issued his final decision
awarding the Useltons a total of $452,275.20.1
The record before us does not explain why the amount
1
awarded –– $452,275.20 –– is $.03 less than the sum of its
parts –– $305,711.05 initial damages award, $137,569.97
attorney fee, and $8,994.21 litigation expenses.
6
1121534
Guardian argues that the arbitration agreement entered
into by it and the Useltons did not authorize the arbitrator
to award attorney fees or arbitration fees and that the
arbitrator
accordingly
exceeded
his
authority
by
awarding
such
fees. Thus, Guardian argues, the arbitration award should be
vacated or modified pursuant to § 10(a)(4) of the FAA, which
authorizes the vacatur of an arbitration award "where the
arbitrators exceeded their powers." This Court explained the
analysis to which such a claim is subjected in R.P.
Industries, Inc. v. S & M Equipment Co., 896 So. 2d 460, 464-
65 (2004):
"In reviewing a challenge to an arbitration
award on the basis that the arbitrators exceeded
their powers, a circuit court, in the first
instance, and this Court or the Court of Civil
Appeals, at the appellate level, must bear in mind
the narrow scope of that ground:
"'"We
have
consistently
accorded
the
narrowest
reading
to
section
10(d)
[currently section 10(a)(4)], especially
when it has been invoked in the context of
the
arbitrators'
alleged
failure
to
correctly decide a question which all
concede to have been properly submitted in
the first instance. Our inquiry under §
10(a)(4) thus focuses on whether the
arbitrators had the power, based on the
parties' submissions or the arbitration
agreement, to reach a certain issue, not
7
1121534
whether the arbitrators correctly decided
that issue."'
"Birmingham News [Co. v. Horn], 901 So. 2d [27,] 47
[(Ala. 2004)] (quoting DiRussa v. Dean Witter
Reynolds Inc., 121 F.3d 818, 824 (2d Cir. 1997)).
"Even before the enactment of the FAA, our
caselaw had considered the general concept that an
arbitration award must conform to the power and
authority
accorded
the
arbitrators
by
the
arbitrating parties. The following analysis appears
in Reynolds v. Reynolds, 15 Ala. 398, 403 (1849):
"'It is well settled, that an award
must conform to the submission under which
it is made. If, therefore, arbitrators
transcend their authority, pro tanto their
award will be void, and will stand good for
the residue, unless that which is void,
affects the merits of the submission, so
that it cannot, without injustice, be
separated from it; but if it forms the
consideration for what the other party is
required to do, the award will be void in
toto.
"'All
reasonable
presumptions
shall
be
made in favor of awards; and if, by the
application of this principle, an award can
be brought within the submission, and is in
other respects unexceptionable, it will be
sustained.'
"(Citations omitted.)"
III.
Before we can determine whether the arbitrator exceeded
his power in awarding the Useltons attorney fees, we must
8
1121534
first determine what authority Guardian and the Useltons
granted the arbitrator. The arbitration provision in the
construction agreement executed by the parties provides, in
whole:
"Any disputes that cannot be settled through
mediation
shall
be
settled
through
binding
arbitration. The BBB of North Alabama Mediation
Center, an independent third party neutral, shall
provide the binding arbitration service. A
volunteer BBB arbitrator will render a decision
he/she considers to be fair and just. The
arbitration fees shall be based upon the current
rate of the BBB of North Alabama Mediation Center
and shall be paid by both parties. This agreement
affects legal rights of both parties as they are
agreeing to resolve the dispute between them
described above by binding arbitration, rather than
by litigation in any court other than for claims
that fall within the jurisdiction of small claims
court."
Thus, by the terms of the arbitration provision, Guardian and
the Useltons empowered an arbitrator deciding a dispute
between them submitted to him or her to render a decision
"he/she consider[ed] to be fair and just." However, because
Guardian and the Useltons further agreed that arbitration
services would be provided by the BBB, any limitations to the
arbitrator's authority found in the BBB rules governing their
dispute also apply. The BBB rules governing arbitration
conducted pursuant to a binding predispute arbitration
9
1121534
agreement do not expressly provide for or prohibit an award of
attorney fees; however, they do contain the following
provisions concerning an arbitrator's authority:
"3. Remedies
"The arbitrator may award any remedy that
is
permitted
under
applicable
law;
provided, however, that the arbitrator may
not award any remedies that the parties
have agreed in writing may not be awarded
in arbitration.
"....
"29. The Decision
"....
"A. Scope of decision
"A decision shall be one that:
the arbitrator considers fair; is
limited to the issues raised in
the demand for arbitration and
any
counterclaim;
and
falls
within the scope of these Rules.
"Unless otherwise provided by the
agreement of the parties, the
arbitrator is not bound to apply
legal principles in reaching what
the arbitrator considers to be a
fair resolution of the dispute.
"....
"D. Correcting the decision or reasons for
decision
10
1121534
"You may request correction of
the decision or the reasons for
decision
if
you
believe
the
decision or reasons contain a
mistake of fact, a miscalculation
of
figures,
or
exceed
the
arbitrator's authority.
"....
"The arbitrator's authority is
limited to the scope of these
Rules."
Guardian argues that the BBB rules expressly limit the
arbitrator's authority to the scope of those rules and that
the rules authorize an arbitrator to award only a remedy "that
is permitted under applicable law." The construction
agreement provides that the applicable law in this case is
"the law of the State of Alabama," and, Guardian argues, "[i]t
is well settled that '"Alabama follows the
'American rule.'"'"
Jones v. Regions Bank, 25 So. 3d 427, 441 (Ala. 2009) (quoting
City of Bessemer v. McClain, 957 So. 2d 1061, 1078 (Ala.
2006), quoting in turn Battle v. City of Birmingham, 656 So.
2d 344, 347 (Ala. 1995)). The American rule generally
provides that a prevailing party in litigation is not entitled
to an award of attorney fees unless those fees are provided
for by statute or by contract or if they are otherwise
11
1121534
justified
for
certain
equitable
reasons.
Classroomdirect.com,
LLC v. Draphix, LLC, 992 So. 2d 692, 710 (Ala. 2008). There
is no allegation in this case that any statute exists that
would authorize an award of attorney fees for a cause of
action such as the one brought by the Useltons, and it is
undisputed that the parties did not agree by contract that the
prevailing party in any dispute was entitled to compensation
for their attorney fees. Moreover, there has been no
2
argument, and we are aware of no authority, indicating that
equity requires an award of attorney fees in this case.
3
Accordingly, Guardian argues, the arbitrator was without
authority to award attorney fees to the Useltons because the
American rule, which Guardian argues the arbitrator was bound
to apply, does not allow such an award.
The Useltons, however, argue that the construction
agreement empowered the arbitrator to grant any relief he
The construction agreement did state under a section
2
entitled "Late Payment" that the Useltons "shall pay all
attorney fees incurred by [Guardian] to collect sums owed."
This
Court
has
previously
recognized
equitable
exceptions
3
to the American rule in proceedings where the attorney's
efforts create a common fund out of which fees may be paid or
where there has been fraud, negligence, malice, or bad faith.
Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d
1238, 1241-45 (Ala. 1985).
12
1121534
considered "to be fair and just" and that the BBB rules
reinforce this broad grant of authority inasmuch as those
rules state that a decision shall be one that "the arbitrator
considers fair." Moreover, although Guardian emphasizes the
provision in Rule 3 of the BBB rules stating that the
arbitrator "may award any remedy that is permitted under
applicable law," the Useltons highlight the statement in Rule
29.A that "the arbitrator is not bound to apply legal
principles in reaching what the arbitrator considers to be a
fair resolution of the dispute."
The Useltons also cite this Court's decision in R.P.
Industries, which, they say, supports their argument that
Alabama law does not preclude an arbitrator from awarding
attorney fees to the prevailing party. In R.P. Industries,
this Court held that an arbitration panel did not exceed its
powers in making an award of attorney fees, 896 So. 2d at
470, and the Useltons note the similarity between the
Construction Industry Arbitration Rules of the American
Arbitration Association, which applied in that case and which
provide that an arbitrator "'may grant any remedy or relief
that the arbitrator deems just and equitable,'" 896 So. 2d at
13
1121534
467 (emphasis omitted), and the BBB rules in this case, which
provide that the decision returned by the arbitrator shall be
one that the arbitrator "considers fair."
However, although R.P. Industries does provide some
guidance for our resolution of this case, its utility is
ultimately limited by the fact that the Construction Industry
Arbitration Rules of the American Arbitration Association
expressly authorize "'an award of attorneys' fees if all
parties have requested such an award,'" 896 So. 2d at 467
(emphasis omitted); in fact, both parties in R.P. Industries
did request attorney fees. 896 So. 2d at 470. No equivalent
BBB rule exists in the present case, however. Moreover,
although some courts have held that parties to an arbitration
have implicitly authorized an arbitrator to make an award of
attorney fees when both parties have made a request for
attorney fees –– even in the absence of any express delegation
of that authority in the relevant arbitration agreement or
applicable arbitration rules –– there is no evidence in the
record indicating that the Useltons made a request for
attorney fees in this case, either in their complaint filed
pre-arbitration or during the course of the arbitration
14
1121534
proceedings. See Hollern v. Wachovia Sec., Inc., 458 F.3d
4
1169, 1174 (10th Cir. 2006) (noting that the parties' contract
containing an arbitration provision "did not expressly permit
an award of attorneys' fees" but that "the parties expressly
empowered the arbitrators to award attorneys' fees" by
incorporating their pleadings containing "parallel requests
for attorneys' fees" into a uniform submission agreement).
Thus, Guardian argues that the arbitrator exceeded his
authority not only by awarding a remedy that is not permitted
by applicable law (attorney fees), but also by ruling on an
issue that was not submitted to him (attorney fees). See R.P.
Industries, 896 So. 2d at 466 ("'An arbitrator exceeds his
powers when he "rule[s] on issues not presented to [him] by
the parties."'" (quoting Hoeft v. MVL Grp., Inc., 343 F.3d
In its brief, Guardian states:
4
"It was not until the arbitrator issued his ruling
on November 22, 2011, over one month after the
arbitration was concluded, that Guardian Builders
was even aware that the arbitrator (1) considered
and (2) decided to make an award for prevailing
party attorney's fees. The arbitrator never
informed Guardian Builders during the arbitration
proceedings that it would consider an award of
attorney's fees."
Guardian's brief, p. 21.
15
1121534
57, 71 (2d Cir. 2003), quoting in turn Fahnestock & Co. v.
Waltman, 935 F.2d 512, 515 (2d Cir. 1991))).
We agree with Guardian that the arbitrator exceeded his
authority by awarding the Useltons attorney fees. The BBB
rules expressly state that the arbitrator's authority is
limited by the scope of those rules and that he or she "may
award any remedy that is permitted under applicable law."
This is to say that the arbitrator may award only those
remedies permitted by applicable law, in this case, Alabama
law. As discussed supra, Alabama generally follows the
American rule,
which provides that parties are
responsible
for
their own attorney fees, and no argument has been made
indicating that the facts of this case warrant an exception to
the application of that rule based on the existence of a
relevant statute or agreement authorizing an award
of
attorney
fees or for other equitable reasons.
5
An agreement authorizing an award of attorney fees could
5
be explicit, such as a provision in an arbitration agreement
specifically authorizing the award of attorney fees by the
arbitrator or a provision in an arbitration agreement
declaring that arbitration proceedings will be conducted
pursuant to a set of rules that specifically allow the
arbitrator to award attorney fees, or implicit, such as when
all parties to an arbitration request that the arbitrator
award attorney fees. However, no agreement of either sort
exists in this case.
16
1121534
Moreover, we are not convinced by the Useltons' argument
that BBB Rule 29.A providing that the arbitrator "is not bound
to apply legal principles in reaching what the arbitrator
considers to be a fair resolution" is in conflict with,
preempts, or creates ambiguity when considered in conjunction
with, BBB Rule 3 limiting the arbitrator to awarding only
those remedies "permitted under applicable law." Written
documents "are to be construed as a whole so as to harmonize
their parts whenever possible." Dudley v. Fridge, 443 So. 2d
1207, 1211 (Ala. 1983). Applying this principle to the BBB
rules, one can see that although an arbitrator might not be
bound to apply a specific legal principle, such as the Statute
of Frauds, when reaching what he or she considers to be "a
fair resolution" on the issue of liability, any remedy
ultimately awarded must still be one "that is permitted under
applicable law." Inasmuch as the arbitrator in this case
6
Moreover, even if we were inclined to see conflict
6
between Rules 3 and 29.A, we generally hold that a more
specific provision controls over a general provision,
and
Rule
3, limiting an arbitrator to awarding only those remedies
"permitted under applicable law," is more relevant to the
issue whether the arbitrator was empowered to order the
payment of the opposing party's attorney fees as a remedy.
See, e.g., ERA Commander Realty, Inc. v. Harrigan, 514 So. 2d
1329, 1335 (Ala. 1987) ("When there is a conflict in a
contract, the specific substantive provisions control over
17
1121534
awarded attorney fees to the Useltons, that remedy was not
permitted under Alabama law, and the arbitrator accordingly
exceeded the scope of his authority by making that award.
IV.
We reach a similar conclusion with regard to the
arbitration fees the arbitrator ordered Guardian to pay. As
the Useltons correctly note, court costs are distinguishable
from attorney fees. See White Springs Agric. Chems., Inc. v.
Glawson Invs. Corp., 660 F.3d 1277, 1282 (11th Cir. 2011)
(recognizing that a general demand for costs does not
encompass a request for attorney fees). The American rule
applied in Alabama generally prohibits a losing party from
being ordered to pay the attorney fees incurred by the
prevailing party, but the American rule does not prohibit an
award of court costs to the prevailing party. In practice,
such awards are commonplace and specifically authorized by
Rule 54(d), Ala. R. Civ. P., which provides that, "[e]xcept
when express provision therefor is made in a statute, costs
shall be allowed as of course to the prevailing party unless
the court otherwise directs." Our Rule 54(d) is modeled on
general provisions.").
18
1121534
Rule 54(d), Fed. R. Civ. P., and, in Anderson v. Griffin, 397
F.3d 515, 522 (7th Cir. 2005), the United States Court of
Appeals for the Seventh Circuit offered an explanation for the
differing treatment of court costs and attorney fees under the
American rule:
"Last, the plaintiffs challenge the award of
court costs pursuant to Fed. R. Civ. P. 54(d)(1).
For obscure reasons, given the 'American rule' that
requires each side to a lawsuit to bear its legal
expenses rather than making the loser reimburse the
winner's reasonable expenses, the law allows the
winning party to recover from the loser the winner's
'court costs,' a stereotyped list of usually though
not always modest items of expense, exclusive of
legal fees. (They amount here to a shade under
$13,000.) The rule is generally thought a vestige
of the English 'loser pays' rule, e.g., John M.
Blumers, Note, A Practice in Search of a Policy:
Considerations of Relative Financial Standing in
Cost Awards Under Federal Rule of Civil Procedure
54(d)(1), 75 B.U.L. Rev. 1541, 1562–63, 1566 (1995);
insofar as the main objection to the English rule is
that calculating a reasonable attorney's fee is
difficult and cumbersome, it falls away when the
calculation is limited to the items taxable as
costs. Baez v. U.S. Department of Justice, 684 F.2d
999, 1002–04 (D.C. Cir. 1982) (en banc) (per
curiam); see generally Vincennes Steel Corp. v.
Miller, 94 F.2d 347, 348–49 (5th Cir. 1938);
Trinidad Asphalt Paving Co. v. Robinson, 52 F. 347
(E.D. Mich. 1892); 10 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and
Procedure § 2665, pp. 199–202 (3d ed. 1998). ..."
Assuming, therefore, that arbitration fees are the functional
equivalent of court costs, an award of arbitration fees to the
19
1121534
prevailing party in an arbitration proceeding might be a
remedy permitted under Alabama law and thus within the
authority of an arbitrator operating under the BBB rules
unless there is a more specific provision in the parties'
agreement that would prevent such an award. Precisely such
7
a provision exists in this case.
The arbitration provision in the construction agreement
executed by the Useltons and Guardian provides that "[t]he
arbitration fees shall be based upon the current rate of the
BBB of North Alabama Mediation Center and shall be paid by
both parties." The Useltons acknowledge this provision;
however, they argue that they were billed one-half the
arbitration fees before the arbitration hearing and that they
paid all fees that were billed to them. The BBB rules in fact
indicate that payment of such fees is generally required
before the arbitration hearing can proceed. See BBB Rule 4
(providing, in part, that the "BBB may decline to schedule an
Despite the obvious similarities, court costs and
7
arbitration fees are distinguishable in some ways. Notably,
as Anderson, 397 F.3d at 522, states, court costs are
generally "modest." This is because much of the expense is
borne by the government sponsoring the court system deciding
the dispute. No such subsidization exists with regard to
arbitration.
20
1121534
arbitration hearing if the parties do not pay administration
fees when due"). Thus, the Useltons argue, they were required
by contract to pay one-half the arbitration fees, and the
arbitration hearing would not have occurred had they refused,
but the arbitrator was nevertheless empowered to award them
their costs at the conclusion of the arbitration hearing
without violating the requirement in the contract that "the
arbitration fees ... shall be paid by both parties." Guardian
counters by arguing that the provision is clear and must be
enforced as written.
We agree with Guardian; the arbitrator exceeded his
authority by ordering Guardian to pay the Useltons'
arbitration fees in light of the clear language in the
arbitration provision requiring those fees to "be paid by both
parties." In Flack-Beane Lumber Co. v. Bass, 258 Ala. 225,
228, 62 So. 2d 235, 238 (1952), we stated:
"The arbitrators' jurisdiction, or authority to
act,
is
derived
from,
and
limited
by,
the
arbitration agreement or submission, which forms the
basis or foundation for their award, and, hence, it
is essential that the award conform to, and comply
with, the arbitration submission or agreement no
matter what its form or kind."
21
1121534
Inasmuch as the arbitrator awarded the Useltons their
arbitration expenses, the award did not conform with the
parties' arbitration agreement and is, accordingly, due to be
reversed.
V.
Finally, we consider the Useltons' argument that, if any
portion of the arbitration award is vacated, we must set aside
the award in its entirety and remand the case for a new trial
in the Madison Circuit Court. They state in their brief:
"Modifying or vacating any portion of the
arbitrator's award would destroy the entire intent
of what he intended the [Useltons] to recover
because the vacation or modification of the award to
exclude attorney fees or an award of costs would
result in the [Useltons'] receiving approximately
$145,000 less than the arbitrator intended once
attorney fees and expenses are deducted. Therefore,
if any portion of the award is modified or vacated,
all of the award must be vacated and this matter
retried."
The Useltons' brief, p. 27. Thus, the Useltons' argument is
essentially that the arbitrator's award should be vacated as
it relates to the compensatory damages he awarded because
those damages are now insufficient to make the Useltons whole.
However, we have stated that a party seeking the vacation or
modification of an arbitration award must frame its arguments
22
1121534
by reference to § 10 (or § 11) of the FAA. Cavalier Mfg.,
Inc. v. Gant, [Ms. 1080284, Dec. 20, 2013] ___ So. 3d ___, ___
(Ala. 2013). The Useltons have not cited the FAA, any other
statute, or any caselaw in support of their argument that if
any part of the entire arbitration award is vacated the entire
award should be vacated, and we accordingly grant the argument
no further consideration. See White Sands Grp., L.L.C. v. PRS
II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008) ("Rule 28(a)(10)[,
Ala. R. App. P.,] requires that arguments in briefs contain
discussions of facts and relevant legal authorities that
support the party's position. If they do not, the arguments
are waived.").
VI.
Guardian appealed the order of the Madison Circuit Court
denying Guardian's motion to vacate or modify an arbitration
award entered in favor of the Useltons because, Guardian
argued, the arbitrator lacked the authority to award the
Useltons attorney fees and arbitration fees. We agree that
the arbitrator exceeded his authority by awarding those
remedies. Attorney fees were not authorized by the parties'
agreement, and the BBB rules governing their arbitration
23
1121534
limited the remedies available to the arbitrator to those
permitted under Alabama law, which incorporates the American
rule generally prohibiting losing parties from being ordered
to pay the attorney fees of prevailing parties. Moreover, the
arbitration provision in the construction agreement expressly
provided that "the arbitration fees ... shall be paid by both
parties." Accordingly, the trial court's judgment
is
reversed
and the cause remanded for the trial court to enter a modified
judgment subtracting attorney fees and arbitration fees from
the award made to the Useltons.
REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the rationale in part and concurs
in the result.
Moore, C.J., concurs in the result in part and dissents
in part.
24
1121534
MURDOCK, Justice (concurring in the rationale in part and
concurring in the result).
Although I agree in the main with the analysis set out in
Part III of the main opinion, I write separately to be clear
that, in my view, even in the absence of the "BBB rules" cited
in the main opinion, the parties' contractual agreement that
the arbitrator was empowered to render a decision "he/she
consider[ed] to be fair and just" does not qualify as an
agreement for one party to pay the other's attorney fees
within the meaning of those cases identifying
three
exceptions
to the "American rule" disallowing such payments. See
generally Classroomdirect.com, LLC v. Draphix, LLC, 992
So. 2d
692, 710 (Ala. 2008). Nor do I read this clause in the
parties' arbitration agreement, or any provision of the BBB
rules, to constitute a submission to the arbitrator of the
question whether to award an attorney fee or to award the
arbitration fees. See ___ So. 3d at ___ n.5.
As to the issue of the arbitration fees, I concur in the
result reached in Part IV of the main opinion but respectfully
decline to join the premise set out near the outset of the
analysis. Specifically, I am not inclined to "assume" for the
25
1121534
sake of discussion that "arbitration fees are the functional
equivalent of court costs," ___ So. 3d at ___; nor would I
leave open the corollary possibility that "an award of
arbitration fees to the prevailing party ... might be a remedy
permitted under Alabama law and thus within the authority of
an arbitrator operating under the BBB rules unless there is a
more specific provision in the parties' agreement that would
prevent such an award." ___ So. 3d at ___. The general rule
of "costs" was developed in and for normal civil litigation --
in a court -- where such costs are by nature generally
"modest" and "incidental" (not to mention predictable and
easily calculated without likelihood of dispute). See
Anderson v. Griffin, 397 F.3d 515, 522 (7th Cir. 2005)
(explaining why mere "costs" traditionally have been viewed
differently than attorney fees). We are not concerned here
with "costs" in a court proceeding. To speak colloquially, I
believe arbitrators' fees are simply a "different
animal"
than
court costs. They are a function of the parties' creation of
a private dispute-resolution mechanism, and, as part of that
mechanism, they bear as much or more resemblance in nature,
26
1121534
amount, predictability, and ease of calculation to private
attorney fees as they do to conventional court costs.
As to the issue discussed in Part V of the main opinion
-- whether the entire award must be set aside in this case --
it appears that the dispositive principle would be that which
was reaffirmed by this Court in R.P. Industries, Inc. v. S &
M Equipment Co., 896 So. 2d 460 (Ala. 2004):
"'If, therefore, arbitrators transcend
their authority, pro tanto their
award will
be void, and will stand good for the
residue, unless that which
is void, affects
the merits of the submission, so that it
cannot, without injustice, be separated
from it ....'"
896 So. 2d at 464 (quoting Reynolds v. Reynolds, 15 Ala. 398,
403 (1849)). In this case, it is appropriate to consider the
arbitrator's award to be void only pro tanto because it is not
the case that the award of attorney fees and the award of the
arbitration fees "cannot, without injustice, be separated"
from the remainder of the arbitrator's award.
27
1121534
MOORE, Chief Justice (concurring in the result in part and
dissenting in part).
I concur in reversing the award of attorney fees, but I
respectfully dissent from reversing the award of the
arbitration fees.
I have three objections to applying the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"), to enforce
predispute arbitration agreements. I explained two of
my
three
objections in my dissent in Selma Medical Center, Inc. v.
Fontenot, 824 So. 2d 668, 677 (Ala. 2001) (Moore, C.J.,
dissenting):
"First, because the FAA in its entirety
establishes a set of procedures intended to apply
only in United States district courts, it has no
application in a case such as this, where proper
jurisdiction lies exclusively in a court of the
State of Alabama. In 1925, when Congress enacted the
FAA, Congress was not acting under its power granted
in Article I to regulate interstate commerce, but
rather, it was acting under its power granted in
Article III to prescribe rules of procedure for
courts.
Second,
Congress's
power
to
regulate
interstate commerce has been unconstitutionally
expanded by the courts. As a result, Congress has
been able to reach by federal regulation activities
that are clearly intrastate in nature. Courts
exacerbate this error by applying the expansive
Commerce Clause jurisprudence to the FAA and thereby
enforcing federal arbitration law when state laws
should control."
28
1121534
Third, it appears to me that the FAA is unconstitutional under
the Seventh Amendment to the United States
Constitution,
which
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
At the time the Seventh Amendment was ratified, the common law
provided that parties could agree to submit a dispute to
arbitration only after a dispute had arisen, but any agreement
to submit disputes to arbitration before a dispute had arisen
was considered an improper attempt to divest courts of their
jurisdiction. See Home Ins. Co. of New York v. Morse, 87 U.S.
(20 Wall.) 445, 451 (1874); Riddlesbarger v. Hartford Ins.
Co., 74 U.S. 386, 390-91 (1868); Birmingham News Co. v. Horn,
901 So. 2d 27, 44 (Ala. 2004), overruled on other grounds,
Hereford v. Horton, 13 So. 3d 375, 379-80 (2008), and Horton
Homes, Inc. v. Shaner, 999 So. 2d 462, 466 (Ala. 2008); 3
William Blackstone, Commentaries *16-17. See also II Message
of the President of the United States Transmitting the Report
of the Employers' Liability and Workmen's Compensation
Commission 769 (Government Printing Office 1912) (brief of
29
1121534
Morris M. Cohen) ("But passing this, a general waiver of a
jury trial before any cause of action has accrued is obviously
against public policy and is, in effect, an attempt to nullify
the seventh amendment to the Constitution. It is impossible to
conceive how a man can waive a thing which does not exist at
the time he waives it; that is to say, the right to a jury
trial does not exist until a cause of action has accrued.").
Cf. Ex parte First Exch. Bank, [Ms. 1111353, Dec. 6, 2013]
___ So. 3d ___, ___ (Ala. 2013) (Moore, C.J., concurring
specially) (arguing that a predispute contractual jury waiver
violates the right to trial by jury as guaranteed by the
Alabama Constitution). Thus, because the FAA cuts off an
injured party's right to trial by jury by enforcing agreements
that were illegal at common law, it appears to me that the FAA
is unconstitutional under the Seventh Amendment.8
Justice Almon took a similar position in his dissent in
8
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting), arguing forcefully:
"How can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
30
1121534
In
this
case,
if
the
arbitration
agreement
was
unenforceable under the principles stated above, then the
Useltons would have been entitled to their day in court. If
the Useltons had won the court battle, then they would not
have been entitled to attorney fees pursuant to the American
rule. Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d
692, 710 (Ala. 2008). If the arbitration agreement was
enforceable, then I would agree with the main opinion that the
arbitrator exceeded the scope of his powers in awarding
attorney fees. But because of my concerns about the
applicability of the FAA in this case, I concur only in the
result as to the issue of attorney fees.
Arbitration costs, however, are another matter. If the
Useltons had not been forced to arbitration and had then
prevailed in court, they would have been awarded costs. Rule
54(d), Ala. R. Civ. P. Moreover, even if the arbitration
agreement was enforceable, the agreement does not
preclude the
arbitrator from awarding costs to the prevailing party. The
agreement simply states that "[t]he arbitration fees ...
shall
be paid by both parties." This provision requires each party
constitutional authority."
31
1121534
to pay arbitration costs up front but says nothing about
whether the arbitrator is precluded from awarding costs to the
prevailing party, which would have been awarded by a court of
law in Alabama, at the end of the arbitration proceeding. I
also note that the Better Business Bureau of North Alabama
Rules provide that "[t]he arbitrator may award any remedy that
is permitted under applicable law." Thus, it is clear to me
that the agreement does not prohibit the arbitrator from
awarding costs to the prevailing party. Therefore, I
9
respectfully dissent from reversing the award of the
arbitration fees.
Even if the provision in the agreement was ambiguous,
9
"ambiguity in a contract must be construed against the drafter
of the contract." SouthTrust Bank v. Copeland One, L.L.C., 886
So. 2d 38, 43 (Ala. 2003). Because Guardian Builders, LLC,
drafted the contract, this Court should have construed this
provision in favor of the Useltons.
32 | April 11, 2014 |
f7f27a16-c506-4193-9250-f34ab038965f | Gray v. State | 185 So. 2d 125 | N/A | Alabama | Alabama Supreme Court | 185 So. 2d 125 (1965)
Arthur D. GRAY et al.
v.
STATE ex rel. ATTORNEY GENERAL.
7 Div. 630.
Supreme Court of Alabama.
June 24, 1965.
Rehearing Denied April 7, 1966.
*126 Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, Jack Greenberg, Norman C. Amaker and Geo. B. Smith, New York City, for appellants.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for appellee.
*127 COLEMAN, Justice.
From a decree making permanent a preliminary injunction, respondents endeavor to appeal.
The decree was rendered July 1, 1963. Motions for rehearing were denied September 5, 1963. The cause was argued orally in this court and submitted May 26, 1964.
We do not find any appeal bond in the record.
The certificate of appeal recites:
The certificate does not state the name of any surety on any appeal bond. Supreme Court Rule 38.
It has long been the rule that a deposit of money is not a sufficient security for costs of appeal to this court. § 792, Title 7, Code 1940; Butler v. Foster, 14 Ala. 323; King & Owen v. McCann, 25 Ala. 471; Griswold v. Thornton, 129 Ala. 454, 30 So. 717; Harris v. Barber, 237 Ala. 138, 186 So. 160; American Federation of Musicians v. Moss, 277 Ala. 169, 168 So. 2d 12.
S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 50 Del. 346, 130 A.2d 558; Gordon v. Camp, 2 Fla. 23; Marks v. Waiahole Water Co., 36 Haw. 188; Beckwith v. Kansas City & Olathe Railroad Co., 28 Kan. 484; Alvord & Son v. Mallory, 10 Ky.L. R. 80; State ex rel. Maxwell v. Sevier, (Mo.App.), 179 S.W.2d 492; Naum v. Naum, 101 N.H. 367, 143 A.2d 424, 65 A.L. R.2d 1130; Sommers v. De Ran, 53 Ohio App. 87, 4 N.E.2d 267; Commonwealth v. Sitler, 261 Pa. 261, 104 A. 604; Smith v. Coffin, 9 S.D. 502, 70 N.W. 636; Ringgold v. Graham, Tex.Com.App., 13 S.W.2d 355; Hervey v. Forse, Tex.Civ.App., 253 S.W.2d 701; Brooks v. Epperson, 164 Va. 37, 178 S.E. 787; United States v. Faw, 1 Cranch C.C. 486.
The right to appeal is purely statutory. The provisions of the statute are mandatory and free of ambiguity.
It is ordered that the appeal be dismissed.
Appeal dismissed.
LAWSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.
PER CURIAM.
Appellants argue that our holding in this case is error because it is contrary to "prior law," to "prior custom and practice," to "prior practice and law," and contrary to the provisions of Tit. 7, § 805, Code 1940.
In view of these contentions, no authority will be cited in this extension of the opinion that was announced after this cause was originally submitted to this court.
An appeal is taken to an appellate court, not as a vested right, but by grace of a statute and must be perfected and prosecuted pursuant to the time and manner prescribed. And the Legislature can limit, restrict or abolish the right of appeal so long as it does not attempt to restrict the right of this court to exercise its superintendence and control over inferior tribunals under Section 140 of the Constitution. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So. 2d 844, 2 Ala.Dig., Appeal & Error.
This court has uniformly held that an appeal must be taken within the time prescribed by statute (here six months, Tit. 7, § 788), and if not taken within that time, it is jurisdictional and the appeal must be dismissed. This dismissal may be on motion. Wetzel v. Dixon, 227 Ala. 46, 148 So. 857; Williams v. Knight, 233 Ala. 42, 169 So. 871; or ex mero motu, because this court is without jurisdiction to consider the appeal. Irwin v. Weil, 228 Ala. 489, 153 So. 746; Snider v. Funderburk, 209 Ala. 663, 96 So. 928; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.
That brings us to the question of when an appeal is "taken." We cite the governing principles from our cases.
An appeal is "taken," within the meaning of our statute, when the party desiring to prosecute it has complied with the conditions upon which the law gives the right. The only condition precedent, when the appellant is not exempt from giving bond by statute, is the filing with the proper official, within the time prescribed by statute for taking an appeal, a sufficient undertaking to secure costs. Kimbrell v. Rodgers, 90 Ala. 339, 7 So. 241.
"An appeal is taken only within the provisions of the statute, one of which [is] the filing with the proper officer sufficient security for the costs of the appeal." Peters v. Chas. Schuessler & Sons, 208 Ala. 627, 95 So. 26, and cases there cited.
"The decisions of this court are uniform to the effect that the appeal dates from the proper filing of security of costs." Danley v. Danley, 263 Ala. 390, 82 So. 2d 534, followed in Anderson v. Anderson, 270 Ala. 358, 119 So. 2d 31; Ridgeway v. Lovelady, 268 Ala. 503, 108 So. 2d 459; Town of Vernon v. Maddox Motor Co., 38 Ala. App. 689, 92 So. 2d 920. This security, if sufficient, and if filed within time, must be accepted and approved by the proper officer, and the appeal will not be dismissed if the approval comes after the time prescribed for taking an appeal. Thompson v. Menefee, 218 Ala. 332, 118 So. 587; Wade v. Town of Helena, 270 Ala. 718, 121 So. 2d 896.
The manner of taking an appeal is set out in Tit. 7, § 766, Code 1940, and reads:
In view of our statutes and our cases, it is obvious that an appeal is "taken" when the party desiring to appeal, or his attorney, files with the proper officer of the court, (a) a writing which shows a reason for the claim that no bond or security is required and states that an appeal is taken from the judgment or decree in the case; or (b) a writing which shows that the party desiring to take the appeal and his surety or sureties acknowledge themselves as security for costs of the appeal, and on which the approval of the proper officer may be endorsed; or (c) a writing consisting of a supersedeas bond conditioned as required by law and on which the approval of the proper officer may be endorsed.
The statutory period for taking the appeal in this case is six months, and that time expired six months from the denial of the rehearing on September 5, 1963. Gavin v. Hughes, 249 Ala. 126, 30 So. 2d 245; Equity Rule 62. From that time to the date of submission, more than eight months later, there was nothing in the transcript to show the giving or approval of any type bond or security for costs.
Appellants state in brief that the register "approved" the security they gave. No such approval appears in the record. The purported certificate of appeal, the pertinent part of which is copied in our original opinion, shows that the statutory requirement of "security" for cost of appeal is deleted and the word "cash" substituted therefor. There is no provision in our law for a cash bond on appeal to this or any appellate court of this state. (Tit. 11, § 60, Code 1940, relating to nonresidents, applies only to trial courts and not to our appellate courts). In the early case of Butler v. Foster, 14 Ala. 323, this court held that since no statute permitted an officer to receive a deposit of money in lieu of bail, the receipt of $500 in cash in lieu of a bond, as prescribed by statute, was not received by the clerk in the discharge of any official duty prescribed by law, and neither the clerk nor his sureties were liable to the County Treasurer for the money, and it had not become the property of the State or the county.
As stated in our original opinion, "It has long been the rule that a deposit of money is not sufficient security for costs of appeal to this court."
But appellants state in brief that they have found two cases where the appellant posted cash for costs on appeal. One case is Williams v. Home Owners' Loan Corporation, 236 Ala. 700, 184 So. 910. There, the appellant made an affidavit that she was a married woman and was unable to give security for costs on appeal, under Tit. 7, § 799. This claim was contested by the appellee by a motion to dismiss the appeal. This court granted the motion conditionally, but granted her sixty days to file proper security for costs. When she failed to do so, the appeal was dismissed. No cash was posted for the costs on appeal.
The other case is Harris v. Barber, 237 Ala. 138, 186 So. 160. But it is different from the instant case. There, appellant Harris did sign his security for costs as principal. Instead of getting sureties to sign with him, he deposited $50 with the clerk. The original record shows that beneath Harris' signature on the undertaking are the words, "Taken and approved, the 16 day of July, 1938, O. L. Andrews, Clerk." It was marked "Filed" the same day. In that case there was a writing, signed by the party desiring to appeal, filed and approved by the clerk. But because there were no sureties, the appellee made a motion to dismiss *130 prior to submission and this court granted it conditionally, but when proper sureties were added, the court went ahead to decide the issues. There, an appeal was taken, and the transcript showed that a security for costs, signed by the appellant, had been approved by the clerk. Here, as already pointed out, there is no security for costs signed by anyone or approved by anyone. The two cases cited by appellants are not apt.
We come now to the question of waiver. Appellants contend "When no security whatever for costs on appeal has been filed and the appellee has allowed the cause to be submitted on the merits without objection to that defect, objection to the lack of security for costs is held to have been waived," and cited are Elson v. Pridgen, 241 Ala. 233, 2 So. 2d 110, and Walker v. Harris, 235 Ala. 384, 179 So. 213. In each of the cases the appellants, married women, made affidavits that they were unable to give security for costs and claimed an exemption under Tit. 7, § 799, and the certificates of appeal showed that they made such claim.
An appellee is entitled to have the appellant make a proper claim of exemption under Tit. 7, § 766(a), or have him file a proper security of costs under § 766(b), or a proper supersedeas bond under § 766 (c). Ordinarily, the appellee does not know what the appellant has filed until he gets the transcript, unless he checks with the clerk or register prior to receiving the transcript. If he desires to contest the propriety of either (a), (b) or (c), he can file a motion to dismiss and then the defective claim, security or bond must be corrected or the appeal will be dismissed. But if the appellee does not file a motion to dismiss prior to submission, the defect is waived. In both the Elson and Walker cases, cited supra, there was no security for costs because the appellants had chosen the manner of appeal outlined in Tit. 7, § 766(a). They had made an affidavit under Tit. 7, § 799, that they were married women and unable to give security for costs as required by § 799. This was all the statute required them to do to perfect the appeal. They had "taken" an appeal when they did this. It was up to the appellee to contest this claim by making a motion to dismiss. The motion was sustained in Harris v. Barber, 237 Ala. 138, 186 So. 160, and Williams v. Home Owners' Loan Corporation, 236 Ala. 700, 184 So. 910, and appellants were given time to give a proper security for costs. But in the Elson and Walker cases, supra, no motion to dismiss was made prior to submission and any contest of the exemption claim was waived.
Of similar import is Humphrey v. Lawson, 256 Ala. 198, 54 So. 2d 439. There, the appellee was contesting a final tax assessment by the State. There was no security for costs, but two so-called appeal bonds were signed by the Attorney General of the State, two Assistant Attorneys General and the Sheriff of Morgan County, and stated that "this appeal being taken by the State of Alabama, the State elects to appeal without giving security for costs." Here again, the appellants did all that the law required of them under Tit. 7, § 766 (a); and Tit. 7, § 72, does exempt the State from giving security, etc. in actions by it. When this statement by the State's attorneys was filed with the register, the appeal was "taken." Even though one of the appellants, the sheriff, may not have been entitled to claim the exemption, the contest had to be made by a motion to dismiss prior to submission or the defect was waived.
We have many cases that hold that defects in appeal bonds, such as wrong dates, wrong names, clerical errors and the like, must be brought to this court's attention by motion to dismiss made prior to submission, or they will be considered as waived.
But this waiver rule does not apply where the appeal was not taken within the statutory period. In Journequin v. Land, 235 Ala. 29, 177 So. 132, where the appeal was *131 not taken within six months, and a motion to dismiss was filed, this court said:
In Boshell v. Phillips, 207 Ala. 628, 93 So. 576, the appeal came too late and we said that "this court is without jurisdiction to consider it, and it must be dismissed." The court added:
Since the appeal in the instant case was not taken within the statutory period, there was nothing which could be waived.
Finally, appellants argue that the dismissal was contrary to the provisions of Tit. 7, §§ 805 and 806, Code 1940, which say that appeals will not be dismissed for defects, etc., in the appeal bond or if appellant offers to make an appeal bond.
These sections apply only where some type of approvable bond or security for costs is given in the time allowed for taking the appeal. But in order to come within these sections, it is necessary to make an attempt to appeal sufficient to invoke the jurisdiction of this court, as by executing a bond which is defective in some respects but sufficient to transfer jurisdiction to this court. Terry v. Gresham, 254 Ala. 349, 48 So. 2d 437. Nothing occurred *132 in this case to transfer jurisdiction from the circuit court in equity to this court.
In summary, we hold (1) that no appeal was "taken" in this case as that word is used in our appeal statutes, (2) that no appeal was taken within the time prescribed by law, (3) that nothing happened to transfer jurisdiction from the circuit court to this court, (4) that where this court has no jurisdiction, a purported appeal must be dismissed ex mero motu, and (5) that in such cases, there can be no application of the waiver rule nor do the remedial statutes, Tit. 7, §§ 805, 806, Code 1940, apply.
Application for rehearing denied.
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.
COLEMAN, J., concurs in the result. | June 24, 1965 |
83a61522-ba25-4790-924c-6bee2963122d | Waugaman v. Skyline Country Club | 172 So. 2d 381 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 381 (1965)
S. H. WAUGAMAN
v.
SKYLINE COUNTRY CLUB et al.
1 Div. 196.
Supreme Court of Alabama.
February 25, 1965.
*382 Johnston, Johnston & Courtney, Mobile, for appellant.
Donald F. Pierce and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for Skyline Country Club.
Holberg, Tully & Hodnette, Mobile, for St. Paul F. & M. Ins. Co.
MERRILL, Justice.
This is an appeal from a judgment of nonsuit which was induced by the sustaining of demurrers to the three counts of appellant's complaint as last amended. The suit was for damages for the "wrongful and malicious expulsion" of appellant from membership in Skyline Country Club, Inc., in Mobile.
Counts One, Two and Three of the complaint as last amended aver that plaintiff was a member in good standing of defendant Skyline at the time his wife was seriously injured while playing golf on defendant Skyline's course; that negotiations were entered into with defendant Skyline's public liability insurance carrier (defendant St. Paul Fire & Marine Insurance Company) toward the adjustment of claims arising out of the wife's injuries; that the parties were unable to agree upon an amount in settlement of such claims; that plaintiff and his wife then filed actions at law against defendant Skyline; and that eight days after service of such actions was perfected, plaintiff was wrongfully and maliciously caused to be expelled from his membership in defendant Skyline. Counts One and Two aver that this wrongful and malicious expulsion was because of the filing of plaintiff's action against defendant Skyline, and Count Three avers that the wrongful and malicious expulsion was because of the "presentation or tendering of such claim or claims as aforesaid."
Count Two added that appellant was wrongfully and maliciously expelled without any hearing, and without notice and opportunity to be heard.
Exhibits made a part of the complaint were copies of the complaints in his wife's suit against Skyline for $12,000, his suit against Skyline for $3,000, Skyline's Constitution, By-laws and Articles of Incorporation.
Appellant relies chiefly on the cases of Grand International Brotherhood of Locomotive Engineers v. Green, 210 Ala. 496, 98 So. 569, and News Employees' Benevolent Society v. Agricola, 240 Ala. 668, 200 So. 748, as authority for his contention that the court erred in sustaining the demurrer to the complaint as last amended.
We think there is a marked distinction between associations such as trade unions (involved in the Green case, 210 Ala. 496, 98 So. 569), societies providing credit loans, sick, death and other benefits (involved in the Agricola case, 240 Ala. 668, 200 So. 748), professional associations, trading exchanges and like organizations, affecting a person's right to earn a living on one hand, and private social clubs on the other. Certain conduct, which might not justify expulsion from some other type of association, where membership is a condition to earning a livelihood, or essential to the enjoyment of a contract or property right, may justify expulsion from a private social club, which usually has the primary purpose of affording pleasant, friendly and congenial social relationship and association between the members. State ex rel. Barfield v. Florida Yacht Club, Fla.App., 106 So. 2d 207, and cases there cited. The Florida Court held that the expelled member, who was expelled because he had brought a suit for personal injuries against the club in excess of the club's insurance coverage, could not have the expulsion reviewed by the courts, if due procedural requirements had been met and there were no allegations or proof of fraud or bad faith. The court said:
"We agree that the courts should leave to the members of a private social club or to the proper board to which the members have lawfully delegated that power, the right to determine whether *383 the action of a member has been such that, in the opinion of such Board, it would interfere with the pleasant, friendly and congenial social relationship between the members. In the absence of a clear allegation and convincing proof, if the case reaches that stage, of fraud or bad faith, the action of the members or duly delegated board should not be reviewed by the courts."
The Florida court quotes a Florida statute which provides that a member of a social club must be given an opportunity to be heard before expulsion "unless he is absent from the county where the corporation (club) is located." But the Supreme Court of Florida upheld an expulsion of a member of a club without a hearing where he resided in another county. State ex. rel. Randall v. Miami Coin Club, 88 So. 2d 293.
We have no statute governing expulsion procedure in social clubs in Alabama. Therefore, the Constitution and the By-laws of a social club constitute a contract between it and its members, and as one of the incidents of membership, a member consents to accept liability to expulsion, if ordered in accordance with the club's regulations, provided that those regulations are valid and do not violate public policy. In Board of School Commissioners of Mobile County v. Hudgens, 274 Ala. 647, 151 So. 2d 247, we said:
Here, the expulsion section of the by-laws, made an exhibit to the amended bill, provides:
There is no averment that appellant's expulsion was not effected in the exact procedure outlined in the by-laws, and construing the allegations of the pleader more strongly against him on demurrer, we conclude compliance with the section.
Appellant argues that he has made sufficient allegations that the expulsion was wrongful and malicious, but the quoted part of an exhibit to his complaint tends to contradict the allegations, assuming that the allegations are more than mere conclusions.
An exhibit made the basis of a cause of action or defense and contradicting the averments of the pleading of which it is a part will control such pleading. Hemphill v. Hunter-Benn & Co., 242 Ala. 61, 4 So. 2d 502; Ivey v. Wiggins, 271 Ala. 610, 126 So. 2d 469. The effect of the exhibit is that appellant's conduct did, in the opinion of all twenty members of the Board of Governors, injure the welfare or character of the Skyline Country Club, and that they voted unanimously to expel him.
*384 There is no allegation that any different procedure was used in appellant's expulsion, none that it was not in strict compliance with the by-laws, and none challenging the validity of the by-laws.
The rule is that a pleading challenged by demurrer is construed against the pleader, and that illegality is not presumed when the facts alleged do not show an illegal act. Gilbert v. Louis Pizitz Dry Goods Co., 237 Ala. 249, 186 So. 179, and cases there cited. The exhibits and the allegations of the complaint do not show an illegal act.
We conclude that the trial court correctly sustained the demurrer of Skyline to the complaint.
We come now to the assignments of error charging that the court erred in sustaining the demurrer of St. Paul Fire & Marine Insurance Company to the complaint as last amended.
Counts One, Two and Three of the complaint as last amended aver in pertinent part as follows:
Appellant contends that these allegations "sufficiently state a cause of action against such defendant." We cannot agree.
The allegations merely show that Croom, as St. Paul's agent, sold public liability insurance to Skyline; that he was a member of the Board of Governors when the question of appellant's expulsion arose; and that he, as agent of St. Paul, conspired in the wrongful and malicious expulsion.
What we have already held as to Skylinethat the complaint presented no facts to show that the expulsion was wrongful or malicious applies also to St. Paul.
Moreover, the allegations quoted supra, while showing that Croom was St. Paul's agent to sell and deliver the insurance policy and that Croom was a member of the Board of Governors, do not aver any facts showing that Croom had been authorized by or was acting on behalf of St. Paul when he voted to expel appellant. The most that can be said for the allegations is that while he was an authorized insurance agent for St. Paul, he was acting in his individual capacity as a member of the Board of Governors of Skyline Country Club in the expulsion matter.
When it is alleged that the agent did some primary act which he was duly *385 authorized to do (here, sell and deliver insurance), and a secondary and distinct effect is imputed to such act (here, the expulsion of appellant by the Board of Governors of Skyline Club), it is not sufficient to allege the authority of the agent to do the primary act merely, but the secondary effect must be charged directly upon the principal or it must be alleged that the agent was authorized to bind the principal as to the secondary effect. Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250. Apt grounds of demurrer raised these and other questions as to the sufficiency of the allegations of the amended complaint.
It follows that the trial court correctly sustained the demurrer of St. Paul to the complaint as last amended.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | February 25, 1965 |
caf69096-beb9-421d-8af7-88c9d439d2c8 | W. David Lindsay v. Baptist Health System, Inc., d/b/a Shelby Baptist Medical Center (Appeal from Shelby Circuit Court: CV-10-0740). Affirmed. No Opinion. | N/A | 1120766 | Alabama | Alabama Supreme Court | REL: 04/4/2014
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, 2013-2014
_________________________
1120766
_________________________
W. David Lindsay
v.
Baptist Health System, Inc., d/b/a Shelby
Baptist Medical Center
Appeal from Shelby Circuit Court
(CV-10-0740)
WISE, Justice.
AFFIRMED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
1120766
MOORE, Chief Justice (dissenting).
W. David Lindsay appeals from a summary judgment entered
for Baptist Health System, Inc., d/b/a Shelby Baptist Medical
Center
("SBMC"),
in
his
action
alleging
negligence,
wantonness, breach of contract, and defamation. Because I
believe that Lindsay has established the existence of genuine
issues of material fact, I respectfully dissent
from affirming
the summary judgment.
I. Facts and Procedural History
Andy Alexander made a series of harassing prank telephone
calls to the emergency department at Shelby Baptist Medical
Center on December 12 and 13, 2008, pretending to be Lindsay,
an orthopedic surgeon at Shelby Baptist Medical Center. The
strange content of the calls should have alerted the hospital
that the caller, who succeeded in speaking to one of Lindsay's
patients, was not Lindsay. As a result of the calls, Wilma
Scott, a nursing supervisor at the medical center who
allegedly harbored a grudge against Lindsay, reported him to
hospital management for "possible impairment and potentially
inappropriate conversations involving a patient." Scott
2
1120766
committed suicide on January 24, 2009, six weeks after her
report triggered the events in this case.
Upon returning from supper on Saturday night, December
13, Lindsay received a telephone call from David Wilson,
president of SBMC, who informed him that because of harassing
telephone calls he was reported to have made to a patient's
room, Lindsay was being summarily suspended and ordered off
the hospital grounds. The following Monday SBMC reported the
temporary suspension of privileges to the Alabama Board of
Medical Examiners, which reacted by suspending Lindsay's
medical license. On receiving that report, SBMC automatically
revoked Lindsay's privileges at the hospital.
Lindsay immediately sought injunctive relief to restore
his medical license and hospital privileges. The Montgomery
Circuit
Court
granted
him
relief,
but
his
1
suspension/revocation had lasted about five weeks, causing
significant harm to his practice and generating
great
personal
The underlying action was initially filed in the
1
Montgomery Circuit Court because the Medical Licensure
Commission of Alabama was a named defendant. That defendant
was dismissed, and, on motion of SBMC, the case was
transferred to Shelby County.
3
1120766
stress and anguish. He explained in his affidavit opposing the
motion for a summary judgment:
"[A]s a result of the summary suspension of my
hospital privileges and the ensuing suspension of my
medical license, I suffered severe financial losses,
loss of approximately half of my office support
staff,
including
my
surgical
assistant
of
approximately six years; great mental anguish and
stress, loss of reputation, a loss of patient
referrals, and came close to losing my medical
practice. My insurance premium for my medical
malpractice insurance coverage almost doubled in
cost, and I had a total loss of income in my medical
practice located in Alabaster and the Montgomery
area for five (5) to six (6) weeks."
Lindsay amended his original complaint to allege
negligence and willful and wanton conduct against SBMC and
also breach of contract and defamation. SBMC moved for a
summary judgment arguing immunity under federal and state
statutes that protect from judicial review documentation and
proceedings of peer-review and quality-assurance processes.
See §§ 6-5-333, 22-21-8, and 34-24-58, Ala. Code 1975, and 42
U.S.C. §§ 11111 and 11112. Finding that certain documents
Lindsay used to prove his case were absolutely immune from
disclosure under these statutes, the trial court struck them
as inadmissible. The court also struck Lindsay's affidavit in
4
1120766
its entirety as being of no evidentiary value and without
further explanation entered a summary judgment for SBMC.
II. Standard of Review
A trial court's summary judgment is reviewed de novo, and
the judgment is given no presumption of correctness. Baldwin
v. Branch, 888 So. 2d 482, 484 (Ala. 2004). A summary judgment
is proper 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, Ala. R. Civ. P.
III. Analysis
SBMC has not contested by affidavit or otherwise
Lindsay's statement of the harm its actions caused him. In any
case I am required to accept Lindsay's version of the facts:
"[T]he court is to view the evidence in a light most favorable
to the nonmoving party and to draw all reasonable inferences
in favor of that party." Capital Alliance Ins. Co. v.
Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994). SBMC
seeks to bypass Lindsay's allegations of harm by arguing that
it is immune from suit under statutory provisions that shield
peer-review and quality-assurance activities. Although SBMC
largely treats these statutory provisions as providing
5
1120766
absolute immunity from suit, they, in fact, contain
substantial
qualifications
that
give
rise
to
factual
questions
unsuitable for resolution at the summary-judgment stage.
A. Peer-Review Privilege
Section 6-5-333, Ala. Code 1975, states that any
physician who serves on a medical-care peer-review committee
shall not be liable in damages as a result of "any action
taken or recommendation made by him within the scope of his
function" on the committee "if such action was taken or
recommendation made without malice and in a reasonable belief
that such action or recommendation is warranted by the facts
made known to him." § 6-5-333(a) (emphasis added). These
statutory
qualifications
are
significant.
For
the
privilege
to
apply, the trier of fact must determine that the committee
acted without malice and on a reasonable fact-based belief.
Alexander made his first prank telephone calls to Shelby
Baptist Medical Center on Friday, December 12. Lindsay states
that during that evening he "was never contacted by any nurses
or employees of SBMC regarding any strange or disturbing phone
calls or unusual events regarding the treatment of my patients
...." His privileges were suspended by Wilson the next
6
1120766
evening. The only communication SBMC had with Lindsay before
the suspension was a demeaning and accusatory telephone
interrogation by the chief of surgery, Dr. Clement Cotter. In
his affidavit Lindsay states: "While [I was] speaking to Dr.
Cotter, he began asking me extremely unusual questions. Dr.
Cotter asked me if I was taking any drugs and also asked me to
count backwards from ten, twice, which I did. Dr. Cotter was
very accusatory. None of this made any sense to me."
The shortened time frame in which SBMC made its
suspension decision and its failure to seek an explanation
from Lindsay raise factual questions as to whether it
conducted any investigation at all, let alone a "reasonable"
one, before suspending Lindsay's privileges. Lindsay thus has
raised a genuine issue of material fact as to whether the
statutory conditions for granting § 6-5-333 immunity exist in
this case. Additionally, the statute applies only to
individual practitioners who sit on or assist peer-review
committees. The statute by its terms does not immunize
corporate entities such as SBMC, the defendant in this case.
B. Utilization-Review-Committee Privilege
7
1120766
Section 34-24-58, Ala. Code 1975, protects from legal
action the acts of any physicians' committee of a licensed
hospital, but only if the committee's decisions were made "in
good faith and without malice and on the basis of facts
reasonably known or reasonably believed to exist." The
qualifying phrase raises factual questions that cannot be
resolved at the summary-judgment stage
in the
circumstances
of
this case. "The qualified immunity, however, is not absolute.
In a majority of cases immunity only applies when the
investigation is conducted in good faith, without malice, and
based upon the reasonable belief that the committee's action
is warranted." George E. Newton II, Maintaining the Balance:
Reconciling the Social and Judicial Costs of Medical Peer
Review Protection, 52 Ala. L. Rev. 723, 730 (2001).
C. Quality-Assurance Privilege
Section 22-21-8, Ala. Code, 1975, which privileges from
discovery accreditation and quality-assurance materials,
states that "[i]nformation, documents, or records otherwise
available from original sources" are available for discovery
regardless of whether they were "presented or used in
preparation" of quality-assurance materials. § 22-21-8(b).
8
1120766
Additionally, any person involved in the preparation and
review of such materials may still testify "as to matters
within his knowledge." § 22-21-8(b). Section 6-5-333 contains
similar qualifications. "Nothing contained herein shall apply
to records made in the regular course of business by a
hospital ... or records available from original sources" even
though "presented during proceedings" of a peer-review
committee. § 6-5-333(d).
Thus, state law provides only a qualified privilege for
peer-review or quality-assurance material. Apart from the
2
requirements that the hospital committee act in good faith and
make a reasonable investigation, information considered in
performing the peer-review or quality-assurance function is
still discoverable if contained in business records or by
direct inquiry to the original source. "[R]ecords made in the
regular course of business, exclusive of official committee
functions, and otherwise available from their original
sources, are discoverable and not privileged." Ex parte
Similarly the Health Care Quality Improvement Act of
2
1986, 42 U.S.C. § 11101 et seq., provides immunity to a
hospital for a "professional review action" if, among other
things, the action is taken "after a reasonable effort to
obtain the facts of the matter." 42 U.S.C. § 11112(a)(2).
9
1120766
Anderson, 789 So. 2d 190, 199 (Ala. 2000). See also Ex parte
Krothapalli, 762 So. 2d 836, 839 (Ala. 2000) (noting that "§
22-21-8 does not protect information if it is obtained from
alternative sources"); Newton, Maintaining the Balance, 52
Ala. L. Rev. at 736 (noting that "peer review statutes protect
the work product of a review proceeding, not the underlying
substantive evidence").
In Ex parte Fairfield Nursing & Rehabilitation Center,
L.L.C., 22 So. 3d 445 (Ala. 2009), this Court held that
certain documents were privileged under § 22-21-8 based on a
nursing-home affidavit that "the requested documents are not
kept in the ordinary course of business and do not become a
part of a resident's medical chart." 22 So. 3d at 454. We
noted, however,
that those statements were "unopposed." Id. In
this case Claire Owens, Director of Risk Management and
Corporate Compliance for SBMC, stated by affidavit that
documents relating to the investigation of Lindsay were "not
kept by [SBMC] in the ordinary course of business." Lindsay in
his affidavit disagreed. He stated that "[s]ome, if not all of
the various documents ... and the audio recordings of calls to
10
1120766
the Emergency Department are records kept in the ordinary
course of business at the Hospital."
To establish his personal knowledge of those facts,
Lindsay stated that he had been a physician at Shelby Baptist
Medical Center since 1993 and that as a trauma surgeon he
"learn[ed] firsthand how the emergency room works."
"I am well aware of the importance of voice
recordings on all calls to the emergency room and
how these are kept in the normal course of business.
As a trauma surgeon, I am also familiar with the
business practices of the SBMC emergency room.
"....
"Hospital charts of patients and recorded phone
calls to the Emergency Department are regularly kept
in the ordinary course of business at SBMC and do
not constitute peer review or quality assurance
materials."
Unlike in Fairfield Nursing, the factual averments in this
case as to privilege are not unopposed. On the motion of SBMC
the trial court struck Lindsay's affidavit on the basis that
"said testimony is supported by neither a factual basis nor
personal knowledge sufficient to support the conclusory,
speculative
assertion
that
the
quality
assurance
materials
are
not
quality assurance
materials."
Given the
detailed
statements in Lindsay's affidavit based on his many years of
11
1120766
personal experience as an emergency-room surgeon at Shelby
Baptist Medical Center, I cannot agree that his affidavit is
so insubstantial as to warrant being stricken from the record.
D. The Substantial-Evidence Test
Alabama requires a party opposing a summary-judgment
motion to offer "substantial evidence" of the existence of a
genuine issue of material fact, i.e., "evidence of such
quality and weight that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved." West v. Founders Life Assurance Co.
of Florida, 547 So. 2d 870, 871 (Ala. 1989). See also § 12-21-
12(d), Ala. Code 1975. "[T]he dispute about a material fact is
'genuine' ... if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fair-minded juror, mindful of Lindsay's credentials and
experience, could reasonably infer that at least some of the
documents and recordings are business records that are exempt
from the peer-review privilege. The Owens affidavit, in fact,
makes no mention of the critical audio recordings of the prank
telephone calls as documents not kept in the ordinary course
12
1120766
of business. The trial court might have felt that SBMC had the
better argument as to the categorization of the evidence and
that SBMC's determination in this regard should be respected.
However, "at the summary judgment stage the judge's function
is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine
issue for trial." Anderson, 477 U.S. at 249. To protect
3
Lindsay's right to a trial by jury all inferences must be
drawn in his favor. "All reasonable doubts concerning the
existence of a genuine issue of material fact must be resolved
against the moving party." Hanners v. Balfour Guthrie, Inc.,
564 So. 2d 412, 413 (Ala. 1990). "When a genuine issue of
material fact exists, the jury must play its traditional role
of a factfinder." Ex parte BASF Constr. Chems., LLC, [Ms.
1101204, Dec. 30, 2013] ___ So. 3d ___ (Ala. 2013).
E. Release
The trial court at the summary-judgment stage may not
3
decide which party is more believable."[N]either the trial
court nor this Court may undertake credibility assessments in
reviewing testimonial evidence submitted in favor of, and in
opposition to, a motion for a summary judgment, whereas making
such credibility assessments is one of the key functions of
the trial jury." Lyons v. Walker Reg'l Med. Ctr., 868 So. 2d
1071, 1077 (Ala. 2003).
13
1120766
In connection with seeking medical privileges at SBMC,
Lindsay signed a release in 2008 extending absolute immunity
to SBMC "[t]o the fullest extent permitted by law ... for any
matter relating to appointment, reappointment, clinical
privileges, or my qualifications for the same." A contractual
waiver of liability that immunizes a party from future
intentional tortious conduct is
void as against public policy.
Reece v. Finch, 562 So. 2d 195, 200 (Ala. 1995). See also
Barnes v. Birmingham Int'l Raceway, Inc., 551 So. 2d 929, 933
(Ala. 1989) (holding that "pre-race releases, although valid
and consistent with public policy as to negligent conduct, are
invalid and contrary to public policy as to wanton or willful
conduct"). Because the issue of willfulness in this case is
fact-bound and Lindsay has presented evidence from which an
inference of willfulness may reasonably arise, immunity based
on the release must also await development of the facts.
F. Rule 56(f) Motion
To utilize the original-source exception to the peer-
review privilege, Lindsay filed a Rule 56(f), Ala. R. Civ. P.,
motion for a continuance to depose SBMC employees who had
firsthand knowledge of the events at issue. "A typical
14
1120766
situation for the application of Rule 56(f) is where the
opposing party
cannot
present by affidavits facts essential to
justify his opposition because knowledge of those facts is
exclusively with, or largely under the control of, the moving
party." Griffin v. American Bank, 628 So. 2d 540, 542 (Ala.
1993). Because the hospital staff who took the prank telephone
calls and witnessed their effect have direct knowledge of
relevant facts, the trial court should have permitted Lindsay
to develop their testimony.
IV. Conclusion
Lindsay has raised triable issues of fact under the
relevant statutes as to whether SBMC acted in good faith and
conducted
a
reasonable
investigation
or
indeed
any
investigation at all before erroneously suspending his
privileges and reporting that fact to the medical board.
Lindsay's affidavit also raises a genuine factual question as
to whether certain evidence claimed to be privileged is in
fact discoverable under the business-records exception. He
also is entitled to depose witnesses who have personal
knowledge of the relevant facts regardless of whether they
provided any information to the hospital about these events.
15
1120766
For the above reasons I respectfully dissent from
affirming the trial court's summary judgment.
16 | April 4, 2014 |
0dcde7d8-9607-460b-aee5-884d302c092f | State v. Mills | 176 So. 2d 884 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 884 (1965)
STATE of Alabama
v.
James E. MILLS
6 Div. 950.
Supreme Court of Alabama.
March 4, 1965.
Rehearing Denied July 15, 1965.
*885 Emmett Perry, Circuit Sol., Birmingham, Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for appellant.
Alfred Swedlaw, Kenneth Perrine, Leader, Tenenbaum, Perrine & Swedlaw, Birmingham, for appellee.
Chas. Morgan, Jr., Birmingham, and Herbert S. Channick, New York City, for Civil Liberties Union, amici curiae.
Jas. C. Barton, Alan W. Heldman and Deramus & Johnston, Birmingham, for Alabama Press Ass'n, amici curiae.
LIVINGSTON, Chief Justice.
This is an appeal by the State of Alabama, under and by virtue of the provisions Sec. 370, Title 15, Code of Alabama 1940, from a judgment of the Jefferson County Criminal Court sustaining a demurrer to an amended criminal complaint, on the grounds that the statute on which the said criminal complaint was based, Sec. 285, Title 17, Code of 1940, is unconstitutional.
*886 The Birmingham Post-Herald is a daily newspaper of general circulation, published in the City of Birmingham, Alabama. James E. Mills, the appellee, is the editor of that newspaper.
On November 6, 1962, an election was held in the City of Birmingham, Alabama, to determine whether or not the City of Birmingham was to retain the then existing commission form of city government or to replace it by another form.
In the November 6, 1962 issue of the Birmingham Post-Herald, which was distributed to purchasers of and subscribers to that newspaper, was an editorial which was authorized by Mr. Mills, in words and figures as follows:
Section 285 of Title 17, Code of 1940, reads as follows:
Based on the foregoing editorial, a citizen swore to a criminal complaint charging Mills with violation of Sec. 285 of Title 17, supra.
*887 The criminal complaint as amended charged that the publication and distribution of the editorial constituted "electioneering" or "soliciting votes in support of a proposition which was being voted on on the day that the election affecting such proposition was being held."
A demurrer to the amended complaint was filed by the defendant Mills, appellee. Each ground of the demurrer challenged the constitutionality of said Sec. 285 of Title 17, supra. The demurrer to the complaint as amended was sustained, the judgment specifying that the statute was unconstitutional as violative of (1) Article 1, Sec. 4 of the Constitution of Alabama 1901, (2) Article 1, Sec. 6 of the Constitution of Alabama 1901, (3) the First Amendment to the Constitution of the United States, and (4) the Fourteenth Amendment to the Constitution of the United States.
These constitutional provisions read as follows:
Article 1, Secs. 4 and 6, Constitution of Alabama 1901:
The First Amendment, Constitution of the United States of America, reads, in pertinent part, as follows:
The Fourteenth Amendment, Constitution of the United States of America, reads, in pertinent part, as follows:
The principles by which courts are guided when it is sought to strike down an act of the legislature as violative of the Constitution are clearly and concisely stated in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810, where the late Chief Justice Gardner said:
"At the outset reference may be made, as is often done, to the principles by which courts are guided when it is sought to strike down as violative of the constitution a legislative act. Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it *888 is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.
Our cases are legion to the effect that all presumptions and intendments should be indulged in favor of the validity of a statute, and its unconstitutionality should appear beyond a reasonable doubt before it will be held invalid. Statutes must be construed, if fairly possible, so as to avoid not only a conclusion that it is unconstitutional, but also grave doubts on that score. Nat'l Reporter System, Constitutional Law, Vol. 4, Alabama Digest, Constitutional Law, pp. 710-714; Constantine v. United States, 5 Cir., 75 F.2d 928; 295 U.S. 730, 55 S. Ct. 922, 79 L. Ed. 1679; 296 U.S. 287, 56 S. Ct. 223, 80 L. Ed. 233; State ex rel. Woodward v. Skeggs, 154 Ala. 249, 46 So. 268; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S. Ct. 816, 81 L. Ed. 1143; Lincoln Mills of Ala. v. Davis, 5 Cir., 89 F.2d 1012, 302 U.S. 772, 58 S. Ct. 3, 82 L. Ed. 599; Stone v. State, 233 Ala. 239, 171 So. 362.
The legislature may enact laws reasonably regulating elections, and the state may under its "police power" enact laws which interfere indirectly and to a limited extent with freedom of speech or the press, if reasonably necessary for protection of the general public. 16 C.J.S. Constitutional Law § 213(23), p. 1157; Alabama State Federation of Labor v. McAdory, supra; Nat'l Reporter Systems, Elections, and 231; State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A.L.R. 348, 376; Ex parte Hawthorne, 116 Fla. 608, 156 So. 619, 623, 96 A.L.R. 572; Branton v. State, 214 Ark. 861, 218 S.W.2d 690; 338 U.S. 878, 70 S. Ct. 155, 94 L. Ed. 538; 18 Am.Jur., p. 336, par. 235, "Elections"; Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626; In re Mack, 386 Pa. 251, 126 A.2d 679, 681.
Freedom of speech or freedom of the press is susceptible to only such restrictions as are necessary to prevent grave and immediate danger to interests which the state may lawfully protect. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 1186, 87 L. Ed. 1628.
A full exercise of the right of citizenship includes, not only the right to vote, by those possessing the prescribed qualifications, but the right to assemble, the *889 right of free speech, the right to present one's views to one's own fellow citizens, but these rights are subject to restraint by reasonable regulation.
In numerous cases in this court, it has been made as plain as it is possible to make it that the regulation of these rights is subject to constitutional limitations, and, if unreasonable, must be declared void. Laws of this kind lie within the police power field and are subject to the same constitutional limitations as are laws dealing with the right to life, liberty and property. The right of the legislature to exercise the police power is not referable to any single provision of the Constitution. It inheres in and springs from the nature of our institutions, and so the limitations upon it are those which spring from the same source as well as those expressly set out in the Constitution. But legislative action is always subject to the test of reasonableness. A review of all the cases in which courts have considered the reasonableness of laws enacted by legislatures in the exercise of the police power would leave us about where we began.
A clear distinction must be drawn between cases passing upon the reasonableness of an act of the legislature and cases having to do with the reasonableness of municipal ordinances, the reasonableness of classifications, etc. The fundamental principles governing the exercise of the police power by the legislature have been considered many times by this court. A court may not declare a law void for unreasonableness because it is unwise or prescribes a limitation more restrictive than the court thinks proper. If a law is germane to the subject with which it deals, that is, is not passed for the purpose of securing some ulterior objective, and is in fact within the field of regulation, if it tends to conserve rather than destroy, it is beyond the scope of judicial interference.
There is no yardstick by which reasonableness may be measured with mathematical certainty. This court holds in accordance with the great weight of authority that a law cannot be held to be invalid because unreasonable, unless and until it appears beyond reasonable controversy that it unnecessarily impairs to the point of practical destruction a right safeguarded by the Constitution. As has already been pointed out, the law under consideration lies within the police power field and impairs only the right of free speech, which includes the right to write and publish one's views.
Does a law which prohibits "soliciting votes" or "electioneering" on election day so unreasonably invade the constitutional right of free speech or free press as to be void? In order to entitle the court to declare the law void on that ground it is not sufficient that the restriction is greater or less than the court might think wise. It is not sufficient that it may appear to the court that it may operate as a restraint upon the information and education of the electorate. Before the act can be set aside, it must appear beyond reasonable controversy to the court that the law in question tends to destroy rather than conserve and is not germane to the purpose sought to be achieved.
Out of the facts the law arises, and we come now to the application of the foregoing principles to the facts of the case at hand.
The statute declares it a corrupt practice for any person on any election day to do "any electioneering or to solicit any votes * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held."
There can be no sort of doubt that the editorial distributed on the election date violates the Corrupt Practice Act of soliciting votes or electioneering on election day. The editorial for which appellee was responsible stated:
The real question in the case is: Did the Alabama Legislature exercise reasonable use of police power, in an effort to maintain orderly elections, in limiting full free speech and freedom of the press, by denying to all persons the right to solicit votes, or electioneer, while the electorate recorded their wishes at the polling booths on election day?
We are of the opinion that it did. In deciding whether any police regulation is reasonable, the courts must look at all the surrounding circumstances. If the legislature thought such regulations are necessary and reasonable, the courts have not stricken same as violative of constitutional rights, because the courts thought of better means, in their judgment, of handling the danger. Generally speaking, courts have stricken such legislative acts only if they have the effect, under all the circumstances, of practically destroying the constitutional rights.
The pertinent statute being within the field in which the legislature may properly and constitutionally exercise the police power, the act does not so clearly appear to be an unwarrantable interference with the guaranteed constitutional right that it is within the power of the court to declare it void; on the contrary, the restriction, everything considered, is within the field of reasonableness.
Appellee cites the case of Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626. But as we read that case, it supports the principles we have applied in this case. We quote the following from it:
It is undeniable that it is reasonably necessary that all elections be conducted in an orderly fashion. It is a salutary legislative enactment that protects the public from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on an election day; when as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over.
Appellee argues that Sec. 285, Title 17, Code, should be declared void and unconstitutional for uncertainty. We cannot agree. The cases cited in support of the argument are readily distinguishable from the instant case. The provisions of the Corrupt Practice Act, as applied to the facts of this case, are clear, unambiguous and not an unreasonable limitation upon free speech, which includes free press.
Reversed and remanded.
SIMPSON, MERRILL and HARWOOD, JJ., concur. | March 4, 1965 |
2637c225-53cf-4f2c-9464-a5e545c94a3e | Health Care Authority for Baptist Health, an affiliate of UAB Health System, d/b/a Baptist Medical Center East v. Kay E. Davis, as executrix of the estate of Lauree Durden Ellison, deceased | N/A | 1090084 | Alabama | Alabama Supreme Court | REL: 05/13/2013
REL: 02/28/2014 As Modified on Denial of Rehearing
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, 2012-2013
____________________
1090084
____________________
Health Care Authority for Baptist Health,
an affiliate of UAB Health System,
d/b/a Baptist Medical Center East
v.
Kay E. Davis, as executrix of the estate of
Lauree Durden Ellison, deceased
Appeal from Montgomery Circuit Court
(CV-06-1475)
On Application for Rehearing
MURDOCK, Justice.
This medical-malpractice case is before us on rehearing.
This Court previously issued an opinion (1) vacating the
1090084
judgment of the Montgomery Circuit Court in favor of Kay E.
Davis, as executrix of the estate of Lauree Durden Ellison,
deceased, and against the Health Care Authority for Baptist
Health, an affiliate of UAB Health System ("the Authority"),
and (2) dismissing the Authority's appeal and the case on the
ground that the Authority was entitled to State immunity under
§ 14, Ala. Const. 1901. Davis filed an application for
rehearing. We withdraw the January 14, 2011, opinion, and
substitute the following opinion.
I. Background Facts and Procedural History
On September 3, 2005, Lauree Durden Ellison visited the
emergency room of Baptist Medical Center East (hereinafter
"BMCE"), a hospital operated by the Authority and formerly
operated by Baptist Health, a private nonprofit corporation.
Ellison's visit was for an evaluation after she had fallen at
home. At the time of the visit, Ellison was 73 years old, and
she suffered from a number of chronic preexisting medical
conditions,
including
respiratory
problems,
diabetes,
hypertension, chronic pain, gastrointestinal bleed, and
stroke-related problems.
2
1090084
The initial examination of Ellison did not indicate that
she had an infection, and all other tests and X-rays were
unremarkable for injuries caused by the fall. While she was
in the emergency room, however, Ellison mentioned that she had
a sore throat. The emergency-room doctor ordered a test for
streptococcus. Thereafter, Ellison was discharged from the
emergency room to return home.
After Ellison was discharged, the BMCE laboratory grew
the culture taken from the streptococcus test. The culture
reflected
the
presence
of
methicillin-resistant
staphylococcus
aureus (hereinafter "MRSA"). Although the BMCE laboratory
recorded
the
results
in
its
electronic
medical-records
system,
the results were not reported directly to Ellison's treating
physician.
Over the next two months, Ellison received medical
treatment for other medical conditions from providers other
than BMCE. She did not complain of a sore throat during that
period. On November 3, 2005, however, she returned to BMCE's
emergency room complaining of a cough and moderate to severe
respiratory distress. Ellison died on November 8, 2005.
3
1090084
On May 25, 2006, Davis, as executrix of Ellison's estate,
filed a complaint in the trial court, naming as defendants the
Authority and two physicians at BMCE. Before trial, the
1
Authority asserted that any damages awarded against it were
subject to the $100,000 statutory cap on damages set out in
§ 11-93-2, Ala. Code 1975, which it argued was applicable to
the Authority pursuant to § 22-21-318(a)(2) of the Health Care
Authorities Act of 1982, Ala. Code 1975, § 22-21-310 et seq.
("the HCA Act").
At trial, Davis presented the testimony of expert
witnesses who opined that BMCE had breached the applicable
standard of care by not reporting its finding of MRSA directly
to Ellison's attending physician. Davis's expert witnesses
opined that Ellison died from MRSA-related pneumonia and that
the failure of the BMCE laboratory to report the finding of
MRSA to Ellison's doctor caused her death. Conversely, the
Authority offered the testimony of several expert witnesses
In her initial complaint, Davis used an incorrect name
1
for the Authority. She corrected the name in an amended
complaint.
Also, each of the two physicians filed a motion for a
summary judgment. The trial court granted both motions.
Davis has not filed a cross-appeal as to the judgment in favor
of the two physicians.
4
1090084
who testified that MRSA does not cause a sore throat; that,
because Ellison was not suffering from a throat infection when
the streptococcus culture was taken, the standard of care did
not require that anyone be notified of the presence of MRSA,
which is present in a large part of the population without
symptoms or consequences; that notifying Ellison's doctor of
the finding of MRSA would not have changed Ellison's course of
treatment; and that Ellison died of congestive heart failure
unrelated to the MRSA, and not of MRSA-related pneumonia.
The jury returned a verdict in favor of Davis and against
the Authority in the amount of $3,200,000, and the trial court
entered a judgment for Davis in that amount. The Authority
filed a postjudgment motion seeking, in part, a remittitur of
the judgment from $3,200,000 to $100,000 based on the
statutory cap for damages set forth in § 11-93-2. On
September 29, 2009, the trial court entered an order denying
the Authority's postjudgment motion.
The Authority appealed. On appeal, it argues that it
possesses State immunity, also known as sovereign immunity,
pursuant to § 14, Ala. Const. 1901, which provides "[t]hat the
State of Alabama shall never be made a defendant in any court
5
1090084
of law or equity." Also, the Authority argues that the trial
court erred by not remitting the $3,200,000 damages award to
$100,000 pursuant to § 11-93-2. In response, Davis contends
that the Authority does not qualify for State immunity and,
further, does not qualify for the protection of the $100,000
damages cap in § 11-93-2.
II. Discussion
As noted above, Baptist Health at one time operated
certain hospitals in Montgomery, including BMCE.
When Baptist
Health encountered financial problems in conjunction with the
operation of those hospitals, it sought the assistance of the
University of Alabama Board of Trustees ("the Board"). In
2
June 2005, the Board adopted a resolution authorizing the
formation of the Authority:
"WHEREAS,
The
Board
of
Trustees
of
The
University of Alabama ('the Board') owns University
of Alabama Hospital and related health care
facilities
located
in
Birmingham,
Alabama
('Hospital'); and
"WHEREAS, the Hospital is managed by the UAB
Health System ('UABHS'), pursuant to an Amended and
In Cox v. Board of Trustees of University of Alabama, 161
2
Ala. 639, 648, 49 So. 814, 817 (1909), this Court held that
for purposes of § 14, Ala. Const. 1901, the University of
Alabama "is a part of the [S]tate."
6
1090084
Restated Joint Operating Agreement dated effective
January 1, 2003 ('JOA'); and
"....
"WHEREAS,
after
careful
consideration,
UABHS
and
Baptist [Health] desire to affiliate for the purpose
of improving the overall efficiency of Baptist
[Health's] clinical operations and for arranging for
Baptist [Health] financial support of the Board's
academic and research mission through contributions
to UABHS; and
"WHEREAS, by separate resolution on this same
date, The Board of Trustees of The University of
Alabama approved an Affiliation Agreement between
the UA Board, UABHS and Baptist [Health]; and
"WHEREAS,
the
Affiliation
Agreement
provides
for
the establishment of a health care authority by the
UA Board, under the terms and conditions set forth
in the Affiliation Agreement; ...
"....
"NOW, THEREFORE, BE IT RESOLVED that The Board
of Trustees of The University of Alabama hereby
declares that it is wise, expedient, and necessary
that a health care authority be formed."
After explaining that the purpose of the Authority is "to
own and operate one or more hospitals and a health care
delivery system," the certificate of incorporation states:
"Pursuant to an Affiliation Agreement dated July 1,
2005 (the 'Affiliation Agreement') by and among the
... Board, Baptist Health, ... and UAB Health
System, an Alabama nonprofit corporation ('UABHS'),
Baptist Health will transfer its hospitals and
related assets to the Authority. The Authority
7
1090084
shall have full governance powers with respect to
its business and affairs, subject to the provisions
of the Affiliation Agreement, including without
limitation the provisions related to 'Restricted
Transactions'
contained
in
the
Affiliation
Agreement. The Affiliation Agreement, including any
amendments made to such Agreement from time to time
in accordance with the terms thereof, are hereby
incorporated by reference in this certificate of
incorporation."
(Emphasis added.) The certificate of incorporation also
states:
"Subject to the provisions of the Affiliation
Agreement, the Authority shall have and may exercise
all of the powers and authorities set out in the
Enabling Law [i.e., the HCA Act], for corporations
organized thereunder, together with such additional
powers, rights, and prerogatives as are now or may
hereafter be provided by law. In addition thereto,
the Authority shall have the extraordinary powers
set out in Section 22-21-319 of the Enabling Law
(eminent domain)."
(Emphasis added.) The certificate further states:
"Subject to the Authority's obligations under the
Affiliation Agreement with respect to reconveyance
of assets upon termination of the Affiliation
Agreement, upon dissolution of the Authority, the
title to all of the assets and property of the
Authority at the time of such dissolution shall be
transferred to the ... Board."
(Emphasis added.)
The certificate of incorporation provides for an
11-member board of directors. Six directors (and their
8
1090084
respective successors) are chosen by the Board;
five directors
(and their respective successors) are chosen by Baptist
Health. In this respect, the certificate complies with § 22-
21-316(a), Ala. Code 1975, which states that "no fewer than a
majority of the directors shall be elected by the governing
body
or
bodies of
one
or
more
of
the
authorizing
subdivisions." Neither the certificate of incorporation for
the Authority nor the HCA Act requires that a director who is
chosen by the Board have any other relationship with the
Board.
In July 2005, the Board, the University of Alabama at
Birmingham Health System, an Alabama nonprofit corporation
("UABHS"), and Baptist Health entered into the aforementioned
affiliation agreement ("the affiliation agreement"). The
affiliation agreement states:
"A. The ... Board owns University of Alabama
Hospital in Birmingham, Alabama, an operating
division of the University of Alabama at Birmingham,
and various other entities and assets engaged in the
delivery of healthcare services. University of
Alabama Health Services Foundation, P.C., an Alabama
nonprofit corporation ('UAHSF'), owns the Kirklin
Clinic in Birmingham, Alabama and various other
entities and assets engaged in the delivery of
healthcare services. UAHSF and the ... Board have
established UABHS to provide common management of
their respective health care delivery operations.
9
1090084
"B. Baptist Health owns and operates a health
care delivery system (the 'Baptist Healthcare
System') in the Montgomery, Alabama area that
includes three acute care hospitals (the 'Baptist
System Hospitals').
"C. The [HCA Act] permits the ... Board to
organize a health care authority. Health care
authorities are public corporations with authority
to operate hospital and health care delivery
systems. Pursuant to this Agreement ... [the] Board
will organize a health care authority that will own
and operate the Baptist Health System assets during
the term of this agreement.
"D. The parties have determined that the
consummation of the transactions contemplated by
this Agreement will further their mutual goals of
(i) providing community-based health care in the
Montgomery area, (ii) promoting efficiency and
quality in the delivery of health care services to
the
people
of
the
State
of
Alabama,
and
(iii) supporting the academic and research mission
of [the Board and UABHS] with respect to health care
services and the science of medicine."
(Emphasis added.)
A. State Immunity
The Authority is a public corporation. It is an entity
separate from the State and from the persons and entities who
participated in its creation. See Alabama Hosp. Ass'n v.
Dillard, 388 So. 2d 903, 905 (Ala. 1980) ("We simply hold, as
we have so often, 'that a public corporation is a separate
entity from the state and from any local political
10
1090084
subdivision, including a city or county within which it is
organized.'" (citation omitted)).
Nonetheless, the Authority argues that it is immune from
liability pursuant to the doctrine of State immunity.
Although the Authority raises this argument for the first time
on appeal, "[t]he assertion of State immunity challenges the
subject-matter jurisdiction of the court; therefore, it
may
be
raised at any time by the parties or by a court ex mero motu."
Atkinson v. State, 986 So. 2d 408, 411 (Ala. 2007); see also
Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.
2007). Because this argument, if correct, would preclude our
deciding the merits of this appeal, we address this issue
first.
Section 14 of the Alabama Constitution of 1901 states
that "[t]he State of Alabama shall never be made a defendant
in any court of law or equity." It is well established that
"'the use of the word "State" in Section 14 was intended to
protect from suit only immediate and strictly governmental
agencies of the State.'" Tallaseehatchie Creek Watershed
Conservancy Dist. v. Allred, 620 So. 2d 628, 631 (Ala. 1993)
(quoting Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470,
11
1090084
480 (Ala. 1983)); see also Ex parte Greater Mobile-Washington
County Mental Health-Mental Retardation Bd., Inc., 940 So. 2d
990, 997 (Ala. 2006) (also quoting Thomas, 432 So. 2d at 480).
Tallaseehatchie Creek and Greater Mobile-Washington
County Mental Health Board relied on Armory Commission of
Alabama v. Staudt, 388 So. 2d 991 (Ala. 1980), in which this
Court identified three factors that determine whether an
action against a body created by legislative enactment is an
action against the State for purposes of the doctrine of State
immunity:
"Whether a lawsuit against a body created by
legislative enactment is a suit against the state
depends on [1] the character of power delegated to
the body, [2] the relation of the body to the state,
and [3] the nature of the function performed by the
body. All factors in the relationship must be
examined to determine whether the suit is against an
arm of the state or merely against a franchisee
licensed for some beneficial purpose."
388 So. 2d at 993 (emphasis added).
In Ex parte Department of Human Resources, 999 So. 2d
891, 897 (Ala. 2008), this Court stated "that the same factors
('the Staudt factors') are informative in determining whether
an entity established by a State agency at the direction of
the legislature is part of that agency for purposes of
sovereign immunity." Likewise, in Vandenberg v. Aramark
12
1090084
Educational Services, Inc., 81 So. 3d 326, 339 (Ala. 2011),
this Court explained:
"The immunity that comes from § 14 and that is
associated with being part of the State ... does not
automatically attach to all public corporations;
some public corporations are entitled to it while
others are not. In Armory Commission of Alabama v.
Staudt, 388 So. 2d 991, 993 (Ala.1980), we explained
what more is required before a public corporation
may claim that immunity ...."
When applying the three Staudt factors, this Court
"emphasizes substance over form." Tallaseehatchie Creek, 620
3
So.2d at 630. As this Court noted in Alabama Girls' Industrial
School v. Reynolds, 143 Ala. 579, 583, 42 So. 114, 115 (1904):
"If the suit instituted against it is practically
and really against the State -- if the judgment and
decree obtained against it must be satisfied, if at
all, out of the property held by it, and this
property belongs to the State, though the title is
eo nomine in the [defendant] as an agent of the
State -- then clearly to permit an action or suit
against it would be doing by indirection that which
cannot be done directly. In other words, if the
[defendant]
is
a
mere
State
agency
--
a
representative
of
the
State,
instituted
and
maintained by the sovereignty for the exercise of a
Accordingly, after examining the Staudt factors, the
3
Court in Greater Mobile-Washington County Mental Health Board
concluded that the public corporation at issue there was not
an "immediate and strictly governmental agency of the State,"
940 So. 2d at 997, and therefore was not entitled to immunity.
The Court reached the same conclusion as to the State agency
at issue claiming immunity in the Tallaseehatchie Creek case.
13
1090084
governmental function -- a suit against it is a suit
against the State ...."
(Emphasis added.)
1.
The Character of Power Delegated to, and the
Nature of the Function Performed by, the
Authority4
In adopting the HCA Act, the legislature stated:
"[P]ublicly-owned
(as
distinguished
from
investor-owned and community-nonprofit) hospitals
and
other
health
care
facilities
furnish
a
substantial part of the indigent and reduced-rate
care and other health care services furnished to
residents of the state by hospitals and other health
care facilities generally ...."
Ala. Code 1975, § 22-21-312(1). The legislature also
concluded that,
"as a result of current significant fiscal and
budgetary limitations or restrictions, the state and
the
various
counties,
municipalities,
and
educational institutions therein are no longer able
to provide, from taxes and other general fund
moneys, all the revenues and funds necessary to
operate ... publicly-owned hospitals and other
health care facilities adequately and efficiently
...."
Ala. Code 1975, § 22-21-312(2). Accordingly, "to enable such
publicly-owned hospitals and other health care facilities to
continue
to operate
adequately
and
efficiently,"
the
Given the similarity and overlap of these two Staudt
4
factors, the following discussion serves to address both of
them.
14
1090084
legislature enacted the HCA Act "to provide a corporate
structure somewhat more flexible than those ... provided for
in existing laws relating to the public hospital and
health-care authorities" and to give "the entities and
agencies
operating
[public
hospitals
and
health-care
authorities] ... significantly greater powers with respect to
health care facilities than now vested in various public
hospital or health-care authorities." Ala. Code 1975,
§ 22-21-312(3).
Although the powers to arrange for the provision of
health-care services to the indigent and to promote public
health are legitimate ends of government, they certainly are
not functions unique to government. Thus, the power granted
authorities under the HCA Act in this regard, and in
particular by the Board to the Authority, is not of the same
character, for example, as the power granted an entity that is
charged with a strictly governmental function, e.g., law
enforcement. Compare, e.g., Ex parte Board of Dental Exam'rs
of Alabama, 102 So. 3d 368 (Ala. 2012) (citing and quoting
Ala. Code 1975, §§ 34-9-40(a), 34-9-43, 34-9-46, and 34-9-5),
with Ala. Code 1975, § 22-21-318. Clearly, the nature of the
15
1090084
authority to operate a public hospital is not such as to
dictate an affirmative answer to the question whether the
entity who holds that authority is entitled to immunity.
5
In a number of cases this Court has held that a State
5
university is entitled to immunity in relation to a public
hospital that is part of a college of medicine within the
university. The hospitals in those cases, however, were owned
and operated directly by the universities as part of their
operations. See, e.g., Sarradett v. University of South
Alabama Med. Ctr., 484 So. 2d 426, 427 (Ala. 1986) (holding
that sovereign immunity protected an existing public hospital
that was acquired by the University of South Alabama and
thereafter "owned and operated by the University of South
Alabama in conjunction with its college of
medicine" (emphasis
added)). Irrespective of the function in which they were
engaged, those universities were "part of the [S]tate." See,
e.g., Cox v. Board of Trs. of Univ. of Alabama, 161 Ala. 639,
648, 49 So. 814, 817 (1909). The hospitals, in turn, were
simply a component part of these universities. See, e.g.,
Liberty Nat'l Life Ins. Co. v. University of Alabama Health
Servs. Found., P.C., 881 So. 2d 1013, 1027 (Ala. 2003)
(quoting with approval the explanation in the complaint that
"UAB Hospital is 'a division (and/or component) of the
University of Alabama at Birmingham'"); Hutchinson v.
Board
of
Trs. of Univ. of Alabama, 288 Ala. 20, 24, 256 So. 2d 281, 284
(1971) (plurality opinion). See also Recital "A" of the
affiliation agreement, explaining that "the University of
Alabama Hospital in Birmingham, Alabama, [is] an operating
division of the University of Alabama at Birmingham."
Thus, the immunity of the universities in these hospital
cases was not determined by the nature of the activity in
which they were engaged. The ownership and operation of a
public hospital, including those run for the benefit of the
indigent and to promote public health, are by no means
functions unique to government. Compare University
of
Alabama
Health Servs. Found., 881 So. 2d at 1028 (holding that the
University
of
Alabama
at
Birmingham
Health
Services
Foundation,
"a
nonprofit,
independent
professional
corporation
16
1090084
Also, a review of the powers that may be granted a
health-care authority under the HCA Act reflects, with a few
exceptions, powers that legally may be exercised by any number
of private or for profit business entities. Compare Ala. Code
1975, § 22-21-318, with, e.g., Ala. Code 1975, § 10-2B-3.02
(general powers of corporations), and Ala. Code 1975, § 10-3A-
20 (general powers of nonprofit corporations).
Beyond the general power to operate a public hospital, we
note that a health-care authority created under the HCA Act
may, if so provided in the authority's certificate of
incorporation, exercise a right of eminent domain, namely,
that, in part, attends to the billing for UAB Hospital," and
UABHS,
an
Alabama
nonprofit
corporation,
as
"entities
separate
and distinct from UAB Hospital," were "not ... shown to
qualify for" immunity pursuant to § 14); Ex parte Cranman, 792
So. 2d 392, 406 (Ala. 2000) (plurality opinion) (concluding
that services rendered by a hospital in the treatment of
patients was "too remote from governmental policy" to warrant
the provision of immunity to a University employee providing
that treatment). Instead, the dispositive factor in these
cases was the character of the universities themselves as
"part of the [S]tate":
"'Our cases are clear that the operation of a
hospital is a "governmental function," but even if
we should classify the operation of University
Hospital
as
being
a
"business
function,"
nevertheless, the State could not be sued.'"
Sarradett, 484 So. 2d at 427 (quoting Hutchinson, 288 Ala. at
24, 256 So. 2d at 284).
17
1090084
"the same power of eminent domain as is vested by
law in any authorizing subdivision, in the same
manner and under the same conditions as are provided
by law for the exercise of the power of eminent
domain by such authorizing subdivision; provided
however, that under no circumstances may an
authority exercise the power of eminent domain for
the purposes of providing office facilities for any
physician, dentist or other health care professional
primarily for use in his private practice."
See Ala. Code 1975, § 22-21-319. The Authority's certificate
of incorporation provides it with the power of eminent domain.
Although that power is among powers that belong to the State,
this Court has not found the possession of the power of
eminent domain to be determinative, in and of itself, of the
issue whether a particular entity is entitled to State
immunity. Clearly, the power of eminent domain is a power
enjoyed by entities such as municipalities and counties,
public corporations, and other agencies that are not part of
the State and that do not enjoy State immunity. See, e.g.,
Greater Mobile-Washington Cnty. Mental Health Board, 940
So. 2d at 994; Tallaseehatchie Creek, 620 So. 2d at 630; and
Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d at 481 (see
Ala. Code 1975, § 11-50A-8(4)).
The Authority also possesses certain powers under the HCA
Act that pose difficulty in reaching a conclusion that the
18
1090084
Authority has State immunity. In particular, it is especially
hard for this Court to overlook the fact that the legislature,
which is responsible for the creation of health-care
authorities, expressly contemplated that such authorities
would be entities subject to suit:
"(a) In addition to all other powers granted
elsewhere in this article, and subject to the
express
provisions
of
its
certificate
of
incorporation, an authority shall have the following
powers, together with all powers incidental thereto
or necessary to the discharge thereof in corporate
form:
"....
"(2) To sue and be sued in its own
name in civil suits and actions, and to
defend suits and actions against it,
including suits and actions ex delicto and
ex contractu, subject, however, to the
provisions of Chapter 93 of Title 11, which
chapter is hereby made applicable to the
authority."
Ala. Code 1975, § 22-21-318. This language is plain.
"Although, such a clause is not determinative of an
Authority's status, it does show the intent of the legislature
to create a separate entity rather than an agency or an arm of
the state." Stallings & Sons, Inc. v. Alabama Bldg. Renovation
Fin. Auth., 689 So. 2d 790, 792 (Ala. 1996). See also Wassman
v. Mobile Cnty. Commc'ns Dist., 665 So. 2d 941, 943 (Ala.
19
1090084
1995) (applying Staudt and concluding that the Communications
District did not possess State immunity; "the 'power to sue
and to be sued' language in the empowering statute is
incompatible
with
the
constitutional
immunity
with
which
state
agencies are cloaked").6
In addition, Ala. Code 1975, § 22-21-318(a)(5), provides
that a health-care authority has the power
"[t]o
acquire,
construct,
reconstruct,
equip,
enlarge, expand, alter, repair, improve, maintain,
equip, furnish and operate health care facilities at
such place or places, within and without the
boundaries of its authorizing subdivisions and
within and without the state, as it considers
necessary or advisable ...."
(Emphasis added.) If a health-care authority created under
the HCA Act is a State agency, the legislature, by this
Also,
a health-care authority has the power under the HCA
6
Act
"[t]o assume any obligations of any entity that
conveys and transfers to the authority any health
care facilities or other property, or interest
therein, provided that such obligations appertain to
the health care facilities, property or interest so
conveyed and transferred to the authority."
Ala. Code 1975, § 22-21-318(a)(23). This provision is at
least consistent with the notion that an obligation owed a
tort creditor who has filed a judgment lien against property
that is transferred to an authority is to be enforceable
against the authority.
20
1090084
provision, has authorized a State agency to own a health-care
facility located in another state, a state in which the
Authority would not possess State immunity like it has in
Alabama. Under such a scenario the legislature would have, in
effect, preferred the claims of injured patients who are
citizens of other states to those of Alabama citizens.
Finally, any discussion of the first Staudt factor --
"the character of power delegated to the body" -– in the
present case must consider the control retained by Baptist
Health in relation to the operation of the Authority and the
reservation by Baptist Health of an interest in the
Authority's assets. As to the former, the affiliation
agreement, which is incorporated by reference in the
Authority's certificate of incorporation, reserves to Baptist
Health the right to approve certain significant transactions
and operational changes.
7
Section 1.2 of the affiliation agreement states:
7
"(a) The Authority may not engage in any
Restricted Transaction without the prior written
consent of ... [the] Board and Baptist Health.
"(b) Each of the following shall be deemed to
be a 'Restricted Transaction':
"(i) any capital expenditure in
21
1090084
excess of $10,000,000, either with respect
to a single project or in the aggregate
with respect to a related group of
projects;
"(ii) elimination of any services
that, as of the Closing, are provided at
the Baptist System Hospitals;
"(iii) any transaction involving the
transfer, sale or other disposition of
assets of the Authority to any person or
entity (including without limitation [the
Board and UABHS] or an affiliate of [the
Board and UABHS]) other than in the
ordinary course of business or as otherwise
expressly permitted by this Agreement;
"(iv) the incurring of new debt in
excess of $10,000,000, either in a single
transaction or in the aggregate with
respect
to
a
related
series
of
transactions;
"(v) the appointment or removal of
the
chief
executive
officer
of
the
Authority;
"(vi) the amendment of the mission
statement for the Authority, as set forth
in this Agreement;
"(vii)
any
amendment
to
the
certificate of incorporation or bylaws of
the Authority; and
"(viii) any transfer of funds from
the Authority to [the Board and UABHS] or
an affiliate of [the Board and UABHS]
through contribution, grant, dividend or
otherwise, except such transfers as are
22
1090084
Additionally, § 1.3 of the affiliation agreement provides
for Baptist Health to transfer to the Authority all its assets
and all interest in any subsidiaries or other affiliates; the
affiliation agreement does not appear to require any payment
by the Authority in return for those assets and affiliates.
Although § 1.4 of the affiliation agreement states that
"[e]ffective as of the Closing Date, the Authority will assume
all debts, liabilities and other obligations of Baptist
Health," it continues by stating:
"Baptist Health shall not be released from any of
such debts, liabilities and other obligations.
Neither UABHS nor its sponsors ([University of
Alabama Health Services Foundation, P.C.,] and the
... Board) will assume or be required to guarantee
any debts, liabilities, or other obligations of
Baptist Health or the Authority."
(Emphasis added.)
The affiliation agreement further provides in § 3.3 that,
upon the termination of the affiliation agreement, the
Authority is to transfer its assets back to Baptist Health,
specifically authorized by this Agreement
or transactions in the ordinary course of
business of the Authority."
(Emphasis added.)
[substituted p. 23]
1090084
either entirely or in substantial part. Termination of the
8
affiliation
agreement
for
this
purpose
includes
termination
by
Baptist Health or any other party, either with or without
cause. As to termination by Baptist Health, § 3.4 of the
affiliation agreement provides that "cause" includes
"(i) the conduct of affiliation activities or
the business of the Authority in a manner contrary
to the mission of Baptist Health; (ii) the benefits
of the Authority structure are eliminated; or (iii)
breach by the [Board and UABHS] of the material
terms of this Agreement and the continuation of such
breach for 60 days after written notice of such
breach is delivered to the [Board and UABHS] by
Baptist Health."
2.
The Relation of the Authority to the State
According to the Authority's brief, "the legislature has
determined that the Authority 'acts as an agency or
instrumentality of its authorizing subdivisions and as a
political subdivision of the state.' Ala. Code [1975,] § 22-
21-318(c)." Thus, the Authority contends, it shares the
immunity of its "authorizing subdivision," the Board. See Cox
If Baptist Health terminates the affiliation agreement
8
other than for cause, § 3.4 provides that Baptist Health must
pay as "compensation" to UABHS an amount equal to a percentage
of between 33% and 50% of any increase in the value of those
assets during the term of the affiliation agreement, plus an
additional amount in the event Baptist Health were to then
sell or otherwise dispose of those assets within three years
of the termination of the affiliation agreement.
[substituted p. 24]
1090084
v. Board of Trs. of Univ. of Alabama, 161 Ala. 639, 648, 49
So. 814, 817 (1909) (University's board of trustees "are but
agents appointed by the state to manage the affairs of the
University," which possesses immunity under § 14).
The specific context of the above-quoted language from
Ala. Code 1975, § 22-21-318(c), however, is as follows:
"(c) As a basis for the power granted in
subdivision (31) of the preceding subsection (a),
the Legislature hereby:
"(1) Recognizes and contemplates that
the nature and scope of the powers
conferred
on
authorities
hereunder
are
such
as may compel each authority, in the course
of exercising its other powers or by virtue
of such exercise of such powers, to engage
in activities that may be characterized as
'anticompetitive' within the contemplation
of the antitrust laws of the state or of
the United States; and
"(2) Determines, as an expression of
the public policy of the state with respect
to the displacement of competition in the
field of health care, that each authority,
when exercising its powers hereunder with
respect to the operation and management of
health care facilities, acts as an agency
or instrumentality of its authorizing
subdivisions
and
as
a
political
subdivision
of the state."
(Emphasis added.) Section 22-21-318(a)(31), Ala. Code 1975,
provides that a health-care authority created under the HCA
Act can
[substituted p. 25]
1090084
"exercise all powers granted hereunder in such
manner as it may determine to be consistent with the
purposes of this article, notwithstanding that as a
consequence of such exercise of such powers it
engages
in
activities
that
may
be
deemed
'anticompetitive' within the contemplation of the
antitrust laws of the state or of the United
States."
Based on the foregoing, it is apparent that the
legislature has stated that a health-care authority acts as an
agency or instrumentality of its authorizing subdivision and
as a political subdivision of the State only in connection
with its engagement in anticompetitive conduct. What the
Authority's argument glosses over is that the issues of
immunity from antitrust laws and of State immunity are two
different things. The former is a legislatively controlled
immunity related to a particular activity; the latter is a
blanket immunity provided
by
the Alabama Constitution of 1901.
An entity may be authorized by the State to engage in
anticompetitive activity and be immune from suit for doing so
but still not possess State immunity. This is evident from
considering the antitrust precedents themselves.
To the extent the Authority argues that the legislature's
articulation of a policy that it should have antitrust
immunity is an "indication" that supports the conclusion that
it should be viewed as the State for purposes of § 14
[substituted p. 26]
1090084
immunity, it is a very weak "indication." It is well settled
that even "local governmental entities" may "'engage[] in
anticompetitive
conduct
pursuant
to
a
'clearly
expressed
state
policy.'" Todorov v. DCH Healthcare Auth., 921 F.2d 1438,
1460 (11th Cir. 1991) (quoting Town of Hallie v. City of Eau
Claire, 471 U.S. 34, 40 (1985)) (emphasis added). As the
United States Supreme Court has stated:
"Municipalities ... are not beyond the reach of the
antitrust laws by virtue of their status because
they are not themselves sovereign. Rather, to
obtain exemption, municipalities must demonstrate
that
their
anticompetitive
activities
were
authorized by the State 'pursuant to state policy to
displace competition with regulation or monopoly
public service.'"
Town of Hallie, 471 U.S. at 38-39 (citations omitted); see
also Mobile Cnty. Water, Sewer & Fire Prot. Auth., Inc. v.
Mobile Area Water & Sewer Sys., Inc., 567 F. Supp. 2d 1342,
1349 (S.D. Ala. 2008) (noting that immunity from prosecution
under federal antitrust law "is not confined to states, but
has been extended to municipalities and instrumentalities of
states, albeit under a different legal test. ... '[P]olitical
subdivisions such as municipalities are immune from antitrust
liability if their anticompetitive acts follow a clearly
articulated and affirmatively expressed state policy.'"
(quoting Bankers Ins. Co. v. Florida Residential Prop. & Cas.
[substituted p. 27]
1090084
Joint Underwriting Ass'n, 137 F.3d 1293, 1296 (11th Cir.
1998))). Even a private entity may engage in certain
anticompetitive conduct when the restraint on trade is
"'clearly articulated and affirmatively expressed as state
policy'" and "the policy [is] 'actively supervised' by the
State itself." California Retail Liquor Dealers Ass'n v.
Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).
Despite the potential availability to them of immunity as
to certain anticompetitive conduct, however, neither counties
nor municipalities nor private entities are part of the State
or enjoy State immunity. See, e.g., Parker v. Jefferson
Cnty., 796 So. 2d 1071, 1072 n.2 (Ala. 2000); Knight v. West
Alabama Envtl. Imp. Auth., 287 Ala. 15, 20, 246 So. 2d 903,
906 (1971); Ex parte Tuscaloosa Cnty., 796 So. 2d 1100, 1103
(Ala. 2000); and Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d
844 (Ala. 2009).9
Pursuant to Ala. Code 1975, § 22-21-318(a)(7), a health-
care authority created under the HCA Act has the power to sell
and otherwise to dispose of personal and real property without
the
permission
of
the
"authorizing
subdivision"
that
sponsored
It is unnecessary to cite authority for the proposition
9
that a private entity does not possess State immunity.
[substituted p. 28]
1090084
its formation. The only caveat prescribed by § 22-21-
318(a)(7) is that the health-care authority may not exercise
this power in a manner that would materially impair its
ability to provide the health-care services for which it was
created.
Further, the legislature has provided that certain laws
that normally apply to the State or its agencies are not to be
applied to a health-care authority created under the HCA Act.
See Tennessee Valley Printing Co. v. Health Care Auth. of
Lauderdale Cnty., 61 So. 3d 1027, 1033 (Ala. 2010) (noting
that "health-care authorities are exempt from certain laws
applicable to governmental entities"). Thus, unlike certain
entities that have been held to possess State immunity, a
health-care authority created under the HCA Act is not subject
to State ethics laws. Compare Ex parte Board of Dental
Exam'rs, 102 So. 3d at 376 ("'The board [of dental examiners]
... shall adhere to guidelines and proceedings of the State
Ethics Commission as provided in Chapter 25 of Title 36.'"
(quoting Ala. Code 1975, § 34-9-43(b))), with Ala. Code 1975,
§ 22-21-334 ("The provisions of Chapter 25 of Title 36 shall
... not apply to any authority, the members of its board or
[substituted p. 29]
1090084
any of its officers or employees." ). Likewise, the
10
legislature provided that the board of directors' meetings of
a health-care authority formed pursuant to the HCA Act are not
subject to the provisions of the Alabama Open Meetings Act,
Ala. Code 1975, § 36-25A-1 et seq. See Ala. Code 1975, § 22-
21-316(c). Further, the legislature provided that the
11
Section
36-25-1(16),
Ala.
Code
1975,
defines
10
"governmental corporations and authorities" as
"[p]ublic or private corporations and authorities,
including but not limited to, hospitals or other
health care corporations, established pursuant to
state law by state, county or municipal governments
for the purpose of carrying out a specific
governmental
function.
Notwithstanding
the
foregoing,
all
employees,
including
contract
employees, of hospitals or other health care
corporations and authorities are exempt from the
provisions of this chapter."
The Open Meetings Act provides:
11
"It
is
the
policy
of
this
state
that
the
deliberative process of governmental bodies shall be
open to the public during meetings as defined in
Section 36-25A-2(6). Except for executive sessions
permitted in Section 36-25A-7(a) or as otherwise
expressly provided by other federal or state
statutes, all meetings of a governmental body shall
be open to the public and no meetings of a
governmental body may be held without providing
notice pursuant to the requirements of Section
36-25A-3."
Ala. Code 1975, § 36-25A-1(a)(emphasis added). Section 36-
25A-2(4), Ala. Code 1975, defines "governmental body" as
[substituted p. 30]
1090084
competitive-bid laws set forth in Ala. Code 1975, § 41-16-20
through § 41-16-63, which are applicable to public contracts,
do not apply to a health-care authority created under the HCA
Act. See Ala. Code 1975, § 22-21-335; Rodgers v. Hopper, 768
So. 2d 963 (Ala. 2000) (holding that leases entered into by
the
Alabama
Corrections
Institute
Finance
Authority,
which
was
held not to have State immunity, are exempt from the
competitive-bid law, see Ala. Code 1975, § 14-2-36); Thomas,
supra (holding that contracts of the Alabama Municipal
Electric Authority, which was held not to have State immunity,
are not subject to the public-contract statutes, see Ala. Code
"All boards, bodies, and commissions of the
executive and legislative departments of the state
or its political subdivisions or municipalities
which expend or appropriate public funds; all
multimember
governing
bodies
of
departments,
agencies, institutions, and instrumentalities of the
executive and legislative departments of the state
or its political subdivisions or municipalities,
including, without limitation, all corporations and
other instrumentalities whose governing boards are
comprised of a majority of members who are appointed
or
elected
by
the
state
or
its
political
subdivisions, counties, or municipalities; and all
quasi-judicial
bodies
of
the
executive
and
legislative departments of the state and all
standing,
special,
or
advisory
committees
or
subcommittees of, or appointed by, the body."
(Emphasis added.)
[substituted p. 31]
1090084
1975, § 41-16-1 et seq., which include the competitive-bid
statutes, see Ala. Code 1975, § 11-50A-29).
In regard to other provisions of the HCA Act, we note
that the legislature provided limited guidance as to who may
serve as members of the board of directors of a health-care
authority. Section 22-21-316(a) provides that "no fewer than
a majority of the directors shall be elected by the governing
body
or
bodies
of
one
or
more
of
the
authorizing
subdivisions." Provisions regarding the composition of a
12
board of directors have not precluded us from determining that
an entity was not entitled to State immunity. See Stallings
& Sons, 689 So. 2d at 793 ("We have found no precedent holding
that membership on an authority's board of directors of the
governor, the finance director, the state treasurer, or, for
that matter, any state officer is determinative of whether an
authority is an entity that could be sued or one that is
immune from suit."); see also Thomas, supra, and the relevant
statutory provision governing the Alabama Municipal Electric
Authority, Ala. Code 1975, § 11-50A-6. Also, we note that the
In this case, the certificate of incorporation of the
12
Authority does provide, in accordance with the statute, that
six directors are to be chosen by the Board. The remaining
five directors are to be chosen by Baptist Health.
[substituted p. 32]
1090084
HCA Act does not require that any director be employed by or
otherwise associated with the governing body of the
authorizing subdivision. Thus, the legislature did not
require that the board of directors of a health-care authority
be composed entirely of individuals, or indeed of any
individuals, who are subject to the daily control of the
authorizing subdivision that created it.
13
Significantly, there is no indication that the Authority
receives appropriations from the State or from the Board.
Compare Sarradett v. University of South Alabama Med. Ctr.,
484 So. 2d 426, 427 (Ala. 1986) ("[Counterclaim defendant] has
cited us to numerous acts of the legislature appropriating
money to the University of South Alabama for operation of the
medical center [it owned and operated]. Therefore, and
notwithstanding the ad valorem tax and any other sources of
income for [counterclaim defendant], it appears to us that a
judgment against [counterclaim defendant] in this case would
directly affect the financial status of the
State
treasury.");
The legislature did provide that members of the board of
13
directors of the Authority could be "impeached and removed
from office in the same manner and on the same grounds" as
certain public officials. Ala. Code 1975, § 22-21-316(d)
(citing Ala. Const. 1901, § 175). That, however, is simply
one factor in the equation before us.
[substituted p. 33]
1090084
Staudt, 388 So. 2d at 993 ("Substantial appropriations for the
Armory Commission are made through the Military
Department
and
are payable from funds in the state treasury to the credit of
the Armory Commission. See, e.g., 1979 Ala. Acts, No. 79-124,
p. 192. Additionally, the governor is authorized to use any
appropriation for military purposes to pay expenses or
obligations of the Commission. Code 1975, § 31-4-6."). In
addition to the significance of this factor in its own right,
it supports the conclusion that a judgment against the
Authority would not directly affect the State treasury.
A health-care authority created under the HCA Act has no
authority or power to levy any taxes. Ala. Code 1975, § 22-
21-318(d). Nor has the legislature provided that the State,
or the Board, must make any provision for a health-care
authority out of tax revenues (except under
circumstances
that
are not before us, see Ala. Code 1975, § 22-21-330). See Ala.
Code 1975, § 22-21-344 ("Nothing in this article shall be
construed to permit the use, by or for the benefit of any
authority, of the proceeds of any hospital tax for any
purpose, at any place, or in connection with any health care
facilities, not permitted or described in the constitutional,
statutory or other provision of law authorizing the
[substituted p. 34]
1090084
imposition, levy and collection of such hospital tax or the
use of the proceeds therefrom."). We also note that the
legislature has not required that a health-care authority
deliver any specific level of medical services to the public,
particularly to the indigent.
A health-care authority created pursuant to the HCA Act
is a tax-exempt entity. See Ala. Code 1975, § 22-21-333.
Although this Court has recognized that an entity's exemption
from state and local taxation might suggest that the entity is
an agency of the State, we have not found that factor
determinative for purposes of our State-immunity analysis.
See, e.g., Greater Mobile-Washington Cnty. Mental Health Bd.,
940 So. 2d at 994; Tallaseehatchie Creek, 620 So. 2d at 630.
14
As previously referenced, and as is discussed in more
detail below, we note that, subject to compensation to be paid
to UABHS under limited circumstances of an amount equal to
only a portion of those assets, the Authority must return all
Section 22-21-337, Ala. Code 1975, provides that "[a]n
14
authority shall be a public corporation or authority and no
part of its net earnings remaining after payment of its
expenses shall inure to the benefit of any individual, firm or
corporation." The restriction as to the inurement of net
earnings, however, is also part of what distinguishes a public
corporation from a private corporation and is consistent with
the fact that a health-care authority created pursuant to the
HCA Act is a tax-exempt entity.
[substituted p. 35]
1090084
the assets of the Authority, including any transferred to it
by Baptist Health, to Baptist Health upon the termination of
the affiliation agreement. The same return of assets to
Baptist Health is contemplated in the event of a dissolution
of the Authority. In the latter regard, although the
certificate of incorporation provides for the transfer of
assets to the Board in the event of a dissolution of the
Authority, it also specifically states that this transfer is
"subject to the Authority's obligations under the Affiliation
Agreement with respect to reconveyance of assets upon
termination of the Affiliation Agreement." As previously
noted, section 3.4 of the affiliation agreement includes,
among other "for cause" reasons for termination of the
agreement by Baptist Health, the following:
"(i) the conduct of affiliation activities or
the business of the Authority in a manner contrary
to the mission of Baptist Health; (ii) the benefits
of the Authority structure are eliminated; or (iii)
breach by the [Board and UABHS] of the material
terms of this Agreement and the continuation of such
breach for 60 days after written notice of such
breach is delivered to the [Board and UABHS] by
Baptist Health."15
Further, section 1.2(a) of the affiliation agreement
15
states that "[t]he Authority may not engage in any Restricted
Transaction without the prior written consent of the ... Board
and Baptist Health." Section 1.2(b)(iii) provides that the
restricted
transactions
include
"any
transaction
involving
the
[substituted p. 36]
1090084
During oral argument, the Authority correctly noted that,
although it was required to make a contribution to UABHS each
year in an amount generally equal to 25% of the Authority's
net operating income, no part of its net earnings could be
distributed as such to Baptist Health. Section 22-21-337,
Ala. Code 1975, provides:
"An authority shall be a public corporation or
authority and no part of its net earnings remaining
after payment of its expenses shall inure to the
benefit of any individual, firm or corporation,
except in the event the board shall determine that
sufficient provision has been made for the full
payment of the expenses, securities and other
obligations of the authority, then any portion, as
determined by the board, of the net earnings of the
authority thereafter accruing may, in the discretion
of the board, be paid to one or more of its
authorizing subdivisions."
Nonetheless, because all or a substantial part of the assets
held by the Authority at the time of the termination of the
affiliation agreement are
to
be transferred to Baptist Health,
to the extent that the operation of the health-care facility
results in any growth in the value of the assets during the
term of the affiliation agreement, that growth will inure to
transfer, sale or other disposition of assets of the Authority
to any person or entity (including without limitation the
[Board and UABHS] ...) other than in the ordinary course of
business or as otherwise expressly permitted by this
Agreement."
[substituted p. 37]
1090084
the benefit of Baptist Health upon the termination of the
affiliation agreement.16
Nor does the fact that the Authority is to make a
16
"contribution" to UABHS in most years, or that a payment
representing part of the value of the assets of the Authority
may, under limited circumstances, be due to UABHS upon
termination of the affiliation agreement, support the
extension of § 14 immunity to the Authority. Even in cases in
which all the assets of a public corporation must, upon
dissolution of the corporation, be transferred back to the
State itself, our cases do not consider the diminution in
income or assets of the corporation to be an invasion of the
State treasury in the sense necessary to deem that corporation
a part of the State and trigger § 14 immunity. See Greater
Mobile-Washington Cnty. Mental Health Bd., 940 So. 2d at 996
(holding that board was not entitled to State immunity even
though upon dissolution its assets vested in the Department of
Mental Health); see also Rodgers, supra (noting that, upon
dissolution, the assets of the Alabama Corrections Institute
Finance Authority revert to the State, see Ala. Code 1975, §
14-2-25); Stallings & Sons, 689 So. 2d at 793 ("[T]he
Authority holds title to the property it is charged with
maintaining and, in effect, has rights separate from the
state, affecting that property and those rights are subject
only to the dissolution of the Authority. The conveyance in
Section 41-10-470, Ala.
Code 1975, provides that the Authority
'shall be invested with all rights and title that the State of
Alabama had in the property conveyed ... thereby, subject to
the right of reverter to the state upon dissolution of the
authority.' Moreover, a separate account in the state
treasury was created for all proceeds derived from the sale of
any bonds issued by the Authority and it is 'subject to be
drawn on by the authority' for the purposes described therein.
§ 41-10-468, Ala. Code 1975. Based on the foregoing, we
believe that it is clear that the Authority was created as a
separate entity, that it is not an arm of the state, and that
it is not, therefore, immune from suit under § 14." (emphasis
omitted)); Thomas, supra (involving the Alabama Municipal
Electric Authority, whose governing statute, Ala. Code 1975,
§ 11-50A-1 et seq., provides that, upon dissolution, "all the
projects, buildings, properties and other assets then owned
by
[substituted p. 38]
1090084
In addition, we note that, unlike certain entities that
have been held to possess State immunity, a health-care
authority created under the HCA Act is not required to file
with the State an audit or report of the authority's income
and expenditures. Compare Ex parte Board of Dental Exam'rs,
102 So. 3d at 383 (citing Ala. Code 1975, § 34-9-42).
Likewise, the legislature has not restricted a health-care
authority created under the HCA Act to hiring only attorneys
who are approved by the attorney general. Compare id. (citing
Ala. Code 1975, § 34-9-43(a)(8)b.), with Ala. Code 1975, § 22-
21-318(a)(25).
the [AMEA]" are to "be conveyed to the municipalities at that
time represented on the election committee." Ala. Code 1975,
§ 11-50A-27.).
Moreover, in this case, the aforementioned payments are
payments to be made only to UABHS, not the Board. UABHS is a
separate corporation formed by the Board and University of
Alabama Health Services Foundation, P.C. ("UAHSF") (itself a
separate corporation). UABHS is not the Board. As this Court
specifically has held, UABHS is not part of the State so as to
qualify for immunity under § 14. See note 5, supra (also
noting our holding that UAHSF is not part of the State so as
to qualify for § 14 immunity). The fact that some amount
might be paid to UABHS by the Authority under limited
circumstances surrounding the termination of the affiliation
agreement or the dissolution of the Authority simply holds no
import for whether the Authority itself is part of the State
for purposes of § 14 immunity.
[substituted p. 39]
1090084
Significantly, although a health-care authority created
under the HCA Act may issue bonds and incur indebtedness, the
legislature specifically has provided that a health-care
authority's debts and obligations are not debts and
obligations of the State or of an authorizing subdivision.
Section 22-21-325, Ala. Code 1975, states:
"All agreements and obligations undertaken, and
all securities issued, by an authority shall be
solely and exclusively an obligation of the
authority and shall not create an obligation or debt
of the state, any authorizing subdivision or any
other county or municipality within the meaning of
any constitutional or statutory provision. The
faith and credit of the state, any authorizing
subdivision or any other county or municipality
shall never be pledged for the payment of any
securities issued by an authority; nor shall the
state, any authorizing subdivision or any other
county or municipality be liable in any manner for
the payment of the principal of or interest on any
securities of an authority or for the performance of
any pledge, mortgage, obligation or agreement of any
kind whatsoever that may be undertaken by an
authority."
Compare Ex parte Board of Dental Exam'rs, supra, with Ala.
Code 1975, §§ 22-21-318(a)(9) and 22-21-325. See also
Rodgers, supra (citing Ala. Code 1975, § 14-2-24, which
states: "No obligation incurred by the [Alabama Corrections
Institute Finance Authority]
...
shall create an obligation or
debt of the state."); Tallaseehatchie Creek, 620 So. 2d at 630
(obligations of Watershed Conservancy District are not
[substituted p. 40]
1090084
obligations of the State, county, or municipality, see Ala.
Code 1975, § 9-8-61(3)); Stallings & Sons, 689 So. 2d at 792
("Stallings argues that, in light of the inclusion of this
language in the enabling legislation, the Authority, if it is
an arm of the state, cannot perform its necessary functions
without violating § 213, Ala. Const. 1901, which provides that
'any act creating or incurring any new debt against the state,
except as herein provided for, shall be absolutely void.' We
agree." (footnote omitted)); and Thomas, 432 So. 2d at 481
("[T]he Authority exists as a public corporation separate and
apart from the State. Any liabilities the Authority might
incur would never be payable out of the State Treasury.").
3.
Weighing the Staudt Factors Against Each Other
In Rodgers, supra, this Court concluded that the Alabama
Corrections Institute Finance Authority ("the ACIFA"), a
public corporation formed pursuant to Ala. Code 1975, § 14-2-1
et seq., was not entitled to immunity under § 14, Ala. Const.
1901. Discussing Tallaseehatchie Creek, the Rodgers Court
stated:
"As a [watershed conservancy district ('WCD')],
[Tallaseehatchie] Creek was authorized to act as an
agent of the State. It enjoyed the customary
governmental power of eminent domain; it was exempt
from State and local taxation; and it benefited from
legislative appropriations. See §§ 9-8-61(1),
[substituted p. 41]
1090084
9-8-61(7), and 9-8-67. Despite these decidedly
governmental
characteristics,
we
held
that
Tallaseehatchie Creek, as a WCD, was an independent
entity, and, thus, was not entitled to sovereign
immunity. Tallaseehatchie Creek, 620 So. 2d at 631.
"This Court based its holding in that case on
several key characteristics that distinguished WCDs
as entities separate from the State. Those
characteristics included the ability to: (1) sue and
be sued; (2) enter into contracts; (3) sell and
dispose of property; and (4) issue bonds. Id. at
630 (citing [Ala. Code 1975,] §§ 9-8-25(a)(13),
9-8-61(6), and 9-8-61(4) and (5)). Notably, the
Legislature also had expressly provided that debts
and obligations of a WCD were not the State's debts
and obligations. Id. (citing [Ala. Code 1975,]
§ 9-8-61(3)). We found this final characteristic to
be dispositive, stating:
"'This last provision clearly contemplates
that WCD are entities separate and apart
from
the
State;
the
provision
also
introduces an element of ambiguity into the
crucial
question
of
the
financial
responsibility for any judgment adverse to
a WCD.'
"Tallaseehatchie Creek, 620 So. 2d at 630.
"In the present case, ACIFA has these same
qualities, qualities suggesting that it is an entity
independent of the State. These qualities include:
(1) the power to sue and be sued; (2) the power to
enter into contracts; (3) the power to sell and
dispose of property; (4) the power to issue bonds;
and (5) exclusive responsibility for its financial
obligations (the same quality that we found
dispositive in Tallaseehatchie Creek). See [Ala.
Code 1975,] §§ 14-2-8(2), 14-2-8(5) through (7),
14-2-12, and 14-2-24.
"ACIFA argues that, notwithstanding that it has
those qualities, it is organizationally intertwined
[substituted p. 42]
1090084
with the State by virtue of the State's oversight
power regarding ACIFA's chief operating activity--
prison construction. This oversight power, however,
is not different from the power to direct operations
that is commonly exercised by the owner of any
ordinary business. In this case, the State's power
to direct operations includes the power to approve
prison-construction plans and the use of prison
labor. ACIFA's relationship with the State does not
persuade us to accept its argument."
768 So. 2d at 967.
Consistent with the approach taken by the Court in
Rodgers and Tallaseehatchie Creek, we take stock of some of
the more noteworthy
factors
weighing for and against treatment
of the Authority as an arm of the State. Those that support
that treatment include: (1) its purposes of promoting public
health and arranging for
the provision of health-care services
to the indigent, (2) the ability to exercise the right of
eminent domain in furtherance of its corporate purposes,
(3) the articulation by the legislature of a policy choice
that the Authority be permitted to engage in anticompetitive
conduct, (4) the Authority's tax-exempt status, and (5) the
appointment of a majority of the directors of the Authority by
the Board. Among the factors that support the treatment of a
health-care authority formed under the HCA Act as simply a
franchisee of the State are: (1) the fact that operating a
hospital is not a uniquely governmental function, (2) the
[substituted p. 43]
1090084
power to sell and dispose of property, (3) the fact that the
State assumes no responsibility for any debt issued by a
health-care authority, (4) the fact that no tax dollars are
used in the operation of a health-care authority, (5) the
power of a health-care authority to make contracts and to do
so without being required to solicit bids or to participate in
the State contract-review process, (6) the fact that the
legislature
specifically
prescribed
to
health-care
authorities
an amenability to suit, and, perhaps most significantly,
(7) the fact that money judgments and other losses or
obligations incurred by a health-care authority are not
payable from the State treasury and therefore do not "directly
affect the financial status of the State treasury."
After examining and weighing the significance of these
factors, we conclude that the factors that support treatment
of the Authority as a franchisee of the State rather than as
an "arm of the State" predominate. The impact of many of the
factors supporting treatment as the State is diluted in some
manner as discussed in the analysis above. Among other
things, the power to operate a public hospital, including
providing indigent health care, the power to exercise eminent
domain, the legislature's expression of intent that the
[substituted p. 44]
1090084
Authority be permitted to engage in anticompetitive conduct,
and the Authority's tax-exempt status are all powers or
privileges that may be held by entities such as cities,
counties, public corporations, and/or nonprofit corporations
that are not entitled to State immunity. Furthermore, we
consider the import of these factors to be well outweighed by
the
same
five
factors
found
to
be
dispositive
in
Tallaseehatchie Creek and Rodgers, i.e., the power to sell
and dispose of property, the legislature's prescription
to
the
Authority of amenability to suit, the power to make contracts
without being subject to the State's competitive-bid laws or
the contract-review process, the power to issue debt for which
the State assumes no responsibility, and, most significantly,
the fact that any judgments or other losses incurred by the
Authority are not payable from the State treasury. In
addition, a health-care authority has no power to levy any
taxes, and, except in certain limited circumstances, no taxes
are used to maintain or operate a health-care authority.
Finally, in the present case there is the additional fact that
Baptist Health has retained control of certain significant
operational decisions and has reserved an interest in the
assets of the Authority.
[substituted p. 45]
1090084
4.
Conclusion as to State Immunity
The function performed by the Authority is, in the main,
providing the same health services as were provided, prior to
the formation of the Authority, by a private entity.
Moreover, the intrinsic character of a health-care authority
formed under the HCA Act is distinguishable from that of the
health-care-service providers that have been held to possess
State immunity. Compare, e.g., Liberty Nat'l Life Ins. Co. v.
University of Alabama Health Servs. Found., P.C., 881 So. 2d
1013 (Ala. 2003); Sarradett, supra; and Hutchinson v. Board of
Trs. of Univ. of Alabama, 288 Ala. 20, 256 So. 2d 281 (1971).
See also White v. Alabama Insane Hosp., 138 Ala. 479, 35 So.
454 (1903) (involving a hospital for the "insane" and noting,
among other things, that the State supplied the means by which
the hospital was maintained and operated).
Based on our weighing of the Staudt factors, we must
conclude that a health-care authority organized and operating
under the HCA Act is not an "'immediate and strictly
governmental
agenc[y]
of
the
State.'"
See,
e.g.
Tallaseehatchie Creek, 620 So. 2d at 631 (quoting Thomas, 432
So. 2d at 480). The Authority does not serve as "an arm of
the State." Instead, it is a "franchisee licensed for some
[substituted p. 46]
1090084
beneficial purpose," Staudt, 388 So. 2d at 993, namely to
participate with other health-care providers in this State,
both public and private, in rendering health-care services to
citizens of this State. The Authority therefore is not
entitled to State immunity under § 14 of the Alabama
Constitution.
B. Damages Cap of § 11-93-2
We turn now to the applicability of the $100,000 damages
cap in § 11-93-2.
As already discussed, § 22-21-318(a)(2) of the HCA Act
provides that health-care authorities shall be amenable to
suit in both tort and contract actions. It continues,
however, by stating that this amenability to suit is "subject
... to the provisions of Chapter 93 of Title 11, which chapter
is hereby made applicable to the authority." (Emphasis
added.)
The Authority argues that this latter language, or at
least the "hereby made applicable" language, evidences an
intent by the legislature to make the $100,000 damages cap
that is applicable to county and municipal agencies and
instrumentalities under Chapter 93 applicable to all health-
[substituted p. 47]
1090084
care authorities formed under the HCA Act, regardless of
whether
the
Authority
constitutes
an
agency
or
instrumentality
of a county or municipality.
Consistent with the position taken by the trial court,
Davis responds by arguing that the above-emphasized portions
of § 22-21-318(a)(2) plainly provide for the application of
the "chapter" -- i.e., the entire "chapter" and all "the
provisions" found therein. Davis points out that among "the
provisions" of Chapter 93 "hereby made applicable" are the
provisions in Ala. Code 1975, § 11-93-2 and § 11-93-1(1),
defining the partial immunity granted by Chapter 93 as a
partial immunity for counties and municipalities and their
agencies.17
Section 11-93-2
provides, in
pertinent part,
that "[t]he
17
recovery of damages under any judgment against a governmental
entity shall be limited to $100,000.00 for bodily injury or
death ...." Section 11-93-1(1) defines "governmental entity"
as follows:
"Governmental
entity.
Any
incorporated
municipality, any county, and any department,
agency, board, or commission of any municipality or
county, municipal or county public corporations, and
any such instrumentality or instrumentalities acting
jointly. 'Governmental entity' shall also include
county public school boards, municipal public school
boards and city-county school boards when such
boards do not operate as functions of the State of
Alabama. 'Governmental entity' shall also mean
[substituted p. 48]
1090084
Davis notes that in § 22-21-318(a)(2) the legislature did
not simply borrow by reference the monetary amount of the
damages cap prescribed in § 11-93-2 for counties and
municipalities and then create a damages cap for all health-
care authorities in this same amount. Instead, Davis argues,
it reaffirmed the applicability of Chapter 93, such as it is,
to health-care authorities. Davis reasons that the effect of
the above-quoted passage is simply to make clear that, despite
the fact that § 22-21-318(a)(2) was enacted after Chapter 93
of Title 11, the express grant in the first sentence therein
to health-care authorities of the power to "be sued" in the
later enacted § 22-21-318(a)(2) is not to be construed as
overriding the grant of partial immunity in § 11-93-2 to an
"authority" that would otherwise fall within "the provisions"
of Chapter 93.
Alternatively,
Davis
argues
that
the
particular
attributes of the Authority in this case, as embodied in its
certificate
of
incorporation
and
in
the
affiliation
agreement,
prevent the Authority from qualifying as a health-care
county or city hospital boards when such boards are
instrumentalities of the municipality or county or
organized pursuant to authority from a municipality
or county."
[substituted p. 49]
1090084
authority under the HCA Act, or at least would deprive it of
the partial immunity, if any, otherwise granted under § 22-21-
318(a)(2).
We pretermit discussion of the foregoing arguments in
light of our conclusion as to the merits of one additional
argument made by Davis, namely, that, to the extent the HCA
Act was intended to extend the $100,000 damages cap of § 11-
93-2 to all health-care authorities organized under the HCA
Act, i.e., not just those that constitute agencies or
instrumentalities of a county or municipality, it is
unconstitutional.
Under Alabama law, there are only two categories of
governmental immunity within which the Authority possibly
could fall, and the Authority falls within neither.
The first category of immunity extends to the State,
which enjoys sovereign immunity. As discussed in Part II.A.,
the Authority is not an "arm of the State" and does not
qualify for State immunity.18
The immunity of certain State officials and of State
18
employees performing certain governmental functions also is a
function of the immunity afforded to the State. See Ex parte
Cranman, 792 So. 2d 392 (Ala. 2000) (plurality opinion);
Ex parte Butts, 775 So. 2d 173 (Ala. 2000).
[substituted p. 50]
1090084
The second category applies to local governmental
entities, i.e., counties and municipalities. As discussed
below, unlike State immunity, this second category finds no
expression in the Alabama Constitution; it exists in some
measure today only because of the unique,
historical
treatment
afforded counties and municipalities under Alabama law:
common-law immunity predating and surviving the adoption of
the 1901 Constitution.
As reflected in our cases, the common-law immunity for
counties
and
municipalities,
and
presumably
their
agencies,
is
indeed unique because (a) it was not created by the 1901
Constitution but (b) it did survive the adoption of the 1901
Constitution. The fact that this immunity was a function of
common law and not the constitution means that it can and has
been restricted or modified by legislative enactments (see,
e.g., § 11-47-190, Ala. Code 1975, and Title 11, Chapter 93,
Ala. Code 1975, and their predecessors) without violating any
constitutional provision restricting the power of the
legislature (e.g., § 14, Ala. Const. 1901). Conversely, the
fact that this common-law immunity was not abrogated by the
1901 Constitution itself means that the continued existence of
[substituted p. 51]
1090084
this immunity in some measure today (i.e., to the extent the
legislature has chosen in provisions like § 11-47-190 and
§ 11-93-2, to allow it) does not offend the 1901 Constitution
and its assurances under §§ 11 and 13, Ala. Const. 1901, of
trial by jury and remedies for injuries. To the contrary, the
reach of these provisions has been assessed in the context of
the county and municipal immunity that was accepted at the
time of their adoption.
It is because of the unique source and nature of county
and municipal immunity, and the resulting ability of the
legislature thus to limit or modify it, that a statute such as
§ 11-93-2 can, on the one hand, acknowledge and reaffirm this
immunity in some measure and yet simultaneously impose a
restriction on that immunity, something the legislature
has no
power to do with respect to State immunity. The Authority,
19
however, is not a county or municipality, or an agency
That the legislature contemplated that some health-care
19
authorities might qualify under Chapter 93 of Title 11 for a
type of immunity that the legislature could restrict or waive
is further corroboration of the conclusion reached in Part
II.A. that the legislature did not consider health-care
authorities to be part of the State for purposes of immunity.
Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372,
376, 175 So. 383, 386 (1937) ("[Section 14] wholly withdraws
from the Legislature, or any other state authority, the power
to give consent to a suit against the state.").
[substituted p. 52]
1090084
thereof. This, taken in combination with the fact that it is
not the State, means there is no basis upon which the
legislature could extend local governmental immunity to it.20
In Home Indemnity Co. v. Anders, 459 So. 2d 836 (Ala.
1984), this Court rejected a constitutional challenge to § 11-
93-2 based on § 13 of the 1901 Constitution (providing for a
remedy for every injury). Importantly, in doing so, we
specifically acknowledged that counties and municipalities
enjoyed an "immunity recognized at common law," i.e., an
immunity
that
predated
the
adoption
of
the
Alabama
Constitution of 1901. 459 So. 2d at 840. On the basis of
this "background" this Court upheld the partial immunity
afforded by § 11-93-2 as one subject to regulation by the
legislature. 459 So. 2d at 840-41.
Similarly, in Garner v. Covington County, 624 So. 2d 1346
(Ala. 1993), this Court rejected the argument that § 11-93-2
violates § 11 of the 1901 Constitution (providing for a right
to trial by jury). We began by noting that, in Anders, the
Compare, e.g., Hutchinson, 288 Ala. at 24, 256 So. 2d at
20
283 (noting that the claim in that case was not against an
agency of a county and must be assessed as one against an
agency of the State for purposes of determining whether the
entity is entitled to immunity).
[substituted p. 53]
1090084
Court had rejected the argument "that § 11-93-2 'violates the
remedy provisions of Article I, § 13.'" 624 So. 2d at 1351.
Consistent with Anders, we explained that § 11-93-2 "must be
addressed in the context of the unique status of counties and
cities as governmental entities." Id. We explained that,
because of the unique role of counties and municipalities as
local governmental entities, actions against counties and
municipalities "have always been subject to reasonable
regulation by the legislature on a basis not applicable to
actions against individuals and other entities." Id. In
Garner, we specifically discussed the rejection at the 1901
Constitutional Convention of a provision that would have
provided for the right to sue a municipality and quoted
portions of the Convention's debate indicating that, in
rejecting the provision, the members understood that, in its
absence, counties and municipalities would continue to enjoy
an immunity from suit, albeit one subject to "regulation" by
the legislature. 624 So. 2d at 1351-54. We ended our
analysis as follows:
"Because
cities
and
counties
are
exercising
governmental
functions,
however,
and
because
judgments against them must be paid out of public
moneys
derived
from
taxation,
the
reasonable
[substituted p. 54]
1090084
limitation of § 11-93-2 on awards against them must
be sustained. If the Constitutional Convention had
adopted the proposed limitation on the legislative
power to regulate actions against municipalities, we
would probably reach a different result. Given this
constitutional history, however, we cannot say that
§ 11-93-2 violates the constitution."
Id. at 1354-55.
In Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), this
Court specifically explained that § 11, Ala. Const. 1901, must
be read in the context of the causes of action available at
common
law
and
that
the
immunity
of
counties
and
municipalities under the common law was the
reason
limitations
on their liability, as reflected in statutes such as § 11-93-
2, were constitutional:
"It is well settled in Alabama that § 11 governs
(1) those causes of action arising under the common
law, and (2) those causes of action afforded by
pre-1901 statutes. This principle was never more
forcefully stated than in Gilbreath v. Wallace, 292
Ala. 267, 270, 292 So. 2d 651, 653 (1974), where the
Court declared: 'Alabama's Constitution effected a
"freezing" of the right to jury trial as of 1901.'
292 Ala. at 269, 292 So. 2d at 652. See also Alford
v. State ex rel. Attorney General, 170 Ala. 178,
188-89, 54 So. 213, 215-16 (1910) (Mayfield, J.,
dissenting); Tims v. State, 26 Ala. 165 (1855)."
671 So. 2d at 1342 (emphasis omitted). As we further
explained:
[substituted p. 55]
1090084
"The distinction between the [county and
municipal] entities subject to § 11-93-2 and [the
medical providers] subject to § 6-5-547[, Ala. Code
1975,]
renders
these
respective
statutes
so
fundamentally distinguishable as to eliminate the
need for further elaboration. Suffice it to say, as
did the trial judge: 'The defendants in the case at
bar do not enjoy the unique status of counties or
cities; and, therefore, no such status, crucial to
the
rationale
of
Garner,
supports
the
constitutionality of the § 6-5-547 cap on any
wrongful death
judgment against medical providers.'"
671 So. 2d at 1343-44 (emphasis added).
It is with equal certitude that we can and must conclude
in the present case that the Authority "do[es] not enjoy the
unique status of counties or cities; and, therefore, no such
status, crucial to the rationale of Garner [and Schulte and
the constitutionality of the application of § 11-93-2 in those
cases], supports the constitutionality of the [§ 11-93-2] cap
on any ... judgment against [the Authority]." That is, to the
extent § 22-21-318(a)(2) may be construed as an attempt to
extend the partial immunity for counties and municipalities
recognized in § 11-93-2 to an entity that is neither of those,
that attempt is unconstitutional.
III. Conclusion
For the foregoing reasons, we must reject the Authority's
argument that it is entitled to the protection afforded
[substituted p. 56]
1090084
counties and municipalities in § 11-93-2. The only other form
of governmental immunity that it can and does seek is the
sovereign immunity of the State. State immunity would apply
only if the Authority were an "immediate and strictly
governmental agency of the State." It is not. It therefore
is not entitled to either form of governmental immunity it
requests, and the judgment of the trial court therefore is due
to be affirmed.
APPLICATION GRANTED; OPINION OF JANUARY 14, 2011,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Parker, Main, and Wise, JJ., concur.
Bryan, J., concurs in part and concurs in the result in
part.
Moore, C.J., concurs in the result.
Stuart, Bolin, and Shaw, JJ., dissent.
[substituted p. 57]
1090084
BRYAN, Justice (concurring in part and concurring in the
result in part).
I concur in Part II.A. of the main opinion. However, I
do not believe this Court needs to address the argument by Kay
E. Davis, the plaintiff below, that interpreting the Health
Care Authorities Act, § 22-21-310 et seq., Ala. Code 1975
("the Act"), so as to apply the damages cap set forth in § 11-
93-2, Ala. Code 1975, to all health-care authorities formed
pursuant to the Act is unconstitutional. Therefore, as to
Part II.B. of the main opinion, I concur only in the result.
See Lowe v. Fulford, 442 So. 2d 29, 33 (Ala. 1983)
("'Generally courts are reluctant to reach constitutional
questions, and should not do so, if the merits of the case can
be
settled
on
non-constitutional
grounds.'"
(quoting
the
trial
court's order)); see also Working v. Jefferson Cnty. Election
Comm'n, 2 So. 3d 827, 838 (Ala. 2008) ("We first turn our
attention to the latter issue because an affirmative response
to it will make it unnecessary for us to address the
constitutionality
of
a
legislative
enactment."
(citing
Lowe)).
The Act provides, in pertinent part:
"(a) In addition to all other powers granted
elsewhere in this article, and subject to the
58
1090084
express
provisions
of
its
certificate
of
incorporation, an authority shall have the following
powers ...:
"....
"(2) To sue or be sued in its own name
in civil suits and actions, and to defend
suits and actions against it ..., subject,
however, to the provisions of Chapter 93 of
Title 11, which chapter is hereby made
applicable to the authority."
§ 22-21-318(a)(2), Ala. Code 1975.
As noted in the main opinion, the Health Care Authority
for Baptist Health ("the Authority") argues that the language
of § 22-21-318(a)(2), Ala. Code 1975, making "Chapter 93 of
Title 11 ... applicable to the authority," indicates that the
legislature intended for the $100,000 damages cap set forth in
§ 11-93-2 for governmental entities, including county and
municipal agencies, to apply to all authorities formed under
the Act, regardless of the status of the creating entity.
"'The
fundamental
rule
of
statutory
construction
is to ascertain and give effect to the intent of the
legislature in enacting the statute. Words used in
a statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says. If the
language of the statute is unambiguous, then there
is no room for judicial construction and the clearly
expressed intent of the legislature must be given
effect.'"
59
1090084
Bandy v. City of Birmingham, 73 So. 3d 1233, 1246 (Ala. 2011)
(quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d
344, 346 (Ala. 1992)).
Section 11-93-2 provides, in pertinent part, that "[t]he
recovery of damages under any judgment against a governmental
entity shall be limited to $100,000 for bodily injury or death
for one person in any single occurrence." Section 11-93-1(1),
Ala. Code 1975, defines a "governmental entity" as:
"Any incorporated municipality, any county, and any
department, agency, board, or commission of any
municipality or county, municipal or county public
corporations, and any such instrumentality or
instrumentalities acting jointly. 'Governmental
entity' shall also include county public school
boards, municipal public school boards and city-
county school boards when such boards do not operate
as functions of the State of Alabama. 'Governmental
entity' shall also mean county or city hospital
boards when such boards are instrumentalities of the
municipality or county or organized pursuant to
authority from a municipality or county."
As Davis points out, the legislature did not expressly
state that the damages cap in § 11-93-2 applies to all
authorities but, instead, that Chapter 93 in its entirety "is
made applicable" to health-care authorities under the Act.
Giving the terms their plain meaning and interpreting the
language of the Act to mean what it says, I do not read § 22-
60
1090084
21-318(a)(2) of the Act as subjecting all authorities to the
statutory damages cap in § 11-93-2, but, instead, as ensuring
that a health-care authority created under the Act that also
satisfies the definition of a "governmental entity" in § 11-
93-1(1) receives the protections afforded such entities by §
11-93-2.
The Authority concedes that it "is not a 'governmental
entity,' as defined in § 11-93-1[(1)]." The Authority's
brief, at 52. Therefore, the statutory damages cap set forth
in § 11-93-2 does not apply to the judgment entered against
the Authority in this case. For this reason, I concur in the
result reached in Part II.B. of the main opinion.
61
1090084
MOORE, Chief Justice (concurring in the result).
I concur in the result reached by the main opinion. I
agree that the Health Care Authority for Baptist Health ("the
Authority") is not entitled to sovereign immunity (now
referred to as "State immunity") under Article I, § 14, of the
Alabama Constitution of 1901 for reasons set out below. I
further agree that extending the $100,000 damages cap of § 11-
93-2, Ala. Code 1975, to health-care authorities organized
under the Health Care Authorities Act of 1982, § 22-21-310 et
seq.,
Ala.
Code
1975,
that
are
not
agencies
or
instrumentalities
of
a
county
or
a
municipality
is
unconstitutional.
I write to state that weighing various factors such as
tax-exempt status, anticompetitive conduct, eminent-domain
powers, ownership and disposal of property, makeup of the
board of directors will not necessarily lead to the proper
determination of a sovereign-immunity issue in every case.
Different courts and different judges will at different times
weigh
and
prioritize
such
factors
differently.
The
determination of whether sovereign immunity exists is not
arrived at by balancing various factors relating to powers
62
1090084
generally exercised by government but, rather, is dependent
upon whether the activity involved is a proper function of
government according to the Constitution ratified by the
people.
Whether the Authority enjoys sovereign immunity under
Article I, § 14, must be examined under the provisions of the
Constitution of Alabama. I would hold that sovereign immunity
from civil actions under Article I, § 14, can exist only when
that immunity does not violate the rights retained by the
people under the Constitution of Alabama unless that immunity
is specifically granted an entity by the people of Alabama in
an amendment to the 1901 Constitution.
A historical overview of the origins of state sovereignty
in our country is helpful to a proper understanding of
sovereign immunity in its most recent forms. One of the first
Associate Justices of the United States Supreme
Court,
Justice
James Wilson, who not only signed the Declaration of
Independence but who also helped draft the Constitution of the
United States, attributed "sovereignty" to the feudal system.
In Chisholm v. Georgia, 2 U.S. 419 (1793), Justice Wilson
wrote:
63
1090084
"[S]overeignty is derived from a feudal source; and
like many other parts of that system so degrading to
man, still retains its influence over our sentiments
and conduct, though the cause, by which that
influence was produced never extended to the
American States."
2 U.S. at 457. In the earliest stages of our Republic, the
term "sovereign" was not readily applied to our federal
government, as Justice Wilson explained:
"To the Constitution of the United States the
term SOVEREIGN, is totally unknown. There is but one
place where it could have been used with propriety.
But, even in that place it would not, perhaps, have
comported with the delicacy of those, who ordained
and established that Constitution. They might have
announced themselves 'SOVEREIGN' people of the
United States: But serenely conscious of the fact,
they avoided the ostentatious declaration."
Id. at 454 (capitalization in original). Nor did Alabama's
original Constitution of 1819 ascribe to State government the
term "sovereign," and it gave State government no immunity
under the law for wrongs it had committed. Article 6, § 9,
Ala. Const. 1819. Even after the War Between the States, the
Constitution of Alabama of 1865 continued to protect citizens
in their right to bring suits against the State. Article 1, §
15, Ala. Const. 1865.
Both the federal government as well as our State
government recognized, according to Justice Wilson, that the
64
1090084
State was an "inferior contrivance" to human authority. "When
I speak of a State as an inferior contrivance, I mean that it
is a contrivance inferior only to that, which is divine: Of
all human contrivances, it is certainly most transcendently
excellent." Chisholm, 2 U.S. at 455.
However, in 1875 a new Constitution was ratified. It
included the provision that the State of Alabama "shall never
be made to be a defendant in any court of law or equity."
Article 1, § 15, Ala. Const. 1875. (This bar to suit was
retained as Article 1, § 14, in the Alabama Constitution of
1901.) The same year the 1875 Constitution was ratified, the
Supreme Court of Alabama began to define the bounds of State
sovereignty:
"[I]t is not congruous with the ideas of order and
duty, that the State, the August sovereign body
whose servants they are, from which proceed all
civil laws, and to which we owe unstinted respect
and honor, should be held capable of doing wrongs,
for which she should be made answerable as for
tortious injuries, in her own courts to her own
children or subjects."
State v. Hill, 54 Ala. 67, 68 (1875) (emphasis added). Hill
starkly described perhaps the essence of Alabama State
sovereignty: immunity from suit for "tortious injuries" in
"her own courts to her own children or subjects."
65
1090084
This Court later stated simply: "The state can do no
wrong. Neither can her servants do a wrong for it or in its
name, so as to make it a party to a suit against them." Elmore
v. Fields, 153 Ala. 345, 351, 45 So. 66, 67 (1907). "This
21
Court, construing Section 14, has held almost every
conceivable type of suit to be within the constitutional
prohibition." Hutchinson v. Board of Trs. of Univ. of Alabama,
288 Ala. 20, 23, 256 So. 2d 281, 283 (1971). With that,
Alabama "closed the door to litigants who had claims against
the State, and the door has remained closed continuously."
Id.22
The similar maxim "the king can do no wrong" rests on a
21
legal misconception. Joe McElwain, State Immunity from Tort
Liability, 8 Mont. L. Rev. 45, 45 (1947)(citing Bouchard,
Government Liability in Tort, 34 Yale L.J. 1 n.2 (1924)).
Originally, the maxim did not mean "that the king could not do
wrong in the sense that he was incapable of doing a wrong, but
that he was not privileged to do wrong. The king was obligated
to right any wrongs which he had done." Id. (footnote
omitted). Sir William Blackstone likewise limited the maxim
so: "[I]t means that the prerogative of the crown extends not
to do any injury." 1 William Blackstone, Commentaries *239
(emphasis added).
One exception is actions arising from the State's legal
22
contractual obligations. See, e.g., State of Alabama Highway
Dep't v. Milton Constr. Co., 586 So. 2d 872, 875 (Ala.
1991)("Once the Highway Department has legally contracted
under state law for goods or services and accepts such goods
or services, the Highway Department also becomes legally
obligated to pay for the goods or services accepted in
[substituted p. 66]
1090084
Nevertheless, other provisions of the Declaration of
Rights
in
the
1901
Constitution
present
a
seeming
inconsistency with the State's immunity from suit in § 14.
Specifically, Article I, § 11, guarantees the right of trial
by jury, and Article I, § 13, provides "[t]hat all courts
shall be open; and that every person, for any injury done him,
in his lands, goods, person, or reputation, shall have a
remedy by due process of law."
That inconsistency, however, must first be examined under
Article I, § 36, of the Declaration of Rights, which protects
"against any encroachments on the rights herein retained" by
declaring "that everything in this Declaration of Rights is
excepted out of the general powers of government, and shall
forever remain inviolate." Each of Alabama's Constitutions
from 1819 to 1901 "has excepted out of the general powers of
government, the power to violate the right of trial by jury."
Clark v. Container Corp. of America, Inc., 589 So. 2d 184, 196
(Ala. 1991). In fact, Article I, § 36, prohibits "the
Legislature, the executive, or judicial branch, one or all,
accordance with the terms of the contract. It follows that
this obligation is not subject to the doctrine of sovereign
immunity and is enforceable in the courts.").
67
1090084
from destroying or impairing such reserved rights of the
people" and "from ever burdening, disturbing, qualifying, or
tampering with, these rights, to the prejudice of the people."
Alford v. State, 170 Ala. 178, 213, 54 So. 213, 223 (1910).
Because the entire Declaration of Rights is excepted out of
the general powers of government, neither the judiciary nor
the legislature may extend § 14 sovereign immunity so as to
destroy the inalienable rights of the people contained in §§
11 and 13.
Although the rights contained in the Declaration of
Rights are made secure, this Court has also held:
"The presence of these guarantees, we respectfully
submit, does not repudiate other provisions of our
state's organic law which the people themselves have
established, however inconsistent to some they may
appear to be. By adopting § 14, our people have
placed a limitation upon their own ability to make
their state a 'defendant in any court.' It would be
incongruous for this court to hold that this
particular
section
[Art.
1,
§
14]
of
the
Constitution of Alabama 1901 may not be enforced
because it might appear to be in conflict with
another. This follows from the requirement that
constitutional provisions should be construed as a
whole and in light of the entire instrument and to
harmonize with its other provisions."
Deal v. Tannehill Furnace & Foundry Comm'n, 443 So. 2d 1213,
1218-19 (Ala. 1983). As stated in Deal, there is an apparent
68
1090084
conflict between § 14 (sovereign immunity) and §§ 11 and 13
(trial by jury and open courts). The question then becomes –-
when does § 14 restrict the rights to trial by jury and access
to an open court system?
Whether the Authority is entitled to sovereign immunity
depends on whether they are "arm[s] of the state" and whether
they perform a function of State government. Armory Comm'n of
Alabama v. Staudt, 388 So. 2d 991, 993 (Ala. 1980). In Staudt,
three elements were discussed:
1. The character of power delegated to the entity;
2. The relation of the entity to the State; and
3. The nature of the function performed by the entity.
388 So. 2d at 993.
The main opinion sufficiently examines the first two
elements, i.e., the "character of power delegated" to the
Authority and the Authority's "relation" to the State of
Alabama. I concentrate here on the third element -- the nature
of the "function performed by the entity." Article 1, § 35, of
the Alabama Constitution of 1901 declares that "the sole
object and only legitimate end of government is to protect the
citizen in the enjoyment of life, liberty, and property,"
69
1090084
because "when the government assumes other functions it is
usurpation and oppression." Therefore, sovereign immunity
under § 14 can never be said to exist for any entity that
violates the "sole object and only legitimate end of
government" and "assumes other functions." Because the
Declaration of Rights is excepted out of the general powers of
government, only the people of Alabama may enlarge the
"legitimate end of government" to encompass functions such as
health care. Thus sovereign immunity exists only when a
government
entity
functions
within
its
legitimate
constitutional sphere.
At common law, hospitals were not within the sphere of
civil government, but were eleemosynary corporations,
23
"constituted for the perpetual distribution of the free alms,
or bounty, of the founder of them to such persons as he has
directed. Of this kind are all hospitals for the maintenance
of the poor, sick, and impotent." 1 William Blackstone,
"Of, relating to, or assisted by charity; not-for-
23
profit." Black's Law Dictionary 597 (9th ed. 2004). An
"eleemosynaria" was "[t]he place in a religious house or
church where the common alms were deposited, to be distributed
to the poor." Id.
[substituted p. 70]
1090084
Commentaries on the Laws of England *459. Our common law
24
inherited much from the canon law of the Christian church,
which allowed any group of persons with the proper structure
and purpose to form charitable corporations for the purpose of
operating hospitals. Harold Berman, Law and Revolution 219
25
(1983). In accord with English common law, "health care" is
not found in the enumerated powers given Congress in Article
I, § 8, of the United States Constitution. Nor is such a power
to be found under the General Welfare provision as it was
understood by our founding fathers. See The Federalist No. 41
at 258-259 (James Madison)(Clinton Rossiter ed., 1961). This
legal history demonstrates why hospitals and health care were
not considered proper objects and functions of civil
Eleemosynary
corporations
were
lay
corporations,
24
composed of ecclesiastical persons that shared some "of the
nature, privileges, and restrictions of ecclesiastical
bodies." 1 William Blackstone, Commentaries *459.
Donors would make gifts to God to established
25
ecclesiastical corporations for specific charitable purposes,
such as the building and operating of hospitals. Harold
Berman, Law and Revolution 238 (1983). However, under Roman
law, Emperor Justinian had recognized hospitals as charitable
societies, under the supervision of diocesan bishops. Roman
law did not grant charitable societies the legal privileges of
incorporation, which were reserved for cities, public
treasuries, churches, and colleges. Id. at 216, 219. Thus,
canon law expanded the legal protections for charitable
societies. Id.
[substituted p. 71]
1090084
government in the United States and in Alabama for many years.
Alabama's early hospitals were organized primarily by
churches, religious orders, private individuals, and private
organizations, and not by the State.26
However, in 1946 the people of Alabama ratified Amendment
No. 53 to the Alabama Constitution of 1901 to provide for
State hospitals and health facilities. Amendment No. 53 (now
Article IV, § 93.12, Ala. Const. 1901 (Off. Recomp.)) provides
as follows:
"The state, notwithstanding section 93 of the
Constitution as amended and section 94 of the
Constitution, may acquire, build, establish, own,
operate and maintain hospitals, health centers,
sanatoria
and
other
health
facilities.
The
legislature for such purposes may appropriate public
funds and may authorize counties, municipalities and
other political subdivisions to appropriate their
funds, and may designate or create an agency or
agencies to accept and administer funds appropriated
or donated for such purposes by the United States
government to the state upon such terms and
conditions as may be imposed by the United States
government."
See Howard Holley, M.D., The History of Medicine in
26
Alabama (1982). Dr. Holley chronicled the development of
hospitals in Alabama from colonial times to the 1970s.
Holley's survey covers the origins of 27 Alabama hospitals: 21
were organized by religious orders, private individuals, and
private corporations; 2 were organized by cities; 2 by federal
authority; 1 by a county; and only 1 by the State. Dr. Holley
acknowledges he omitted many "privately owned and operated
small hospitals." Id. at 45-74.
[substituted p. 72]
1090084
(Emphasis added.) Section 93.12 clearly defines the limited
conditions
under
which
the
State
of
Alabama
may
constitutionally
assume
the
functions
of
maintaining
hospitals
and providing health care to the people of this State. Only
under the limited constitutional exception of § 93.12 would a
State-run hospital be immune from civil action under the
concept of sovereign immunity in § 14.
The evidence in this case does not reflect that the State
of Alabama ever acquired, built, established, owned, or
operated the Authority's medical facilities. Nor did the
Legislature of Alabama appropriate funds or authorize a
county, a municipality, or other political subdivision to do
so. Because no State entity has availed itself of the
provision of § 93.12 in this case, the Authority is not
exercising a government function so as to entitle it to
sovereign immunity.
The provisions of §§ 22-21-310 through 22-21-359, Ala.
Code 1975, the Health Care Authorities Act of 1982, do not, in
my opinion, meet the requirements for a State-run hospital
under § 93.12 and were never meant to provide for a State-
owned and operated hospital. Indeed the Health Care
73
1090084
Authorities Act itself permits a health-care authority to be
sued in civil actions:
"(a) In addition to all other powers granted
elsewhere in this article, and subject to the
express
provisions
of
its
certificate
of
incorporation, an authority shall have the following
powers, together with all powers incidental thereto
or necessary to the discharge thereof in corporate
form:
"....
"(2) To sue and be sued in its own
name in civil suits and actions, and to
defend suits and actions against it,
including suits and actions ex delicto and
ex contractu, subject, however, to the
provisions of Chapter 93 of Title 11, which
chapter is hereby made applicable to the
authority ...."
§ 22-21-318, Ala. Code 1975 (emphasis added). When the
legislature expressly authorized a health-care authority "to
sue and be sued in its own name in civil suits and actions,"
it cannot be said that even the legislature, which could not
create sovereign immunity, ever contemplated such a result for
any health-care authority.
Therefore, I would hold that, absent a constitutional
amendment, sovereign immunity cannot be extended to shield a
public authority, agency, or franchisee that works to deprive
the people of their rights retained in §§ 11 and 13. The
74
1090084
effect of granting § 14 immunity to the Authority would be to
destroy the people's inalienable rights to a jury trial and to
take away a remedy in open court in cases involving such an
entity, in violation of Article I, §§ 35 and 36. Such an
application of sovereign immunity, absent the consent of the
people of Alabama by constitutional amendment, is void and
unconstitutional under §§ 35 and 36. I agree with the main
opinion that under the Alabama Constitution the Authority is
not entitled to sovereign immunity.
Furthermore, the $100,000 damages cap of § 11-93-2 is not
applicable here because such a cap was never intended under
the Health Care Authorities Act to extend to nongovernmental
entities. Moreover, the Authority never claimed to be an
instrumentality of either a county or a municipal government
and is therefore not entitled to the damages limitations that
such government entities presently enjoy.
75
1090084
BOLIN, Justice (dissenting).
At the outset, I must express my extreme disappointment
in this Court's delay in ruling on this application for
rehearing. The original opinion, which I authored, was issued
on January 14, 2011, and the application for rehearing was
timely filed on January 27, 2011. On July 7, 2011, the case
was transferred from my office.
Rule 40(a), Ala. R. App. P., provides that a party who
has not prevailed may apply for rehearing.
"This Court invites applications for rehearing
because we are the court of last resort in virtually
every case that comes before us. Rule 40(b), Ala.
R. App. P., therefore states in relevant part: 'The
application
for
rehearing
must
state
with
particularity the points of law or the facts the
applicant
believes
the
court
overlooked
or
misapprehended.'
The
operative
words
are
'overlooked'
and
'misapprehended.'
We
grant
application for a rehearing in a rather narrow range
of cases. A rehearing is not an opportunity to
raise
new
issues
not
addressed
on
original
application. See Town of Pike Road v. City of
Montgomery, 57 So. 3d 693, 694 (Ala. 2006)(opinion
on application for rehearing)('As a general rule,
the Court does not consider matters raised for the
first time in an application for rehearing.' (citing
Morgan Keegan & Co. v. Cunningham, 918 So. 2d 897,
908 (Ala. 2005))); Riscorp, Inc. v. Norman, 915 So.
2d 1142, 1155 (Ala. 2005)(opinion on application for
rehearing)('"The well-settled rule of this Court
precludes consideration of arguments made for the
first time on rehearing."'(quoting Water Works &
Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 608
76
1090084
(Ala. 2002))); and Kirkland v. Kirkland, 281 Ala.
42, 49, 198 So. 2d 771, 777 (1967) ('We cannot
sanction the practice of bringing up new questions
for the first time in application for rehearing.').
Nor is an application for rehearing an invitation to
reargue the issues already thoroughly considered on
original application. See Willis v. Atlanta Cas.
Co., 801 So. 2d 837, 838 (Ala. 2001) (overruling an
application for rehearing when it was 'simply an
earnest reiteration of the appellant's original
brief')(Johnstone,
J.,
concurring
specially).
Instead, this Court invites an application for a
rehearing so that we may be informed of a fact or a
point of law that we have 'overlooked' or one that
we have 'misapprehended.'"
Chism v. Jefferson Cnty., 954 So. 2d 1058, 1106-07 (Ala. 2006)
(See, J., concurring specially on application for rehearing).
With the relatively
narrow grounds for granting
an
application
for rehearing, there is no justification for the inordinate
delay in ruling on this application for rehearing. Not only
have the parties been in a state of uncertainty, undoubtedly
other patients have been treated at a Baptist Medical Center
facility without a final resolution of the issues involved.
Furthermore, in the time that has elapsed since our original
opinion was issued on January 14, 2011, there have been
numerous changes to the membership of this Court, and the
delay in ruling on the application could erroneously appear to
be outcome driven. Although I am certain that the delay was
77
1090084
not a product of judicial machinations, I must note that such
a lengthy delay appears improper and that the mere appearance
of impropriety reflects poorly on past and current members of
this Court.
That being stated, I now turn to the issue of sovereign
immunity. The Healthcare Authority for Baptist Health d/b/a
Baptist Medical Center East, also known as the Healthcare
Authority for Baptist Health, an affiliate of UAB Health
System d/b/a Baptist Medical Center East (hereinafter "the
Authority"), argues that State immunity under § 14, Ala.
Const. 1901, also known as sovereign immunity, acts as a
jurisdictional bar in this case.
27
Section 14 provides that the State "shall never be made
a defendant in any court of law or equity." Neither the
The Authority raises this argument for the first time on
27
appeal. Generally, an appellate court cannot consider
arguments raised for the first time on appeal. CSX Transp.,
Inc. v. Day, 613 So. 2d 883, 884 (Ala. 1993). However, "[t]he
assertion of State immunity challenges the subject-matter
jurisdiction of the court; therefore, it may be raised at any
time by the parties or by a court ex mero motu." Atkinson v.
State, 986 So. 2d 408, 411 (Ala. 2007). "'[A]n action
contrary to the State's immunity is an action over which the
courts of this State lack subject-matter jurisdiction.'" Ex
parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.
2007)(quoting Larkins v. Department of Mental Health & Mental
Retardation, 806 So. 2d 358, 363 (Ala. 2001)).
[substituted p. 78]
1090084
legislature nor this Court has the power to waive the State's
immunity from suit.
Sovereign immunity provides
protection
to
the State and State-related agencies. The immunity from suit
provided by § 14 extends to State universities. Rigby v.
Auburn Univ., 448 So. 2d 345, 347 (Ala. 1984)("[W]e conclude
that because of the character of the power delegated to it by
the state, its relation to the state as an institution of
higher learning, and the nature of the function it performs as
an institution of higher learning, Auburn University is an
instrumentality of the state and therefore immune to suit by
the terms of Section 14 of our state constitution."); Taylor
v. Troy State Univ., 437 So. 2d 472 (Ala. 1983)(holding that
State immunity extends to the State's institutions of higher
learning); Harman v. Alabama Coll., 235 Ala. 148, 177 So. 747
(1937)(holding that the legislature could create a college as
a public corporation with the right to sue and to contract, to
acquire and to hold real property, that the public corporation
so created could incur debt without violating § 213 of the
Alabama Constitution, and that the college was immune from
suit); Alabama Girls' Indus. Sch. v. Reynolds, 143 Ala. 579,
42 So. 114 (1905)(holding that school was entitled to immunity
79
1090084
from suit under the Alabama Constitution notwithstanding fact
that creating statute provided that the school could be sued).
The operation of a hospital by a State university falls
within the realm of sovereign immunity. Liberty Nat'l Life
Ins. Co. v. University of Alabama Health Servs. Found., P.C.,
881 So. 2d 1013 (Ala. 2003)(holding that sovereign immunity
protected State-university hospital from insurer's suit to
stop practice of billing more that it would accept as full
satisfaction from Medicare or other insurers); Sarradett v.
University of South Alabama Med. Ctr., 484 So. 2d 426 (Ala.
1986)(holding that county hospital acquired by university was
entitled to sovereign immunity where agreement provided that
university desired to operate the hospital as part of its
college of medicine and fact that agreement provided that the
university would operate the hospital as a public hospital did
not deprive the entity of immunity as a subdivision of a State
university); and Hutchinson v. Board of Trs. of the Univ. of
Alabama, 288 Ala. 20, 256 So. 2d 281 (1971)(recognizing that
the operation of a university hospital is a governmental
function and that even if operating a university hospital was
a business function, the State could not be sued because the
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result of allowing a suit would be to directly affect the
financial status of the State treasury).
In Armory Commission of Alabama v. Staudt, 388 So. 2d 991
(Ala. 1980), the Court set out the test to determine if an
entity is part of the State and therefore entitled to
sovereign immunity:
"Whether a lawsuit against a body created by
legislative enactment is a suit against the state
depends on the character of power delegated to the
body, the relation of the body to the state, and the
nature of the function performed by the body. All
factors in the relationship must be examined to
determine whether the suit is against an arm of the
state or merely against a franchisee licensed for
some beneficial purpose."
388 So. 2d at 993.
In the present case, the issue is whether a health-care
authority established by a State university operating a
medical school is entitled to sovereign immunity. A brief
history of the statutes allowing for the creation of health-
care authorities is necessary. In 1945, the legislature
authorized the creation of public-hospital associations by
local governing bodies. Title 22, Art. 3 (now § 22-21-50 et
seq., Ala. Code 1975). In 1949, the legislature provided for
the creation of county hospital corporations. Title 22, Art.
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4 (now § 22-21-70 et seq., Ala. Code 1975). In 1961, the
legislature enacted Title 22, Art. 5 (now § 22-21-130 et seq.,
Ala. Code 1975), to allow the creation of municipal hospital-
building authorities. In 1975, the legislature enacted Title
22, Art. 6 (now § 22-21-170 et seq., Ala. Code 1975), to
authorize the creation of county and municipal hospital
authorities.
In 1982, the legislature enacted the Health Care
Authorities Act of 1982, § 22-21-310 et seq., Ala. Code 1975
("the HCA Act"). Section 22-21-312 of the HCA Act provides
for the creation of health-care authorities as public
corporations in order to effectuate the intent of the HCA Act:
"The Legislature hereby finds and declares:
"(1)
That
publicly-owned
(as
distinguished
from
investor-owned
and
community-nonprofit) hospitals and other
health
care
facilities
furnish
a
substantial part of the indigent and
reduced-rate care and other health care
services furnished to residents of the
state by hospitals and other health care
facilities generally;
"(2) That as a result of current
significant
fiscal
and
budgetary
limitations or restrictions, the state and
the various counties, municipalities, and
educational institutions therein are no
longer able to provide, from taxes and
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other general fund moneys, all the revenues
and funds necessary to operate such
publicly-owned hospitals and other health
care
facilities
adequately
and
efficiently;
and
"(3) That to enable such publicly-
owned hospitals and other health care
facilities
to
continue
to
operate
adequately
and
efficiently,
it
is
necessary
that the entities and agencies operating
them
have
significantly
greater
powers
with
respect to health care facilities than now
vested in various public hospital or
health-care authorities and corporations
and the ability to provide a corporate
structure
somewhat
more
flexible
than
those
now provided for in existing laws relating
to the public hospital and health-care
authorities.
"It is therefore the intent of the Legislature
by the passage of this article to promote the public
health of the people of the state (1) by authorizing
the
several
counties,
municipalities,
and
educational institutions in the state effectively to
form public corporations whose corporate purpose
shall be to acquire, own and operate health care
facilities, and (2) by permitting, with the consent
of the counties or municipalities (or both)
authorizing
their
formation,
existing
public
hospital corporations to reincorporate hereunder. To
that
end,
this
article
invests
each
public
corporation so organized or reincorporated hereunder
with all powers that may be necessary to enable it
to accomplish its corporate purposes and shall be
liberally construed in conformity with said intent."
A 2003 amendment to the HCA Act added the language
"educational institutions" to allow a public college or
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university established under the Alabama Constitution that
operates a school of medicine to establish a health-care
authority.
It should be noted that until 1975 city and county
hospitals, as well as the city or county that established
them,
enjoyed
almost
absolute
governmental
immunity
from
civil
liability. See Thompson v. Druid City Hosp. Bd., 279 Ala.
314, 184 So. 2d 825 (1966)(holding that a hospital board,
created by local law as an agency of the county and city to
construct and operate a public hospital mainly for charity,
was a public agency immune from liability for the negligence
of its officers and employees and that the procurement of
liability-insurance coverage by the board did not affect that
immunity); Clark v. Mobile Cnty. Hosp. Bd., 275 Ala. 26, 151
So. 2d 750 (1963)(holding that the county hospital board was
a public agency performing a governmental function and was
immune from suit by paying patient for injuries allegedly
suffered by him as a result of the negligence of agents,
servants, or employees of the board); Laney v. Jefferson
Cnty., 249 Ala. 612, 32 So. 2d 542 (1947)(holding that the
general provision that a county is a corporate body with power
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to sue and be sued does not deprive a county of the immunity
from suit based on negligence so long it is engaged in
governmental functions); and Moore v. Walker Cnty., 236 Ala.
688, 185 So. 175 (1938)(holding that the act authorizing and
empowering a county to equip, own, and operate a hospital
nowhere makes the county subject to suit for any injuries
patients suffer by reason of the negligence of the officers,
agents, or servants entrusted with the operation and
management of the hospital).
In 1975, this Court issued two opinions that abolished
the doctrine of governmental immunity for municipalities and
counties, including immunity for the public hospitals they
operate: Jackson v. City of Florence, 294 Ala. 592, 320 So.
2d 68 (1975), and Lorence v. Hospital Board of Morgan County,
294 Ala. 614, 320 So. 2d 631 (1975). In Jackson, Jackson sued
the City of Florence and several of its police officers
seeking damages based on injuries he alleged the city's
officers had negligently inflicted on him during and after his
arrest. Jackson asked this Court to review its previous
interpretation of the statute now codified at § 11-47-190,
Ala. Code 1975. This Court acknowledged that, based on the
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plain language of the statute, the legislature had abrogated
tort immunity for municipalities to the extent that the
alleged
wrongful
acts
occurred "through
the
neglect,
carelessness, or unskillfulness of ... some agent, officer or
employee of the municipality engaged in work therefor and
while acting in the line of his or her duty ...." § 11-47-
190. The Jackson Court "recognize[d] the authority of the
legislature
to
enter
the
entire
field,
and
further
recognize[d] its superior position to provide with proper
legislation any limitations or protections it deem[ed]
necessary." 294 Ala. at 600, 320 So. 2d at 75.
In Lorence, the issue of governmental immunity in the
context of a county hospital was presented. The Court
discussed not only Title 22, § 204(24), Code of Ala. 1940
(Recomp. 1958)(now § 22-21-77, Ala. Code 1975), which allowed
a county hospital board "to sue and be sued and to defend
suits against it," but also Title 12, §§ 3 and 115, and Title
7, § 96, Code of Ala. 1940 (Recomp. 1958)(now § 11-1-2, § 11-
12-5, and § 6-5-20, Ala. Code 1975, respectively), which
permitted the county "to sue or be sued" and provided for a
claim procedure before bringing suit. The Court stated,
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however, that the issue of a county's general liability was
not before the Court and that what was before it was the
immunity of a county hospital board, and it held that because
the statute authorizing the creation of such boards expressly
provided for suits against them, county hospital boards no
longer had immunity from tort liability. In Cook v. County of
St. Clair, 384 So. 2d 1 (Ala. 1980), the Court clarified the
implication in its holding in Lorence, holding that counties
and county commissioners are subject to suit in tort under §
11-1-2.
It is clear that health-care authorities created by a
county or city no longer have State immunity and are subject
to the $100,000 statutory damages cap of § 11-93-2. However,
whether a health-care authority created by a
State
educational
institution is entitled to State immunity is a question of
first impression.
In the present case, the Board of Trustees of the
University of Alabama ("the Board") created a health-care
authority -- the Authority. In accordance with the 2003
amendment to the HCA Act, the Board adopted a resolution
creating a health-care authority. Section 22-21-312, Ala.
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Code 1975, setting out the legislature's intentions in
creating the HCA Act, provides that the purpose of the HCA Act
is to "promote the public health of the people of the state
... by authorizing ... educational institutions in the state
effectively to form public corporations whose corporate
purpose shall be to acquire, own and operate health care
facilities."
The HCA Act defines an "authority" as a "public
corporation organized, and any public hospital corporation
reincorporated, pursuant to the provisions hereof." § 22-21-
311(a)(2), Ala. Code 1975. The Board also entered into an
affiliation agreement with Baptist Health, pursuant to which
Baptist Health's assets would be transferred to the
Authority. The certificate of incorporation for
the
Authority
was filed in the Tuscaloosa County Probate Court and provided,
among other things, that, subject to the affiliation
agreement, the Authority shall have and may exercise all the
powers and authority set out in the HCA Act.
Kay E. Davis, the plaintiff below, argues that the
Authority is not a validly created health-care authority
because, she argues, the HCA Act does not authorize the
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Authority to acquire private hospitals, and, therefore, she
argues, the affiliation agreement between the Authority and
Baptist Health violates the HCA Act.
Section 22-21-312, Ala. Code 1975, authorizes certain
educational institutions "to form public corporations whose
corporate purpose shall be to acquire, own and operate health
care facilities." Section 22-21-311(a)(14), Ala. Code 1975,
defines "health care facilities" as:
"Health care facilities. Generally, any one or more
buildings or facilities which serve to promote the
public health, either by providing places or
facilities for the diagnosis, treatment, care, cure
or convalescence of sick, injured, physically
disabled or handicapped, mentally ill, retarded or
disturbed persons, or for the prevention of sickness
and disease, or for the care, treatment and
rehabilitation of alcoholics, or for the care of
elderly persons, or for research with respect to any
of the foregoing, including, without limiting the
generality of the foregoing:
"a. Public hospitals of all types,
public clinics, sanitoria, public health
centers
and
related
public
health
facilities, such as medical or dental
facilities,
laboratories,
out-patient
departments,
educational
facilities,
nurses'
homes
and
nurses'
training
facilities, dormitories or residences for
hospital personnel or students, other
employee-related facilities, and central
service facilities operated in connection
with public hospitals and other facilities
(such as, for example, gift and flower
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shops, cafe and cafeteria facilities and
the like) ancillary to public hospitals;
"b. Retirement homes, nursing homes,
convalescent homes, apartment buildings,
dormitory
or
domiciliary
facilities,
residences or special care facilities for
the housing and care of elderly persons or
other persons requiring special care;
"c. Appurtenant buildings and other
facilities:
"1. To provide offices for
persons engaged in the diagnosis,
treatment, care,
or
cure
of
diseased,
sick,
or
injured
persons,
or
in
preventive
medicine, or in the practice of
dentistry; or
"2. To house or service
equipment used for the diagnosis,
treatment,
care
or
cure
of
diseased,
sick,
or
injured
persons,
or
in
preventive
medicine, or in the practice of
dentistry, or the records of such
diagnosis, treatment, care, cure
or practice or research with
respect to any of the foregoing;
"d. Parking areas, parking decks,
facilities,
buildings
and
structures
appurtenant to any of the foregoing;
"e. Ambulance, helicopter, and other
similar facilities and services for the
transportation of sick or injured persons;
and
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"f. Machinery, equipment, furniture,
and fixtures useful or desirable in the
operation of any of the foregoing."
The definition of health-care facilities in the HCA Act
specifically includes public hospitals and then lists several
types of public hospitals "without limiting the
generality"
of
the preceding definition of health-care facilities. The
omission of "private" hospital from the definition does not
mean
that
the
legislature
intended
that
health-care
authorities could purchase only public hospitals. I agree
with the reasoning of the United States Court of Appeals for
the Eleventh Circuit in Askew v. DCH Regional Health Care
Authority, 995 F.2d 1033 (11th Cir. 1993), regarding the
health-care authority's purchase of a private hospital. In
Askew, the plaintiffs brought an antitrust action against a
health-care
authority
to
prevent
the
authority
from
completing its acquisition of a private hospital in the same
region. The Eleventh Circuit held that the health-care
authority qualified as a "political subdivision of the state"
for the purposes of antitrust immunity. The court went on to
address the plaintiffs' argument that a health-care authority
could not acquire a private hospital because, they argued, a
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health-care facility under the definition in § 22-21-311 of
the HCA Act means a "publicly owned" hospital as opposed to a
"privately owned" hospital:
"Plaintiffs' argument is inconsistent with a
common sense reading of the statute. The legislature
clearly stated that, in its view, publicly-owned
hospitals played a very significant role in
providing health care to the poor. By establishing
public health care authorities, it sought to enhance
the amount and quality of service for Alabama's
poor. If DCH could only purchase other publicly-
owned hospitals, the overall number of publicly-
owned facilities would not increase and service to
the disadvantaged would remain the same. To the
contrary,
by
purchasing
[a
privately
owned
hospital], DCH has increased the number of publicly-
owned hospitals in the Tuscaloosa area, has expanded
its ability to serve indigent care needs in the
region, and has enhanced its ability to provide
indigent and reduced-rate care at its existing
facilities. This is entirely consistent with what
the Alabama legislature authorized DCH to do."
995 F.2d at 1040.
Davis asserts that the affiliation agreement between the
Board and Baptist Health provides that upon termination of the
agreement the assets of the Authority will be transferred to
Baptist Health or its designee. Davis argues that this
provision of the affiliation agreement conflicts with §
22-21-
339, Ala. Code 1975, which provides that upon dissolution of
a health-care authority formed pursuant to the HCA Act the
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assets revert to the local governmental entity or the
educational institution that created the authority. Davis
also contends that the specific provision in the Authority's
articles of incorporation that provides that the Authority is
obligated under the affiliation agreement to reconvey assets
to Baptist Health likewise violates § 22-21-339.
Section 22-21-339 prescribes the manner in which a
health-care authority formed under the HCA Act is dissolved.
Section 22-21-339 provides:
"At any time when the authority does not have
any securities outstanding and when there shall be
no other obligations assumed by the authority that
are then outstanding, the board may adopt a
resolution ... declaring that the authority shall be
dissolved. ... [I]n the event that it owns any
assets or property at the time of the dissolution,
the title to its assets and property ... shall ...
vest in one or more counties, municipalities, or
educational
institutions
in
such
manner
and
interests as may be provided in the ... certificate
of incorporation."
The affiliation agreement between the Board and Baptist
Health accomplishes the purpose of the management agreement
between Baptist Health
and
University of Alabama at Birmingham
Health System ("UABHS"), with the stated goal of "(i)
providing community-based health care in the Montgomery area;
(ii) promoting efficiency and quality in the delivery of
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health care services to the people of the state of Alabama;
and (iii) supporting the academic and research mission of the
[Board and UABHS] with respect to health care services and
science of medicine." In the affiliation agreement, the
parties expressly recognize that the Board has the power under
the HCA Act to organize a health-care authority and that the
authority so created would take possession of and operate
Baptist Health's assets during the term of the affiliation
agreement.
By the separate act of creating a health-care authority,
the Board formed a public corporation under the HCA Act,
providing financial benefits and other
powers, such as
eminent
domain and an exemption from certain taxation. Section 22-21-
318, Ala. Code 1975, provides, in pertinent part:
"(a) In addition to all other powers granted
elsewhere in this article, and subject to the
express
provisions
of
its
certificate
of
incorporation, an authority shall have the following
powers, together with all powers incidental thereto
or necessary to the discharge thereof in corporate
form:
"....
"(5)
To
acquire,
construct,
reconstruct,
equip,
enlarge,
expand,
alter,
repair, improve, maintain, equip, furnish
and operate health care facilities at such
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place or places, within and without the
boundaries of its authorizing subdivisions
and within and without the state, as it
considers necessary or advisable;
"....
"(7) To receive, acquire, take and
hold (whether by purchase, gift, transfer,
foreclosure, lease, devise, option or
otherwise) real and personal property of
every
description,
or
any
interest
therein,
and to manage, improve and dispose of the
same by any form of legal conveyance or
transfer;
provided
however,
that
the
authority shall not, without the prior
approval of the governing body of each
authorizing subdivision, have the power to
dispose of (i) substantially all its
assets, or (ii) any health care facilities
the disposition of which would materially
and significantly reduce or impair the
level of hospital or health care services
rendered by the authority; and provided
further, that the foregoing proviso shall
not be construed to require the prior
approval of any such governing body for the
mortgage or pledge of all or substantially
all its assets or of any of its health care
facilities, for the foreclosure of any such
mortgage or pledge or for any sale or other
disposition thereunder;
"....
"(18) To receive and accept from any
source aid or contributions in the form of
money, property, labor or other things of
value, to be held, used and applied to
carry out the purposes of this article,
subject to any lawful condition upon which
any such aid or contributions may be given
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or made;
"....
"(23) To assume any obligations of any
entity that conveys and transfers to the
authority any health care facilities or
other
property,
or
interest
therein,
provided
that
such
obligations
appertain
to
the health care facilities, property or
interest so conveyed and transferred to the
authority."
The terms of the affiliation agreement between Baptist
Health and the Board comply with the powers granted a health-
care authority to transfer property as contemplated by § 22-
21-318. If the Authority has no outstanding securities or
obligations and the Authority's board elects to dissolve the
Authority, under § 22-21-339 the Authority's assets, if any,
will be transferred to the Board. In contrast to a
dissolution, the affiliation agreement between Baptist Health
and the Board addresses the transfer of property in the event
of the termination of the affiliation agreement. It does not
address the dissolution of the Authority; thus, nothing in the
affiliation agreement contradicts the provisions of § 22-21-
339. Section 22-21-339 contemplates that the Authority might
not own assets at the time of dissolution, and nothing in the
HCA Act requires that the Authority own assets before it can
96
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be dissolved. There is a distinction between the disposition
of assets upon a dissolution of the Authority under § 22-21-
339 and a termination of the affiliation agreement between
Baptist Health and the Board, where the affiliation agreement
states that the Board must return assets to Baptist Health
upon the termination of the agreement.
Davis also argues that the Authority does not meet this
Court's test for determining whether an entity is entitled to
sovereign immunity. In Ex parte Greater Mobile-Washington
County Mental Health-Mental Retardation Board, 940 So. 2d 990
(Ala. 2006), a resident at a group home was killed in an
accident involving a van operated by the county mental-health
board. The parents of the resident sued the board and the
manager of the group home. The defendants moved for a summary
judgment on the basis of various types of immunity, the board
principally relying on its claim that it was entitled to
sovereign immunity as an agency of the State. This Court
reviewed caselaw relating to the criteria for determining
whether a particular entity qualifies as a State agency for
purposes of § 14, Ala. Const. 1901, and concluded that the
board had not shown that it was qualified as a State agency.
97
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Specifically, this Court analyzed the three-factor test set
out in Staudt, supra: (1) the character of the power delegated
to the body; (2) the relation of the body to the State; and
(3) the nature of the body's function. Some attributes of the
board and some aspects of its relation with the State
suggested that the board was a State agency. For example,
caring for citizens suffering from mental illness is a
governmental function, citing White v. Alabama Insane Hosp.,
138 Ala. 479, 35 So. 454 (1903). Further, this Court
recognized that the board had the power of eminent domain and
that its property, income, and activities were exempt from
taxation. However, certain elements favored characterizing
the board as an entity separate from the State. Although the
State exercised a certain amount of oversight over the board,
the oversight was minimal. The board's regulations provided
that the "facilities and programs" of the board were not under
the direction or control of any person other than its
directors so long as those facilities and programs complied
with the minimum standards adopted by the Board of Health and
the Department of Mental Health as set out in § 22-51-12, Ala.
Code 1975. Also, the board was authorized to own all its
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property in its own name and to sell or to otherwise dispose
of it. Ownership of the property in the name of the entity
has been considered indicative of its independent status,
particularly when the entity was authorized to sell or dispose
of the property independent of the State. Also, the board was
authorized to borrow money by issuing bonds and notes and to
secure that indebtedness by a pledge of its revenues, so that
its indebtedness was not an obligation of the State.
Ultimately, this Court concluded that the board was not
entitled to sovereign immunity.
The present case is distinguishable from Greater Mobile-
Washington County Mental Health Board because the HCA Act
specifically states that a health-care authority established
thereunder "acts as an agency or instrumentality of its
authorizing subdivisions and as a political subdivision
of
the
state." § 22-21-318(c)(2), Ala. Code 1975. In Greater Mobile-
Washington
County
Mental
Health
Board,
the
enabling
legislation allowed for three or more persons to form a public
corporation to contract with the State Board of Mental Health
and
Mental Retardation
in
constructing and
operating
facilities and in carrying out programs in particular areas of
99
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the state. Nothing in that enabling legislation provided
that the public corporation would be an arm or instrumentality
of the Department of Mental Health. It is the clear language
of the enabling provisions of the HCA Act that a health-care
authority created under the HCA Act acts as an agency or
instrumentality of its authorizing subdivision and as a
political subdivision of the State.
Pursuant to § 22-21-318(c)(2), the Authority "acts as an
agency or instrumentality of its authorizing subdivisions and
as a political subdivision of the state." See Staudt, 388 So.
2d at 993 (addressing the factor "the relation of the body to
the state"); see also Tennessee Valley Printing Co. v. Health
Care Auth. of Lauderdale Cnty., 61 So. 3d 1027 (Ala.
2010)(holding that a health-care authority is a local
governmental entity for the purposes of the Open Records Act).
The incorporating entity for the Authority is the Board, which
has State immunity. See Cox v. Board of Trs. of the Univ. of
Alabama, 161 Ala. 639, 49 So. 814 (1909)(holding that public
institutions created by the State purely for charitable or
educational purposes are a part of the State and are not
100
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subject to be sued, because § 14 prohibits the State from
being a defendant in any court of law or equity).
The HCA Act "shall not be construed as a restriction or
limitation upon any power, right or remedy which any county,
municipality, educational institution, or public hospital
corporation now in existence or hereafter formed may have in
the absence of this article." § 22-21-343, Ala. Code 1975.
Article I, § 14, Ala. Const. 1901, provides "[t]hat the State
of Alabama shall never be made a defendant in any court of law
or equity." "The manifest purpose of section 14 ... was to
prohibit the Legislature from passing any act authorizing the
State to be sued in any court, and clearly any authorization
to that end would be void because in violation of the
constitutional provision." Alabama Girls' Indus. Sch. v.
Reynolds, 143 Ala. at 585, 42 So. at 116. I recognize that §
22-21-318(a)(2), Ala. Code 1975, provides that an authority
may sue or be sued in its own name. It does not matter that
§ 22-21-318 allows an authority created by an educational
institution to incorporate and to sue in its corporate name,
because the plenary authority of the legislature to enact laws
is limited by our Constitution. "The legislature may not deny
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immunity from suit when that immunity is constitutionally
granted." Staudt, 388 So. 2d at 992. This Court has held
that the "constitutionally guaranteed principle of sovereign
immunity, acting as a jurisdictional bar, precludes a court
from
exercising
subject-matter
jurisdiction.
Without
jurisdiction, a court has no power to act and must dismiss the
action." Alabama State Docks Terminal Ry. v. Lyles, 797 So.
2d 432, 435 (Ala. 2001).
I disagree with the majority's position that a health-
care authority is "an agency or instrumentality of its
authorizing subdivision[] and ... a political subdivision of
the State" only in the context of anticompetitive activity.
___ So. 3d at ___. Section 22-21-318 sets out the powers of
a health-care authority. The legislature clearly recognizes
that a health-care authority, in exercising the broad powers
granted it, may engage in anticompetitive activity. However,
the legislature chose to allow State universities operating
medical schools to create health-care authorities. The Board
is the authorizing subdivision of the Authority and, as such,
is an agent of the State. The legislature, in allowing a
State agency to create a health-care authority cannot then
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limit the
State agency's
immunity
to
anticompetitive
activity.
Accordingly, I believe the circuit court did not have
subject-matter jurisdiction over this action; thus, the
judgment is void, and the appeal should be dismissed. See
Alabama Dep't of Corr. v. Montgomery County Comm'n, 11 So. 3d
189 (Ala. 2008)(holding that because of the State's immunity
from suit, a complaint filed solely against the State or one
of its agencies is a nullity and void ab initio, and any
action taken by a court without subject-matter jurisdiction
–-
other than dismissing the action -- is void). Therefore, I
must dissent.
I also write to address Davis's assertion on rehearing
that allowing the Authority immunity will automatically lead
to immunity for physicians and employees. I disagree. For
example, I note that UAB Hospital and the Board, as
extensions of the State, are immune. See Liberty National,
supra (noting the correct designation for the hospital and the
Board and recognizing their immunity). However, the
University
of
Alabama
at
Birmingham
Health
Services
Foundation, P.C., is not immune. See Liberty National, supra
103
1090084
(describing the Foundation as a nonprofit, independent
professional corporation established by the faculty of the
medical school that in part attends to billing services for
those physicians and, as such, is not protected by immunity).
Physicians working for the Foundation are not immune from
suit. Rivard v. University of Alabama Health Servs. Found.,
P.C., 835 So. 2d 987 (Ala. 2002)(reversing a summary judgment
for UAHSF and one of its physicians in a medical-malpractice
case in which the plaintiff was treated at UAB Hospital);
Waites v. University of Alabama Health Servs. Found., P.C.,
638 So. 2d 838 (Ala. 1994)(noting the dismissal of UAB
Hospital as a defendant on the basis of immunity but affirming
a summary judgment in favor of the UAHSF, physicians, and
residents because the plaintiff failed to rebut expert
testimony of malpractice). I recognize that a State official
or agent may be entitled to State-agent immunity as to actions
asserted against him or her in his or her individual capacity.
In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), a medical-
malpractice case against a resident physician employed by the
University of Alabama's health center, this Court traced the
evolution of State-agent immunity, restated the law of State-
104
1090084
agent immunity, and suggested the formulation of a new test
for determining when State employees sued in their individual
capacities would be entitled to the benefits of State-agent
immunity. In Cranman, the resident physicians were not
entitled to State-agent immunity. See also Hauseman v.
University of Alabama Health Servs. Found., P.C., 793 So. 2d
730 (Ala. 2000)(addressing State-agent immunity under Cranman
and holding that physician and resident physicians were not
entitled to State-agent immunity); Wimpee v. Stella, 791 So.
2d 915 (Ala. 2000)(holding that resident physicians employed
by the University of South Alabama Hospital were not entitled
to State-agent immunity). In the present case, Davis also
sued two physicians and several fictitiously named parties.
Davis did not oppose the properly supported summary-judgment
motions filed by the physicians, and it does not appear that
any parties were substituted for the fictitiously named
parties.
Last, I note that there is an obvious legislative remedy
to Davis's assertion that the Authority's immunity will lead
to private hospitals' placing their assets in a health-care
authority established by a State university operating a
105
1090084
medical school to secure State immunity, which is to repeal
the 2003 amendment to the HCA Act. I also note that this
Court in Hutchinson v. Board of Trustees of University of
Alabama, 288 Ala. 20, 256 So. 2d 281 (1971), addressed
criticisms of sovereign immunity and the options advanced in
those
criticisms.
The
Court
acknowledged
that
some
jurisdictions have judicially abandoned sovereign immunity in
cases involving hospitals connected to a State
university,
but
recognized that in Alabama a constitutional amendment would
be
required
to
permit
legislative
implementation
of
a
tort-claims
system of compensation at the State level. The Court also
recognized that, in the early years of our State,
"our rule of state governmental responsibility was
directly opposite from what it is today. Our first
Constitution provided:
"'The general assembly shall direct,
by law, in what manner, and in what courts,
suits may be brought against the State.'
Ala. Const. Art. 6 § 9 (1819)."
288 Ala. at 23, 256 So. 2d at 282-83.
Accordingly, I respectfully dissent.
Stuart, J., concurs.
106
1090084
SHAW, Justice (dissenting).
In enacting the Health Care Authorities Act of 1982,
§ 22-21-310 et seq., Ala. Code 1975 ("the HCA Act"), the
legislature recognized that publically owned hospitals, and
not investor-owned or community-nonprofit hospitals, furnish
a substantial part of indigent health-care services in
Alabama. The HCA Act thus established a structure wherein
certain governmental entities in the State could create
organizations--health-care
authorities--to
operate
health-care
facilities such as hospitals. In this case, the Board of
Trustees of the University of Alabama ("the Board") organized
such an authority ("the Authority"). As noted in the main
opinion, the Authority is controlled by a board of directors,
a majority of which are appointed by the Board. The Authority
owns and operates several hospitals, provides community-based
health-care services in the Montgomery area, and supports the
academic and research mission of the Board.
The law is clear that the Board is an arm of the State;
under the Alabama Constitution, it cannot be sued. Ala.
Const. 1901, Art. I, § 14. The question that arises is
107
1090084
whether the Authority shares that protection from suit. I
believe that it does.
In Ex parte Greater Mobile-Washington County Mental
Health-Mental Retardation Board, Inc., 940 So. 2d 990 (Ala.
2006), which is discussed extensively in the main opinion and
in Justice Bolin's dissent, this Court applied the three-part
test found in Armory Commission of Alabama v. Staudt, 388 So.
2d 991 (Ala. 1980), to determine whether a public corporation
qualified as the State of Alabama for purposes of § 14. I see
no need to repeat the extensive discussions of Greater Mobile-
Washington County Mental Health Board
found in
those
writings;
instead, I will note that I believe that the case is
distinguishable. The public corporation in that case acted
autonomously with minimal oversight and assisted State and
local agencies through contracts. 940 So. 2d at 1004. Here,
the Authority is controlled by a board of directors dominated
by the Board's nominees, and it was created as a means through
which the Board's expertise and resources could be used to
rescue the hospitals the Authority now owns and operates from
the financial difficulties of their previous owner, Baptist
Health. The Authority operates to serve a public purpose--to
108
1090084
provide health care--and to support the Board's academic and
research missions and the other entities the Board controls.
Unlike the isolated or autonomous entity in Greater Mobile-
Washington County Mental Health Board, I cannot separate the
purpose, role, and existence of the Authority from that of its
creator, the Board.
Furthermore,
Ala.
Code
1975,
§
22-21-318(c)(2),
explicitly states that the Authority "acts as an agency or
instrumentality of its authorizing subdivision[] and as a
political subdivision of the state." This means that the
Authority acts as "a political subdivision of the state" and
an "agency or instrumentality" of the Board, its "authorizing
subdivision," which, under the constitution, "shall never be
made a defendant in any court of law or equity." Ala. Const.
1901, Art. I, § 14. If this is true, as the legislature
states, I find it difficult to take the internally
inconsistent view that the Authority is to be considered "the
State" when competing in the health-care marketplace but not
considered "the State" when dispensing health care to
patients.
Stuart, J., concurs.
109 | February 28, 2014 |
621f2b45-05d8-4221-b05e-fbeb357108ca | Liberty National Life Insurance Co. v. Patterson | 175 So. 2d 737 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 737 (1965)
LIBERTY NATIONAL LIFE INSURANCE COMPANY
v.
Opal L. PATTERSON.
8 Div. 137.
Supreme Court of Alabama.
April 15, 1965.
Rehearing Denied May 27, 1965.
*738 Key & Williams and Kennedy Williams, Russellville, Spain, Gillon & Young and Foster Etheredge, Birmingham, for appellant.
Howell T. Heflin and Chas. D. Rosser, Tuscumbia, for appellee.
MERRILL, Justice.
Appeal from a judgment for plaintiff in the amount of $10,785.24, the face value of a life insurance policy plus interest. A motion for a new trial was overruled and this appeal followed. Plaintiff-appellee is the wife of the deceased insured.
Eight of the argued assignments of error are concerned with the refusal of the court to give the general affirmative charge requested by appellant in eight different forms. All of these are related assignments of error and the same answer suffices for all of them.
The form for which the principal argument was made was: "I charge you that if you believe the evidence in this case you must return a verdict for the defendant."
Appellee argues that this charge is defective and is not in proper form because it should say that the jury should not find for the plaintiff, or should not find against the defendant, citing Goldstein v. Leake, 138 Ala. 573, 36 So. 458, and Boshell v. Cunningham, 200 Ala. 579, 76 So. 2d 937. But the rule of those cases applies only where there is more than one count in the complaint, and has no application where the complaint consists of only one count. Turner v. Blanton, Ala., 173 So. 2d 80 (4 Div. 207); Railway Express Agency v. Burns, 255 Ala. 557, 52 So. 2d 177.
Appellant's main contention is that the application for insurance, which became a part of the policy, contained a provision that the policy would not become effective until it was manually delivered to the insured during his lifetime, and having proved its pleas that it was not so delivered, it was entitled to the affirmative charge.
The complaint in the instant case consisted of one count in Code form. Appellant filed some seventeen pleas to which appellee filed thirty-six replications. Demurrers to the replications were sustained as to replications "2 through 35." In replication 1, appellee joined issue on each of defendant's pleas, and replication 36, while admitting pleas 16 and 17 that the policy was not manually delivered to the insured during his lifetime, alleged that the insurance was nevertheless in effect under the policy because the policy had been issued by defendant and delivered to its agent for delivery to the insured, and that the agent had collected the first premium and had issued binding insurance on the insured.
On August 2, 1961, the insured, Milton C. Patterson, of Red Bay, made written application for a $10,000 policy to appellant's agent Hughes. He paid the premium and was given a receipt. The application provided that no insurance would take effect unless and until the policy had been manually delivered to and accepted by Patterson during his lifetime and good health. No medical examination was required. The policy was issued by the home office with an effective date of September 13 and transmitted to the Florence district office. Later it was taken to the Russellville office, out of which agent Hughes worked. Patterson died suddenly of a coronary occlusion and coronary thrombosis on September 17, 1961, before the policy had been delivered to him.
Both appellant and appellee rely on the declarations in section (2) of the application, which read:
"That no insurance shall take effect unless and until the policy has been manually delivered to and accepted by the Owner and the first premium paid during the lifetime and good health of *739 the Proposed Insured (except as provided in the receipt bearing the same number as this application if the full first premium has been paid and acknowledged and such receipt issued)."
Section 1 of the Receipt provided:
The receipt did show full payment of the premium, and bore the same number as the application.
We have held that a policy that had a provision that it would not be effective until the first premium was paid and the policy delivered to the applicant during her lifetime and in good health was not enforceable when the policy was not delivered during applicant's lifetime, Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; and that there can be no binding delivery of a policy after the death of the insured, Metropolitan Life Ins. Co. v. James, 228 Ala. 383, 153 So. 759.
But there is more to the documents issued by appellant than a requirement of manual delivery. That requirement was subject to the receipt which provided that the "Insurance * * * shall take effect as of: * * * the date of this payment * * * provided that on such applicable date the Proposed Insured is in good health and in the opinion of the Company's authorized officers at its Home Office is insurable and acceptable under the rules and practices of the Company * * *."
Here, the full premium was paid when the application for insurance was made, and the receipt signed by agent Hughes bore the same number as the application and the home office issued the policy in question and sent it to the district office to be delivered. All of these events occurred prior to the death of the insured.
Appellant raises the point of the lack of authority of agent Hughes to bind the company prior to the manual delivery of the policy to the insured, but that point has been decided in National Life & Accident Ins. Co. v. Claytor, 254 Ala. 413, 48 So. 2d 180, where it was held that even though there was no evidence of the authority of the soliciting agent to issue a receipt and binder, when the home office accepted the application and issued the policy, it ratified and approved the binder as a temporary contract. So here, when the policy was issued, the actions of agent Hughes had been ratified.
The application in the Claytor case contained a provision that "the proposed contract shall not be effective until the policy has been issued and the first premium actually paid and accepted by the company and the policy has been delivered to and accepted by me in my lifetime, and while in good health, * * *." There, the evidence was that the insured had cancer of the lung when the policy was delivered and that he died shortly thereafter, but there was no indication of such affection when the application was made and the receipt and binder given. This court said:
"It results that the provision in the policy, which we have quoted, that it becomes effective after its delivery to the insured during his lifetime and in good health, must be considered in connection with the temporary binder as soon as the company accepted and approved the application. It was without power under the terms of the binder, after it was approved *740 and accepted, to refuse to deliver the policy to the insured, although he may then be in a state of health which rendered him uninsurable, if at the time when the application was taken and the medical examination made, he was in a state of health then insurable under the contract and made no material false representations or warranties with actual intent to deceive or as to a matter which increased the risk of loss."
In a similar case, the Supreme Court of Georgia said: "As seen above, the provision in the application that the insurance shall become effective only after delivery of the policy and acceptance of the first premium while the insured is in good health is modified by the provisions of the binder receipt which are intended to supersede them to the extent of any conflict. * * *" And further, "* * * The application and receipt must be taken together, and if together they contain all the elements of a contract they are binding upon both parties. * *" Guest v. Kennesaw Life & Accident Ins. Co., 97 Ga.App. 840, 104 S.E.2d 633.
Appellant also argues that the binder provisions were not before the court because the complaint was a suit on the policy in Code form. While the reported opinion in National Life & Accident Ins. Co. v. Claytor, 254 Ala. 413, 48 So. 2d 180, does not so state, the original record reveals that the complaint there was on the policy in Code form.
We hold that the statement in the application that the policy must be delivered manually before the insurance became effective was modified by the reference to the receipt, which receipt made the insurance effective upon the issuance of the policy by the home office, subject to the condition that the insured was in good health when the policy was issued.
There was substantial evidence that the insured was in apparent good health when the policy was issued and this assuredly was a question of fact for the jury.
The court properly charged the jury that the application, the receipt and the policy should be considered together.
A jury question was presented under the evidence and the court properly refused the requests for the affirmative charge.
Appellee raised the point of constructive delivery but consideration of that question is not necessary in view of our holding supra.
What we have said also covers assignment of error 5 which predicated error in the overruling of appellant's motion for a new trial on the ground that the verdict was not sustained by the great preponderance of the evidence; and assignment of error 24 charging error in the refusal of a charge dealing with the question of whether the insured was in ill health on the date of the issuance of the policy.
Having disposed of the argued assignments of error and finding no reversible error, the judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.
MERRILL, Justice.
In brief on rehearing, appellant calls to our attention a stipulation on transcript paper, signed by counsel for both parties, which states that the minute entry of February 11, 1963, from which we quoted in the original opinion that demurrers were sustained as to replications "2 through 35," should have read "2 through 36."
This sheet of paper was filed in this court prior to submission, was folded and placed between pages of the transcript, but it escaped our notice prior to the application for rehearing. It was not bound to the transcript nor did it carry any signatures other than those of counsel. Had we noticed *741 it, we would have mentioned it in the original opinion; and, for that reason, we are extending the opinion.
The stipulation signed by counsel is not sufficient to impeach, alter, change or vary the minute entry as shown in the record.
Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587; Morris v. State, 268 Ala. 60, 104 So. 2d 810; Evans v. Avery, 272 Ala. 230, 130 So. 2d 373.
If the transcript, certified by the clerk as being a true and correct copy of the proceedings, is incorrect, or omits something, the remedy is to ask for a writ of certiorari to complete it. Morris v. State, 268 Ala. 60, 104 So. 2d 810; Johnson v. Bryars, 264 Ala. 243, 86 So. 2d 371, and cases cited. This is the only method by which this court can secure a properly certified and authenticated transcript. The authorities cited supra show that this rule has been applied even though the changes or alterations sought were supported by affidavits of the court officals or that "serious hardship" would result.
Since the minute entry in the record shows that replication 36 was before the trial court, we have decided the case on that basis, disregarding the stipulation of counsel. We hasten to say that this in no was impinges on integrity of counsel. We know them to be gentlemen of honor and of the highest integrity.
Application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | April 15, 1965 |
817e773d-d17e-4dc7-9487-bc9b261d8856 | AGM Drug Company of Alabama v. Dobbs | 172 So. 2d 379 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 379 (1965)
AGM DRUG COMPANY OF ALABAMA
v.
Harold R. DOBBS.
3 Div. 144.
Supreme Court of Alabama.
February 25, 1965.
Jones, Murray & Stewart, Montgomery, for appellant.
Lucio L. Russo, Atlanta, Ga., for appellee.
MERRILL, Justice.
The sole question presented on this appeal is whether the trial court erred in allowing the appellee two and one-half months' salary in the final decree rendered in this cause on January 23, 1964.
Complainant, AGM Drug Company of Alabama, a corporation, alleged in its bill of complaint that appellee, Harold R. Dobbs, had been president and general manager of the corporation until November 3, 1963, when he was discharged by the Board of Directors; that since his discharge, the said Harold R. Dobbs had continued periodically to exercise the powers and duties of the president of the corporation, to harass the present management of the said corporation, and that, if such actions were continued, irreparable injury would result. The prayer sought a temporary restraining order and permanent injunction enjoining the appellee from interfering with the business of the appellant in any way and damages to the extent of *380 $5,000 to compensate appellant for damages done it by appellee.
The answer admitted the jurisdictional allegations, denied all other allegations in the bill, and alleged that appellee was still president of the corporation but contained no prayer for a monetary award.
The cause came on to be heard on December 3, 1963, and after taking some testimony, the hearing was continued until December 11 when it was resumed. At the conclusion of the hearing on December 12, the cause was submitted and the decree was rendered on January 23, 1964. The court decreed that appellee had been validly discharged as president of the corporation; he was enjoined from interfering with appellant's business; and was awarded a sum equal to two and one-half months' salary, to wit: $2,125.
Although appellant's appeal is from the decree, it makes plain that it disagrees only with that part of the decree awarding salary in the sum of $2,125.
Appellant contends that there is no basis for the award of salary either in the pleadings or in the proof. We are constrained to agree.
Relief in equity can only be granted on allegations and proof; and the latter will never be allowed to supply defects or omissions in the former. Allegations, admitted or proved, are the only premises which will uphold a chancery decree. McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Jackson Realty Co. v. Yeatman, 219 Ala. 3, 121 So. 415; Majors v. Killian, 230 Ala. 531, 162 So. 289; Stephens v. Pleasant Hill Baptist Church, 264 Ala. 394, 88 So. 2d 570. The same principle is also stated as: "Relief afforded by a decree must conform to the case made by the pleadings as well as the proof." Goodman v. McMillan, 258 Ala. 125, 61 So. 2d 55; Bain v. Howell, 252 Ala. 458, 41 So. 2d 588.
There is no claim of any kind made for salary in the pleadings. The only mention of salary in the pleadings was in connection with the allegation in paragraph 4 of the bill that Dobbs still claimed to be president of the corporation and "is claiming salary and expenses and charging items to the corporation." There was no claim for salary in the answer, and the answer specifically denied the allegations of paragraph 4 of the bill.
The proof showed that Dobbs was claiming salary and expenses after the date of his dismissal, but on the ground that he had not been legally discharged and was still president of the corporation; and also that the Directors had offered him an extra month's pay if he would resign, but it is undisputed that he did not resign.
Under questioning by the court, Dobbs admitted receiving a paycheck for his duties as president up to November 15, 1963. Since the trial court found that he had been lawfully discharged effective November 4, 1963, he was actually paid for services he did not render; and there is no proof of any claim of salary for any time that Dobbs was not president of the corporation.
It cannot be argued that the relief could have been granted under a general prayer of the bill, because the bill in this case contained no general prayer.
It follows that the award of additional salary to appellee was not sustained by either pleadings or proof and that part of the decree must be reversed. Since no attack is made on any other portion of the decree, it is affirmed in all respects other than that of the salary.
Affirmed in part and reversed in part, and remanded for the exclusion of the salary feature (item 4) of the decree.
Affirmed in part; reversed in part; and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | February 25, 1965 |
f1bbeb5f-8425-4ceb-abe3-d836977c8f2f | State v. Ingalls | 173 So. 2d 104 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 104 (1965)
STATE of Alabama
v.
Ellen G. INGALLS.
6 Div. 98.
Supreme Court of Alabama.
March 18, 1965.
*105 Thomas Coleman, Special Asst. Atty. Gen., and Whitmire, Morton & Coleman, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
COLEMAN, Justice.
The state, as condemnor, appeals from a judgment rendered by the circuit court in an eminent domain proceeding to condemn the residence of a landowner.
The condemnor argues that the court erred in giving landowner's requested Charge 3 which recites as follows:
Condemnor argues that giving Charge 3 was erroneous and prejudicial to condemnor because: (1) The jury is bound by the testimony whereas Charge 3 instructs that the jury is not so bound; (2) the evidence was to effect that the condemned property had a market in Birmingham and there was no evidence to the contrary; and (3) the condemned real property could have a market only at its location, i. e., Birmingham; the court correctly sustained objection to testimony as to price of comparable houses in other cities; the charge "created an irreconcilable conflict between the court's ruling on the admission of evidence, and the given charge," * * * and * * * "The charge authorized the jury to find, speculatively, that the * * * house did not have a market in Birmingham; that comparable houses in" * * * other cities * * * "had a selling price greater than in Birmingham" * * * hence jury "award might be greater than the selling price at Birmingham."
As to the first criticism, Charge 3 recites in part that "the jury should reach a conclusion based on all the testimony." In the light of that statement, we do not think that Charge 3 can be properly interpreted as telling the jury that they are not bound by the testimony and have an absolute right to disregard the testimony, as did Charges 55, 56, and G, which were condemned in O'Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87. The statement, that "the jury is not bound by the judgment or testimony of any witness," can fairly be taken to mean that the jury is not bound by the testimony of any single witness. The charge may be misleading in that respect, but if it is, the condemnor should have requested additional, explanatory charges. Drennen v. Smith, 115 Ala. 396, 22 So. 442; United Insurance Company of America v. Ray, 275 Ala. 411, 155 So. 2d 514.
On page 35 of appellant's brief, it is stated that four witnesses testified that the property had a market at Birmingham and that the prices fixed by these witnesses ranged from $90,000.00 to $250,000.00. We *106 are not persuaded that the jury was bound by the testimony of any one of the witnesses or that Charge 3 states an incorrect proposition of law for the second or third reason argued by condemnor.
If, as condemnor says, all the evidence was that the property had a market in Birmingham, and there was varying testimony as to the market price, we fail to see the error in instructing that on the question of whether there was a market in Birmingham, the jury should reach a conclusion based on all the testimony and were not bound by the judgment or testimony of any one witness on this question.
Neither do we understand how Charge 3 authorized the jury to consider market value in other cities. Condemnor states in brief that "The Trial Court correctly ruled * * * that * * * testimony as to the selling price of comparable houses in other cities was not admissible." We do not think Charge 3 permits the jury to reach a conclusion based on testimony that was not admitted.
We are of opinion that giving Charge 3 was not error.
Condemnor says the court erred in overruling condemnor's motion to exclude a statement made by landowner's expert witness when he was cross-examined by condemnor as follows:
"MR. COLEMAN: I don't believe I asked you what you said.
"MR. MORTON: We move to exclude it.
"THE COURT: Overruled.
"MR. COLEMAN: We except."
Condemnor insists that part of the answer was unresponsive and should have been excluded because it was immaterial and irrelevant and prejudicial to condemnor. We understand that condemnor moved to exclude the following part of the answer, to wit: "* * * that so far as the present owner-occupant was concerned she would not be justified in selling it for less than $385,000."
The question was: "You stated * * * that you arrived at your evaluation from a market data approach, didn't you * *?" The witness undertook to reply as to what he had said.
The record shows that on re-direct examination, immediately prior to the cross-examination set out above, this witness had testified as follows:
"A And landscape fees. Landscape architect fees.
"Q Right. And those come to $30,000, making $315,000. Now, that *107 would be exclusive of the cost of the lot and the improvements on the lot.
"A Yes, sir.
"A For the land betterments, $25,000.
"Q Let's see now.
"MR. SIMPSON: $385,000.
"A $385,000.
"Q And that is approaching it from the replacement standpoint?
"A Yes, sir.
"MR. CONERLY: I believe that is all."
In still earlier cross-examination this witness had also testified:
It seems clear that, prior to the answer which condemnor sought to exclude, the witness had stated that the value was $385,000 "from the replacement standpoint." On cross-examination he was asked what he had said. We are of opinion that in that part of the answer which condemnor moved to exclude, the witness was saying that he had said that the house was worth $385,000 to the owner. That does not seem to us unresponsive to the inquiry asking what the witness had previously said as to how he had arrived at his evaluation.
It follows that, if the answer was not unresponsive, the court was not in error in refusing to exclude the answer on that ground. We so hold.
Condemnor assigns as error refusal of its requested Charge 1 which recites:
"Refused, Ingram Beasley, Judge.
"Alabama Power Co. v. Henson 237 Ala. 561, 187 So. 718"
Condemnor relies on Popwell v. Shelby County, 272 Ala. 287, 291, 130 So. 2d 170, where we said:
We are not advised wherein the trial court admitted evidence which tended to establish an imaginary or speculative value. In its oral charge the court instructed the jury that: "* * * just compensation is to be fixed on that date, and the sum so fixed should represent the enlightened judgment of the jury of the fair cash market value of the land herein involved * * *." *108 The court further gave to the jury definitions of market value. The correctness of these instructions is not challenged.
In Popwell's case, this court was concerned with admissibility of evidence, not with instructions. We are not disposed to question the correctness of the principle stated in Charge 1, but we do question the propriety of telling the jury not to build up an imaginary or speculative value without also telling the jury what constitutes an imaginary or speculative value. The court instructed in some detail as to what constitutes a fair market value. Without a definition of imaginary or speculative value, the jury would be left to make their own rule as to what constituted such a value. The result might well have misled or confused the jury.
We are of opinion that the court was not in error in refusing Charge 1 for two additional reasons.
First, the charge was abstract, being based on facts not appearing in evidence, and it is not error to refuse such instructions. Troy v. Rogers, 113 Ala. 131, 145, 20 So. 999; Pappas v. Alabama Power Company, 270 Ala. 472, 479, 119 So. 2d 899.
Second, the instruction bears a citation to two decisions of this court. The statute, § 273, Title 7, requires that "Charges * * * must be given * * * in the terms in which they are written * * *." The court would be bound to read to the jury, not only the proposition of law stated in the charge, but also the written citations. The citations would not help the jury. Some courts have said that such notations on instructions are improper, although the court refused to reverse for giving such an instruction. Springer v. Orr, 82 Ill.App. 558, 563; State v. Ahaus, 223 Ind. 629, 636, 63 N.E.2d 199. The Supreme Court of Idaho has said:
We are of opinion that refusal of a requested charge does not constitute error where, as here, the charge bears citation of authority.
Condemnor assigns as error refusal of its requested Charge 2 as follows:
"Refused, Ingram Beasley.
"Popwell vs. Shelby County 272 Ala. 287, 130 So.2d 170"
Like Charge 1, Charge 2 bears citation of authority, and, for the reason, refusal to give it was not error.
Moreover, the court gave condemnor's Charge 7, which recites:
Refusal of charge is not cause for reversal where same rule was substantially *109 and fairly given to jury in other given charges. § 273, Title 7, Code 1940.
Condemnor's refused Charge 4 was covered by the court's oral charge.
Error not being shown the judgment is due to be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | March 18, 1965 |
2b326486-c12b-4e8a-85b4-f7a636333c26 | Watson v. Watson | 178 So. 2d 819 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 819 (1965)
Berta Louise WATSON
v.
W. Mack WATSON.
3 Div. 124.
Supreme Court of Alabama.
April 15, 1965.
Rehearing Denied September 30, 1965.
Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
Jones, Murray & Stewart, Montgomery, for appellee.
HARWOOD, Justice.
In the proceedings below W. Mack Watson filed a bill of divorcement against Berta Louise Watson. This original bill alleged cruelty. Berta Louise Watson filed an answer and cross-bill by which she sought a divorce on the grounds of cruelty.
W. Mack Watson amended his bill and asserted that Berta Louise Watson was guilty of adultery with one P on 1 December 1962, and further amended his bill to allege that he had no knowledge of said adultery until after he and his wife had separated.
*820 To the amended pleading the wife filed an answer denying adultery or cruelty on her part.
After hearing the court below awarded W. Mack Watson a decree of divorce on the grounds of adultery, and also made certain provisions for the award of alimony. This appeal is from that decree.
Our review of this judgment has been rendered somewhat difficult not so much because of the evidence introduced, but because of the lack of evidence in certain aspects of this case.
The evidence shows that on 2 December 1961, a fire occurred in an apartment maintained by Mr. P. in Montgomery, Alabama. Mr. P died the next day from burns received in the fire.
In investigating the fire the fire inspector for the city of Montgomery found the following handwritten letter in P's apartment:
Dear Bill:
We think the evidence sufficient to show that this letter was in the handwriting of the respondent, Berta Louise Watson.
The evidence further shows that about 22 May 1962, Mrs. Watson left the marriage abode without any notice to Mr. Watson, and at the time he did not know why she had left.
The evidence further shows that a few days prior to Mrs. Watson's departure, Mr. Watson and his nephew had waylaid and rather severely beaten a man who the nephew had suspicioned was having an affair with the nephew's wife. On the morning that Mrs. Watson left, Mr. Watson had expressed his opinion of unfaithful wives, and what they needed done to them.
The night of the day Mrs. Watson left, Mr. Watson tried to locate her by telephoning her mother's home in Enterprise, but could not locate her there. A night or two later, Mrs. Watson telephoned Mr. Watson from Luverne. Her tongue was thick and she merely cursed Mr. Watson and hung up. The same proceeding seems to have been followed the following night.
Mr. Watson testified that at the time his wife left he had no idea that she was "running around" on him, and the first intimation he had of this situation was the day after Mrs. Watson had gone when his nephew told him that he "reckoned she knew she was going to get told on and got scared and left."
Mr. Watson further testified that during their marriage Mrs. Watson would leave for the weekend, "not every month, but once or twice a month" supposedly to visit her mother in Enterprise.
Mrs. Watson did not testify in person in the proceedings below, but her testimony was by deposition. She denied she had ever committed adultery with P and gave further testimony toward establishing her allegation of cruelty toward her by Mr. Watson. There is no testimony on her part concerning the above mentioned letter.
*821 In reaching a conclusion in this review, we are met at the outset by the provisions of Section 26, Title 34, Code of Alabama 1940, that, "No decree can be rendered on the confession of the parties or either of them; * * *."
Originally our statute provided that, "In order to prevent collusion between the parties, in no case shall the confession of them, or either of them, be taken or received as evidence, in any case of divorce." Clay's Dig., 171, Section 16.
However, our Code of 1852, repealed the above Section and substituted for it in Section 1966, the following provision:
This provision has been carried forward in our Codes in the exact language since
As stated in the case of King v. King, 28 Ala. 315, confessions are admissible, but the rendition of a decree of divorce is forbidden when a confession constitutes the only evidence of the alleged cause for divorce. "Whilst, therefore, it allows their confessions to be received, it denies credit to them, whenever they are unsupported."
However, as pointed out in King v. King, supra, the provision
See also, Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188; Cox v. Cox, 230 Ala. 158, 160 So. 230.
It is clear under our decisions that confessions of a party in a divorce suit must be corroborated. Lunsford v. Lunsford, supra. "Corroborating evidence" is evidence supplementary of that already given tending to strengthen or confirm it; additional evidence of a different character to the same point. Black's Law Dictionary, 4th Ed. page 441.
As stated in Hall v. Hall, 93 Fla. 709, 112 So. 622:
The evidence which counsel for appellee argues corroborates the confession contained in the letter is, first, Mrs. Watson's sudden departure without explanation upon learning Mr. Watson's strong feelings toward unfaithful wives upon the occasion that he and his nephew beat up the man allegedly involved in an affair with the nephew's wife.
It is counsel's argument that "the guilty fleeth where no man pursueth." However, there is no evidence in the record that Mrs. Watson knew at the time of her departure that any letter written by her had been discovered. It is the contention of her attorney that her departure resulted from fear of Mr. Watson, and his cruelty to her.
Standing alone Mrs. Watson's departure, some four and one half months after the date of the letter, in no wise tends to establish the delictum of adultery on her part. Further, no evidence was presented tending to show that Mrs. Watson had ever been seen in P's company, or in or near his apartment. All in all the reason for Mrs. Watson's departure, insofar as disclosed by the record, can rest only in guesswork and *822 speculation. This forms no basis for a judicial decree. Burdette v. Burdette, 245 Ala. 26, 15 So. 2d 727; Barnett v. Barnett, 266 Ala. 489, 97 So. 2d 809.
The second basis of corroboration argued by counsel as corroborating the confession is the fact that during the marriage Mrs. Watson would frequently be absent over a weekend supposedly on visits to her mother in Enterprise. Counsel argues that this shows "opportunity for extended adultery." Again, counsel's observation is merely speculation. Opportunity for misbehavior has never been considered as proof of misbehavior. It would seem that whether Mrs. Watson actually did go to her mother's home on these weekends was a matter easily susceptible of proof, but no evidence in this regard was offered by either party.
While Mrs. Watson did not attend the trial below, and testified by deposition only, we do not think it can be said that this absence from the trial in any wise tended to prove the adultery apparently admitted in the text of the letter in question.
In Russell v. Russell, 270 Ala. 662, 120 So. 2d 733, a divorce suit based on adultery, the respondent husband had admitted that he was the father of the three children of his paramour. Additional evidence established that he had totally supported his paramour and her three children for a long number of years; that the youngest child bore his name, and that he had petitioned the juvenile court of Lowndes County for its custody, and had brought the child into his home to live. Clearly, this additional testimony rationally tended to support and corroborate the husband's admission of adultery, and obviates any resort to speculation in applying its corroborative effect.
Again in Lunsford v. Lunsford, supra, in addition to the wife's admission of marital misconduct, she and her paramour had been seen kissing and hugging, and also observed under other "very suspicious circumstances." She was delivered of a baby on a date which the course of nature indicated was conceived during the time her husband had been confined in a hospital with a serious illness. Again, this additional evidence was substantial in its tendencies to corroborate the wife's admission of infidelity.
No substantial evidence was produced in the court below to sustain the charge of adultery on the part of Mrs. Watson, other than the aforementioned letter. Under the provisions of our statute law, and the decisions thereunder, this confession must be corroborated by substantial evidence tending to prove the delictum of adultery. It is Mr. Watson's misfortune that he has presented only evidence of a most speculative character in corroboration of the confessory statements contained in the letter. We can only act upon the case as made by the evidence and the law applicable thereto. A divorce should not have been granted on the grounds of Mrs. Watson's adultery.
Other matters are argued relative to the court's award of alimony in a lump sum. Since that part of the decree awarding a divorce is erroneous, and this judgment must be reversed, we pretermit a consideration of the assignments of error relating to the alimony aspect of the decree.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.
HARWOOD, Justice.
In brief in support of appellant's (wife's) application for rehearing, counsel has pointed out that a reversal and remandment of the judgment might well result in denying counsel for appellant an attorney's fee for representing Mrs. Watson in the proceedings below in the event no further proceedings are had.
*823 The original bill was filed by the appellee-husband: While the appellant filed a cross bill, the decree of divorce was awarded on the husband's amended bill. Under these circumstances counsel for the appellant-wife was, in the discretion of the court, entitled to be awarded a reasonable attorney's fee for his representation of the wife. Penn v. Penn, 246 Ala. 104, 19 So. 2d 353, and cases cited therein.
In its decree the lower court adjudged:
Since the lump sum award of alimony of $2,250 is rendered nugatory with the reversal of the decree, it would appear to be sounder to remand the matter of the amount of solicitor's fee to be awarded the solicitor for the appellant to the lower court for further consideration. In other words, since the solicitor's fee was carved out of the lump sum award, the lower court may have fixed the amount in the background of the lump sum award, whereas without such background the amount of the solicitor's fee may have been fixed at a higher, or lower, figure than that arrived at by the court under the circumstances.
On original submission no request for a solicitor's fee for prosecuting this appeal was requested. This matter was therefore not before us. Since further proceedings are yet open in the lower court, we will not now award a solicitor's fee to counsel for appellant in connection with this appeal. However, we are clear to the conclusion that the solicitor for the appellant is entitled to a fee for his services to be determined by the lower court.
Counsel has argued other points in support of the application for rehearing. These matters were considered in our original opinion and we adhere to our original views.
Opinion extended, application overruled.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | April 15, 1965 |
91049477-3f3f-4917-8371-a3abee0ee0fa | Shivers v. Shivers | 171 So. 2d 109 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 109 (1965)
Otilla SHIVERS
v.
Barto SHIVERS.
3 Div. 135.
Supreme Court of Alabama.
January 21, 1965.
Fred D. Gray, Montgomery, for appellant.
Heirston L. Foster, and John T. Batten, Montgomery, for appellee.
SIMPSON, Justice.
Appeal from a decree of the Circuit Court of Montgomery County, In Equity, Domestic Relations Division, finding that appellant (wife) was not entitled to relief on her cross-bill for divorce a mensa et thoro and awarding her monthly payments of ten dollars and granting appellee a divorce a vinculo matrimonii.
The evidence tended to show that the parties were married to each other in 1915 and lived together as man and wife until the year 1936, at which time they separated. Appellant's proof tended to show that the separation occurred due to no fault of hers. Appellee's proof tended to show that the separation occurred due to appellant's fighting him, hitting him with a hammer, fists, and threatening him with a pistol. Appellant and appellee have been separated for some twenty-eight years and have not lived together since the separation. Appellee is sixty-eight years old, is a veteran of World War I, and is now retired from the Louisville and Nashville Railroad and drawing a retirement check. He has to make frequent trips to a physician and his medical bills run from $9.00 to $25.50 every two weeks. Appellant lives in Madras, Georgia, where she has resided for three years before the suit was filed. She has been living in the State of Georgia for the past thirteen years.
Appellant first argues that the lower court erred in refusing relief on the cross bill based upon abandonment for two years without support from the husband, under § 22, Tit. 34, Code of Ala. 1940, as amended, which provides in part as follows:
"* * * In favor of the wife when the wife has lived, or shall have *110 lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the bill; and she has bona fide resided in this state during said period."
The evidence is uncontradicted that appellant has not lived or resided in Alabama for the period of two years next preceding the filing of the cross bill, but to the contrary that she has resided in the State of Georgia for the past thirteen years. She could not therefore invoke the provisions of § 22, Tit. 34, supra.
The case below was taken under consideration by the lower court on the oral testimony of the witnesses and it has long been the rule in this Court that the lower court's finding of fact is presumptively correct and will not be disturbed on appeal unless plainly or palpably wrong, or against the great weight of the evidence. Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918; King v. King, 269 Ala. 468, 114 So. 2d 145; Wilfe v. Waller, 263 Ala. 110, 81 So. 2d 614; Puckett v. Puckett, 240 Ala. 607, 200 So. 420. We are not prepared to conclude that the lower court plainly or palpably erred in its award to appellant or that its decree was against the great weight of the evidence, or that any error was committed in granting appellee a divorce a vinculo matrimonii.
It would appear to the impartial mind, from the attendant circumstances adduced by appellee's attorneys, that appellant's motivations in contesting appellee's suit for divorce was probably that she desired to have appellee's veteran's benefits and his railroad retirement benefits after his death. Under these and other facts adduced we fail to see any error committed by the lower court.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | January 21, 1965 |
bc78e484-6c43-4175-b891-c3a42cf470ee | Knox v. State | 172 So. 2d 795 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 795 (1965)
Grady KNOX
v.
STATE.
8 Div. 190.
Supreme Court of Alabama.
March 11, 1965.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for petitioner.
Ralph E. Slate, Decatur, opposed.
HARWOOD, Justice.
Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision in Knox v. State, 172 So. 2d 787.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | March 11, 1965 |
3803e69c-bbdc-43ce-b1c0-31bd9327f3ce | Longshore v. City of Homewood | 171 So. 2d 453 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 453 (1965)
T. C. LONGSHORE
v.
CITY OF HOMEWOOD et al.
6 Div. 138.
Supreme Court of Alabama.
February 4, 1965.
Griffin & Wilson, Birmingham, for appellant.
J. M. Breckenridge, John S. Foster and Wm. W. Conwell, Birmingham, for appellee City of Birmingham.
SIMPSON, Justice.
The decree in this case was rendered by the lower court in September, 1964, but the case was not submitted to this court until the 8th day of January, 1965. Contrary to published reports, it was not submitted to this court in September.
Appellant is a resident of the City of Homewood. He filed a petition in the Probate Court of Jefferson County contesting a special election held on August 11, 1964, under the provisions of Title 37, § 188, Code of Alabama 1940 (recompiled 1958), which election was held to determine whether the City of Homewood would be annexed to the City of Birmingham.
The Probate Court dismissed the contest for want of jurisdiction to hear the matter. The appeal is from the decree dismissing the cause.
*454 Title 37, § 188 is as follows:
The only question to be decided on this appeal is whether or not the Probate Court has jurisdiction to hear and determine a contest of an annexation election held under the provisions of the quoted statute.
The legislature has not specifically provided for a contest of an election held under § 188, supra.
In addition to § 188 there are at least four other acts in Title 37 dealing with the alteration of municipal boundaries. The legislature specifically provides for contests of elections held under the provisions of each of these statutes.
Title 37, § 135 permits a municipality to extend its boundaries or limits by annexing contiguous unincorporated territory. The qualified electors in the territory to be annexed vote for or against annexation. Such annexation election may be contested by any qualified elector voting at the election "under the same provisions as are provided by general law for contesting the election of justice of the peace making the city or town the contestee." (Such contests being brought in the Probate Court under the provisions of Title 17,§§ 236, 247-253, Code).
Title 37, § 138 allows a municipality having 25,000 inhabitants, or more, to extend its corporate limits by holding an election by the qualified electors residing in the territory to be annexed. Section 150 provides that "the result of such election may be contested by any qualified elector voting at the election, as is provided by general law for contesting the election of justice of peace, making the city the contestee." (Probate Court, Title 17, § 236, supra).
Title 37, § 195 et seq. provides for the uniting of two contiguous municipalities. The qualified electors in the city or town to be annexed vote on a written annexation agreement stating the terms and conditions of the proposed annexation. Such "election may be contested in the same manner as is provided for the contest of any city or town officers." Section 200. (Such contest must be filed in the Circuit Court, Title 37, § 34[68]).
Title 37, §§ 237-250 provide for the exclusion of territory already included in a municipality and § 247 provides that "the *455 result of such election [held pursuant to § 237, et seq.] may be contested by any qualified elector voting at the election under the same provisions as are provided by general law for contesting the election of justice of the peace making the city or town the contestee. (Probate Court).
The question which we must decide is what the legislature intended by its silence on the question of contesting elections held pursuant to Title 37, § 188. The appellant argues that by analogy to these other statutes, it should be inferred that a contest was intended to be provided for and that the Probate Court should be assumed to have jurisdiction to hear such contests, since the legislature has given that court jurisdiction to hear contests of other and similar elections.
There are several reasons why we cannot agree with appellant:
(1) Probate Courts are courts of limited jurisdiction. They have only that jurisdiction which is expressly given by statute. Neither the Probate Judge nor the Probate Court can have any greater authority than that conferred by statute.American Surety Company of New York v. King, 237 Ala. 510, 187 So. 458; Broadfoot v. City of Florence, 253 Ala. 455, 45 So. 2d 311. Stated differently, "probate courts are courts of limited or special jurisdiction and, being inferior courts, cannot take jurisdiction or administer remedies except as provided by statute."14 Am.Jur., Courts, 252.
(2) Further, election contests exist only by virtue of statutory enactment and such statutes are to be strictly construed. Groom v. Taylor, 235 Ala. 247, 178 So. 33. "The right to contest an election is not a common-law right (Cosby v. Moore, 259 Ala. 41, 65 So.2d 178). Elections belong to the political branch of the government, and, in absence of special constitutional or statutory provisions, are beyond the control of judicial power." 29 C.J.S. Elections § 246. Further at § 247 the rule is stated that statutes providing for election contests "should be strictly construed or observed as to those provisions for inaugurating the contest and which are necessary to jurisdiction [citing Walker v. Junior, 247 Ala. 342, 24 So. 2d 431, 165 A.L.R. 1257; Groom v. Taylor, supra]. * * * An election contest being purely statutory, the courts are limited in their investigation to such subjects as are specified in the statutes. The remedy is not to be extended to include cases not within the language of the statute; and the right of contest is not to be inferred from doubtful provisions."
Certainly, in light of the above general statement, the right to contest an annexation election in a court of limited jurisdiction should not be inferred in the absence of any statutory provision on the subject.
In connection with this case we call attention to Bouldin v. City of Homewood et al., 6 Div. 135, this day delivered.
Decree affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | February 4, 1965 |
9f52630b-f8bb-434b-9d95-78995a0f3ac9 | Johnson v. Sexton | 173 So. 2d 790 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 790 (1965)
Jerol Johnny JOHNSON
v.
Sara L. SEXTON.
4 Div. 157.
Supreme Court of Alabama.
April 8, 1965.
*791 Fleming & Stephens, Elba, for appellant.
Rowe & Lane, Elba, for appellee.
LAWSON, Justice.
This is an action for damages claimed to be the result of negligence and wanton conduct of the defendant in operating an automobile which was in a collision with an automobile being driven by the plaintiff.
To the counts charging simple negligence the defendant pleaded the general issue and contributory negligence and to the count charging wanton conduct the defendant pleaded the general issue.
There was a jury verdict in favor of the plaintiff in the amount of $8,000. Judgment was in accord with the verdict. Defendant's motion for new trial was overruled. He has appealed to this court.
The defendant contends that the trial court erred in refusing to give affirmative instructions requested by him as to the wanton count.
In considering the question as to whether there was evidence from which the jury could find for the plaintiff on the wanton count, we must consider the evidence most favorable to the plaintiff. Buchanan v. Vaughn, 260 Ala. 482, 71 So. 2d 56, and cases cited.
The collision occurred on Alabama Highway 125 at about 6:30 P.M. on the evening of May 15, 1961, in the village of Victoria in Coffee County. Highway 125 at the point where the collision occurred runs generally in a northeasterly-southwesterly direction. The plaintiff was driving a Simca automobile in a southwesterly direction. The defendant was driving a Pontiac in a northeasterly direction. The two automobiles collided on the highway.
Evidence for the plaintiff would support a finding that she was driving her automobile at a moderate rate of speed in the lane designated for traffic moving in a southwesterly direction. She saw an automobile approaching her at a rate of speed which she estimated to be about seventy miles an hour. The driver was looking over his right shoulder and appeared to be talking to someone on the back seat When that automobile, *792 driven by the defendant, got within 125 feet of her automobile it came across the center line from the lane designated for traffic moving in a northeasterly direction into the lane in which plaintiff was driving her automobile and continued to move in that lane until it hit plaintiff's automobile. Aside from plaintiff's testimony as to how the collision occurred, there was evidence to the effect that debris was found after the collision in the lane of traffic in which plaintiff's automobile was being driven, indicating that the point of impact was in the lane designed for traffic moving in a southwesterly direction. The evidence also supports a finding that defendant had traveled the road in question on previous occasions and was familiar with the location of the village of Victoria. The road at the point of collision was straight and dry and visibility was not impaired by darkness.
Wantonness has been defined as the conscious doing of some act or the omission of some duty while under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277.
Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Rainey v. State, 242 Ala. 458, 17 So. 2d 687; Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So. 2d 821.
Defendant cites the case of Law v. Saks, 241 Ala. 37, 1 So. 2d 28, but the facts of that case differ so widely from the instant case as to render it ineffective here.
In this case the jury could find that the defendant knew he was in a village or town where traffic is to be expected, but continued at a speed of seventy miles an hour without keeping a lookout for traffic, and was thereby conscious that such acts would likely or probably result in injury, and that he proceeded with reckless indifference to the consequences.
The evidence, if believed, made out a case of wantonness and the affirmative charge as to this count was properly refused. Brown Hauling Co. v. Newsome, 241 Ala. 300, 2 So. 2d 782.
Assignments of error 2 and 3 are insufficient. They do not allege error by the trial court in any respect. Only adverse rulings of the trial court are subject to an assignment of error on appeal from a judgment in a civil case based on a jury verdict. Iverson v. Phillips, 268 Ala. 430, 108 So. 2d 168, and cases cited.
In any event, we are clear to the conclusion that no reversible error is made to appear in connection with the trial court's action in denying defendant's motion for mistrial because of the alleged prejudicial conduct of the plaintiff in the presence of the jury. When it was called to the attention of the trial court during the opening argument of counsel for plaintiff that she was "shedding tears" while sitting at counsel table, the trial court admonished the jury not to give any consideration to this emotional outburst on the part of plaintiff. We feel that this admonition of the court was altogether adequate to remove any prejudicial effect which the plaintiff's conduct might have had on the jury. See Lee v. State, 265 Ala. 623, 93 So. 2d 757.
The judgment is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 8, 1965 |
b5f07f9b-2238-49a2-a055-363fb86aaba1 | Pinkney v. James B. Clow & Sons, Inc. | 173 So. 2d 811 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 811 (1965)
Levie PINKNEY
v.
JAMES B. CLOW & SONS, INC.
6 Div. 848.
Supreme Court of Alabama.
February 18, 1965.
Rehearing Denied April 8, 1965.
John J. Smith and Geo. S. Brown, Birmingham, for appellant.
John J. Coleman, Jr., Charlotte Railey Kieffer and White, Bradley, Arant, All & Rose, Birmingham, for appellee.
GOODWYN, Justice.
This is a workmen's compensation case. There was judgment denying compensation. The employee brings this "appeal by certiorari" (Code 1940, Tit. 26, § 297) to review that judgment.
The employee filed his verified complaint in the circuit court of Jefferson County pursuant to Code 1940, Tit. 26, § 304. The employer filed several pleas to the complaint, as amended, asserting that the action "is barred by the statute of limitations of one year," that is, Code 1940, Tit. 26, § 296, and Tit. 7, § 26. The employee filed two special replications to these pleas, in which he alleged the following:
"That the defendant fraudulently and with the intention to deceive the Petitioner, did misrepresent to the Petitioner the following material facts upon which Petitioner relied to his detriment: That he, (Petitioner), was not entitled to Workmen's Compensation Benefits because he, (Petitioner), was hurt in Defendant's plant; that he, (Petitioner), would have been paid under the Workmen's Compensation Act if he, (Petitioner), had been hurt outside the gate of Defendant's plant; that said fraudulent misrepresentations were made to the Petitioner by the Defendant on to-wit: August 4, 1960, and *812 the Petitioner did not discover the falsity of said misrepresentation until to-wit: November 2, 1960.
The defendant demurred to the replications, separately and severally, moved to strike Replication No. 2, and demurred further to Replication No. 2. The demurrers and motion were overruled. These rulings are not challenged on this appeal.
After an oral hearing of the evidence, the trial court rendered a judgment denying compensation. The judgment, as required by § 304, Tit. 26, contains "a statement of the law and facts and conclusions as determined by" the trial judge. However, the statement is confined to the issue presented by Replication No. 1. The issue presented by Replication No. 2 is not determined. There is no dispute that the replications present separate and district issues. Under the circumstances, we have no alternative but to reverse and remand the cause for determination by the trial court of the issue presented by Replication No. 2.
Section 304, Tit. 26, supra, places on the trial judge a duty to make findings responsive to the issue presented; and where this is not done, the cause must be reversed whether the judgment is in favor of the defendant or the plaintiff. See: Head v. Triangle Construction Company, 274 Ala. 519, 524, 150 So. 2d 389; Reynolds Lumber Co. v. Kirby, 273 Ala. 252, 253-254, 139 So. 2d 341; Birson v. Decatur Transfer & Storage, Inc., 271 Ala. 240, 242, 243, 122 So. 2d 917; United Telephone and Telegraph Company v. Culiver, 271 Ala. 568, 570, 126 So. 2d 119; Alabama Textile Products Corporation v. Grantham, 263 Ala. 179, 182, 82 So. 2d 204; West Point Manufacturing Co. v. Bennett, 263 Ala. 571, 572-573, 574, 83 So. 2d 303; Diamond Coal Company v. White, 262 Ala. 112, 113, 77 So. 2d 372; Bass v. Cowikee Mills, 257 Ala. 280, 281, 282, 58 So. 2d 589; Hearn v. United States Cast Iron Pipe & Foundry Co., 217 Ala. 352, 353, 354, 116 So. 365; Bryant v. Central Foundry Company, 217 Ala. 332, 333, 116 So. 345.
There are cases which hold that, when the trial court's finding is merely meager or omissive, this court will look to the evidence to see if the judgment can be sustained on any reasonable view of it. See: West Point Manufacturing Co. v. Bennett, supra; Alabama Textile Products Corporation v. Grantham, supra; Ex parte Louisville & N. R. Co., 208 Ala. 216, 217, 94 So. 289. This principle is not applicable here for the reason that no finding was made with respect to the issue presented by plaintiff's Replication No. 2. It would be applicable in reviewing the finding with respect to the issue presented by plaintiff's Replication No. 1, since the trial court made a finding as to that issue.
*813 The judgment is reversed and the cause remanded.
Reversed and remanded.
LAWSON, MERRILL and COLLEMAN, JJ., concur.
GOODWYN, Justice.
The only mention of Replication No. 2 in the "statement of the law and facts and conclusions as determined by" the trial judge is the following under the caption "Pleadings," viz.:
What the employee contends is not a finding of fact. 100 C.J.S. Workmen's Compensation § 630a., p. 911; Spencer v. Industrial Commission of Utah, 87 Utah 336, 40 P.2d 188, 192, Reheard 87 Utah 358, 48 P.2d 1120.
As we read and understand the trial judge's "Conclusion of Law," the only issue dealt with is that presented by Replication No. 1 (fraudulentmisrepresentations of material facts). The "Conclusion of Law" is as follows:
*814 It seems clear that the "Conclusion of Law" does not deal with the issue presented by Replication No. 2, which charges that "defendant fraudulently and with intent to deceive petitioner, did suppress and conceal from the petitioner a material fact."
Opinion modified and extended.
Application for rehearing overruled.
LAWSON, MERRILL and COLEMAN, JJ., concur. | February 18, 1965 |
50bb675c-253c-466f-a353-daa27e7b9b32 | Ex Parte Huie | 178 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 156 (1965)
Ex parte J. Robert HUIE, Attorney at Law.
6 Div. 195.
Supreme Court of Alabama.
August 12, 1965.
Rehearing Denied September 9, 1965.
*157 Matt H. Murphy, Jr., Birmingham, for appellant.
Lawrence K. Andrews, General Counsel for Alabama State Bar.
COLEMAN, Justice.
Petitioner seeks review of an order of the circuit court holding petitioner in contempt because petitioner failed and refused to take the stand as a witness in a disbarment proceeding brought against petitioner by the "Grievance Committee of the Alabama State Bar Association."
The court ordered that petitioner be confined in jail until such time as he is "willing to conform to the order of the Court and take the stand as a witness." The court suspended the confinement and released petitioner on his own recognizance pending review.
We granted certiorari and the clerk has certified the record to us. It discloses that the Grievance Committee filed with the Board of Commissioners of the Alabama State Bar charges that petitioner has violated Rules 25 and 36 of Section A of the "Rules Governing the Conduct of All Persons admitted to the Practice of Law in the State of Alabama," which rules recite as follows:
"No person licensed to practice law in the courts of the State of Alabama shall be guilty of any conduct unbecoming *158 an attorney at law." (239 Ala. XXV)
See: 242 Ala. XV.
The specifications are that petitioner violated said rules in certain divorce cases by making representations as to the residence of a party or parties to the suit.
The President of the Board of Commissioners appointed an examining commissioner to take testimony and ordered him to take the testimony of petitioner at a specified time and place. Notice of the hearing and subpoena duces tecum were served on petitioner. At the appointed time, petitioner refused to take the stand. The examining commissioner obtained attachment for petitioner from the circuit court, and, after hearing, the court made the order holding petitioner in contempt, which order we now review.
Petitioner filed before the Board of Commissioners motions to quash the notice and subpoena duces tecum.
Petitioner argues that the court erred in holding him in contempt for five reasons which we discuss, not, however, in the order in which they are presented in brief.
First, petitioner argues that ". . . by virtue of Title 46, Section 35, that only the board, and any committee appointed by it shall have power to summons and examine witnesses ....," that petitioner is a defendant, not a witness, and that neither the Grievance Committee nor a commissioner has power to compel attendance and have petitioner's testimony taken by a commissioner; citing Lewis v. Gerald, 236 Ala. 91, 181 So. 306.
§ 33, Title 46, Code 1940, provides that the board of commissioners shall establish rules governing procedure in cases of alleged misconduct of attorneys. The board has done this. Rule 12, of Section B, recites:
A copy of the President's order appointing the examining commissioner appears in the record and fixes the date for taking testimony of petitioner.
§ 35, Title 46, recites that "the board, and any committee appointed by it for this purpose shall have power to summon and examine witnesses under oath and compel their attendance and the production of books ....," etc., and that "Such summons or subpoena shall be issued under the hand of the secretary of the board or the chairman of any duly constituted subcommittee of the board, and shall have the force of a subpoena issued by a court of competent jurisdiction ...."
Rule 19, of Section B, recites:
Two papers were served on petitioner. One paper is entitled: "NOTICE TO TAKE DEPOSITIONS" and is signed by counsel for the Alabama State Bar. It has not been pointed out to us where rule or statute provides that counsel may issue a subpoena, and, indeed, the notice does not expressly command petitioner to attend *159 the hearing. It may well be that petitioner could not be held in contempt if this notice were the only process served on him.
The subpoena duces tecum is under the hand of:
We think common knowledge justifies us in taking notice that this is the hand of the secretary of the board of commissioners. § 24, Title 46, Code 1940. To comply with the letter of § 35, Title 46, the description should be: Secretary of the Board of Commissioners of the Alabama State Bar.
This paper commands the sheriff to summon petitioner to appear before the commissioner and there to testify.
It seems to us that the examining commissioner was appointed and the day set as required by Rule 12 of Section B, and that subpoena was issued as provided by § 35, Title 46, and Rule 19. We hold that the commissioner had authority to take testimony and that the process served on petitioner was sufficient to satisfy the statute and rule.
Authority of the examining commissioner and proper service of sufficient process being shown, it follows that the court did not err in holding petitioner in contempt for the reason that the examining commissioner did not have lawful power to compel petitioner's attendance and to take his testimony.
Petitioner relies on the following statement:
In Lewis v. Gerald, supra, the court held that an attorney, who had been investigated by the Grievance Committee, was not entitled to read and inspect the evidence which that committee had acquired relating to charges of unprofessional conduct on the part of the attorney. Whatever may be the force of the statement from Lewis v. Gerald quoted above, the statement does not apply to the instant case because the instant petitioner has not been summoned to appear before the Grievance Committee. He was summoned to appear before an examining commissioner who was appointed by the president of, and who is taking testimony for, the Board of Commissioners.
Petitioner's first reason to show error is not well taken.
Second, petitioner argues that neither the examining commissioner nor the Board of Commissioners of the State Bar are qualified to act against petitioner because they have not been sworn as all officers are required, by Section 279 of the Constitution of 1901, to be sworn.
Section 279 applies only to state officers. State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31. We do not think that either the examining commissioner or the Board of Commissioners are state officers in the constitutional sense, and, therefore, are of opinion that Section 279 has no application. These commissioners are officers of the State Bar, which is an association of attorneys. The members of the association are not state officers.
"The attorney does not hold an office or public trust in the constitutional or statutory sense of that term, but is an officer of the court exercising a privilege or franchise. In a sense he is an officer of the state with an obligation to the public no less significant than his obligation to his clients. It is an office held during good behavior, and is one of which he can be divested only upon good cause shown and after proper judicial proceedings. See Ex *160 parte Garland, 4 Wall. (U.S.) 333, 18 L. Ed. 366; Bar Ass'n of Boston v. Casey, 211 Mass. 187, 97 N.E. 751, 39 L.R.A.(N.S.) 116; Ex parte Faulkner, 1 W.Va. 269; 6 C.J. 568, and authorities cited." In Re W. Marvin Clifton, 115 Fla. 168, 173, 155 So. 324, 326.
We think it follows that the examining commissioner and the Board of Commissioners are not state officers, in the constitutional sense, and that § 279 does not apply to them.
Petitioner asserts that, because he had filed with the Board of Commissioners a motion to quash the service of the notice and subpoena duces tecum, the matter was in the hands of the Commissioners and "a quorum of the Commissioners was necessary before there could be a proper ruling as set out in Title 46, Section 33 of the Code of Alabama of 1940."
As already noted, § 33, Title 46, provides that the Board of Commissioners shall establish rules of procedure in cases involving professional misconduct and the Board has established such rules. We do not find in § 33 any requirement that a quorum of the Board must act on a motion to quash before a commissioner appointed according to the rules can take testimony, and, therefore, we are of opinion that action by the Board on the motion was not a condition precedent to the action taken by the circuit court in the order now under review.
We hold petitioner's second reason not well taken.
Third, petitioner asserts that under § 126, Subdivision 4, of Title 13, the circuit court does not have jurisdiction to impose "a direct and continuing contempt of court against an accused attorney who merely declines to appear before the Grievance Committee of the Alabama State Bar prior to trial. Ex parte Bullen, 236 Ala. 56, 181 So. 498."
Petitioner misconceives the nature of the proceeding, in which he has been summoned to testify, in supposing that he is being summoned before the Grievance Committee prior to trial. He is on trial and is summoned as a witness before the examining commissioner appointed by the President of the Board of Commissioners.
§ 126(4) provides that the circuit court has authority to punish contempts by fines, not exceeding fifty dollars, and by imprisonment not exceeding five days. In Bullen, petitioner had been sentenced to sever one hour in jail for contempt for refusing to answer a question. This court said he was guilty of a direct contempt and subject to punishment by fine or imprisonment, or both.
From the citations, we understand petitioner's argument to be that, in the case at bar, if petitioner actually be in contempt, the court could have punished petitioner by a fine, not exceeding fifty dollars, or imprisonment, not exceeding five days, or both, but that the court could not order petitioner to be confined until he is willing to take the stand as a witness.
We think petitioner is in error because of § 35, Title 46, and § 455, Title 7. § 35, Title 46, provides in part:
§ 455 of Title 7 recites:
See Ex parte Morris, 252 Ala. 551, 42 So. 2d 17.
*161 In as much as the subpoena duces tecum here has the force of a subpoena issued by a court of "competent jurisdiction," and refusal of a duly subpoenaed witness to testify subjects him to confinement unless he is privileged from testifying, and petitioner was duly subpoenaed and has refused to testify, he is subject to confinement, unless privileged by law from testifying in the cause.
Petitioner's third reason does not show error.
Petitioner's fourth and fifth reasons go to the question of privilege. Petitioner argues that he cannot be required to testify because § 43, Title 46, commands him to preserve the secrets of his clients, and because ". . . The accused attorney beyond per adventure of a doubt is being called upon in this sort of case to take the stand and give testimony, which would involve a mental operation of his own client and that as a matter of state law, he is actually faced with a disbarible (sic) offense if he should reveal any of the secrets of his clients ...."
Petitioner has not taken the stand and no question has been propounded to him. To say now whether he will be privileged to refuse to answer any question would be sheer speculation. The possibility that a question might call for privileged evidence does not justify petitioner in refusing to take the stand.
In reply brief, petitioner appears also to contend that he is being called to give evidence against himself in violation of Section 6 of Constitution of 1901.
In a criminal case, the prosecution cannot call defendant as a witness against his will. If the proceeding against petitioner were a criminal case, the prosecution could not call petitioner as a witness, against his will, because he is the defendant. We do not think, however, that the proceeding in which he is called to testify is a criminal case. This court, in a disbarment proceeding, has said:
Because the proceeding, in which petitioner is called to testify, is not a criminal case, we hold that the fact that he is the defendant is not a good ground entitling him to refuse to take the witness stand.
We do not say that he may be compelled to answer a question when his answer to the question would incriminate him. No question has been asked, and here again we will not speculate. In this connection, see: Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954, 6 L. Ed. 2d 156; In re Cohen, 9 A.D.2d 436, 195 N.Y.S.2d 990; Matter of Cohen, 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672.
Error not being shown, the judgment is due to be affirmed.
Affirmed. LAWSON, GOODWYN, and HARWOOD, JJ., concur. | August 12, 1965 |
81132408-8242-488e-ba52-f63ae9fe55a7 | Hathcock v. Mitchell | 173 So. 2d 576 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 576 (1965)
B. E. HATHCOCK
v.
Edward S. MITCHELL et al.
4 Div. 170.
Supreme Court of Alabama.
January 21, 1965.
Rehearing Denied April 15, 1965.
*578 T. E. Buntin, Jr., Buntin & Buntin; Alto V. Lee, III, Lee & McInish, Dothan, and B. B. Rowe, Rowe & Lane, Enterprise, for appellant.
Joe C. Cassady, Enterprise, and Jas. W. Kelly, Geneva, for appellees.
HARWOOD, Justice.
The appellees in this case are the executor and executrix of the estate of D. D. Mitchell, deceased. For convenience, the appellees will hereinafter be referred to as Mitchell.
In 1946, D. D. Mitchell built a store building in Enterprise. The building was leased to the A and P Tea Company who operated a grocery business therein.
In March 1959, D. D. Mitchell entered into a contract with B. E. Hathcock, doing business as Hathcock Roofing Company, whereby Hathcock was to place a new roof on the building. Some four or five days after the roof had been installed by Hathcock, and on a Sunday, the roof collapsed and fell into the store.
Thereafter A and P filed a suit in the United States District Court for the Middle District of Alabama, in Dothan, against Hathcock and Mitchell as co-defendants.
In the complaint as amended in the Federal court, A and P alleged among other things, that:
The pretrial hearing order entered in the Federal District Court was received in evidence. This order reveals that both appellant and appellee here, who were co-defendants in the Federal Court, pleaded the general issue.
We excerpt the following from the charge in that case which was received in evidence in the proceedings here being reviewed:
"Hathcock comes in, and they, in effect, say that, `Well, A & P is entitled *579 to recover, but they are not entitled to recover from us; we were not guilty of any negligence, we didn't fail to do anything that we should have done, we didn't do anything that we should not have done.' `The damages to A & P,' says Hathcock, `was proximately caused by the negligence of Mitchell in the construction of this building, which faulty construction was unknown to us, and which, after exercise of the diligence that we should have exercised, we say was still unknown to us.'
In the Federal case the jury returned a verdict in favor of the plaintiff against Mitchell and assessed damages at $12,000. Pursuant to this verdict, the court entered a judgment in favor of the plaintiff against Mitchell for the amount found by the jury as damages. The court further adjudged that the plaintiff take nothing by its complaint against Hathcock.
Thereafter Mitchell filed suit against Hathcock in the Circuit Court of Coffee County. This cause went to the jury on two counts, as amended, that is Counts 6 and 9.
Count 6 alleged negligence on the part of Hathcock in the inspection of the overhead structure of the building in question, the repairs thereto, and the installations of the bonded roof. It further alleged that said roof and overhead structure collapsed as a proximate consequence of said negligence and that Mitchell was damaged in the amount sued for.
Count 9 is identical with Count 6 except as to an additional claim of special damages of $12,000, plus interest thereon from 7 June 1960, which Mitchell averred was required to be paid A and P for damages to its goods and equipment as a result of the collapse of the roof.
This claim of special damages resulted from the judgment obtained against Mitchell in the suit in the Federal court.
Demurrers to Counts 6 and 9 being overruled, the defendant Hathcock thereafter filed a number of pleas to both counts.
Pleas 1 and 2 in each instance were pleas of the general issue. Plea 3 in each instance averred contributory negligence on the part of Mitchell in that damage to the building was occasioned by the negligent construction or superintending of construction of said building by persons who were not registered as general contractors by the Board of Registration for General Contractors of the State of Alabama, as required by Title 46, Section 65 et seq., Code of Alabama 1940, and that said building when constructed cost over $10,000.
Plea 4 in each instance averred contributory negligence on the part of Mitchell in negligently failing to have the plans and specifications of said building made by an architect registered by the Board of Registration for Architects of the State of Alabama as required by Title 46, Section 8 et seq., Code of Alabama 1940, and that said building when constructed cost over $10,000.
Plea 5 in each instance alleged negligence on the part of Mitchell in that the overhead and supporting structure of said building was negligently constructed.
Plea 6 as originally filed averred that this cause was res judicata and that Mitchell was estopped to prosecute this action on account of the institution on 3 September 1959 by the A & P Tea Company, an Arizona Corporation, the tenant in said building, of an action against Mitchell and Hathcock in the United States District Court, Middle District of Alabama, Southern Division, wherein A & P Tea Company was the plaintiff and Mitchell and Hathcock were defendants.
It was further averred that the defendants, Mitchell and Hathcock, in said action in the United States District Court were *580 identical with the parties in the action in the present suit, and that Mitchell's alleged cause of action in the present suit was identical with the facts as alleged in the action in the United States District Court; that the evidence in support of the allegations in the present cause would be substantially identical to that adduced at the trial of the action in the United States District Court before Judge Frank M. Johnson and a jury; that at the close of the evidence in the trial in the United States District Court, the jury rendered a verdict finding the issues in favor of A & P Tea Company and against Mitchell, and assessed damages at $12,000; that thereafter the United States District Court entered a judgment in favor of A & P Tea Company against Mitchell for $12,000, and also entered a judgment for Hathcock as against A & P Tea Company; that said final judgment was res judicata and in bar of Mitchell's right to maintain this action and that Mitchell was estopped to prosecute this action; that said judgment in the United States District Court has not been set aside, modified, or reversed, and that the same remains in full force and effect.
Pleas 10 and 11 again averred and set forth the judgment of the United States District Court as aforesaid as res judicata in bar of this action, and in bar of recovery of the special damages of $12,000 plus interest as claimed by Mitchell in Count 9.
Demurrers were filed by Mitchell to each of said pleas except Pleas 1 and 2, the pleas of the general issue. The demurrers to Plea 5, which alleged contributory negligence on the part of Mitchell in negligently constructing the overhead supporting structure of said building, were overruled.
Demurrers were sustained to the remaining pleas.
Thereafter, Hathcock filed Plea A in answer to the appellee's claim for special damages of $12,000 as contained in Count 9. The judgment of the United States District Court was again pleaded as res judicata in bar of Mitchell's right to recover said special damages and it was further averred that Mitchell was estopped to prosecute the claim therefor. As exhibit to said plea, a copy of the complaint filed in the United States District Court by the A & P Tea Company was attached. Mitchell refiled their demurrers to Plea A and these demurrers were sustained by the trial court.
Mitchell's amendment to Counts 6 and 9, wherein the claim for loss in rentals was stricken, was filed immediately prior to the trial of this cause in the court below. This necessitated the refiling of all prior demurrers, pleas, and demurrers to said pleas. The rulings of the court below were in accord in each instance with the rulings previously entered. In the interest of brevity these rulings are not again here set forth.
The rule of res judicata applies in those cases where the suits are the same, the identical point is directly in issue, and judgment has been rendered in the first suit on that point. Gilbreath v. Jones, 66 Ala. 129; Ryan et al. v. Young, 147 Ala. 660, 41 So. 945. Where the issues in the first suit were broad enough to comprehend all that was involved in the issues of the second suit, the test is not what the parties actually litigated, but what they might or ought to have litigated. Savage v. Savage, 246 Ala. 389, 20 So. 2d 784.
At the threshold of our considerations we are confronted with the court's rulings in connection with the pleas of res judicata as these rulings apply to Count 6 and to Count 9.
We will consider Count 9 first in that it is identical with Count 6 in claiming damages approximately resulting from the alleged negligence on the part of Hathcock in inspecting the overhead structure of the building. It is further averred in Count 9, however, that:
"Plaintiffs sustained further special damages as payment to A & P Tea Company as damages to said tenant's goods, wares, merchandise, and equipment, said special damages being in the *581 sum of $12,000 plus interest thereon from June 7, 1960."
This claim for special damages is of necessity based upon the judgment of $12,000 recovered against Mitchell by the A & P Tea Company on June 7, 1960, in the suit in the United States District Court. The plaintiff in the court below introduced said judgment in support of proof of the special damages claimed under Count 9.
In the trial below in the present case, the following charge requested by the defendant Hathcock was refused by the court:
This charge was affirmative in nature and sought to eliminate from the consideration of the jury the special damages claimed in Count 9, aforementioned. If such special damages are not a proper item of recovery, the charge should have been given, as the proper way to reach claimed damages which are not recoverable is by a motion to strike the averments appertaining to non-recoverable damages, or by an objection to the evidence when offered in support of such claim, or by seeking special instructions of the court to the jury. Marsicano v. Phillips, 6 Ala.App. 229, 60 So. 553; Western Union Tel. Co. v. Anniston Cordage Co., 6 Ala.App. 351, 59 So. 757; Walls v. C. D. Smith & Co., 167 Ala. 138, 52 So. 320.
As shown by extensive annotations in 101 A.L.R. 104 and 142 A.L.R. 727, with innumerable citations of authority, the rule supported by the great weight of authority is that a judgment in favor of the plaintiff in an action against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights and liabilities were expressly put in issue in the first action, by cross complaint or other adversary pleadings, and determined by the judgment in the first action.
The basis for such doctrine is set forth in our early case of Buffington v. Cook, 35 Ala. 312, wherein it is stated:
In the trial in the United States District Court, it is true that each defendant entered pleas of the general issue and by the evidence sought to disprove their own negligence, and to cast negligence on the other. However, where a person is injured by the concurrent negligence of two tort-feasors who are joined in one action, the fact that each of them attempts to show that the other was solely responsible for the accident or that the other alone was negligent, does not make the issue of negligence res judicata in subsequent proceedings between them, where the liability of one to the other does not depend upon his liability to the injured person. See Restatement of the Law of Judgments, American Law Institute, Section 82, particularly Comment b. This for the reason that in these circumstances a cross claim is not permissible since it asks for no relief from *582 the party against whom it is asserted, and further, facts which show that the would be cross complainant is blameless will be a complete defense as to him, but they raise no issue between him and the other defendant. See Fed.Proc. and Proced., Barron and Holtzoff (Wright) Vol. 1A, Sec. 397, p. 601.
In the United States District Court the issue was negligence of either or both defendants toward the A & P Tea Company, and not the negligence of each defendant toward the other. The negligence of each defendant toward the other was not expressly put in issue by the pleading, and there was no determination of the rights and liabilities inter se by the judgment of the United States District Court, but only the issue of negligence by either of the co-defendants toward the A & P Tea Company.
In the present suit, insofar as the claim for special damages is concerned, the issue of negligence asserted by the plaintiff is dependent upon the negligence of the defendant Hathcock toward the A & P Tea Company. This was the very issue litigated in the suit in the United States District Court, and determined in favor of Hathcock. Insofar as the claim for special damages is concerned the judgment in the United States District Court is res judicata of this same issue presented in the trial below, and the lower court erred in refusing the requested instructions seeking to eliminate this element of damages.
Another doctrine which would prevent the plaintiff's recovery of the special damages herein sought is that the plaintiffs below offered in evidence in support of their claim for special damages the judgment of the United States District Court. That judgment found that the defendant was not negligent toward the A & P Tea Company but that this plaintiff was negligent. The plaintiffs cannot repudiate the basis of the judgment they assert for their claim. To allow them to do so would permit the plaintiffs to recover from the defendant because of the judgment which they would now be obliged to assert was unjust and based upon a false finding of fact. Insofar as their claim of special damages goes, the plaintiffs are here seeking indemnity arising from an implied contract by Hathcock to indemnify them for damages resulting from negligence on the part of Hathcock. They are bound by all the findings and conclusions without which the judgment of the United States District Court could not have been rendered. They are not at liberty to deny that part of the judgment which necessarily concludes that Hathcock was not negligent and that they were negligent. To permit such denial would prove that the very judgment upon which they rely for recovery of special damages was wrong. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 24 A.L.R.2d 319; Kansas City Operating Corp v. Durwood, (8th CCA), 278 F.2d 354.
We come now to consider Count 6 in aspect of the question of res judicata as pertains to this Count. As stated above, the issues raised in the trial below relative to this Count are different from the issues presented in the United States District Court, Count 6 being based on the alleged negligence of Hathcock toward Mitchell, while the Federal suit involved the issue of the alleged negligence of Hathcock and Mitchell toward the A & P Tea Company. The appellant relies strongly upon the case of City of Mobile v. George et al., 253 Ala. 591, 45 So. 2d 778, as supportive of his insistence that the judgment obtained in the United States District Court is res judicata of the present suit. An analysis of the George case, supra, however shows that it was a suit by the City of Mobile for indemnity because of a judgment obtained by Reeves as plaintiff in a prior suit wherein the City of Mobile, and George, a contractor, were sued as co-defendants by the plaintiff who had been injured by a defect on one of the city streets. In this prior suit the jury had determined the issue *583 of negligence toward the plaintiff in favor of George and against the City of Mobile. Therefore, the later suit by the City of Mobile against George, based upon the alleged negligence of George, involved the very issues litigated in the prior suit and the judgment in the prior suit was therefore held to be res judicata. This, of course, is not the situation presented here.
Counsel for appellant argue, however, that by virtue of the Federal rules of Practice and Procedure, Rule 13(g), that the appellee could have filed a cross claim against Mitchell in the Federal suit, and thus have litigated in one action the very claim he now seeks to assert.
Rule 13(g), Federal Rules of Civil Procedure, 28 U.S.C.A. provides in references to cross claims against co-parties, as follows:
We are not sure that the claim of Mitchell against Hathcock arises "out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein." Certainly there could possibly be a difference in the evidence to support the plaintiff's claim in this suit from that which would have supported a cross claim against Mitchell in the suit by A & P Tea Company against Mitchell, and the damages sought are different. See Section 394 of Barron and Holtzoff, supra. However, cross claims under Rule 13(g) are not compulsory, and it is discretionary with the party whether to assert his claim as a cross claim or to reserve it for later independent litigation. American Surety Co. of New York v. Fazel, (D.C.Iowa 1956), 20 F.R.D. 110.
We know of no way under our state procedure that a cross claim can be filed by co-defendant. Since under the Federal rules the filing of a cross claim under Rule 13(g) is discretionary with the litigant, we are unwilling to hold that a higher standard should prevail when the action of co-defendant in exercising his discretion in filing a cross claim in a Federal court is raised in a court of this state. We therefore hold that the non-filing of cross claim by Mitchell against Hathcock in the United States District Court was not such conduct as to be within the influence of the doctrine of our cases holding that res judicata extends to all questions in issue in the first trial, or which ought to have been put in issue. We conclude, therefore, that the lower court did not in its rulings relating to the aspect of res judicata as to Count 6.
The appellant requested the general affirmative charge respectively as to Count 6 and to Count 9, and also requested the aforementioned charge affirmative in nature seeking to eliminate the claim for special damages in Count 9. The jury returned a general verdict. Under these circumstances the doctrine of error without injury cannot be applied to the refusal of defendant's requested affirmative charges as to Count 9. For this reason this judgment must be reversed. Dickey v. Russell, 268 Ala. 267, 105 So. 2d 649; Draughon's Business College v. Battles, 35 Ala.App. 587, 50 So. 2d 788.
Although this judgment must be reversed for the reasons stated above, we think it appropriate to write to the following propositions raised by appropriate assignments and argued in briefs in view of the possibility of another trial.
In the trial below the appellant filed pleas to the effect that the plaintiff Mitchell was negligent in the construction of the building or employed persons to construct the building who were not registered as general contractors by the state, and that the building cost over $10,000.
*584 Similar pleas were filed setting up Mitchell's failure to employ a registered architect to prepare plans for the building.
Demurrers to these pleas were sustained.
The appellant also made offer of evidence in the trial below directed toward showing the matters asserted in the pleas. The appellee's objections to all such evidence were sustained.
The appellant also requested certain charges in writing which set forth the law relating to the registration of contractors and architects. These charges were refused.
Section 65 et seq., Title 46, Code of Alabama 1940, relates to the business of general contractors in this state, their registration, licensing, etc. Section 65, supra, at the time of the construction of the building defines a "general contractor" as one who for a fixed price, fee, or commission undertakes to construct, or superintend the construction, of any structure costing $10,000 or more, and further provides that anyone who shall engage in the construction of a structure costing $10,000 or more shall be deemed to have engaged in the general contracting business.
Section 77, supra, makes it a misdemeanor for anyone not licensed as a general contractor to engage in such business.
Likewise, Section 8 et seq., Title 46, Code of Alabama 1940, regulates the registration of architects and the practice of architecture in this state. Under these code provisions, no person need register as an architect in order to draw plans for buildings costing less than $10,000. Certain exceptions are set forth, but are not here applicable and we omit the full provisions of the regulations.
By Section 18, supra, the practice of architecture by one not properly registered as an architect is made a misdemeanor.
We think the lower court erred in its rulings in the premises now being considered. The defense was directed toward showing that the negligence of Mitchell in constructing the building was the proximate cause of the collapse of the roof. It appears that the building was constructed by a carpenter employed by Mitchell. Apparently this carpenter occupied the status of a servant rather than an independent contractor. Where skill and capacity are required to accomplish an undertaking, it is negligence for a master not to employ servants having qualification for the undertaking. Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62, 51 So. 345. While the master is not liable for having employed incompetent servants unless their incompetency was the proximate cause of the injury, Alabama City G & A Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805, yet the defendant having introduced evidence tending to show that the building was originally improperly constructed, the fact that the contractor and the architect used by Mitchell were not registered to carry on such business clearly goes to their competency, and to the question of Mitchell's negligence in employing them in constructing the building.
While the sections above mentioned applying to the registration of contractors and architects are under their terms not applicable to Mitchell, the failure of Mitchell to employ a registered contractor or a registered architect does shed light upon Hathcock's alleged negligence in the inspection of the building, in that Hathcock would have been justified in assuming that the building had been constructed by persons qualified by law for such an undertaking.
Under assignments of error 41, 42, 43, and 91, appellant urges that the lower court erred in refusing the appellant's written requested general affirmative charges requested respectively as to Count 6 and 9. It is appellant's argument under these assignments that not only did the evidence offered by the appellees fail to establish by a scintilla of evidence the contract alleged *585 in both counts, but to hold otherwise would place the liability of the appellant upon speculation pure and simple. We do not agree.
Mr. H. D. Bryan, a witness for the appellees, testified by deposition that he was a salesman for the Hathcock Roofing Company and as such salesman he contacted Mitchell in reference to placing the roof upon the building. Later he had Mr. Roy Davis, foreman of the Hathcock Roofing Company, accompany him to see Mr. Mitchell in reference to the roof. The three of them discussed the cost of various types of roofing and so forth. According to Mr. Bryan, Mitchell stated to them that the reason he wanted to do business with Hathcock was because he felt that Hathcock would do the job right, and Roy Davis assured him that they would, and further that he would give the building a general inspection. At the time of this visit Mitchell was in poor health and was interviewed by Bryan and Davis at his home.
The record further shows the following during the cross examination of the witness Bryan:
Mr. Douglas L. Rollins, a witness for the appellees, testified that on the Sunday that the roof collapsed, Mitchell and Hathcock were in his drug store and he heard Hathcock say to Mitchell:
The above evidence we think was sufficient, certainly to the extent of furnishing a scintilla, from which the jury could have reasonably inferred that the oral contract between Mitchell and Hathcock provided for an inspection of the structure of the roof by Hathcock as to its soundness in connection with supporting the proposed new roof. The lower court therefore did not err in refusing the affirmative charges as requested, but properly submitted this question to the jury.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | January 21, 1965 |
f2533594-b922-44a3-a99a-e8c5f09bc600 | Smith v. Richardson | 171 So. 2d 96 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 96 (1965)
Theresa SMITH, pro ami,
v.
Arnett RICHARDSON.
Arnett RICHARDSON
v.
Coy SMITH.
1 Div. 202, 202-A.
Supreme Court of Alabama.
January 21, 1965.
Collins, Galloway & Murphy, Mobile, for appellant-appellee Richardson.
Brutkiewicz & Crain, Mobile, for appellant Theresa Smith and appellee Coy Smith.
HARWOOD, Justice.
Theresa Smith, a girl of about six years of age, was struck by an automobile driven by Arnett Richardson, as she was crossing a street in Citronelle.
*97 Thereafter two suits were filed against Richardson, one by Theresa Smith, suing by her father as next friend, and another by Coy Smith, the father. This second suit was under the provisions of Section 118, Title 7, Code of Alabama 1940, which permits a suit by the father (and in certain enumerated circumstances the mother) for injuries to a minor child, a member of the family.
Theresa's complaint contained two counts, one in negligence, and the other alleging wilful and wanton conduct on the part of Richardson. Mr. Smith's complaint contained only one negligence count.
To Theresa's complaint the defendant plead the general issue, and to Mr. Smith's complaint, he pleaded the general issue, and also contributory negligence in permitting the child to be in a dangerous place.
The two cases were by agreement consolidated for trial.
After hearing the evidence and receiving full instructions from the court, the jury returned a verdict for the defendant in Theresa's case, and a verdict for the plaintiff in Mr. Smith's case, assessing his damages at $5,165.
Thus we have the anomalous situation of the same jury, on identical evidence, finding no negligence in Theresa's case, but that the defendant was negligent in Mr. Smith's case.
Judgments were entered in each case pursuant to the respective verdicts.
Each losing party in the proceedings below duly filed their respective motions for new trials, which were denied.
In each motion are grounds to the effect that the verdicts rendered are inconsistent in that the evidence was identical, and the defendant was the same in each case, as was the jury.
On motion of both parties the record was consolidated for appeal, and it is in this form that the record has reached us.
The appellants in their respective assignments of error assert error on the part of the lower court in denying their respective motions for a new trial. In briefs counsel for the respective appellants assert and argue as error the action of the lower court in denying the respective motions for a new trial because of the inconsistency of the verdicts.
It is interesting to note that counsel for Richardson in his appeal, in which the father was the successful plaintiff, argue that the verdict in Theresa's case in favor of the defendant Richardson, including necessarily a finding that Richardson was not negligent, necessitates the conclusion of no negligence on Richardson's part in the father's case, where as on the other hand counsel for appellant, Theresa, argue that the verdict in her father's case, necessarily based on a finding of negligence on Richardson's part, compels a conclusion of the existence of negligence in Theresa's case. The verdicts, clearly inconsistent, having been rendered at the same time by the same jury, on identical facts, renders speculative what the jury intended by its verdicts. Patently, the verdicts indicate confusion on the part of the jury.
Coy Smith's claim for damages was dependent upon negligence on the part of Richardson toward Theresa (Central of Georgia Ry. Co. v. Robins, 209 Ala. 12, 95 So. 370), as was of course Theresa's claim for damages. The jury by their verdict in Theresa's case negatived any negligent conduct by Richardson toward her, yet at the same time and on the same facts found that Richardson was negligent toward Theresa in Mr. Smith's case.
While the two judgments now on review were based on separate complaints filed by separate parties, and were rendered on separate verdicts, yet in truth and in fact the separate cases were joined for trial, and the verdicts rendered on the identical facts. This fact cannot be disregarded on review. We think therefore that the legal principles governing joint defendants or *98 plaintiffs more apt in the interest of justice, than if a purely mechanical approach in the aspect of separate trials be applied.
In Carter v. Franklin, 234 Ala. 116, 173 So. 861, Justice Bouldin wrote:
In R. L. Turner Motors v. Hilkey, 260 Ala. 577, 72 So. 2d 75, Hilkey had filed three separate suits against R. L. Turner Motors, a partnership composed of R. L. Turner, Anna L. Turner, and C. M. Jacobs individually.
The cases were consolidated for trial and tried on the same evidence. In each case a verdict was rendered against the partnership, and in favor of each individual defendant. In each case a motion for a new trial was overruled. The cases were consolidated for appeal purposes. In reversing the judgments as to R. L. Turner Motors, and R. L. Turner, individually, this court wrote:
To the same effect see Walker v. St. Louis-San Francisco Ry. Co., 214 Ala. 492, 108 So. 388; Sibley v. Odum, 257 Ala. 292, 58 So. 2d 896.
In the New York case of Reilly et al. v. Shapmar Realty Corp., 267 App.Div. 198, 45 N.Y.S.2d 356, two causes of action had been brought against the Shapmar Realty Corporation, one by the infant plaintiff seeking damages for personal injuries, and one by the mother of the infant seeking damages for loss of services of the infant. The jury returned a verdict in favor of the defendant in the infant's case, and in favor of the mother in her suit. In reversing both cases, the New York court wrote:
"The verdicts as finally rendered by the jury were clearly inconsistent and irreconcilable. The infant plaintiff's injuries were severe. If his mother was entitled to recover for medical expenses necessary to cure the child, so *99 was the infant for his injuries. On the other hand, if no cause of action was made out in the infant's case, there should be no verdict in favor of the mother. Reilly v. Rawleigh, 245 App. Div. 190, 191, 281 N.Y.S. 366.
We are of the conclusion that the lower court erred in denying the motions for a new trial in each of the present cases, and that each judgment should be reversed for new trials.
Counsel for appellant Richardson has also argued that the verdict for $5,165 awarded to Mr. Smith, the father, is so excessive as to indicate bias and prejudice on the part of the jury.
In his complaint Mr. Smith claimed damages for the medical expenses in and about treatment of his daughter's injuries, damages for nursing services rendered to his daughter by Mrs. Smith, and by himself, and damages for loss of services and the society of his daughter.
The burden is upon one claiming damages to establish the existence of, and the amount of such damages by competent evidence. Revel v. Prince, 37 Ala.App. 457, 69 So. 2d 470. Mr. Smith, the father, presented evidence which showed that his daughter's injuries consisted mainly of a broken leg. She was hospitalized from September 9 to October 9, 1961. Thereafter she wore a cast on her leg for awhile, but was walking on December 27, 1961, and returned to school in January 1962.
Prior to her injury Mr. Smith testified that Theresa helped around the house with her younger brothers and sisters, and sometimes ran errands for him. Mr. Smith further testified that his wife spent every night at the hospital while Theresa was confined there, and that he himself spent many nights there, and further that after Theresa returned home it was necessary to have someone in to tend her as her leg was still in the cast.
Dr. Guy L. Rutledge the physician who treated Theresa, testified that on 27 December 1961, Theresa was walking without the aid of crutches. The next time he saw her was on 26 January 1962. On 6 August 1963, he had Theresa come back for an evaluation examination. As to his conclusions upon this examination Dr. Rutledge testified, "I think she is completely recovered and doesn't have any appreciable significant disability."
*100 In the trial below, hospital, medical, ambulance, and drug bills totaling $1,009.50 were properly shown.
There is not one iota of evidence tending to show the value of the nursing services rendered by Mr. Smith or Mrs. Smith, nor is there any evidence tending to show the value of the services rendered by Theresa for her father.
A father may recover as damages resulting from the negligent bodily injury of his minor child, medical expenses in treating such injuries, and compensation for loss of services. Franklin v. Georgia Casualty Co., 225 Ala. 58, 141 So. 702. If the child receives permanent injuries the recoverable damages are such as will compensate the parent for the loss of the child's services up to the time of his majority. Birmingham Ry. Light and Power Co. v. Chastain, 158 Ala. 421, 48 So. 85.
Loss of services claimed as damages in case of injury to a wife import more than services in the ordinary sense, but the term is used in the sense expressed by the word consortium. Such is not the case in the loss of services of a child. Here, services means the labor and assistance of a child rendered for the father, and imply a loss measured by pecuniary standards of value. Long v. Booe, 106 Ala. 570, 17 So. 716. The loss of the society of a child as distinguished from the loss of its services, cannot form the element of recoverable damages. Birmingham Ry. Light and Power Co. v. Baker, 161 Ala. 135, 49 So. 755.
When a parent loses time from his work or duties in caring for an injured child, the measure of damages recoverable for the parent is the value of the services in nursing or caring for the child. Bryan v. Stewart, 194 Ala. 353, 70 So. 123.
Since there was complete lack of any proof of the value of the child's services or of the value of the nursing services rendered by the parent or parents, the action of the jury in awarding any damages above the actual medical expenses which were properly shown, was speculative to this extent.
We have written to this phase of the case in view of the possibility of another trial. As before stated, the judgments must be reversed because of their inconsistency.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | January 21, 1965 |
4aa91dae-5ee0-4d09-b319-f171d00ad479 | Danley v. Marshall Lumber and Mill Co. | 173 So. 2d 94 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 94 (1965)
Erle DANLEY
v.
MARSHALL LUMBER AND MILL COMPANY, Inc.
3 Div. 112.
Supreme Court of Alabama.
March 18, 1965.
*95 Samuel Kaufman, Montgomery, for appellant.
Hill, Robison & Belser, Montgomery, for appellee.
PER CURIAM.
The Circuit Court of Montgomery County rendered a judgment in favor of appellee and against appellant on Count 1 of the complaint (all other counts being eliminated by amendment), which claims $3,039.19 due from defendant by account on, to-wit, the 31st day of March, 1962, "which sum of money is still due and unpaid." The count comports with the statutory form in § 223(10), Title 7, Code 1940, and is sufficient. Defendant here appeals.
The defendant filed pleas to the complaint: (a) not guilty; (b) Pleas II and III setting up the defense that the suit was based on a parol promise to answer for the debt, default or miscarriage of another. Title 20, § 3(3), Code 1940.
Assignment of error number 4 asserts that the trial court erred in overruling appellant's motion for a new trial. This is a proper assignment of error, and brings up all questions of law and fact sufficiently set forth as grounds for the motion and argued on appeal. Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358; Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921. Appellant goes further and assigns as error the overruling of the motion for a new trial on specific grounds of the motion.
Appellant states in brief that he relies chiefly on the grounds that the judgment is contrary to the evidence and assignment number 8 which charges that the trial court erred in overruling appellant's motion for a new trial based on ground No. 4 that "the judgment of the court is contrary to the law in the case." Such a ground in a motion for a new trial is insufficient because it is too general to be considered. The errors of law complained of, or in what respect the verdict or judgment is contrary to it, "should be specially pointed out so the court's attention will be directed to them." Atlantic Coast Line R. Co. v. Burkett, 207 Ala. 344, 92 So. 456, and cases there cited. This rule was followed in State v. Boone, 276 Ala. 16, 158 So. 2d 658.
We have an erroneous statement in Lyle v. Winston County, 274 Ala. 581, 150 So. 2d 706, that a ground in a motion for a new trial that the verdict is contrary to the law is a good ground; and we were mistaken in saying that we could consider such a ground under an assignment of error that the court erred in overruling a motion for a new trial in Mulkin v. McDonough Construction Co. of Ga., 266 Ala. 281, 95 So. 2d 921. These statements are not to be followed and are expressly overruled.
We proceed now to a consideration of those grounds of motion for a new trial, argued in brief, which relate to the contention that the judgment was contrary to the evidence in the cause.
It appears from the evidence that appellee corporation operated a building material supply house; that the officers or agents of said appellee delivered, or caused to be delivered, to Kelly Company, Inc., some building *96 materials equal in value to the amount of the judgment and for the purchase of which judgment was entered against appellant; that defendant at the time of said sales and deliveries was a stockholder and officer of said Kelly corporation; that prior to said sales and deliveries said Kelly Company did not have an established credit with appellee; that the deliveries were made at the instance and order of appellant; that the items so delivered and the amounts of the sales were entered on the books of appellee in the name of Kelly Company, Inc., and no entries were made on said books in the name of defendant.
The contention of appellant, supported by the tendency of his evidence, is that the deliveries were made on the sole or partial credit of Kelly Company, Inc. He further contends that he did not direct or authorize such sales and deliveries on his credit to the exclusion of Kelly Company. He signed no agreement, note or memorandum to answer for the debt of Kelly Company with respect to the sales and deliveries of the building materials.
The contention of appellee is that deliveries of the materials to the corporation were on the exclusive credit of appellant, at his direction, and that entries of said sales on its books of account in the name of Kelly Company, Inc., were done at the direction of appellant.
Mr. John Marshall, Treasurer of appellee, a witness for plaintiff, testified as follows:
"Q That was your understanding based on his representations?
"A Yes, sir.
"A Yes, sir.
"A The charges that I have, that is correct.
"A I did, yes, sir.
"BY THE COURT:
*97 "BY THE COURT:
"A That is correct."
Fred Marshall, Vice-President of appellee, was introduced as a witness for appellee and testified as follows:
"Q That was at his request?
"A Yes, sir.
"Q To whom were you looking for payment on this order?
"A Mr. Danley.
"A That's correct.
"A Mr. Danley.
"A Yes, sir."
"Q And what did he say?
"Q And what did you say?
"A I said, `All right.'"
"A No, sir, we did not.
"A No, sir.
"Q What were you doing?
"A We were invoicing it to Kelly Company.
"Q Who were you looking to for payment?
"A We were looking to Mr. Danley for payment."
Muriel Snead, bookkeeper and witness for plaintiff, testified:
A No, I don't believe we did
"Q You did not?
"A No.
While the testimony on the part of each Mr. Marshall as to the exclusive credit extension to Mr. Danley was weakened on cross examination by references to what was said between them and Mr. Danley, the aforequoted evidence was sufficient to justify the trial judge in concluding, as he must have done from entry of judgment for plaintiff, that credit was extended exclusively to Mr. Danley for the items delivered to Kelly Company; and also to sustain the conclusion of the trial court that the entry of said sales to the account of Kelly Company was at the direction of defendant.
A factual issue of such extension of credit was made when defendant denied categorically that he ever agreed to be responsible, directly or indirectly, for payment of the debt incident to the delivery of said materials.
We have consistently held that where there was evidence justifying a conclusion of the trial court, sitting without a jury, such conclusion will not be disturbed unless palpably wrong. National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474(17). This rule has application to the case at bar and we adhere thereto.
The factual basis for the judgment rendered by the trial court is agreeable with our pronouncement in the case of Marx v. Bell, Moore & Company, 48 Ala. 497(1), wherein we held "that if credit is given to A, a promise by B to pay the debt, must be in writing, to be obligatory; but if credit in the first instance, is given to B, although the consideration passes to A, it is an original undertaking by B, and he is bound to perform it, although there is no writing."
The fact that the materials were charged on the books of plaintiff to Kelly Company, to which they were delivered, is strong, but not conclusive, evidence that defendant's promise to pay was collateral and within the statute of frauds. Boykin v. Dohlonde & Co., 37 Ala. 577(2). Such charge may be explained and made consistent with the assumption of defendant's primary liability. Boykin v. Dohlonde, supra. The explanation that the charge was made at the direction and instance of defendant was sufficient to meet the demands of law.
We copy from the transcript of the evidence as follows:
"A Order for Kelly Company, it was for the Alford job in Columbus.
"THE COURT: I will let you ask him that.
"BY MR. PHELPS:
"Q What notation, if any, do you find on this ticket?
*99 "BY THE COURT:
"Q Did you make the notations?
"A Yes, sir.
"BY MR. PHELPS:
"Q All right.
Appellant by assignment of error asserts that the trial court committed prejudicial error in overruling his objection to the question aforequoted. As we understand, appellant's objection was directed to the words, "OK'd by Mr. Erle Danley, JRM," that appear on a sales ticket for materials delivered to Mr. Austin, amounting to $39.30. The initials were those of the witness.
The notation was nothing more than a memorandum of the witness that in a telephone conversation the defendant had approved the order and sale of the materials listed on the sales ticket. It was a business entry within the purview of § 415, Title 7, Code 1940. The only ground of the objection was that the notation was self-serving. We can consider only the ground of objection which was assigned. Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150(2). The trial court did not commit error in allowing the witness to answer the question.
The judgment of the trial court is due to be affirmed. It is so ordered.
The foregoing opinion was prepared by BOWEN W. SIMMONS, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Affirmed.
All the Justices concur. | March 18, 1965 |
ebed5da7-8f34-43ba-b81a-0263918446a2 | Russell v. Thomas | 178 So. 2d 556 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 556 (1965)
George Earl RUSSELL, pro ami.
v.
Lonnie THOMAS et al.
3 Div. 136.
Supreme Court of Alabama.
April 22, 1965.
Rehearing Denied September 9, 1965.
*557 Jack Crenshaw, Montgomery, for appellant.
Ball & Ball, Montgomery, for appellees.
PER CURIAM.
Plaintiff, a minor, suing by his next friend and father, failed by a verdict of the jury to recover damages against defendants Lonnie Thomas and Redwing Carriers, Inc., for personal injuries which he sustained when struck by an automobile driven by Miss Martha Ann Ross (not a party defendant) immediately after he alighted on a public highway from a tractor (pulling a trailer recently emptied of gasoline) owned by Redwing Carriers, Inc., and driven by its agent or servant, Lonnie Thomas.
The tractor and trailer was being used as a unit by Redwing Carriers, Inc., an independent contractor, and driven by Lonnie Thomas, an employee of Redwing, to transport and deliver gasoline, the property of American Oil Company, to the father of plaintiff at the father's bulk station located at or near LaPine, not far from where the accident occurred. The driver of the tractor, after delivering the gasoline to the bulk station, stopped at plaintiff's home to let plaintiff off. The tractor was headed north at the time, had stopped on the left of the road (whether on or off the hard-surfaced area being in dispute), when plaintiff alighted and was hit by an automobile being driven south by Miss Ross. The exact location of plaintiff from the tractor when he was hit was in dispute.
The trial court directed the jury to return a verdict for American Oil Company. Such direction was at the instance of said company. As to the other defendants, the trial court submitted issues of fact to the jury. The jury awarded each of the two said defendants a verdict. From all judgments entered pursuant to the verdicts, plaintiff here appeals and assigns thirteen grounds of error relating to written charges given by the court at the instance of defendants. *558 The fourteenth assignment of error contends that the trial court erred in overruling plaintiff's motion for a new trial.
As succinctly stated by appellees in their brief, the issues of law and fact as developed in the trial of the case were:
1. Whether plaintiff was a "guest" or "passenger" in defendants' truck for the purpose of determining the duty owed.
2. Whether defendants were guilty of negligence or wantonness proximately causing plaintiff's injury.
3. Whether plaintiff was capable and guilty of contributory negligence.
The bulk station was an unattended facility about one and one-half miles from the senior Russell's home. Thomas stopped at the home when and where, enroute to the bulk station to deliver a quantity of gasoline, he picked up the plaintiff and another young fellow by the name of Blackwell and transported them on the trailer-tractor to the bulk plant. Plaintiff made known to Thomas that his father wouldn't be there and that he would have to unlock the station. Also it is clear that someone had to sign a delivery ticket for the gasoline. Plaintiff unlocked the gates and Thomas began delivering the gasoline from the trailer. Plaintiff and the Blackwell child did not stay there the hour and a half that Thomas was there because Mrs. Russell, the mother of plaintiff, came and got them but brought them back. Plaintiff's father had on other occasions sent him to assist in effecting delivery of gasoline. When Thomas was through unloading, plaintiff checked to be sure that all the gasoline was delivered. The above facts were adduced on direct and cross-examination of the defendant Thomas. As we read the evidence, they were undisputed.
Was plaintiff under the above undisputed evidence a "passenger" or a "guest"?
Our statute on the subject, Title 36, § 95, Code 1940, reads as follows:
This court, in the case of Blair v. Greene, 247 Ala. 104, 22 So. 2d 834, quoted with approval from McCann v. Hoffman, 9 Cal. 2d 279, 70 P.2d 909, as follows:
The same case, Blair v. Greene, supra, quotes with due recognition from Volume 4 Blashfield, Cyclopedia of Automobile Law and Practice, page 80, § 2292, the rule summed up as follows:
"One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only to the person to whom the ride is given, and no benefits, other than such as are incidental *559 to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if the carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments."
Also in the Blair case, supra, we quoted favorably from Humphreys v. San Francisco Area Council, Boy Scouts of America, Cal.App., 129 P.2d 118, as follows:
In Thomas v. Currier Lumber Co., 283 Mich. 134, 277 N.W. 857, cited in the Blair case, supra, 247 Ala. p. 110, 22 So.2d p. 837, it is said:
See also Sullivan v. Davis, 263 Ala. 685, 83 So. 2d 434, 59 A.L.R.2d 331, wherein we said:
In the case at bar, the relationship between the driver, Lonnie Thomas, and plaintiff was clearly of a business nature. Thomas was employed by Redwing to deliver the gasoline to American's customer, Mr. Russell, father of plaintiff. Thomas stopped at the home of plaintiff and picked him up, not in furtherance of a social relationship or journey, but to facilitate and expedite delivery of the gasoline by getting plaintiff to unlock the gate which, with a fence, sealed off accessibility to the storage tanks into which the gasoline was to be emptied. It was also needful that someone with authority should sign a receipt or ticket evidencing delivery of the gasoline. It cannot be gainsaid that this service by the plaintiff was not a material or tangible benefit to the driver as well as his principal, Redwing Carriers, Inc.
The return trip to the home of plaintiff, after the service was performed, was a concluding event or circumstance. It was associated with the original transportation for the performance of the service that motivated the ride on the truck at the invitation of Thomas. We are unwilling to disassociate the return trip home and classify it as an independent ride, free of any connection with the original ride and its purpose. There was a continuity of service from the time plaintiff left home on the truck until his return.
In view of this relationship as established by undisputed evidence both by plaintiff and defendant Thomas, did the trial *560 court commit reversible error in giving at the instance of defendants written charge No. 26 as follows: "A guest in an automobile is one who is being carried gratuitously and without any financial benefit to the driver."
After the jury had been out some time, they returned and posed to the trial court this question: "If we find that the driver received no financial benefit from the plaintiff, in other words, was a guest according to law, then, may the jury find for the plaintiff on the grounds of simple negligence?"
The trial judge answered the inquiry by saying:
No exceptions were taken to this charge.
This charge, No. 26, supra, defining a guest in an automobile, is predicated solely on the absence of financial benefit to the driver and creates a positive and erroneous impression that if there are no financial benefits to the driver, the rider is a guest. That this impression was created in the minds of the jury is manifested by the wording of their inquiry when they came out and asked for further instructions. The charge ignored any tangible or material benefits, not of a monetary or financial character, accruing to the driver or his principal, which we have held to establish a passenger relationship.
The trial court did not withdraw the misleading and erroneous instructions contained in charge 26. The additional explanatory instructions merely supplemented prior oral instructions, and also written instructions given at the instance of the plaintiff of the same import.
We held in McCaa v. Thomas, 207 Ala. 211, 92 So. 414, that charges which necessarily mislead a jury, rather than have a tendency to mislead, are erroneous and not to be cured by an explanatory charge. Charge 26, supra, was not only misleading but hurtful to the plaintiff. The jury had the charge in the room with them, read it, and came out for further instructions with the import of the charge imbedded in their minds. The damage was done while the jury was in the quiet seclusion of the jury room with the written charge available for study.
We also held in Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4, that it is error to give contradictory or conflicting instructions. See also Vol. 18A, Alabama Digest, Trial. We quote from Clinton Mining Co. v. Bradford, supra, p. 592(16), 69 So. p. 10, as follows:
We are convinced that the jury was impressed by charge No. 26, aforequoted, and not the oral charge or the written charges at the instance of plaintiff, as to what constitutes a guest in an automobile. They ignored the court's oral definition of a *561 guest, or didn't follow the language of the court, and accepted the simple written charge as the law. There is no room to believe that they were any more impressed by the second oral charge than the first relating to the essentials embraced in the definition of a guest, but clung to the misleading and contradictory written charge. The original oral charge covered fourteen pages of transcript paper. The jury came back twice for additional clarifying instructions.
Affirmative instruction that the jury find for defendant American Oil Company was not error.
The trial court committed reversible error as to the other two defendants in giving written charge No. 26, supra.
We pretermit any discussion of the other assignments of error for the reason that on a second trial the questions presented by these assignments probably will not arise again. The possibility that the same questions will again be presented is too remote to justify this court in extending this opinion beyond its present scope.
It is ordered that the judgment of the court as to American Oil Company be and the same is affirmed; that the judgments as to Lonnie Thomas and Redwing Carriers, Inc., are reversed and remanded.
The foregoing opinion was prepared by BOWEN W. SIMMONS, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur.
PER CURIAM.
While we did comment on the factual issues as to whether plaintiff was a guest or passenger on the truck, making some observations as to our impression of the evidence and the inferences to be drawn therefrom, we did not intend to hold that as a matter of law under the evidence plaintiff was a passenger.
The tendencies of the evidence presented an issue for the jury to say whether plaintiff while on the truck was a guest or a passenger.
Opinion extended. Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | April 22, 1965 |
45902c04-6f44-4f86-9b4e-bde11cafb314 | Cook v. Sweatt | 209 So. 2d 891 | N/A | Alabama | Alabama Supreme Court | 209 So. 2d 891 (1965)
Stanley L. COOK
v.
John Willard SWEATT et al.
7 Div. 654.
Supreme Court of Alabama.
March 18, 1965.
Rehearing Denied May 23, 1968.
*892 Weir & Shannon, Birmingham, for appellant.
London, Yancey, Clark & Allen and Max Hudson, Birmingham, for appellees.
PER CURIAM.
Mrs. Irma M. Cook, wife of appellant Stanley L. Cook, filed her suit, in the circuit court of St. Clair County, to recover damages for personal injuries that she allegedly sustained when a truck of appellee, Troy Knight, collided with the rear of her car at a street intersection in Pell City due to the negligence of the truck driver, John Willard Sweatt, who at the time was the agent of appellee, Troy Knight. Mrs. Cook also claimed damages for medical expenses incident to the treatment of her injuries. The jury awarded her a judgment for $5,000.00. Neither party appealed from this judgment.
Appellant, Stanley L. Cook, the husband, filed his suit contemporaneously with his wife's suit to recover damages allegedly accruing to him as an outgrowth of the same collision. He claimed in his suit that he was caused to incur expense for medical treatment, and help for his wife and for her injuries. He also alleged that he would continue to incur further expense in the future in and about the treatment of his wife's injuries. Also, he alleged that he lost the society, consortium, and services of his wife, and would continue to lose the same in the future. He averred that all the aforestated damages were proximately caused by the negligence of the defendants as alleged in the complaint.
Both suits were consolidated by agreement of the parties and tried at the same time, before the same jury, with an understanding for separate verdicts. The jury returned a verdict for the defendants in the husband's suit. Judgment was duly entered in accordance with the verdict. This appeal emanates therefrom.
The husband, within the time allowed by law, filed a motion for a new trial with thirty-one grounds. The trial court seasonably overruled and denied the motion. This ruling is here assigned as error. There were no other assignments.
On appeal under § 764, Title 7, Code 1940, as amended by Act No. 57, appvd. June 10, 1949, Acts 1949, p. 81, appellant may assign the denial of the motion as error. The assignment here is that "the Court erred in overruling the motion of plaintiff, Stanley L. Cook, for a new trial * * *." Such an assignment justifies consideration of any ground of the motion stated with sufficient definiteness to direct the court's attention to the alleged erroneous ruling, and on such assignment this court will consider any ground of the motion which is clear, specific, and adequately argued in brief by the appellant. Popwell v. Shelby County, 272 Ala. 287(1), 130 So. 2d 170, 87 A.L.R.2d 1148; Fuller v. Darden, 274 Ala. 447(3), 149 So.2d 805(3); Pearson v. Birmingham Transit Company, 264 Ala. 350, 87 So.2d 857(1).
Appellant, in his brief, argues that the verdict of the jury for defendants was contrary to the great weight of the evidence, was inadequate, and inconsistent with the verdict in favor of the wife. These grounds were incorporated in the motion for a new trial.
Since the appellant and his wife both claimed damages for the medical expenses incident to the treatment of the wife's injuries, we are of the opinion that both claimants should not be allowed to recover this expense. The trial court so charged the jury. This appeal is on a single record, consolidating the pleadings, rulings, testimony, and transcript of both cases.
We have no way of knowing from the verdict what damages the jury considered and included in their verdict, but we can tell from the evidence that they had an opportunity to include the medical expense in their verdict for the wife, and which she claimed in her suit. In several instances *893 Mrs. Cook testified that she herself paid certain medical expense incident to the treatment of her injuries she received in the collision with the truck, which occurred on August 15, 1965. She produced cancelled checks she signed in payment of treatment.
Mrs. Cook's counsel propounded her questions as follows:
In the light of her testimony in support of her claim for medical expense as a part of her damages, we would be unwilling to say that the jury did not include reasonable medical expense in their verdict for Mrs. Cook. Mr. Cook did not testify as to any expense he paid or incurred. A logical inference in the light of such testimony would follow that Mrs. Cook recovered this expense in her judgment. We would not disturb the verdict in the case at bar and here on appeal because the jury did not award damages to appellant to cover this expense. There was no evidence as to future medical expense appellant would probably incur for treatment of his wife's injuries that proximately resulted from the collision.
The next question is whether or not the motion for a new trial should have been granted for failure of the jury to award damages to appellant because he lost the society, consortium, and services of his wife, and for future loss of such society, consortium and services.
The late and eminent Justice Bouldin, in the case of Woodson v. Bailey, 210 Ala. 568, 570, 98 So. 809(1), 810, writes of consortium as follows:
The evidence in this case discloses that Mrs. Cook had, prior to the accident, been treated by a gynecologist, Dr. Gilmore, for female disorders and diseases; that the doctor gave her shots for a hysterectomy that he performed on her. She was also slightly hurt and lacerated about the head in another automobile accident in 1961. Dr. Jones, a specialist in orthopedic surgery, testifying for Mrs. Cook, stated as follows:
We think that in evaluating the several elements or factors that are included in the definition of consortium, the subject of appellant's claim for damages, the jury had the right to consider the age of plaintiff, who was above 50, and that of his wife, who was 52 at the time of the accident; and also the state of the wife's health, disassociated from the injuries she received in the accident with defendants' truck.
Compensatory damages to the husband for loss of consortium due to personal injuries to the wife cannot be ascertained by any fixed standard, but are left to the jury's sound discretion, subject to correction by the court only when there has been a clear abuse of such discretion as will evidence passion or bias for or against the plaintiff or defendant.
The award to the wife in her suit against the defendants does not indicate that the jury was influenced by any bias or prejudices, but on the other hand supports a reasonable judicial conclusion that they were free of passion or prejudice in evaluating the evidence and in assessing damages.
Under all the circumstances of the trial, the province of the jury to determine the credibility of the evidence, to reconcile the conflicts therein where possible, draw legitimate inferences therefrom, find the facts, apply the facts to the law as given in the charge, and express their conclusion in their verdict (Franklin Fire Insurance Company v. Slaton, 240 Ala. 560, 200 So. 564(3, 4)), and the refusal of the trial court to grant appellant's motion for a new trial, thus strengthening the presumption in favor of the correctness of the jury's verdict (National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492), we are unwilling to disturb the verdict and judgment rendered for the defendants.
The award by the jury of a substantial verdict for Mrs. Cook, and awarding nothing for appellant, are not inconsistent verdicts. The jury was entitled to conclude from the evidence that even though the defendants were guilty of negligence as charged, the plaintiff-husband suffered no damages therefrom. Pagano v. Morrison's Textiles, Inc., (Fla.), 149 So. 2d 897.
There was no error in the refusal of the trial judge to grant appellant's motion for a new trial. The judgment of the trial court is affirmed.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | March 18, 1965 |
5aebb5c5-9e03-4fbd-a015-5630cbacfe2b | Plastone Plastic Co. v. Whitman-Webb Realty Co. | 176 So. 2d 27 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 27 (1965)
PLASTONE PLASTIC COMPANY, Inc.
v.
WHITMAN-WEBB REALTY COMPANY, Inc.
6 Div. 149.
Supreme Court of Alabama.
May 27, 1965.
Sirote, Permutt, Friend & Friedman, Birmingham, for appellant.
Huie, Fernambucq & Stewart, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from an involuntary nonsuit because of the overruling of plaintiff's demurrer to defendant's plea. All counts were stricken except Count 3, to which appellee filed Plea 1. The demurrer to Plea 1 was overruled and appellant took the nonsuit.
Appellant (lessee) sued appellee (lessor) for damages as a result of the destruction of the leased building by fire. The complaint alleged that the leased premises were located upon a city block, all of which was under the ownership and active management of appellee; that there was a large courtyard running across the back of the block on which there was a railroad spur track; that the courtyard was used in common by the various tenants in the block and that the fire which destroyed the property of the plaintiff originated in the courtyard.
The complaint alleges negligence on the part of appellee in the maintenance of the courtyard, in that defendant negligently maintained the courtyard in an unsafe condition so as to cause or allow it to become a fire hazard by negligently allowing combustible and highly inflammable waste materials to accumulate therein in close proximity to the building occupied by appellant; that on December 17, 1958, a fire did occur in the courtyard which spread to the building occupied by the plaintiff destroying the same and its contents.
*28 After demurrers to the complaint were overruled, appellee filed Plea 1, in which it alleged that appellant had entered into a written lease agreement with Ramsay Realty Corporation, the owner of all the buildings in the block; that during the pendancy of the lease the property was sold to appellee, and by virtue of the lease, appellee became appellant's landlord and lessor; that the original lease which remained in full force and effect contained the following provision, among others:
The lease was made an exhibit to the plea and shows that the building was leased to appellant for ten years, beginning January 1, 1952, for $350.00 per month.
The primary question to be decided is whether the exculpatory provisions in the lease, quoted supra, inured to the benefit of the vendee of the original lessor.
We have held that similar exculpatory provisions in a lease are valid and binding and are not contrary to public policy. Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So. 2d 721, and cases there cited.
The general rule is that a sale by the lessor of real estate, during the unexpired leasehold term under which the tenant is holding, does not, of itself, abrogate the lease, determine the leasehold estate, or authorize the landlord or the tenant to treat the lease as at an end. Its effect is to substitute the vendee of the reversion to all the rights of the original lessor. The vendee then becomes the landlord by operation of law and the tenant becomes a tenant of the vendee of the reversion. Otis v. McMillan & Sons, 70 Ala. 46;[1] Upton v. Toth, 36 Cal. App. 2d 679, 98 P.2d 515, and authorities there cited. The same principle is stated in Thompson On Real Property, Vol. 3A, § 1200, p. 5 as: "The lessor at any time has a right to sell property subject to lease, and the effect of the sale is merely to substitute the vendee to all the rights of the original lessor."
In the instant case, the appellee, as vendee of the lessor, was substituted to all the rights of the original lessor, and one of these rights was not to be liable for any damages growing out of fire. (We recognize that the lessor or his successor would be liable for damages from a fire caused by the active negligence of the landlord, Armi v. Huckabee, 266 Ala. 91, 94 So. 2d 380, but there is no allegation of active negligence here).
Then there was the provision that: "The contract shall be binding on the successors, heirs, assigns, executors or administrators of Lessor and Lessee." This was not *29 only binding upon the original parties but upon their respective successors or assigns. Texas Company v. Birmingham Southern College, 239 Ala. 158, 194 So. 192. Undisputedly, appellee is a successor of the original lessor.
To hold that the exculpatory provisions are without effect would be to read them out of the lease. Wheeler, Lacey & Brown, Inc. v. Baker, 269 Ala. 293, 112 So. 2d 461; Life & Casualty Ins. Co. of Tennessee v. Porterfield, 239 Ala. 148, 194 So. 173.
Appellant contends that these provisions are binding only to the original parties to the lease and did not pass by transfer of title to appellee, and relies mainly upon the case of Etowah Mining Co. v. Wills Valley Mining & Mfg. Co., 121 Ala. 672, 25 So. 720, where it was said:
The distinction between that case and the instant case is apparent. There, the stipulation dealt with "an independent stipulation by its terms purporting to bind only the original lessors" and also could not be binding "unless the covenantor has expressly bound his assigns." Here, the stipulation related to and concerned the realty, i. e. destruction of the building by fire, and expressly bound the "successors, heirs, assigns, executors or administrators of Lessor and Lessee." It is undisputed that the provisions of the lease were equally binding on the original lessor and appellant. Considering the lease as a whole, we find nothing in it to indicate that those provisions were personal only to the original lessor, and there is no indication that they were not to be applicable to the successors of either the lessor or the lessee. We think the trial court correctly overruled the demurrer to the plea. Texas Company v. Birmingham Southern College, 239 Ala. 158, 194 So. 192.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.
[1] Stone, J., wrote substantially this in his dissenting opinion, but the majority held the same as to this point, the disagreement arising over a different question. | May 27, 1965 |
56cc793a-ff9a-428e-b26b-76f54353576f | Insurance Company of North America v. Mays | 174 So. 2d 700 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 700 (1965)
INSURANCE COMPANY OF NORTH AMERICA
v.
Howard MAYS.
6 Div. 117.
Supreme Court of Alabama.
April 22, 1965.
*701 Porterfield & Scholl, Birmingham, for appellant.
Nelson Vinson, Hamilton, for appellee.
LAWSON, Justice.
An automobile owned and driven by William J. McCombs was in a collision with an automobile driven by Howard Mays. McCombs' automobile, which was badly damaged, was covered by a policy of insurance issued by Insurance Company of North America, which policy provided coverage for damage sustained by collision. McCombs filed a claim with Insurance Company of North America in the amount of $1094.20, which claim was paid.
Thereafter, Insurance Company of North America brought this suit, as subrogee, against Howard Mays to recover the amount paid by it to McCombs. The complaint contained a single count wherein it was alleged in substance that the damage to McCombs' automobile was the proximate result of the negligence of Mays. The defendant, Mays, pleaded the general issue in short by consent in the usual form. There was a jury verdict in favor of the defendant. Judgment was entered in accordance with the verdict. Plaintiff filed a motion for new trial. It was overruled. The plaintiff has appealed to this court.
The evidence shows that McCombs lived in Birmingham and was an employee of Supreme Beverage Company. On cross-examination of McCombs counsel for Mays asked him this question: "What does Supreme Beverage Company do?" Objection interposed by the plaintiff was overruled but the question was never answered. Hence no cause for reversal appears in connection with the trial court's ruling on the objection. Johnson v. Day, 230 Ala. 165, 160 So. 340; Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So. 2d 308; Brooks v. Everett, 271 Ala. 354, 124 So. 2d 105.
One Hart, who was a passenger in McCombs' automobile, was a witness for the plaintiff. Hart had brought a damage suit against Mays. On cross-examination of Hart, counsel for Mays asked him the following question: "How much money are you claiming from Mr. Mays by virtue of your lawsuit?" Objection interposed by counsel for plaintiff was overruled. Hart answered that he did not know. The rule that the overruling of an objection to a question is harmless where the witness answers that he does not know, or does not remember, is applicable here. Tankersley v. Webb, 263 Ala. 234, 82 So. 2d 259, and cases cited. However, it is permissible to cross-examine a witness to ascertain his interest, bias, prejudice or partiality concerning the matters about which he is testifying. Hinton & Sons v. Strahan, 266 Ala. 307, 96 So. 2d 426, and cases cited. It is competent to show a community of interest, if it exists, and any material fact tending to show bias, prejudice or interest of the witness. Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448.
This brings us to a consideration of the remaining question, whether, under the *702 evidence adduced upon the trial, the trial court committed error in refusing to grant a new trial on grounds which, in effect, took the point that the verdict was not sustained by the great preponderance of the evidence. § 276, Title 7, Code 1940.
In brief filed here on behalf of Mays, it is conceded that the evidence adduced at the trial shows that Mays was guilty of negligence, and it is clear that his negligence was a proximate contributing cause to the damage done to McCombs' automobile.
We will set out a brief summary of the evidence as it bears on Mays' negligence. The collision occurred on or very near a curve in a no-passing zone on U. S. Highway 78 in Walker County. At that point the highway had only two lanes. Mays was proceeding in a westerly direction towards Jasper at a speed estimated as being from fifty to sixty-five miles an hour or more. A truck was immediately in front of Mays and two or three cars were in front of the truck. Just before the collision occurred Mays made an effort to pass the vehicles ahead of him, all of which, like Mays' vehicle, were proceeding in a westerly direction in the north lane designated for west-bound traffic. The evidence is somewhat in conflict as to how far Mays pulled into the lane designated for eastbound traffic preparatory to making his move to pass the vehicles ahead of him. But it is without dispute that Mays pulled out far enough to see an automobile coming towards him headed in an easterly direction. He realized that he could not safely pass the vehicle ahead of him, so he moved his automobile to the right in order to get back into his lane. As Mays moved his car back into his lane of traffic it was so close to the truck that he had to apply his brakes "unusually fast" and the automobile got out of control, according to Mays' statement. After the brakes on Mays' automobile were so applied it cut to the left into the lane designated for traffic moving in an easterly direction and completely blocked that lane. Mays' automobile skidded "broadside" down the south lane designated for east-bound traffic at a speed estimated as being from fifty to sixty-five miles an hour. McCombs' automobile, which was moving in an easterly direction, ran into the side of Mays' automobile. It is without dispute that the collision occurred completely in the south lane, that in which McCombs was traveling in an easterly direction.
It is May's contention that the trial court correctly refused to grant plaintiff a new trial for the reason that the evidence shows that McCombs was guilty of contributory negligence. The contention of Mays, the appellee, is expressed in the brief filed here on his behalf in the following language:
We come now to a consideration of the evidence as it relates to the manner in which McCombs was operating his automobile at the time of the collision.
The McCombs automobile was moving at a speed of not more than fifty miles an hour in a zone where the speed limit was sixty miles an hour. McCombs' automobile was pulling a trailer on which was loaded an aluminum boat. The trailer did not have brakes. Neither the McCombs automobile nor the trailer ever crossed the center *703 line into the lane designated for traffic moving in a westerly direction. McCombs testified that he did not see the Mays automobile until it came into his lane of traffic. He was approximately 150 feet away when that event occurred. As soon as he saw the Mays automobile cut across his lane of travel, McCombs attempted to apply the brakes to the automobile and turned the steering wheel to the right in an effort to get off the road. However, he was unable to avoid contact with the Mays automobile which was sliding "broadside" towards him in his lane at a speed of from fifty to sixty-five miles an hour. McCombs' automobile came to rest immediately upon impact with its right wheels on or near the shoulder of the road on the south side of the highway.
McCombs did not see Mays' automobile when it first moved to or across the middle line of the road preparatory to passing the vehicle in front of the Mays automobile. But plaintiff's witness Hart testified that he saw the May automobile at that time and that it was then "some 300 to 500 feet" from the McCombs automobile. Hart guessed that the Mays automobile was from 150 to 200 feet away when it cut across in front of the McCombs automobile
No witness testified positively that it was raining at the moment of the collision but there was evidence to the effect that the road was wet and muddy. No witness testified that the road was slick or slippery but according to Mays' testimony signs were posted somewhere along the road which indicated that the road at those points was slippery when wet.
Counsel for Mays, the appellee, summarizes his client's contention in regard to the claim of contributory negligence on the part of McCombs thusly:
"* * * It is further submitted that the appellant's insured driver [McCombs], driving a loaded trailer without brakes on a wet and slick road, and in a curve, at a speed of fifty miles per hour or more, was guilty of contributory negligence which proximately caused appellant's loss."
Our examination of the record does not reveal any testimony that the McCombs automobile was traveling in excess of fifty miles an hour. But except for this, the language quoted above finds support in the evidence if it be assumed that the signs indicating that the road was slippery when wet were erected near the scene of the collision.
But assuming arguendo that McCombs was guilty of negligence in the operation of his automobile in the manner described by counsel for Mays, we are clear to the conclusion that such negligence did not constitute a proximate or contributing cause of the collision. Mays' automobile was out of control. It was moving towards McCombs' automobile with considerable speed in McCombs' lane of traffic. If McCombs' automobile had been stopped there is nothing to indicate that the collision could have been avoided. We do not believe that the speed with which McCombs was pulling the trailer over the road in question can be said to have contributed in any way to the collision. It is well settled that only such negligence on a plaintiff's part as constitutes a proximate and contributing cause of his injury or damage bars his recovery. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Herring v. Louisville & N. R. Co., 203 Ala. 136, 82 So. 166; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; Preston v. La-Salle Apartments, 241 Ala. 540, 3 So. 2d 411; Johnson v. Martin, 255 Ala. 600, 52 So. 2d 688; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821.
In regard to this court's review of a judgment of a trial court denying a new trial, the court, speaking through Justice *704 Sayre, said in Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 569, 61 So. 914, 915, as follows:
See Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251; Carraway v. Graham, 218 Ala. 453, 118 So. 807; Furst v. Shows, 217 Ala. 297, 116 So. 149; Columbus Electric & Power Co. v. Downs, 214 Ala. 104, 106 So. 593; Gilchrist-Fordney Co. v. Bearry, 210 Ala. 472, 98 So. 478; Louisville & N. R. Co. v. Rush, 208 Ala. 516, 94 So. 577; Southern Ry. Co. v. Grady, 192 Ala. 515, 68 So. 346.
Our reluctance to find fault with rulings of the trial court on the weight of the evidence is traditional. But we are convinced the verdict in this case was not sustained by the great weight of the evidence, resulting that we must order a reversal of the cause. It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 22, 1965 |
9e9d1495-ec96-4324-a211-1816969914dd | Alabama Farm Bureau Mut. Cas. Ins. Co. v. Crestman | 171 So. 2d 119 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 119 (1965)
ALABAMA FARM BUREAU MUTUAL CASUALTY INS. CO., Inc.
v.
Cornelia CRESTMAN, Pro Ami.
1 Div. 114.
Supreme Court of Alabama.
January 21, 1965.
Jas. L. Shores, Jr., Birmingham, for appellant.
Jas. R. Owen, Bay Minette, for appellee.
COLEMAN, Justice.
Plaintiff was injured in a motor vehicle collision, sued the defendant who allegedly caused plaintiff's injury, and recovered judgment against the defendant.
The judgment was not paid and plaintiff brought the instant suit, in equity, against defendant's liability insurer. § 12, Title 28, Code 1940. Defendant was not made a party to the instant suit. After hearing, the court rendered decree for plaintiff and against insurer. The insurer appeals.
Insurer assigns rendition of the decree as error. Insurer argues that the court erred in rendering the decree because: "The evidence in this case is uncontroverted that Hubert Harville deliberately misrepresented to appellant that he was not involved in the automobile accident which injured the appellee."
The transcript of evidence covers more than two hundred pages. Insurer insists that the evidence is uncontroverted so as to compel a finding that defendant was guilty of such misrepresentation as avoided the policy, but insurer has not complied *120 with Rule 9 of the revised rules of this court. Insurer's noncompliance is that insurer has failed to set out in brief, under the statement of facts, "a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely." By such noncompliance, appellant waived the assignments going to the insufficiency of the evidence to support the decree. Limbaugh v. Comer, 265 Ala. 202, 90 So. 2d 246; Case v. Ward, 276 Ala. 242, 160 So. 2d 859; Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So. 2d 361; Evergreen Heading Co. v. Skipper, 276 Ala. 623, 165 So. 2d 705.
Insurer argues that defendant, the insured, is a necessary party to this suit, and, because insured has not been made a party, the decree must be reversed.
We have not found where insurer raised this point of nonjoinder in the trial court, but the point may, nevertheless be raised on appeal.
In a suit under § 12, Title 28, this court has decided that the insured is a "necessary party" under the rule that all persons having a material interest in the litigation, or who are legally or beneficially interested in the subject matter of the suit and whose rights or interests are sought to be concluded thereby, are necessary parties. Insurance Company of North America v. Davis, 274 Ala. 541, 543, 150 So. 2d 192.
For failure to join insured as a party, the decree is reversed and the cause remanded.
Appellant had knowledge of the non-joinder, and, not having made this objection in the trial court, is in fault and must pay one-half the costs of this appeal and appellee the remainder. Prout v. Hoge, supra; Rollan v. Posey, supra.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | January 21, 1965 |
c2a52a6f-b039-444b-9c2f-294c5c12aa1a | Turner v. Blanton | 173 So. 2d 80 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 80 (1965)
Julian T. TURNER
v.
Fred E. BLANTON.
4 Div. 207.
Supreme Court of Alabama.
March 11, 1965.
*81 J. Robt. Ramsey, Dothan, for appellant.
Merrill & Harrison and J. T. Jackson, Dothan, for appellee.
MERRILL, Justice.
Appellee sued appellant in two counts, one for work and labor done ($6,000), the other for goods, chattels and merchandise *82 ($1,500) sold to appellant. The verdict and judgment on Count One were $2,552.78 and on Count Two $530.83. Appellant's motion for a new trial was overruled and this appeal followed.
In 1961, appellant rented 150 acres of corn land to appellee, who moved on the place, and in October, 1962, they entered into a written joint operation agreement concerning a cattle operation, whereby appellee obtained a half interest in the cattle and he, in turn, executed a conditional sales contract back to appellant on the cattle. It is undisputed that both parties became dissatisfied with the written agreement early in 1963, but what happened next is the dispute which caused the suit.
Appellee contends that both parties agreed to abrogate the written agreement, that appellant was to take back the cattle and their increase, take over the entire cattle operation and, in turn, pay appellee for his work and labor done on the farm since early December, 1961, and pay appellee for the goods, wares and merchandise that he furnished up to and until February, 1963.
Appellant contends that the written agreement was still in effect and denied "that he ever made any agreement with appellee to pay him any fixed amount or a reasonable amount."
Assignment of error 2 reads:
Such an assignment is proper in a case at law where the complaint consists of only one count because it goes to the complaint as a whole, and is proper in equity because it goes to the bill as a whole. Cases at law: Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808; Craig & Co. v. Pierson Lumber Co., 169 Ala. 548, 53 So. 803; Lord v. Werneth, 35 Ala.App. 290, 46 So. 2d 236; Cases in equity: Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509; Hutto v. Copeland, 265 Ala. 482, 92 So. 2d 30; Wallace v. Lindsey, 270 Ala. 401, 119 So. 2d 186.
But where the complaint consists of more than one count, the assignment of error complaining of the ruling on demurrer should be that the court erred in overruling or sustaining the demurrer to a certain numbered count, plea or replication. Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 150 So. 2d 365; Central of Georgia Railway Co. v. Hinson, 262 Ala. 223, 78 So. 2d 286; Count: Linville v. Crittenden, 272 Ala. 630, 133 So. 2d 381; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42; Plea: Central of Georgia Railway Co. v. Hinson, supra; Western Railway of Alabama v. Arnett, 137 Ala. 414, 34 So. 997; Replication: Ledbetter v. Frosty Morn Meats, supra; Craig & Co. v. Pierson Lumber Co., 169 Ala. 548, 53 So. 803. Similarly, if a respondent in equity wishes to test the sufficiency of an aspect of a bill separately, the demurrer should be addressed to that aspect separately described and point out separately the defects in the allegations with respect to it. Murphy v. Pickle, 264 Ala. 362, 87 So. 2d 844, and cases there cited.
The reason for these rules is that a demurrer is a single entity of pleading and the numbered grounds do not constitute separate units. If any ground is good the demurrer should be sustained. It should not be overruled unless each of the grounds fails to point out some insufficiency. Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 150 So. 2d 365; Central of Georgia Railway Co. v. Hinson, 262 Ala. 223, 78 So. 2d 286.
Also where a single assignment of error complains of two or more rulings on demurrers to distinct units of pleadings, such as counts, pleas or replications, the single assignment of error that the court erred in overruling the demurrer is considered and treated as joining each of the separate rulings; and, if any one of such rulings is correct, the trial court will be *83 justified, and the appellant will fail, for he will not have sustained his single averment of error in every one of the rulings he has joined in a single assignment. Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808, 810, approved and reaffirmed, Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.
The statement "This assignment is not too general" in relation to an assignment that the court erred in overruling the demurrer to the complaint as last amended, when the complaint consisted of six counts, in Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, 61 A.L.R.2d 1346, is not to be followed. We note that assignments of error in that case were properly assigned to the action on each count separately.
Appellant's assignment of error 2 is too general, there being more than one count in the complaint. Authorities supra.
Appellant's assignment 12 is that the court erred in overruling the demurrer to Count One of the amended complaint. This assignment of error is sufficient under the rules and authorities discussed and cited supra, and specifically, Linville v. Crittenden, 272 Ala. 630, 133 So. 2d 381; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.
The demurrer raised the point that Count One was not in Code form and that there was no allegation that the amount claimed was "due from him" (defendant). The demurrer should have been sustained. Smythe v. Dothan Foundry & Machine Co., 166 Ala. 253, 52 So. 398; Gilbert v. Mitchell, 22 Ala.App. 603, 118 So. 495, and cases there cited. We do not hold that the count must be a verbatim copy of the Code form. In Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86, Count 6, for work and labor done, did not include the words "from him" after the word "due", but we held that Count 6 was "substantially in the form prescribed by the statute."
But error in overruling a demurrer to a count is not always reversible error. The rule is that if there is some defect of averment in the complaint or a plea, and the court has erred in holding such pleading good, nevertheless if there is evidence of the matter so omitted, and both parties try the issue as though such allegation were made, and the court instructs the jury that such matter must be proven, and both parties have full opportunity to, and do, offer all the evidence they wish on that issue, we will not reverse the case for the error in such ruling on the pleading. Federal Automobile Ins. Ass'n v. Meyers, 218 Ala. 520, 119 So. 230; Life & Casualty Ins. Co. of Tennessee v. Peacock, 220 Ala. 104, 124 So. 229; Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417.
Also, when the parties adopt a theory for the trial, and it is tried with that understanding, by the parties and the court, this court accepts the view that the pleadings present that theory. Federal Automobile Ins. Ass'n v. Meyers, 218 Ala. 520, 119 So. 230; Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 158 So. 2d 667; John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 548, 184 So. 275; Jefferson County v. Parker, 211 Ala. 289, 100 So. 338; Lord v. Werneth, 35 Ala.App. 290, 46 So. 2d 236.
Here the primary issue was whether the written agreement had been abrogated, and the evidence on that point was in conflict. But it is undisputed that if the written agreement had been abrogated, appellee had worked for appellant at his request, that he had not been paid and he was claiming that $6,000 was due him by appellant under an oral agreement that he would be paid. The case was tried as though the omitted allegation was made in the complaint and the contentions of the parties were fully covered by the court's oral *84 charge, to which both parties announced that they were satisfied.
We conclude that although the trial court erred in overruling the demurrer to Count One of the complaint, such error was without injury under the foregoing authorities.
The effect of assignment of error 3 is that the court erred in refusing the affirmative charge with hypothesis, which read:
This charge was properly refused for two reasons. First, there was a material conflict in the evidence, and where a jury question is presented, a request for the affirmative charge with hypothesis is correctly refused. Dean v. Mayes, 274 Ala. 88, 145 So. 2d 439; Schoen v. Schoen, 271 Ala. 156, 123 So. 2d 20. Secondly, the trial court will not be put in error for refusing to give a requested written charge requiring the jury to affirmatively find for the defendant upon the hypothesis stated in them, where the complaint consists of more than one count. The proper form of the charge should be that the jury should not find for the plaintiff, or should not find against the defendant. Goldstein v. Leake, 138 Ala. 573, 36 So. 458; Boshell v. Cunningham, 200 Ala. 579, 76 So. 937; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247. These cases and the rule have no application where the complaint consists of only one count. Railway Express Agency v. Burns, 255 Ala. 557, 52 So. 2d 177.
What we have said as to assignment 3 applies to the charges made the basis of assignments 4, 5 and 6 and they are also without merit. Moreover these charges were substantially covered in the court's oral charge, and the refusal of these charges was without error. Parkinson v. Hudson, 265 Ala. 4, 88 So. 2d 793; Tit. 7, § 273, Code 1940.
Assignment 7 charges error in the overruling of appellant's objection to a question propounded to a witness. This contention fails because a responsive answer had been given by the witness prior to the objection, and the objection was not timely made. Schoen v. Schoen, 271 Ala. 156, 123 So. 2d 20; Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322.
Assignment 8 is concerned with the reception of certain evidence. The record shows the following:
"MR. RAMSEY: We reserve an exception."
The court ruled correctly since it was plaintiff's theory and contention that appellant had agreed to pay appellee a reasonable price for the goods, wares and merchandise that he used in the operation.
Assignment 9 charges that appellee was allowed to testify over objection about an offer of settlement. Assuming that this was the effect of the testimony of the witness, the identical transaction and offer had been testified to earlier by the witness without objection, and the error was rendered harmless. Prejudicial error may not be predicated upon the admission of evidence which has been admitted without objection or motion to exclude at some other stage of the trial.
*85 Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So. 2d 110, and cases there cited.
Assignments 10 and 11 are without merit, No. 10 complaining of the overruling of objection to a question propounded to appellee on direct examination and No. 11 to an answer of appellee to a question. The first question was pertinent, relevant and material under the count for work and labor done, and the answer was relevant under Count Two of the complaint.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | March 11, 1965 |
dff80905-f784-4a5f-8221-8a0a9762f78f | McKenzie v. North River Ins. Co. | 58 So. 2d 581 | N/A | Alabama | Alabama Supreme Court | 58 So. 2d 581 (1951)
McKENZIE et al.
v.
NORTH RIVER INS. CO.
6 Div. 50.
Supreme Court of Alabama.
December 21, 1951.
Rehearing Denied May 15, 1952.
*582 Ray & Giles, Birmingham, for appellant.
Davies & Williams, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
The bill of complaint as last amended filed by appellee alleges in substance that the appellee insured appellants' dwelling at 3401 North 39th Street, Birmingham, Alabama, against loss or damage by aircraft in the amount of $2150.00 for one year beginning May 22, 1945. That on May 26, 1945, said dwelling was damaged by aircraft operated by an agent of the U. S. Government.
The bill further avers that on May 11, 1948, appellee loaned or advanced to respondents $2,537.00 being "the full amount of the policy together with interest thereon." A "loan receipt", which is exhibit "A" to the bill, executed by appellants reads in part as follows:
The bill further alleges that the appellants recovered from the United States Government $5,982.15 for damages to the building by Government aircraft and that the said amount was a "net recovery".
The bill prays the court to establish a trust in favor of appellee to the extent of $2,537.00 plus interest in monies held by respondent Bank for Savings and Trust (said defendant did not join in the appeal and is a mere stakeholder) and also an equitable lien against a certain piece of realty, which it is alleged was acquired by appellants in part with monies recovered by *583 appellants from the United States Government.
The appellants filed in the lower court many grounds of demurrer testing the sufficiency of the bill. The trial judge overruled the demurrer to the bill as last amended and from this adverse ruling the appellants prosecute this appeal.
The insurance policy involved in this case was not made a part of the bill of complaint nor are its terms alleged. We cannot find where this court has ever considered the legality of a "loan receipt" such as is now before us. Appellee has cited us to respectable authorities which have upheld "loan receipts". Luckenbach et al. v. W. J. McCahan Sugar Refining Co. et al., 248 U.S. 139, 39 S. Ct. 53, 55, 63 L. Ed. 170, 1 A.L.R. 1522; First National Bank of Ottawa v. Lloyd's of London, 7 Cir., 116 F.2d 221, 132 A.L.R. 599.
A study of these and other related authorities reveal that at the outset the courts upheld such agreements where the insurer was not liable in all events but its liability was contingent upon the insured's failure to secure redress against a tortfeasor. Mr. Justice Brandeis in the Luckenbach case stated that "It is essential to the performance of insurer's service, that the insured be promptly put in funds, so that his business may be continued without embarrassment * * *. The shipper could not have been obliged to surrender to the insurers the conduct of the litigation against the carrier, until the insurers had paid. In consideration of securing them the right to conduct the litigation, the insurers made the advances. It is creditable to the ingenuity of businessmen that an arrangement should have been devised which is consonant both with the needs of commerce and the demands of justice."
Many of the cases involving loan agreements have been collected by the editors of American Law Reports and are ably reviewed in 157 A.L.R. 1261. The reasoning of the Luckenbach case has already been discussed and the facts there amply sustain the decision. Other courts have sustained loan agreement on various theories when the facts justified such a holding.
After a study of the authorities and considering the allegations of the present bill, we are impressed with the words of Justice Personius in his opinion in the case of Yezek v. Delaware, Lackawanna & Western R. Co., 176 Misc. 553, 28 N.Y.S.2d 35, 38. Justice Personius there observed:
On demurrer the pleadings will be construed most strongly against the pleader. For aught that appears from the averment of the bill here under review appellee has done nothing but pay to the appellant that which was due under a contract of insurance without showing any right to be subrogated to the recovery from the government. The policy of insurance is not before us nor its terms averred, and it will be presumed under the stated rule of pleading that it called for nothing but payment in the event of loss with the right of subrogation excluded.
The bill avers that a policy of insurance was in force by appellee in favor of appellant against damage by aircraft to appellant's property. It further states that appellant's property was damaged by aircraft. It would thus appear that the only remaining thing to be done as between the parties would be payment by the insurer and receipt by insured. Adopting the words of Justice Personius in the case of Yezek v. Delaware L. & W. R. Co., supra, the "loan" was "payment without regard to its form." The so-called loan is "a fiction, a subterfuge unnecessary either to protect the insurer or to secure prompt payment to the insured."
*584 Appellant's demurrer takes the point that the loan agreement is without consideration. Such a point under customary practice and procedure is defensive in nature and not to be tested by demurrer. Here, however, it affirmatively appears from the allegations of the bill that the appellee was appellant's insurance carrierthat a loss occurredthat a "loan" in the exact amount of the policy with interest thereon was made. What was the consideration for the "loan"? The bill discloses none but instead avers sufficient facts which lead us to conclude there was no consideration for the "loan receipt". In such a case, where the basis of the complaint is a contract, which from the allegation of the bill affirmatively appears to be without consideration, such matter is not defensive but goes to the equity of the bill which can be attacked by demurrer. Spangler v. Barber et al., 245 Ala. 386, 17 So. 2d 232.
As heretofore noted the appellee failed to allege the terms of the insurance policy nor was the policy made an exhibit to the bill, and with regard to the consideration of the "loan receipt" we deem the terms of the policy necessary to determine whether or not it called for anything other than payment. The general rule of equity pleading is that a bill must set forth a copy or aver the terms of an instrument vital to plaintiff's demand. Roney v. Dothan Produce Co., 217 Ala. 475, 117 So. 36.
We are convinced that the bill as now framed, relying as it does solely upon the "loan receipt" which from all the allegation is tantamount to nothing more than payment of the policy of insurance, contains no equity and in the absence of any allegation of independent equities the demurrer aptly raising these deficiencies was due to be sustained.
The complainant is hereby given thirty days in which to amend its bill of complaint.
It results that the cause is due to be reversed and the same is remanded to the lower court for further proceedings.
Reversed and Remanded.
BROWN, FOSTER, SIMPSON and STAKELY, JJ., concur.
LAWSON, J., dissents.
GOODWYN, J., not sitting. | December 21, 1951 |
3cf2ac9b-0019-4174-9505-c5af25074417 | Harris v. Elliott | 171 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 237 (1965)
Ex parte Lennie Retherford HARRIS,
v.
Archie H. ELLIOTT, Judge.
3 Div. 151.
Supreme Court of Alabama.
January 21, 1965.
Rives, Peterson, Pettus & Conway, Birmingham, and W. Guy Hardwick, Dothan, for petitioner.
Martin, Balch, Bingham & Hawthorne and Robt. M. Collins, Birmingham, and Brooks, Garrett & Thompson and Broox G. Garrett, Brewton, for respondent.
MERRILL, Justice.
Petitioner seeks a peremptory writ of mandamus to the Judge of the Circuit Court of Escambia County, commanding him to enter an order re-transferring the case of (petitioner) Harris v. Alabama Power Company from the Circuit Court of Escambia County to the Circuit Court of Jefferson County.
Petitioner filed suit against Alabama Power Company in Jefferson County seeking damages for the wrongful death of her husband which occurred in Atmore, Escambia County, on November 2, 1959. Defendant filed pleas in abatement alleging that defendant was and is a domestic corporation; that at the time the cause of action arose and at the time of the filing of said pleas such defendant was doing business by agent in Escambia County, Alabama; that the cause of action arose out of alleged misconduct in Escambia County, Alabama; that the plaintiff's residence is Bonifay, Florida, and that at the time of his death the decedent was a resident of Bonifay, Florida. The defendant prayed that the action be abated, alleging that venue was improperly laid in Jefferson County, Alabama, and that any suit must be instituted in Escambia County, Alabama.
The Circuit Court of Jefferson County sustained the pleas in abatement and transferred the case to the Circuit Court of Escambia County, pursuant to Act No. 76 of the Special Session of the Legislature of 1961, Acts 1961, p. 1953, (Tit. 7, § 64 (1), Recompiled Code 1958, Pocket Part) which provides:
"When a trial court sustains a plea in abatement as to venue, the court *238 shall order a transfer of the case to some proper court in which the case might have been legally instituted and the case shall proceed in such court as though originally instituted therein. The defendant shall have the right to select the court to which such case shall be transferred in the event the case is within the jurisdiction of more that one court."
Plaintiff then filed a motion to transfer the cause back to Jefferson County and the motion was overruled. The present petition for writ of mandamus was then filed in this court to require the transfer of the cause back to Jefferson County.
Both parties agree that two questions are presented on this appeal; first, is mandamus the proper remedy; and second, if mandamus is proper, whether or not an action for wrongful death under our Homicide Act, Tit. 7, § 123, Code 1940, is an action for "personal injuries" within the purview of Tit. 7, § 60, Code 1940, which reads:
Petitioner concedes in brief "that normally mandamus is not regarded as an appropriate remedy to review a ruling of the trial court on a plea in abatement, appeal being regarded as being sufficient to afford relief." But petitioner urges that this case is an exception to the general rule. The exceptions are listed in Brittain v. Jenkins, 263 Ala. 683, 83 So. 2d 432, where we held that a review by mandamus of the trial court's ruling on a plea in abatement was not within the exceptions to the general rule. We think it better to follow the Brittain case and the authorities cited therein, rather than add another exception to meet the problem posed by the instant case.
We, therefore, hold that mandamus is not the proper remedy because the ruling on the plea in abatement can ultimately be presented on appeal, and the petition is denied.
Having disposed of the first question in the negative, we do not reach the second question, and we are conscious that the remaining observations in this opinion are obiter dicta.
The second question takes up most of the space in the briefs of both parties and we are cited to many of our own cases and those of other jurisdictions, but they seem to agree that no Alabama case is squarely in point. We call to their attention the case of Alabama Great Southern R. Co. v. Ambrose, 163 Ala. 220, 50 So. 1030. It holds that an action for wrongful death is an action for personal injuries. It also held that the limitation in Sec. 6112, Code 1907, that "all actions for personal injuries must be brought in the county where the injury occurred, or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff's residence," applied to foreign as well as domestic corporations. This latter holding was overruled in Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917), as being unconstitutional because it was in conflict with Sec. 232 of the Constitution of 1901, which states that a foreign corporation "may be sued in any county where it does business." However, this court also said, "The constitutional provision in question (Sec. 232) does not apply to domestic corporations; to these, of course, the statute can apply, and is not, for this reason, void." Pursuant to the opinion in the Western Union case, Sec. *239 6112, Code 1907, was amended in 1919 to read as it does today (Tit. 7, § 60) with the same limitation applying only to domestic corporations.
Since the record discloses that Alabama Power Company is a domestic corporation, it follows that there is specific authority by this court that an action for wrongful death is an action for personal injuries.
Petition for writ of mandamus denied.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | January 21, 1965 |
c9601f63-4849-44e6-b5cb-8bd119ccaed8 | Hall v. Gulledge | 173 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 571 (1965)
Frances Day HALL et al.
v.
Evelyn Strickland GULLEDGE et al.
6 Div. 125.
Supreme Court of Alabama.
February 25, 1965.
Rehearing Denied April 15, 1965.
*572 Rives, Peterson, Pettus & Conway, Birmingham, for appellants.
Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellees.
SIMPSON, Justice.
This is the second appeal in this case. For a full statement of the facts out of which the controversy arises see Hall, et al. v. Gulledge, et al., 274 Ala. 105, 145 So. 2d 794. On the prior appeal the case was remanded for a hearing on the merits and for a construction of certain restrictions contained in deeds conveying title to the property involved.
We have on this appeal but a single issue: Did the trial court err in its construction of the meaning of the words "no dwelling shall be erected on said property, * * * the side lines of which * * * shall be nearer the side lines of said property than 25 feet".
The Chancellor found that this restriction did not prohibit appellees from building a residence closer than 25 feet to the common boundary line of Lots 25-26 and Lots 27-28.
The appellants take the position that the boundary line between Lots 25-26 and Lots 27-28 is in fact the "side" line of the property of appellees (who own Lots 25-26). Appellees insist that this line is in fact the "rear" line of their property. The trial court agreed that it was the rear line. So that the controversy may be better understood, the following drawing shows how the lots involved are situated, according to the actual plat of the subdivision:
*573 Where is the "rear" line of lots 25-26 considered as an entirety? Appellants contend there is no rear line. However, the deed conveying these lots referred to a rear line twice:
Words used in a deed should be construed in pari materia and the construction should be adopted which will give effect to all words. 26 C.J.S. 1046, Deeds, § 147; Allums v. Albums, 208 Ala. 369, 94 So. 296. The only logical meaning the word "rear" can have as used in the above is along the boundary line between Lots 27-28 and Lots 25-26. In fact, the sewer and power lines run along this boundary.
We think the Chancellor was correct in determining that the line involved is the "rear" line. That being the case, the set-back restriction of 25 feet does not prohibit a building being placed nearer than 25 feet to such line, the line not being a "side" line as used in the restriction first quoted.
Some argument is made in brief by appellants to the effect that appellees are estopped to take the position they take here since they filed a case in the Jefferson County Civil Court against their grantor for breach of warranty. That case ended in a consent settlement. There is no merit in appellants' argument on this point. These appellants have not relied upon and have not been prejudiced in any manner by the position taken by the appellees in the inferior court. These elements are essential to "judicial estoppel". Wright v. Fannin, 229 Ala. 278, 156 So. 849; 31 C. J.S., Estoppel, § 7, et seq.
Being in complete agreement with the trial court, its decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | February 25, 1965 |
db2e35f9-59bf-45ed-bde3-b0e8b6b211f0 | Gilbreath v. Gilbreath | 177 So. 2d 915 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 915 (1965)
James C. GILBREATH
v.
Alvin L. GILBREATH, a Non Compos Mentis, etc.
6 Div. 867.
Supreme Court of Alabama.
March 11, 1965.
Rehearing Denied September 2, 1965.
*916 Dempsey Pennington, Birmingham, for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an appeal from a final decree of the Circuit Court of the Tenth Judicial Circuit of Alabama, in Equity, setting aside a warranty deed conveying certain described real estate executed on May 29, 1959. On that date, Alvin L. Gilbreath conveyed to himself and James C. Gilbreath, his nephew, jointly with the right of survivorship, certain real estate which is the subject matter of this suit.
On May 24, 1961, on a petition filed by McKinley Gilbreath, a brother, Alvin L. Gilbreath was declared a non compos mentis by the Probate Court of Jefferson County, Alabama, and Hon. Ben A. Engel, the county guardian, was appointed his legal guardian.
From a bill in equity, filed in the name of the said guardian to set aside the aforementioned deed, the trial judge entered a final decree declaring the said deed null and *917 void, and divesting James C. Gilbreath, appellant, of all right, title and interest in the lands conveyed. From the decree, James C. Gilbreath appealed.
The evidence discloses the following: Mr. Alvin L. Gilbreath, the appellee, is a retired railroad trainman. He had been afflicted for several years with diabetes and high blood pressure. For a period of three weeks in 1957, his illness required hospitalization. After the death of his wife in 1957, Mr. Gilbreath lived alone in his Birmingham, Alabama, home, which he owned, and in which he had lived for most of his life. He had a personal savings account which amounted to approximately $11,000. He had no surviving children and no descendants of deceased children. He had no relatives within the city, but he did have one living brother, McKinley Gilbreath, and several nieces and nephews, among them the appellant, James C. Gilbreath. James C. Gilbreath lived in Gadsden, a distance of some 60 miles from Birmingham. McKinley Gilbreath lived in Guntersville, Alabama, some 100 miles from Birmingham.
In the latter part of May, 1959, the appellee telephoned his nephew, James C. Gilbreath, at his home in Gadsden and requested that his nephew visit him. The appellant, James C. Gilbreath, came to Birmingham on May 29, 1959, and together, he and Alvin L. Gilbreath went to downtown Birmingham, where Alvin L. Gilbreath, after attending to some personal business, went to his bank and converted his personal savings account into a joint account, which gave to James C. Gilbreath the right of withdrawal. Thereafter, they went to the office of a local attorney, who, at the request of Alvin L. Gilbreath, prepared the deed which is the subject matter of this litigation.
The deed conveyed Alvin L. Gilbreath's real estate to himself and to James C. Gilbreath jointly, with the right of survivorship. They then proceeded to the Probate Court of Jefferson County where the deed was recorded by Alvin Gilbreath. The next day, James C. Gilbreath returned to his home in Gadsden, Alabama.
In February, 1961, the appellee became ill and was carried to the hospital for treatment of an infected foot, hardening of the arteries, diabetes and dietary deficiency. He was discharged about six weeks later.
Shortly after his entry to the hospital in February, 1961, possibly a day or two, appellee's brother, McKinley Gilbreath, came from his home in Guntersville to the hospital where appellee was a patient, and actively assumed control of his brother's affairs. During this period, he learned of the transactions which had occurred on May 29, 1959, and, in particular, he learned of the deed which is the subject matter of this suit.
On February 24, 1961, an attorney employed by McKinley Gilbreath, petitioned the Jefferson County Probate Court, asserting that appellee was mentally incompetent, and praying that the court appoint a guardian for him, which resulted in Hon. Ben A. Engel being named his legal guardian.
On August 18, 1961, the present litigation was commenced by Hon. Ben A. Engel, as guardian of Alvin L. Gilbreath. The bill of complaint alleged that the appellee, Alvin L. Gilbreath, was mentally incapable of executing the deed, the subject matter of this suit, and that the same was a product of undue influence exerted by appellant upon appellee, and that there was no delivery, or an ineffective delivery, of the deed.
Evidence was heard ore tenus by the trial court, and he rendered a final decree granting the relief prayed for in the bill of complaint based on a finding of mental incapacity. The trial court found it unnecessary to reach any conclusion concerning the charge of undue influence and the failure of delivery. James C. Gilbreath appealed.
*918 The first question is whether or not this action should be brought by the guardian. In other words, was the guardian charged with the duty of only managing the ward's estate as it was delivered to him, or was he under a positive duty to actively exploit every transaction and collect every "possible" debt owed to the estate of the ward?
In Abrams v. Abrams, 225 Ala. 622, 144 So. 828, it was said:
All transactions before derangement or during a lucid period must be upheld and enforced by a guardian. Essentially, the duty of a guardian is the performance of a personal service for the ward, management of his estate. Davis v. State, 237 Ala. 143, 185 So. 774.
If, however, the person disposing of the property is declared to be, subsequent to the disposition, non compos mentis, and there is, at least, a reasonable question as to his sanity at the moment of disposition, "[i]t is the positive duty of the guardian to collect the assets of his ward, to reduce to possession choses in action, and to collect debts due the estate of his ward." Cox v. Williams, 241 Ala. 427, 3 So. 2d 129.
Applying these principles of law to the present case, we hold that Hon. Ben A. Engel, the appointed legal guardian of Alvin L. Gilbreath, had, at least, reasonable cause to believe that Alvin L. Gilbreath was incapable of competently handling his ordinary business affairs at the time he executed the deed in question and the suit was properly brought by the guardian.
The testimony of Dr. Arthur M. Freeman was that in September, 1957, approximately two years before the transactions which are the basis of this action, Alvin L. Gilbreath "had sustained definite, severe, and permanent nerve and brain damage." This testimony alone was sufficient to support a finding of reasonable cause, and to impose a definite duty on the guardian to bring this action.
It is true that the right to control one's property is a sacred right and should not be taken away without urgent reason. Consequently, the courts must be extremely careful "not to interfere with that right of free disposal which inheres in the ownership of property." Stroup v. Austin, 180 Ala. 240, 60 So. 879.
The real issue relied upon for reversal is whether or not there was sufficient evidence to justify the trial court in finding that Alvin L. Gilbreath lacked the mental capacity necessary in executing the deed.
Where the evidence is heard orally by the trial judge, his conclusions therefrom have the effect of a jury's verdict and his finding should not be disturbed unless plainly erroneous or manifestly wrong. Mize v. Mize, 273 Ala. 369, 141 So. 2d 200; Maxwell v. City of Birmingham, 271 Ala. 570, 126 So. 2d 209, 211; Board of Zoning Adjustment for the City of Lanett v. Boykin, 265 Ala. 504, 508, 92 So. 2d 906.
Appellant earnestly insists that the decree rendered was plainly erroneous, and certainly manifestly wrong. In the case of Fortune v. Boutwell, 271 Ala. 592, 126 So. 2d 116, it is said:
Appellee introduced the testimony of five witnesses, among them two doctors of medicine whose testimony concerned the mental capacity of Alvin L. Gilbreath. Dr. Arthur Freeman who examined Mr. Gilbreath in September, 1957 testified to the "definite severe and permanent nerve and brain damage." Dr. James M. Morgan, who examined Mr. Gilbreath in February, 1961, testified that he was mentally incompetent and incapable of transacting ordinary business affairs and that the condition was caused by arteriosclerosis, hardening of the arteries, which was permanent in its nature. The other witnesses testified to the general lack of mental capacity which they observed in Mr. Gilbreath.
The appellant's remaining witnesses all testified to the fact that they felt Mr. Gilbreath could have transacted his ordinary business affairs.
The question of mental capacity being adjudicated, the trial court who heard the witnesses and observed their demeanor throughout a careful trial reached the conclusion that Mr. Alvin L. Gilbreath lacked the mental capacity necessary to execute the deed on May 29, 1959.
This Court has examined the evidence and has found that there is reasonable support for the trial court's conclusion on the issue of the mental capacity of Alvin L. Gilbreath to make the deed here in question, and we cannot say that the conclusion was plainly erroneous or manifestly wrong.
Appellant's assignments of error 19, 20, 21, 22, 23 and 24 are grouped together and argued in bulk.
Where unrelated assignments of error are argued in bulk, they must all fail unless valid as to all such rulings. 2A Ala. Dig., Appeal and Error. First National Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So. 2d 284; Roan v. Smith, 272 Ala. 538, 133 So. 2d 224; Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548; Ratliff v. Ratliff, 275 Ala. 560, 156 So. 2d 725.
Appellant's assignment of error 19 is based on the fact that the trial court allowed Mr. McKinley Gilbreath to remain in the courtroom in violation of the rule concerning the exclusion of witnesses. This ruling was within the sound discretion of the trial court and we cannot say that he grossly abused his discretion. Therefore, assignment of error 19 is without merit, and under the rule just stated we will not consider assignments of error 20, 21, 22, 23 and 24.
Appellant's assignments of error 25, 26, 27 and 28 are likewise argued together, or in bulk, and are subject to the above-stated rules.
Another well-known rule is that a party may not sit idly by and voice no objection to a question until after it is answered, speculating as to what the answer will be, and if unsatisfactory, thereafter invoke the ruling of the court.
The questions asked under assignment of error 27 were not objected to until after witness had answered. Furthermore, no motion to exclude the answers were made. This assignment of error is without merit and assignments of error 25, 26 and 28, which are grouped and argued with assignment of error 27, will not be considered.
Assignments of error 29, 30, 31, 32, 33 and 34 are too general to merit further discussion. Moreover, these assignments of error have already been effectively answered.
We find no reversible error in the case, and it is due to be, and is, affirmed.
Affirmed.
SIMPSON, MERRILL and HARWOOD, JJ., concur. | March 11, 1965 |
55d09cc6-a263-40c7-878a-b7677179364b | Norton Company v. Harrelson | 176 So. 2d 18 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 18 (1965)
NORTON COMPANY
v.
Jack H. HARRELSON.
6 Div. 150.
Supreme Court of Alabama.
May 27, 1965.
*19 Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellant.
Robt. S. Vance and Hogan, Callaway & Vance, Birmingham, for appellee.
SIMPSON, Justice.
In this case the evidence is that appellant Norton manufactured and placed upon the market a grinding wheel which was purchased by the plaintiff Harrelson's employer. The wheel was designed to be affixed to a grinding machine and used to grind down metal welds. Plaintiff's employer purchased approximately 100 of these wheels each year and the one in question had been placed on the machine earlier during the morning of the accident. It was used for a few minutes by the plaintiff's co-worker before the plaintiff began to use it in the manner shown to be usual and customary and for the purpose intended by Norton. The speed at which the machine was being operated was not as great as the maximum recommended by Norton when grinding with its wheel.
*20 While using the machine the wheel disintegrated, throwing some particles against the roof and wall of the building where plaintiff was working, with one piece cutting his thigh and tearing into his penis. The medical evidence is that this wound to the penis resulted in permanent scar tissue which cannot be removed by further surgery and causing plaintiff pain and discomfort.
There is evidence that the plaintiff is experienced at using grinding machines and the type of wheel in question, as was his co-worker who affixed the wheel to the machine. Following the accident the machine was tested and found to be in proper working condition and not turning at a higher speed than recommended as safe when using these wheels.
The appellant's primary and principal argument is directed to the refusal of the trial court to grant its request for the general affirmative charge with hypothesis and its motion for a new trial. The basis for these arguments is the failure of the plaintiff's evidence to prove that it was negligent in its manufacture by proof of a specific defect in the grinding wheel in question.
The pieces of the wheel were discarded by the plaintiff's employer following the accident and were not available as evidence upon the trial of the case. These pieces were not subjected to any scientific examination for a peculiar latent defect.
There is evidence that Norton had been manufacturing this particular type of wheel for a period of thirteen years and that it performed two quality control tests on each wheel, a visual inspection and a spinning of the wheel at a speed in excess of that recommended for its use. The plaintiff presented evidence through expert witnesses that examination of other Norton wheels of this particular type revealed variations in tensile strength and that under test two other such wheels disintegrated or showed failure when applied to the intended purpose in the customary and usual manner at speeds lower than the maximum recommended by Norton. These same expert witnesses testified as to other scientific tests which might be employed to determine the amount of stress to which such wheels might be subjected for the purpose of revealing any latent defect or propensity for failure and disintegration.
We are of the opinion that this evidence is sufficient to submit to the jury for decision the issue of whether the appellant was negligent in its manufacture of the particular wheel in question.
The evidence appears to be without contradiction that Norton manufactured the wheel, that there was no privity of contract with the plaintiff, that the wheel was being applied to its intended purpose and used in the usual and customary manner. Appellant does not deny that the wheel becomes an article inherently and imminently dangerous to human life and health if negligently manufactured.
The doctrine of manufacturer's liability has been considered by this court in the following cases: Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21 (1921); Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474 (1938); Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415 (1938); Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245 (1939); Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So. 2d 639 (1942); Crane Co. v. Davis, 242 Ala. 570, 8 So. 2d 196 (1942); DeFore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958); Greyhound Corporation v. Brown, 269 Ala. 520, 113 So. 2d 916 (1959); and lastly Sears, Roebuck & Co. v. Morris, 273 Ala. 218, 136 So. 2d 883 (1962).
This doctrine is applicable in a limited number of situations. The defendant must be either the manufacturer or seller of the injury-producing article. There is no privity of contract between the defendant and the injured plaintiff. At the time complained of the article must have *21 been applied to the use for which it was manufactured and sold and that use must be in the usual and customary manner. Where these circumstances exist the manufacturer or seller will be liable for an injury proximately resulting from the use of the article but only where the article is inherently or imminently dangerous to human life or health, or becomes so when put to its intended use in the proper manner. This liability arises from either the negligent manufacture of the article or negligence in selling it.
There is a distinction between the negligent manufacture of an article, i. e., failure to observe reasonable care in the selection and assembly of component parts, and negligence in failing to observe reasonable care in the design of an article of manufacture. An article may be properly designed and negligently constructed either through use of defective materials or lack of reasonable care in the manner of its assembly. Likewise, there may be an exercise of reasonable care in the selection of materials and the use of reasonable skill in assembly of an article, but the article may be negligently manufactured and sold because of improper design.
While our previous decisions do not fragmentize the duty of the manufacturer to this extent, those cases just cited do illustrate the soundness of this principle. In Miles v. Chrysler Corporation, supra, the manufacturer was found to be negligent in the assembly of a door lock resulting in injury to the plaintiff who fell out the door, there being no evidence that the design was faulty or any defects in the component parts. On the other hand, in Altorfer Bros. Co. v. Green, supra, where there was no evidence of faulty materials or improper assembly, the manufacturer was liable for a design which caused the washing machine wringer to fail to disengage properly. Likewise, in Sears, Roebuck & Company v. Morris, supra, the seller was held liable, not upon proof of negligent manufacture in the use of materials or the manner of assembly of those materials, but for marketing an article without warning that its design was of such a nature that it became dangerous when put to its intended use in a proper manner.
Contrary to appellant's contention, the doctrine of manufacturer's liability does not require proof of a specific defect in the article itself. This exact argument was made in a strikingly similar case involving a grinding wheel similar to the one in our case. Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825. The court there said:
We concur. In our case as in Trowbridge, the plaintiff did not show a specific defect in the wheel which injured him. It was impossible to do so. However, expert witnesses testified that two identical wheels developed flaws when subjected to rather simple stress testing, and further testified that such tests can be made on such wheels which would disclose defects, which defendant Norton admittedly does not make. There was certainly a scintilla of evidence, if not more, which required the submission of this issue to the jury. We find no error in the court's refusal of the affirmative charge, nor in its denial of the motion for new trial on this ground.
Appellant next contends that the court erred in overruling objections to testimony *22 of plaintiff's expert who testified concerning the tests referred to above. There is no error here. In this case as in Trowbridge, supra, the appellant addresses his argument to the wrong forum. Admittedly not all evidence of experiments or demonstrations is admissible. However, we have said:
The final argument made by Norton on appeal is that the damages ($40,000) awarded plaintiff are excessive. Related is its argument that the court erred in allowing the plaintiff to testify as to what his doctor told him about the advisability of surgery to correct the damage to his penis. It was improper to allow this hearsay testimony. However, we do not think it prejudicially erroneous. In addition to the plaintiff's hearsay testimony on this subject, there was direct, undisputed testimony by the medical witness, Dr. Barelare to the exact same effect, i. e., that surgery would not do the plaintiff any good, and in fact would probably make his condition worse. The prejudice, if any, to the defendant was nominal and does not constitute error to reverse. See 2A Ala.Digest, Appeal & Error, et seq.
On the question of damages, we have a high regard for the rule that the amount fixed by a properly charged jury should be altered only in extreme cases. Reasonable minds can differ on the amount of money sufficient to compensate a plaintiff who has suffered permanent, disabling injury. The amount awarded here is not so outrageous as to clearly indicate that prejudice and bias dictated the figure.
The judgment appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | May 27, 1965 |
c6cad212-81eb-4ab0-baf8-b2c39142bad4 | Bates v. General Steel Tank Co. | 55 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 218 (1951)
BATES
v.
GENERAL STEEL TANK CO.
7 Div. 140.
Supreme Court of Alabama.
November 23, 1951.
Young & Young, Anniston, for petitioner.
Walter J. Merrill and Knox, Jones, Woolf & Merrill, all of Anniston, opposed.
LAWSON, Justice.
This is a petition by W. O. Bates for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Bates v. General Steel Tank Company, Ala.Sup., 55 So. 2d 213, a corporation.
The petition is dismissed for failure to comply with the rule of this court requiring such petition to be presented on transcript paper. Rules of Practice in Supreme Court, rule 36, Code 1940, Title 7, Appendix; Maddox v. City of Birmingham, 255 Ala. 440, 52 So. 2d 166; Nix v. State, 251 Ala. 1, 36 So. 2d 456; Barnett v. Pattillo, 251 Ala. 1, 36 So. 2d 451; Anderson v. State, 251 Ala. 32, 36 So. 2d 244; Farley v. State, 251 Ala. 391, 37 So. 2d 440; Johns v. Thomas H. Vaughn & Co., 251 Ala. 489, 38 So. 2d 21; Haney v. State, 250 Ala. 664, 36 So. 2d 117; Allen v. State, 249 Ala. 201, 30 So. 2d 483; Peterson v. State, 248 Ala. 179, 27 So. 2d 30. See Ex parte Wood, 215 Ala. 280, 110 So. 409.
Petition dismissed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | November 23, 1951 |
8654e087-a313-4b59-a9f2-7116a206ab53 | Bouldin v. City of Homewood | 174 So. 2d 306 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 306 (1965)
Morris N. BOULDIN
v.
CITY OF HOMEWOOD et al.
6 Div. 135.
Supreme Court of Alabama.
February 4, 1965.
Rehearing Denied April 15, 1965.
*307 Griffin & Wilson, Birmingham, for appellant.
J. M. Breckenridge, John S. Foster and W. W. Conwell, Birmingham, for appellee City of Birmingham.
HARWOOD, Justice.
The decree in this court was entered below on 2 September 1964. Under the requirements of due and regular appeal processes, the appeal was submitted in this court on 25 November 1964.
Section 188, Title 37, Code of Alabama 1940, provides as follows:
Pursuant to the provisions of the above section, the city of Birmingham adopted an ordinance on 1 May 1964, expressing its willingness and readiness for the consolidation of the cities of Birmingham and Homewood, Alabama, by an annexation of territory of the city of Homewood, Alabama, to the territory of the city of Birmingham.
*308 A copy of this ordinance was forwarded to the Mayor of the city of Homewood. The council of the city of Homewood took no action. However at a meeting of the council of the city of Homewood on 8 June 1964, a petition for an annexation election, signed by more than fifty qualified electors of the city of Homewood was presented to the council with the request that an election be held in the city of Homewood as provided by Section 188, supra.
Thereafter on 6 July 1964, the city council of Homewood adopted an ordinance calling for a municipal election to be held in the city of Homewood on Tuesday, 11 August 1964, on the question of annexing the city of Homewood to the city of Birmingham, under the provisions of said Section 188, supra.
The Homewood ordinance provided that the Mayor and city clerk give at least thirty days notice of said election by posting such notice in three public places and by publication once a week for three consecutive weeks in the Shades Valley Sun, a newspaper of general circulation in the city of Homewood, Alabama.
Notice of the election to be held on 11 August 1964, was posted in three public places in the city of Homewood, and by advertising in the Shades Valley Sun on July 9, 16, and 23, 1964.
The date upon which said annexation election was called was also the date upon which the city of Homewood was required by law to hold a general election for the election of a Mayor and Board of Aldermen.
Following the election on 11 August 1964, the city council undertook to canvass the returns of the election, and upon the basis of such canvass certified that 2,423 persons voted "Yes" and 2,417 voted "No" on the question of annexing Homewood to Birmingham.
On 17 August 1964, Morris N. Bouldin, a resident of Homewood, Alabama, filed a bill in the Circuit Court of the Tenth Judicial Circuit, praying that the court take jurisdiction of the cause presented by his bill and make the city of Homewood, Alabama, and the city of Birmingham, Alabama, parties respondent and require them to plead, answer or demur, etc.
The bill further prayed that the court issue a temporary injunction or restraining order enjoining the city of Homewood from transferring any of its property or municipal functions to the city of Birmingham, and enjoining the city of Birmingham from taking over, or attempting to take over any of the property or municipal functions of the city of Homewood.
The bill further prayed upon a final hearing that the court render a decree protecting the complainant's property rights by invalidating the special election held in the city of Homewood, Alabama, on 11 August 1964, and further upon a final hearing that the court render a permanent injunction enjoining the city of Homewood from transferring any of its property or functions to the city of Birmingham, and permanently enjoining the city of Birmingham from taking over any of the municipal property or municipal functions of the city of Homewood. The complaint further prayed that the special election held by the city of Homewood on 11 August 1964, be set aside and held for naught, or in the alternative that on a final hearing the court will make and enter an order or decree declaring that the majority of the legal votes cast in such election were opposed to the annexing of the city of Homewood by the city of Birmingham.
We will not attempt to set out all of the averments in Bouldin's bill of complaint, but will refer only to those essential to a review of this case.
In paragraph 4 of his complaint Bouldin asserts in detail matters in reference to the calling of the election, the provision for the notice of such election and asserts that said notice was not posted or published in accordance with the provisions of Section 34(22), Title 37, Code of Alabama *309 1940; that said special election was not legally called and notice thereof was not legally published and that such special election was invalid and void.
In paragraph 9 of his complaint Bouldin alleges that the tax rate on his property in the city of Homewood was $3.35 per hundred and the tax rate in the city of Birmingham was $3.60 per hundred, and that if the annexation of the city of Homewood by the city of Birmingham is perfected, his tax rate will automatically be increased forthwith and he will be damaged thereby.
In paragraph 10 of his complaint Bouldin alleges that the city of Birmingham imposes on its residents a .01¢ sales tax which is not imposed by the city of Homewood, and that on 13 August 1964, the city of Birmingham amended its sales tax ordinance to apply to the residents of any annexed territory, effective on the first of the month subsequent to the effective date of any annexation. Complainant avers that he and other residents of Homewood would be damaged by the levying and paying of said sales tax.
The city of Homewood filed its answer and cross bill, and petitioned for a declaration of its rights. In its answer it admitted many of the allegations contained in the complaint, including those allegations pertaining to the giving of notice of said election. Homewood asserts that although there appears to be a conflict between the provisions of Section 34(22), supra, (notice statute), and Section 188, supra, with respect to the notice required of said election, it had attempted to follow what it considered to be the requirements of Section 188, as to giving the notice of said election. It being the conclusion of the city of Homewood that the notice required was thirty days, and in good faith the city of Homewood considered that the provisions of Section 188 were controlling, and that the thirty day notice as given was legally sufficient.
The city of Homewood prayed that pending a final determination of the proceeding that the lower court would issue an order preserving the status quo of the city of Homewood, and its municipal officers.
The city of Homewood further prayed that upon the final hearing of its answer and cross bill that the court would find the existence of a justiciable controversy between the parties and would render its final decree declaring and setting forth the respective rights, duties, and status of the parties, and would determine the validity of the special election held in the city of Homewood on 11 August 1964.
Other relief is prayed for but we do not think it essential in this review to set such prayers forth.
The complaint of Bouldin, and the answer and cross bill of Homewood, coming to be heard upon the applications for temporary injunction contained in such pleadings, the court denied the application for temporary injunction in each respective case.
The court found as to the original bill that:
In denying the application of cross complainant, city of Homewood, for an interlocutory injunction, the court in its decree wrote:
"Upon consideration, the Court is of the opinion that the aforesaid application is not due to be granted, for probably lack of equitable jurisdiction over the subject matter, and for want of sufficient equity in the cross-bill as amended to invite or support the reliefs sought anterior to final decree, and separately, for insufficiency of the case made to support the reliefs by way *310 of injunction pendente lite, or decretal declarations or provisions assimilable thereto, same being mainly mandatory and affirmative in form or effect."
Appeals in each case have been perfected and by agreement of all parties are to be considered jointly.
In determining whether the court of equity should have exercised jurisdiction in the premises, we are met at the threshold by the provisions of Section 235, Title 17, Code of Alabama 1940.
In parts material to this review, Section 235 provides:
In Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703, the bill was to enjoin the issuance of municipal bonds, the election authorizing such issuance having been held.
It was contended that Section 1671 of the Code of 1896 (now Section 235, supra), forbade the exercise of jurisdiction by courts of equity in election contests, and the bill therefore was without equity. The contention was made that the ballots used in such election authorizing the issue and sale of bonds by the town were not in the form prescribed by the constitution.
In holding there was equity in the bill and that Section 1671 did not oust an equity court of jurisdiction under the facts of the case, this court wrote:
Thus the equity of the bill was rested upon the jurisdiction of equity to prevent the abuse of corporate power and keep municipal corporations within subjection to the law. See Wilkinson v. Henry, 221 Ala. 254, at page 257, 128 So. 362, 70 A.L.R. 712.
In Wakefield v. Town of Carbon Hill, 215 Ala. 22, 108 So. 855, the appellants had filed their bill against the town and its commission, seeking to enjoin the result of an election, that is, a sale of the Water Works and Electric Lighting Plant of the town, according to a resolution previously adopted by the commissioners, for the approval or disapproval of which the election had been ordered.
A demurrer to the bill was sustained on the ground that the equity court had no jurisdiction to ascertain the legality, conduct, or results of the election. In considering this ground the court wrote that Section 549 of the Code of 1923 (now Section 235, supra) relates to the contests of elections to public office only. The court further wrote:
"A survey of the situation discloses the fact that no statutory means of contesting such elections has been provided. In other words, that matter has been left as it was at common law; but, as said by the Supreme Court of the United States: `Of the right of resident taxpayers to invoke the interposition *311 of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question.' Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L. Ed. 1070.
Where as here, illegality of the election is charged, and the interests of individuals comprising the public are affected, and the rights and property of the city of Homewood are affected, as well as the misuse of corporate power, we are clear to the conclusion that equity did have jurisdiction of the bills.
It is further to be noted that in McAdams v. NeSmith, 252 Ala. 178, 40 So. 2d 84, where the purpose of the proceeding was to determine the validity of an election held in the city of Cullman, the judgment appealed from had been entered in a declaratory judgment proceeding filed by McAdams against the city of Cullman and the Mayor and councilmen thereof. No question of the jurisdiction of the lower court to entertain the proceedings was raised.
We now come to consider whether the election held in the city of Homewood on 11 August 1964, was void because of failure to give the notice of such election in compliance with Section 34(22), supra.
Section 188, supra, providing the mode of consolidating contiguous muncipalities in no wise provides for notice of any election to be held thereunder. It does provide, "The election shall be held not less than thirty days after the passage of the ordinance." This means that at least thirty days must elapse after the passage of the ordinance before the election can be held. It does not provide that a thirty day notice of the election is all that need be given.
Section 34(22) of Title 37 (pocket parts), Act No. 663, Acts of Alabama, Regular and Special Sessions 1961, Vol. 1, page 827, approved 6 September 1961, provides as follows:
"It shall be the duty of the mayor to give notice of all municipal elections by publishing notice thereof in a newspaper published in the city or town, and if no newspaper is published in such city or town then by posting notices thereof in three public places in the city or town. When the notice is of a regular election such notice shall be published on or before the third Tuesday in June preceding the election. When the notice is of a special election to be held on the second Tuesday in a month such notice shall be published on or before the second Tuesday of the second month preceding the *312 month in which the election will be held except where otherwise provided by law. When the notice is of a special election to be held on the fourth Tuesday of a month such notice shall be published on or before the fourth Tuesday of the second month preceding the month in which the election will be held except where otherwise provided by law."
The regular election referred to in Section 34(22), supra, is the election held every four years for the election of the Mayor and councilmen of a municipality. All other elections, other than these regular political elections, must be deemed to be special elections. The notice required for special elections under the provisions of Section 34(22) supra, must be published on the second Tuesday or the fourth Tuesday, of the second month preceding the month in which the election will be held, depending upon whether the election is to be held on the second Tuesday or the fourth Tuesday of a particular month. In other words, two months notice of the election is required under this Code Section.
Counsel for the city of Birmingham argue that Section 34(22) as to notice, deals only with the cities not having a commission form of government and was not intended to repeal or amend the provisions of Section 188, supra, which applies to all cities regardless of their form of government, and to hold otherwise would destroy the uniformity of the regulation of municipal elections now established by Section 188.
This argument overlooks the fact that Section 34(22) does have a uniform application insofar as cities not having a commission form of government are concerned. It further overlooks that by Act No. 664, Acts of Alabama, Regular and Special Sessions 1961, Vol. 1, page 868, Sections 34(72a) through 34(125), Title 37, Code of Alabama 1940, approved 6 September 1961, being the same date which Act No. 663 was approved, the legislature provided for the regulation of elections in municipalities of 300,000 population or less, having a commission form of government, and in regard to the notice of elections in these municipalities, provisions of Section 34(75) as to the notice of special elections are identical to those in Section 34(22). The city of Birmingham is the only municipality in this state within the population exception of Act No. 664, supra, and since it had the Mayor and council form of government at the time of the present election, there is no municipality in this state without the provisions of either Section 34(22) or Section 34(75) as regards the notices to be given of special or general municipal elections.
It is crystal clear that the legislature in 1961 by Acts No. 663 and 664, supra, intended to spell out in detail the requirements as to the notice to be given for municipal elections. No longer were city officials to be in doubt in these matters.
As before stated we find no provision in Section 188 as to the notice to be given of the elections to be held thereunder, unless it be found in the statement that an election under the said Section 188 is to be conducted "Under the same sanctions and penalties as general elections." If the word "sanctions" be accorded its usual meaning in law, then the word "sanctions" is redundant of the word "penalties" and adds nothing not encompassed by the word "penalties," and cannot be deemed to provide for any notice.
Sections 34(22) and 34(75) should be construed in pari materia with Section 188, and of course the last expression of the legislature will prevail. City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159; Fidelity and Deposit Co. of Maryland v. Goodwyn, 231 Ala. 44, 163 So. 341.
Special provisions relating to specific subjects control general provisions relating to general subjects, and the general law yields to the special provisions. Herring v. Griffin, 211 Ala. 225, 100 So. *313 202; Downing v. City of Russellville, 241 Ala. 494, 3 So. 2d 34. Where provisions are particularized such special provisions must be understood as exceptions to any general law. Miller v. State ex rel. Peek, 249 Ala. 14, 29 So. 2d 411, 172 A.L.R. 1356; Geter v. United States Steel Corp., 264 Ala. 94, 84 So. 2d 770.
The above principles necessitate that the provision notices in Sections 34(22) and 34(75) be given primacy and full effect in considering whether proper notice was given of any municipal election.
In McAdams v. NeSmith, 252 Ala. 178, 40 So. 2d 84, supra, declaratory judgment proceedings were brought to determine the validity of an election held in the city of Cullman for the purposes of voting on a proposed school tax. In the election the proposal to levy such tax had been approved by a popular vote of 608 to 184. Under the law applicable to the notices required to be given for this type of election, notice had to be published in a newspaper published in the municipality once a week for three successive weeks. The notice was published one time, but did not thereafter appear. The court stated that the question for decision was whether the failure to publish the notice for three successive weeks rendered the election invalid. In answering this question the court wrote:
We think that the doctrine enunciated in McAdams v. NeSmith, supra, and the cases cited therein necessitates the conclusion that the requirement of two months notice was not met by giving a notice of thirty-one days as was done in the present instance, and that palpably under the admitted facts this election was void. This being so, the lower court erred in refusing the temporary injunctions requested by the appellant Bouldin and by the appellant city of Homewood.
The decrees are accordingly reversed and remanded to the trial court for the entry of orders consonant with this opinion.
Reversed and remanded.
Livingston, C. J., and Simpson and Merrill, JJ., concur.
HARWOOD, Justice.
Appellee, City of Birmingham, makes three points on its application for rehearing, (1) that we erred because we prematurely held the election to be void; (2) that we erred in holding that the notice provisions of Act No. 633, approved September 6, 1961, applied; and (3) that we erroneously relied upon the decision in the Bouldin case as the basis for the decision in the Homewood appeal.
The trial court denied relief to both Bouldin and the City of Homewood because of his opinion that there was no equity in Bouldin's bill or Homewood's cross-bill. Each of those sworn pleadings charged that the proper notice had not been given, and Homewood's answer to Bouldin's bill admitted that allegation.
The question of the proper notice was extensively argued in briefs on this appeal and Birmingham admitted in brief"If the 1961 Act applied, the notice of the annexation election was insufficient; * *" and its brief further conceded that the sixty day notice was not given and that a special election held without the prescribed statutory notice is void in the absence of other affirmative defenses.
*314 The pleadings and the admissions of all the parties showed that the sixty day notice was not given. The election was therefore void so far as disclosed by the pleadings, and thus the bill contained equity. The trial court therefore erred in failing to issue the temporary injunction. It was only fitting and proper that we call to that court's attention that the bill and cross-bill contained equity in this respect and why we thought it did. On the record before us, that is, as disclosed by the pleadings, the election was void and it was our duty to say so because that was the feature which gave equity to the bill and the crossbill.
As to point (2), we can only say that there was an honest difference of opinion as to whether Act No. 633 applied to the special election. Evidently, the attorneys for Homewood and Birmingham were of the opinion at that time that the Act did not apply, and the trial court concurred in that opinion. It is our opinion that the Act did apply and our reasons are stated in the opinion.
As to point (3), an agreement appearing in the record in the City of Homewood appeal is to the effect that "* * * it is hereby agreed and stipulated that the record on appeal in the aforesaid cause" (Bouldin v. City of Birmingham) "is hereby included in this record by reference as though set forth in full herein, and that the parties hereto and this Homorable Court may advert to and utilize the record on appeal in the aforesaid cause the same as though its contents were set forth in full herein."
Further, it was agreed between the solicitors for all the parties, subject to approval by this court, that the City of Birmingham might combine in a single brief its reply to the separate briefs filed by the appellants Bouldin and City of Homewood. This agreement was approved by this court, and a single brief was filed by the City of Birmingham.
Thus these two appeals were intertwined and plaited in such fashion by agreement of counsel. This unity compelled consideration of both records together and they have been so treated by all parties. We think the course followed was wise. If there be equity in Bouldin's bill, it would be anomalous to hold that the election was void and the City of Homewood continued to exist so far as disclosed by the pleading in that appeal, but that because of alleged insufficiency in Homewood's bill, in its unamended state as presented to us, as argued by counsel for Birmingham, the lower court should be affirmed, and the denial of the temporary injunction approved, thus in effect in this branch of the appeal holding that Homewood had no existence. Equity must mold its decrees to suit the obvious necessities of each situation, and possesses the power to do so.
We have merely held in our original opinion that Bouldin's bill contained equity, and that the temporary injunction should have been granted. The decree was accordingly reversed and remanded to the lower court for orders consonant with our opinion. In the posture of these appeals it was essential that in a determination of whether there was equity in Bouldin's bill, that we reach a conclusion as to whether Section 34(22) of Title 37 (pocket parts), supra, should be applicable to the special election in question.
We did not, in our opinion, pass upon the question of the constitutionality of Section 34(22), supra, nor upon any question of whether Bouldin, or Homewood might be estopped in pursuing their respective courses. These are matters to be determined first by the lower court in a hearing upon the matter.
The City of Birmingham has filed a motion that this rehearing be considered by all of the justices of this court, in that, as Birmingham alleges, we passed upon the ultimate validity of the election without according the City of Birmingham an opportunity to assert its affirmative defenses. In so doing, the motion asserts, we overruled *315 Alabama Law Enforcement Officers, Inc. v. City of Anniston et al., 272 Ala. 319, 131 So. 2d 897; Mobile County v. Barnes-Creary Supply Co., 224 Ala. 168, 139 So. 270; Holcomb et al. v. Forsyth, 216 Ala. 486, 113 So. 516.
Other than holding that Section 34(22), supra, applicable to this election, a matter necessitated by manner of the presentation of these appeals, we passed upon no affirmative defenses that Birmingham may see fit to present in the lower court. The motion to have this application for rehearing considered by the full court is denied.
The application for rehearing is likewise due to be overruled.
Application overruled.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | February 4, 1965 |
722fab07-5aef-4635-9478-039098c1ec0c | Thomas v. State | 173 So. 2d 111 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 111 (1965)
Charles Edward THOMAS
v.
STATE of Alabama.
1 Div. 190.
Supreme Court of Alabama.
March 18, 1965.
*112 Douglas Standard, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Charles Edward Thomas, a negro, was convicted of robbery in the Circuit Court of Mobile County. He was sentenced to serve a term of twenty-five years in the penitentiary. He has appealed to this court.
Submission here was on the record proper without a transcript of the evidence adduced at the trial. Thomas has made no effort to show in the trial court or in this court that he is entitled to a free transcript of the evidence on the ground that he is indigent.
Thomas was represented by counsel at all stages of the trial and the experienced attorney who represented him throughout most of the trial appears for him in this court.
The State in its original brief took the position that since there is no evidence in the record before us we should affirm without treatment of any of the rulings of the trial court which appear in the record proper.
But the appeal may not be disposed of in such a summary fashion.
The trial court, on motion of the State, struck Thomas' motion to quash the indictment on the ground that it was returned by a grand jury from which negroes had been systematically excluded because of their race or color.
In a long line of cases going back many years, the Supreme Court of the United States has held that a criminal defendant is denied the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Eubanks v. State of Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991, and cases cited.
Decisions of this court are to the same effect. Washington v. State, 269 Ala. 146, 112 So. 2d 179, and cases cited. In the early case of Green v. State, 73 Ala. 26, 31, Mr. Justice Stone, writing for the court, said:
It seems to be settled that a motion to quash is the proper way to challenge an indictment and a trial venire on the ground of intentional racial discrimination. Washington v. State, supra, and cases cited.
Sections 278 and 285, Title 15, and § 46, Title 30, Code 1940, have been held to be procedural statutes, designed to prevent quashing of indictments or venires for mere irregularities and to obviate the resulting delays in the administration of justice. Those statutes do not deny to one charged with a crime the right to present *113 for a determination the question of whether the rights guaranteed by the Fourteenth Amendment to the Constitution of the United States have been violated. Vernon v. State, 245 Ala. 633, 18 So. 2d 388; Washington v. State, supra.
The State's motion to strike the motion to quash the indictment was grounded on the fact that the motion to quash was filed after the defendant, Thomas, had pleaded not guilty to the indictment.
Under several decisions of this court the State's motion was well taken and under those decisions the trial court did not commit reversible error in granting the State's motion.
In the following cases, among others, this court held that a motion to quash an indictment, to be available, must be made before arraignment and plea to the merits. Johnson v. State, 134 Ala. 54, 32 So. 724; Bell v. State, 227 Ala. 254, 149 So. 687; Wimbush v. State, 237 Ala. 153, 186 So. 145; Owen v. State, 255 Ala. 354, 51 So. 2d 541; Reeves v. State, 264 Ala. 476, 88 So. 2d 561. The rationale of the holdings in those cases is that by not filing the motion to quash before pleading to the merits, the defendants waived any right they might have to have the indictments quashed.
If we were to affirm the action of the trial court in striking Thomas' motion to quash because not timely filed, it is probable that the Supreme Court of the United States would not disturb our action on direct attack. In the case of Fay v. Noia, 372 U.S. 391, 428, 83 S. Ct. 822, 843, 9 L. Ed. 2d 837, it was said:
But see Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408.
But Fay v. Noia, supra, holds, as we understand the opinion, that if the defendant brings habeas corpus proceedings in the appropriate federal court, that court can inquire into the facts and make its own determination as to whether the petitioner did in fact waive his constitutional rights. Fay v. Noia holds that an independent state ground does not arbitrarily bar federal review on habeas corpus.
The United States Court of Appeals for the Fifth Circuit in Whitus v. Balkcom, 333 F.2d 496, relying on Fay v. Noia, held a Georgia rule of assuming waiver from a failure to make a timely objection would not be allowed to frustrate the federally guaranteed right of a fairly constituted jury. This despite the fact that Whitus did not attempted to raise the jury question in the Georgia trial court.
There are two other decisions of the United States Court of Appeals for the Fifth Circuit which deal with the question of waiver in systematic exclusion cases United States ex rel. Goldsby v. Harpole, 263 F.2d 71, cert, denied, 361 U.S. 838, 80 S. Ct. 58, 4 L. Ed. 2d 78; and United States ex rel. Seals v. Wiman, 304 F.2d 53, cert, denied, 372 U.S. 924, 83 S. Ct. 741, 9 L. Ed. 2d 729. In each case the attorneys for the negro defendant did not make a timely objection to the composition of the jury. In spite of this noncompliance with the state rule requiring such an objection to be made in the early stages of a trial, the court held that there was no waiver.
Seals v. Wiman, supra, arose out of a conviction of Seals in the Circuit Court of Mobile County of the crime of rape. His conviction was affirmed by this court. Seals v. State, 271 Ala. 142, 122 So. 2d 513. A petition for leave to file in the trial court a petition for writ of error coram nobis was denied by this court on the ground that Seals, a negro, by not timely attacking the *114 composition of the jury in the trial court, had waived his right to assert that members of his race had been systematically excluded from the grand and petit jury. Certiorari was denied by the Supreme Court of the United States, without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court. Seals v. State of Alabama, 366 U.S. 954, 81 S. Ct. 1909, 6 L. Ed. 2d 1246. Application was then made to a federal district court pursuant to the suggestion of the Supreme Court of the United States, but the application for writ of habeas corpus was denied. An appeal then followed to the United States Court of Appeals for the Fifth Circuit, where it was held that there had been no waiver and Seals' conviction was held to be unconstitutional, void and of no effect.
We had this question of waiver in Ex parte Aaron, 275 Ala. 377, 155 So. 2d 334. Aaron's first conviction was reversed by this court. Aaron v. State, 271 Ala. 70, 122 So. 2d 360. After remandment he was retried and was again convicted. On appeal to this court we affirmed. Aaron v. State, 273 Ala. 337, 139 So. 2d 309. Certiorari was denied by the Supreme Court of the United States. Aaron v. Alabama, 371 U.S. 846, 83 S. Ct. 81, 9 L. Ed. 2d 82. Thereafter Aaron filed in this court a petition for leave to file in the trial court a petition for writ of error coram nobis raising the question of exclusion of members of his race, Negro, from both the grand jury and the petit jury. We denied the petition filed here. Certiorari was denied by the Supreme Court of the United States. Ex parte Aaron, 275 Ala. 377, 155 So. 2d 334, cert, denied, Aaron v. Alabama, 375 U.S. 898, 84 S. Ct. 177, 11 L. Ed. 2d 126.
This court's denial of the petition was based on the ground that Aaron, a negro, had waived his right to question the compensation of the grand and petit jury because he had not timely filed a motion to quash in the trial court. The court's opinion shows an express waiver by the defendant and his negro attorneys prior to arraignment. The refusal of the Supreme Court of the United States to review a state court case can never be construed as showing approval of the state court's holding. But that is even more true in a case where the holding of the state court is based on "independent and adequate state grounds, notwithstanding the co-presence of federal grounds." Fay v. Noia, supra; Henry v. State of Mississippi, supra. Leave to file was also denied on the ground that the evidence showed that negroes were not systematically excluded from the jury rolls of Montgomery County.
We also had this waiver question in Ex parte Howard, 275 Ala. 59, 151 So. 2d 790. Howard was convicted of murder in the first degree in the Circuit Court of Butler County. On appeal to this court the judgment of conviction was affirmed. Howard, a negro, then filed in this court a petition to be permitted to file a petition for writ of error coram nobis in the trial court on the ground that members of his race had been systematically excluded from the grand jury which indicted him and the petit jury which tried him, solely on account of race. This question had not been raised in the trial court. In denying the petition for leave to file in the trial court a petition for writ of error coram nobis on the asserted ground, we took cognizance of the holdings in Seals v. Wiman, supra, and in State ex rel. Goldsby v. Harpole, supra, but construed those cases as not applying where the defendant at the time of his trial had knowledge of facts which would have enabled him to attack the composition of the grand or petit jury, and we pointed out that for aught appearing in Howard's petition he possessed knowledge of such facts. However, on application for rehearing we granted the application, withdrew the original opinion, and granted Howard leave to file his petition for writ of error coram nobis in the trial court. The application for rehearing was filed by the State and we acceded to the State's request.
The review of our cases on the subject perhaps does nothing more than point up *115 our uncertainty as to the stand we should take in regard to this matter of waiver of the right to attack the composition of a grand or petit jury because of exclusion of negroes, in view of the federal cases on the subject and the disposition of those courts in habeas corpus proceedings to order new trials despite the fact that the negro defendants had not raised the exclusion question at the original trials.
Fay v. Noia, supra, points out why the Supreme Court of the United States has refused to review the holdings of state courts based on waiver and yet that court suggests, as it did in Seals v. State of Alabama, supra, that habeas corpus proceedings be instituted in the appropriate federal court for a determination of the question as to whether the defendant has been denied his constitutional right to be indicted and tried by juries from which members of his race have not been systematically excluded.
In view of the holdings of the federal courts, we feel that it is useless to follow our cases which hold in effect that a negro defendant waives his right to raise the exclusion question unless he does so prior to arraignment and plea to the merits. See Cobb v. Balkcom, 5 Cir., 339 F.2d 95, 97.
If the federal courts have found no waiver where the jury exclusion question was not even attempted to be raised on the trial, we feel certain that those courts would come to the same conclusion where there was an effort to raise the question before trial but after arraignment and plea.
It might be said that this court is not bound to follow federal courts on federal questions except the Supreme Court of the United States, but to ignore the consistent holdings of those courts on this question, which holdings have not been disturbed by the Supreme Court of the United States although efforts have been made to have it overturn those holdings, can only lead to further delay in bringing about the punishment of those guilty of violating the laws of this state.
We hold that the trial court erred in striking Thomas' motion to quash the indictment.
For the same reasons we hold that the trial court erred in striking Thomas' motion to quash the petit jury.
We do not want to be understood as holding in this opinion anything more than that a negro defendant who, before trial, files a motion to quash an indictment or a petit jury on the ground that members of his race were systematically excluded therefrom does not waive his right to have that motion heard and acted on simply because the motion is filed after arraignment and plea to the merits.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur except COLEMAN, J., who dissents.
COLEMAN, Justice (dissenting).
As stated in the majority opinion, the trial court, following precedents, correctly sustained the motion to strike the motions to quash the indictment and venire. I am of opinion that we should follow the precedents and sustain the action of the trial court.
If defendant desires to raise the objection that he has been denied due process by systematic exclusion of negroes from the jury rolls, then defendant may raise this point by application for writ of error coram nobis. I do not express any opinion as to whether defendant would or would not be entitled to relief on such application. | March 18, 1965 |
1bdf8192-dc9f-413f-a4c8-3487f1fcb311 | City of Mobile v. Gulf Development Co. | 171 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 247 (1965)
CITY OF MOBILE et al.
v.
GULF DEVELOPMENT CO., Inc.
1 Div. 72.
Supreme Court of Alabama.
January 21, 1965.
*249 Wm. R. Lauten, S. P. Gaillard, Jr., and Hardy B. Smith, of Gaillard, Gaillard, & Smith, Mobile, for appellants.
Sullivan & Cameron, Mobile, for appellee.
*250 COLEMAN, Justice.
Two appeals are presented in a suit for declaratory decree, allegedly brought pursuant to § 156 et seq., Title 7, Code 1940.
Complainant is Gulf Development Company, Inc., a corporation, sometimes referred to as Gulf. Respondents to the original bill are the City of Mobile, the members of the city commission, and the tax collector of Mobile County. The city and the commissioners will be collectively referred to as the city. The city has appealed from the final decree rendered May 18, 1962.
The Board of Water and Sewer Commissioners of the City of Mobile, a public body organized under Act No. 775, approved September 11, 1951, Acts of 1950-1951, Vol. II, page 1359, and the members constituting said board, filed a petition for intervention. They will be collectively referred to as the board or as intervenor. The court sustained complainant's demurrer to the petition. We find no order dismissing the petition.
The city filed a cross-bill making complainant and the board cross-respondents. The board answered and admitted the allegations of the cross-bill. Complainant demurred to the original and amended cross-bills and the court sustained the demurrer in both instances. We find no decree dismissing the cross-bill.
The board gave notice and security for costs of appeal from the decree sustaining the demurrer to the petition for intervention and also from the final decree. Complainant has moved to dismiss the appeal as to the board.
Averments of the bill are that: the legislature enacted Act. No. 18, Acts of 1956, page 279, approved March 16, 1956, and, by its terms, made the act effective June 2, 1956; the act enlarged the corporate boundaries of the City of Mobile; Section 3 of the act recites as follows:
"Section 3. Any area which is located within the boundaries of the City of Mobile, as set out in section one above, but which was not a part of the City of Mobile prior to the passage of this act fixing the above said boundaries, shall not be subject to assessment for ad valorem taxation by the City of Mobile until the said City of Mobile shall make available, furnish or cause to be furnished through any board whose members are appointed by the City of Mobile, to said area and the residents thereof the following municipal services: police protection, fire protection, garbage collection, street lighting, water service, sanitary sewer service, and street maintenance. The city commission of the City of Mobile, each year when it adopts an ordinance assessing real property within the City of Mobile for ad valorem taxation shall describe in said ordinance the area which was previously been subject to the city's ad valorem taxation and shall describe in addition thereto such other areas within the boundaries as set out in section one above in which the city commission is furnishing all of the above described services during the year for which said ad valorem tax is being levied; and said ordinance shall also describe the areas within the City of Mobile where all of said services are not being rendered and shall exempt such areas from city ad valorem taxation for said year. In no event shall city taxes be levied or collected on or with respect to annexed property served by existing water and/or sewer main and lateral lines (not including individual residential or commercial service lines) which were connected to the municipal system with the consent of the city or of the Board of Water and Sewer Commissioners prior to the date of this enactment, at the expense of the owners of such water and/or sewer lines, until the city, or the Board of Water and Sewer Commissioners of the city, shall have reimbursed the owners of such water and sewer lines *251 for the cost of installing such lines, or shall have acquired such lines and paid a just compensation therefor; provided, that any such water and/or sewer lines which were released by the owners to, or otherwise acquired by, the City of Mobile or the Board of Water and Sewer Commissioners prior to the date of this enactment shall not be subject to the reimbursement or compensation provided for above." (Emphasis supplied.)
We have emphasized that portion of Section 3 which was not a part of the advertised bill but was added by amendment during passage. This emphasized portion we will refer to as the reimbursement proviso.
Further averments of the bill are that complainant "was the owner, subdivider and developer of the subdivisions and real property" described in Exhibit A attached to the bill; all said real property was outside the corporate limits of the city prior to passage of the act, but all said real property was by said act annexed to and brought within the corporate limits of the city; complainant, with consent of the board, at "its own expense," and prior to the enactment of the act, did install in the subdivisions and real property described in Exhibit A, water and sewer lines and did connect same to the municipal sewer and water system of the city; the cost of installation was $244,662.40; neither the city nor the board has acquired such lines nor paid or reimbursed complainant any sum whatever for the cost of installing such lines nor has complainant received or been paid just compensation for such lines.
Complainant further avers that: the city adopted four certain ordinances in 1958, 1959, 1960, and 1961, respectively, levying municipal ad valorem taxes on all real and personal property in a portion of the area annexed to the city by Act No. 18; part of the real property described in Exhibit A, of the bill, is located in the area described in Section Two of each of the ordinances for 1958 through 1961, and the remainder of the real property described in Exhibit A is in the area described in Section Two of the 1960 and 1961 ordinances; the pertinent provisions of said ordinances were adopted pursuant to Act No. 18.
Complainant further avers that the city did not comply with the act prior to levying ad valorem taxes on the annexed property, and complainant contends that Section Two in each of said ordinances is invalid because the act required complainant to be reimbursed and paid for its lines before the city could levy taxes in said annexed area; the tax collector has collected taxes for the city on the property in said area and the collection is illegal because the ordinances are invalid.
Complainant avers "that an actual and justiciable controversy exists between the Complainant and the Respondents on which substantial property rights are dependent; that the Complainant is the owner of real property located in the City of Mobile, Alabama, and is a tax payer in said City."
Complainant prays for temporary injunction to enjoin the tax collector from collecting taxes for the city on the real estate in the annexed area; that the court declare that the city has not complied with the act; that Section Two in each of the ordinances be declared illegal and invalid; that the injunction against the tax collector be made permanent; that the city be permanently enjoined from further attempt to levy taxes on the annexed area until the city or the board fully complies with Act No. 18; and for general relief.
Process was served on the attorney general.
The city and tax collector demurred to the bill and demanded trial by jury. The court overruled the demurrers and this is assigned for error. The court struck the demand for jury and this is assigned for error.
*252 Respondents, in answer to the bill, alleged that part of Act No. 18 is unconstitutional and void; admitted the adoption of the tax ordinances; admitted that the property described in Exhibit A of the bill is described in the ordinances as alleged, that the ordinances were adopted pursuant to Act No. 18, that the ordinances did levy taxes as alleged, and that the tax collector collected taxes for the city as alleged in the bill; denied the other averments of the bill; denied that complainant is vested with such right in or to the claims or the lands which will enable complainant to maintain this suit; and denied that complainant is entitled to relief as prayed.
The board obtained leave to file petition for intervention and did file such petition, praying to be allowed to intervene. We have not found the date on which the petition was filed, but complainant accepted service February 26, 1962.
On February 20, 1962, the board filed an answer to the bill whereby the board adopted the answer which respondents had filed.
Respondents filed a cross-bill seeking a decree declaring that: the reimbursement proviso in Act No. 18 is unconstitutional and void; the invalidity of the proviso does not invalidate the remainder of the act; Gulf is limited in its recovery in certain respects; Gulf is entitled to no compensation; Gulf has parted with its ownership of abutting property and streets in which said lines lie; Gulf has transferred any right to any refunds which may be due to grantees of lots abutting the streets in which the lines lie; Gulf is indebted to the board for connecting to its lines. Attached to the cross-bill as Exhibit B, is a letter from Gulf to the board, whereby Gulf requested the board to make "the extension necessary to serve this area outside the City limits at our expense."
Complainant's demurrer to the cross-bill contained fifty-five grounds. Sustaining complainant's demurrer to the cross-bill is assigned for error.
Respondents amended their cross-bill to allege that streets lying within the area described in the bill of complaint are streets dedicated to the public; that Gulf has no license from the city to maintain the lines within the streets; that the right to be served through the lines is not vested in abutting property owners or in Gulf, and Gulf sold its interest "in practically all" lots within the subdivision to various parties and divested itself of any interest in said lots or any improvements thereon, including the right to use the lines; that all parties having an interest in the lots are necessary parties for that if title to the lines is not vested in the board, then the title is vested in abutting property owners, subject to any rights the city may have.
By the amendment, respondents attached to the cross-bill a list of the names and addresses of several hundreds of persons and allege that they own an interest in the lots and are now using the water lines. Respondents pray that these lot owners be made respondents to the cross-bill.
Demurrer to amended cross-bill was sustained. This ruling is assigned as error.
On May 17, 1962, the day before the date of final decree, respondents filed in open court a further amendment to the cross-bill. The amendment sets out a detailed statement showing the advertisement and legislative history of Act No. 18. It is alleged in the amendment that the reimbursement proviso is unconstitutional because it violates certain sections of the Constitution of 1901. Respondents pray that the reimbursement proviso be declared unconstitutional.
Complainant's demurrer was refiled to the amended cross-bill and sustained. This is assigned as error.
Respondents filed amendment to their answer by adding Paragraph Sixteen, which sets out the legislative history of Act No. *253 18 and alleges that the reimbursement proviso is violative of constitutional provisions.
Complainant moved to strike Paragraph Sixteen from respondents' answer. The court granted complainant's motion to strike and this is assigned for error.
After hearing, the court found that complainant, prior to date of enactment of Act No. 18, did, with the city's consent, install the lines at complainant's expense, and complainant was the owner of the lines "at the time of such installation"; that complainant has not been reimbursed for cost of installation; that complainant "has not released nor did the City of Mobile or the Board of Water and Sewer Commissioners of said City otherwise acquire such sewer and water lines so installed by the Complainant prior to the date of said Act No. 18"; that pursuant to Act No. 18, the city did adopt the four taxing ordinances; and that payment to complainant for cost of installation of the lines is a condition precedent to the lawful levy and collection of taxes on the affected property.
The court declared that Section Two in each of the ordinances is invalid in that the city has not complied with Act No. 18 and the collection of taxes in the described areas is unlawful and void; that the city be permanently enjoined from levying or attempting to levy taxes on property in the affected area until the city or the board shall have reimbursed complainant for installation of the lines in the described area; and that the tax collector be likewise enjoined.
Complainant moves to dismiss the appeal undertaken by the board. As already stated, the board undertook to appeal from the decree sustaining demurrer to the board's petition to be allowed to intervene and also from the final decree.
Grounds of the motion are: first, that the decree sustaining demurrer to the petition for intervention is interlocutory and will not support an appeal; and, second, the board was never permitted to intervene, never became a party to the suit, is not bound by the final decree, and, therefore, have no right to appeal from the final decree.
The board obtained leave to file, and did file, a petition praying inter alia: "That your Petitioner be allowed to intervene in this cause."
Complainant demurred to the board's petition and the court, by decree dated April 6, 1962, sustained the demurrer. We find no further order relating to the board's petition for intervention, no order making the board a party to the suit, and no order dismissing the petition for intervention.
Complainant's motion to dismiss the board's appeal thus raises the question whether the order sustaining the demurrer to the petition for intervention is an order which will support an appeal.
In Thornton v. Highland Avenue & Belt Railroad Co., 94 Ala. 353, 10 So. 442, this court denied a motion to dismiss an appeal. There a demurrer had been sustained to a petition filed by one seeking to intervene in a suit against a receiver, and the petition had been dismissed.
See: Franklin v. Dorsey-Jackson Chevrolet Co., 246 Ala. 245, 20 So. 2d 220, 157 A.L.R. 154; Rollins v. Deason, 263 Ala. 358, 82 So. 2d 546; City of Birmingham v. Hallmark, 266 Ala. 582, 98 So. 2d 15.
In Cortner v. Galyon, 223 Ala. 405, 137 So. 30, on appeal from a decree overruling a demurrer to a "petition of intervention," this court concluded that the decree overruling the demurrer was such an interlocutory decree as came within the influence of section 6079, Code 1923; § 755, Title 7, Code 1940; and would support an appeal.
At the time of Cortner, however, section 6079 authorized an appeal from a decree sustaining or overruling a demurrer to a bill in equity. § 755, Code 1940, as amended *254 by an act of the legislature approved September 15, 1961, does not now authorize such appeals.
We hold that the 1961 amendment of § 755 made such a change that the decree sustaining the demurrer to the petition for intervention will not support an appeal.
The board argues, however, that because the city and tax collector filed a cross-bill which made the board a cross-respondent, because the board accepted service of the cross-bill and filed an answer admitting the averments of the cross-bill, "... for this reason alone, the Board was a party to the action." The further argument is that, since the board became a party by being made a cross-respondent, the board has a right to appeal from the final decree in the cause, and, on appeal from the final decree, to assign as error the ruling sustaining the demurrer to the board's petition for intervention.
The argument omits to take account of the effect of the decree sustaining complainant's demurrer to the cross-bill. We do not understand that the record discloses a decree dismissing the cross-bill. Neither side cites any authority going to decide whether a cross-respondent, who confesses the cross-bill, becomes a party when a demurrer filed by another cross-respondent is sustained and no further action is taken with respect to the cross-bill.
Section 754, Title 7, Code 1940, provides that from "any final ... decree... an appeal lies ... on the application of either party * * *." In Dorsey v. Sibert, 93 Ala. 312, 9 So. 288, this court dismissed an appeal attempted by a receiver. The court said that the statute confers the right of appeal, and "It can be claimed, `as matter of right,' only by one of the parties, or his personal representative."
If the board did not become a party, then the board cannot appeal from the final decree. Security Life & Accident Insurance Co. v. Crescent Realty Co., 273 Ala. 624, 143 So. 2d 441.
As we understand the case, the interests of the board are the same as the interests of the city, or, at least, the board has such interest as to cause the board to unite with the city in opposing the claim made by complainant. Did the city, by cross-bill, bring into the case as a party, a cross-respondent whose interests were identical with the city's interest, where the court sustained the demurrer filed by the other cross-respondent but did not dismiss the cross-bill?
As to the decree sustaining complainant's demurrer to the city's cross-bill, we are not aware of any reason why the effect of such decree, with respect to bringing in a party, is not the same as would be the effect of a decree sustaining a demurrer to an original bill of complaint. The effect of a decree sustaining a demurrer to the bill as last amended was to put the complainant out of court, unless the bill was amended, in Pope v. Ledbetter, 216 Ala. 302, 113 So. 20.
When a demurrer is sustained to a bill, the legal effect of that action is to eliminate the bill until amendment is filed. Savage v. Savage, 246 Ala. 389, 20 So. 2d 784; Comer v. Limbaugh, 256 Ala. 655, 57 So. 2d 72.
In the instant case, we hold that sustaining complainant's demurrer to the amended cross-bill eliminated it, as far as complainant is concerned, until the cross-bill was further amended. It was not further amended. The board did not become party to the suit, as against complainant, and the board has no right to appeal, as against complainant, from the final decree. It follows that complainant's motion to dismiss the board's appeal is due to be granted.
The city's appeal remains to be considered. The city and appellee have devoted much of their briefs to arguing the constitutionality of the reimbursement proviso and of the entire Act No. 18. By striking Paragraph Sixteen of the city's answer and *255 by sustaining complainant's demurrer to the city's cross-bill as last amended, the learned trial court, as it seems to us, declined to hear the city's contention that the reimbursement proviso violated constitutional provisions.
In Smith v. Speed, 50 Ala. 276, 282, 283, this court quoted approvingly as follows:
This court, on appeal, will not consider the constitutional validity of statutes, unless the question is presented and is essential to a disposition of the case. Alabama Warehousing Co. v. State, 227 Ala. 258, 261, 149 So. 843; American Surety Co. of New York v. King, 237 Ala. 510, 187 So. 458.
Following the above stated rule, we do not now undertake to decide whether all or any part of Act No. 18 is invalid because violative of the Constitution of 1901.
In view of the reversal of the decree for reasons hereafter noted, we do not undertake to consider all errors that are argued, but write only to those questions which appear to be appropriate for consideration and which may arise on another trial.
This assignment is that the court erred in granting complainant's motion to strike Paragraph Sixteen of respondents' answer to the bill of complaint.
Respondents, by amendment, added Paragraph Sixteen to their answer. Paragraph Sixteen sets out, in considerable detail, the legislative history of Act No. 18. In Paragraph Sixteen, respondents aver that the reimbursement proviso is invalid because Sections 45, 106, and 104(15) of Constitution of 1901 have been violated.
Complainant moved to strike Paragraph Sixteen because:
We have not found any authority to support the proposition that part of an answer may be stricken on motion for the reasons here stated. Even if, however, the grounds of the motion should be good grounds, we do not think the motion should have been granted.
In Paragraph Fifteen of their original answer, respondents did "deny that the Complainant is entitled to relief as prayed." Adding Paragraph Sixteen to the answer did not strike out the denial of complainant's right to relief. All respondents insist upon is that complainant is not entitled to the relief prayed for. We do not understand how or why respondents were bound to ask for any additional relief. The matters averred in Paragraph Sixteen purport to be in support of respondents' insistence that complainant is not entitled to the relief prayed for. It may be that respondents were mistaken in believing that the matters alleged in Paragraph Sixteen support their denial of complainant's asserted right, a question we do not here decide, but respondents were entitled to have the allegations of Paragraph Sixteen considered *256 by the court in declaring the effect of Act No. 18 and the rights of the parties thereunder.
If any part of the instrument, purporting to be an answer, is entitled to the character of an answer, that is, if it be an answer to any one material fact alleged in the bill, the court will not take it off the file, but will leave the plaintiff to except to it for insufficiency. May, Tindall v. Williams, 17 Ala. 23. The sufficiency of an answer can be tested only by exceptions thereto. However defective, an answer cannot be stricken for insufficiency. City of Woodlawn v. Durham, 162 Ala. 565, 50 So. 356. See: Alabama Equity Pleading and Practice, Tilley, § 100. We are of opinion that the court erred in striking Paragraph Sixteen of respondents' answer.
The bill makes respondents only the city and tax collector. Ground 12 of city's demurrer takes the point that the board is a necessary party. The argument on appeal raises the point that the board is a necessary party. By amendment to its cross-bill, the city sought to make the owners of the lots in the annexed area parties to the suit.
The language of the reimbursement proviso contemplates that connections to water and sewer mains were made "with the consent of the city or of the Board of Water and Sewer Commissioners." The proviso contemplates that reimbursement for the lines may be made by the city or the board. The proviso contemplates acquisition of the lines by or release of same to the city or the board. We think it may be *257 fairly inferred that the board is now using the lines in controversy to furnish water and sewer service in the annexed area.
On these considerations, we are of opinion that the board is a necessary party to this suit.
It is the contention of the city that when complainant conveyed the lots in the annexed area, the title to, or at least a substantial interest in, the water and sewer lines, which were then in place in the streets, passed to the grantees of the lots or to the city or to the board. Neither the owners of the lots nor the board are parties. If the court is to decide who owns the lines, then the lot owners, as well as the board, should be parties to the suit which is to determine their rights in the lines.
It seems appropriate to suggest that the property owners in the annexed area are necessary parties to a suit in which the court is going to decide whether or not the city may rightfully collect taxes from the property owners. We hold that the property owners are necessary parties and are of opinion that for failure to join the board and lot owners as parties, the decree is due to be reversed.
The city argues that the court erred in overruling the city's demurrer to the bill of complaint because the averments of the bill fail to show that complainant owned the water and sewer lines for which complainant seeks payment, or any property in the annexed area, either on the effective date of Act No. 18 or on the date the bill was filed. The argument is that failure to show such ownership in the complainant is a failure to show that complainant has such an interest in the subject matter of the suit as to entitle complainant to a declaration of its rights in relation to the subject matter.
The bill may be subject to demurrer for failure to show that complainant has a justiciable interest in the subject matter, but we have not found any ground of demurrer which takes this point. Grounds 7 and 9 of the city's demurrer assert that the allegations of the bill fail to show that complainant is entitled to compensation or reimbursement, but none of the grounds, as we understand them, asserts that complainant is not entitled to declaratory relief. The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention but whether he is entitled to a declaration of rights at all. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; Metzger Bros. v. Royal Indemnity Co., 274 Ala. 643, 151 So. 2d 244.
If all necessary parties were before the court, the absence of pleading and proof going to show complainant's ownership of lines or property might be considered under Assignment 2, which asserts that the court erred in granting to complainant the relief sought.
Complainant contends:
The city contends that the intention of the act is that the owner, who is to be reimbursed, *258 is the person or persons who owned the water and sewer lines either on the effective date of Act No. 18 or on the date the bill of complaint was filed.
As we understand complainant's brief, it is not complainant's contention that complainant owned the lines on the effective date of the act, or on the date the bill of complaint was filed. If complainant was not owner on either date, then another, possibly the city, the board, or the grantees of the lots in the annexed area, was owner on these dates. If the court is to decide the date of ownership intended by the act, then those whose rights depend on that decision ought to have an opportunity to be heard by the court on determination of the question. The board and the grantees of the lots are interested in this question and we are of opinion that the board and grantees ought to be made parties to the suit before the question is decided.
These assignments are that the court erred in enjoining collection of taxes in the annexed area until the board or the city shall have reimbursed complainant for the lines.
In support of this contention, City of Gadsden v. American National Bank, 225 Ala. 490, 144 So. 93; and Crow v. Outlaw, 225 Ala. 656, 145 So. 133, are cited. In Crow v. Outlaw, the court said:
Complainant does not assert it is presently the owner of any taxable property situated in the annexed area described in Section Two in any of the ordinances adopted in 1958, 1959, 1960, or 1961, or liable for any tax on such property. The injunction does not relieve complainant from any tax liability.
Numerous cases may be found where taxpayers have sought to enjoin the levy or collection of taxes sought to be imposed on property of the complaining taxpayer; but we are not advised of any case where injunction has been sought against a taxing authority, not by one who seeks to be relieved from liability for the tax, but by one who seeks to coerce the taxing authority into paying to the complainant a sum allegedly due. In that last respect this case appears to be sui generis.
Under the general rule, collection of a tax will not be enjoined at the suit, even of a taxpayer, unless, coupled with the illegality of the tax, there is some recognized ground of equitable jurisdiction.
We do not think the instant complainant has any greater right to injunction than a taxpayer would have. Under the circumstances here we do not see that complainant has shown any recognized ground of equitable jurisdiction, and, for that reason alone, if for no other, are of opinion that the court erred in enjoining collection of taxes in the annexed area.
This assignment is that the court erred in granting complainant's motion to strike respondents' demand for trial by jury.
With respect to the right to a jury trial in declaratory proceedings this court has said:
"A case may arise under the act in which an action in common-law form is available against a defendant on account of an existing default, and in which defendant would be entitled to a *259 jury trial. If proceeding for a declaratory judgment is begun in equity, and defendant wishes and demands a jury trial, pursuant to his right under the law or Constitution, the court could either transfer the cause to the law docket under section 6486, Code, or have a jury trial in equity under section 6631, Code, when the verdict would be as authoritative as at law, since it was a matter of right. Brintle v. Wood, 223 Ala. 472, 136 So. 803; Karter v. East, 220 Ala. 511, 125 So. 655; Hill v. Lindsey, supra [223 Ala. 550, 137 So. 395].
As already stated, we do not think that the bill of complaint, or other pleadings, discloses any recognized ground of equitable jurisdiction. The purpose disclosed by the bill is to obtain a declaration that the city is bound to pay, or cause to be paid, to complainant the cost of certain water and sewer lines as a condition precedent to the levy of taxes on certain property, which complainant does not own, and to coerce the city into making such payment to complainant. The proceeding has the indicia of a proceeding to collect a debt.
We do not think it will be controverted that the common-law forms of action ex contractu included account, assumpsit, covenant, and debt. 1 Am.Jur.2d 551, Action, § 10.
The constitutional guaranty of trial by jury does not extend to causes unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution; Miller v. Gaston, 212 Ala. 519, 103 So. 541; but it seems implicit that the right to a jury is preserved in causes known to the common law. Section 11, Constitution of 1901.
Being of opinion that the relief here sought is of the nature of the relief recoverable in a common-law action, we are of opinion that respondents had a right to trial by jury and that the court erred in granting the motion to strike the jury demand.
For the reasons expressed, the decree is reversed and the cause remanded.
Motion granted.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | January 21, 1965 |
7fa9e8b8-6f48-4b0f-95e2-2eadd2a60c20 | Hugh McInnish and Virgil H. Goode, Jr v. Jim Bennett, Alabama Secretary of State (Appeal from Montgomery Circuit Court: CV-12-1053). Affirmed. No Opinion. | N/A | 1120465 | Alabama | Alabama Supreme Court | Beth Chapman, then Secretary of State, was the named
1
appellee when this appeal was filed. While this appeal was
pending, Ms. Chapman resigned, and Jim Bennett was appointed
Secretary of State and was automatically substituted as a
party. See Rule 43(b), Ala. R. App. P.
REL:03/21/14
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, 2013-2014
____________________
1120465
____________________
Hugh McInnish and Virgil H. Goode, Jr.
v.
Jim Bennett, Alabama Secretary of State1
Appeal from Montgomery Circuit Court
(CV-12-1053)
PER CURIAM.
AFFIRMED. NO OPINION.
1120465
2
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Stuart, Murdock, Shaw, Main, and Wise, JJ., concur.
Bolin and Bryan, JJ., concur specially.
Moore, C.J., and Parker, J., dissent.
1120465
See Chief Justice Moore's dissent for a statement of the
2
facts and procedural history relevant to the issue presented.
3
BOLIN, Justice (concurring specially).
I concur with this Court's no-opinion affirmance of this
case. However, I write specially because I respectfully
disagree with Chief Justice Moore's dissent to the extent that
it concludes that the Secretary of State presently has an
affirmative duty to investigate the qualifications of a
candidate for President of the United States of America before
printing that candidate's name on the general-election ballot
in this State. I fully agree with the desired result; however,
I do not agree that Alabama presently has a defined means to
obtain it.2
Initially,
Chief
Justice
Moore
addresses
certain
threshold issues, including the timeliness of the plaintiffs'
challenge to presidential-ballot access for the general
election in 2012. Here, the Secretary of State asserted the
affirmative defense of laches, arguing that the plaintiffs had
impermissibly
delayed
in
asserting their challenge to
President Obama's ballot access. See Rule 8, Ala. R. Civ. P.
"'"To establish the application of the doctrine of laches, [a
defendant] ha[s] to show that [the plaintiff] delayed in
1120465
4
asserting his right or claim, that his delay was inexcusable,
and that his delay caused the [defendant] undue prejudice."'"
Ex parte Lightwave Techs., L.L.C., 971 So. 2d 712, 720 (Ala.
2007) (quoting Ex parte Grubbs, 542 So. 2d 927, 929 (Ala.
1989)).
Chief Justice Moore concludes in his special writing that
the plaintiffs' challenge, brought 5 weeks after Barack Obama
was selected as the Democratic Party nominee for President of
the United States and only 26 days before the general
election, did not constitute "inexcusable delay." As to the
merits of this proceeding, I cannot agree that there was not
inexcusable delay and undue prejudice amounting to laches.
"'Objections relating to nominations must be timely made. It
is too late to make them after the nominee’s name has been
placed on the ballot and he has been elected to office ....'"
State ex rel. Norrell v. Key, 276 Ala. 524, 525-26, 165 So. 2d
76, 77 (1964) (quoting 29 C.J.S. Elections § 141 (emphasis
added)). The evidence suggests that the Secretary of State had
expressed to the plaintiffs and their representatives well
prior to the primary and as early as February 2, 2012, that
1120465
Although this case is now styled with Jim Bennett as the
3
Secretary of State and the appellee, Beth Chapman was
Secretary of State at all times relevant to this action.
5
she had no duty to investigate the eligibility qualifications
3
of a presidential candidate. Barack Obama was nominated as
his party's presidential candidate at the Democratic National
Convention on September 5, 2012. For this election, ballots
were required to be printed and delivered to the absentee-
election manager of each county by at least September 27,
2012. See § 17-11-12, Ala. Code 1975. The plaintiffs did not
file their petition challenging Barack Obama's ballot access
until October 11, 2012, approximately eight months after being
apprised of the Secretary of State’s position that she had no
affirmative duty to investigate and two weeks after the
ballots were to be printed and delivered to the various
counties. The failure by the plaintiffs to at least file
their
petition
challenging
ballot
access
during
the
intervening time between Barack Obama's nomination as his
party's presidential candidate and the time in which the
ballots were due to be printed and delivered to the various
counties constitutes, I believe, "inexcusable delay" on the
part of the plaintiffs. The prejudice that would have ensued
1120465
6
from such a late challenge, if successful, would have been
twofold: first, assuming it could have been accomplished from
a practical standpoint, the reprinting and distribution of
general-election ballots would have come, at that late date,
at great financial cost to the State; and second, and just as
important, the reprinted ballots would differ from absentee
ballots already sent to the members of our military and other
citizens overseas. This would not be a proper way to conduct
such an important election.
Moving beyond the merits of the matter before us, and
with due regard to the vital importance to the citizenry of
the State of Alabama that the names of only properly qualified
candidates appear on a presidential-election ballot for
election to the highest office in our country, I write
specially to note the absence of a statutory framework that
imposes an affirmative duty upon the Secretary of State to
investigate claims such as the one asserted here, as well as
a procedure to adjudicate those claims. The right of a lawful
and proper potential candidate for President to have ballot
access must be tempered and balanced against a clear process
for removal of an unqualified candidate. Nothing in this
1120465
7
process should be left to guesswork, or, with all proper
respect, to unwritten policies of the Secretary of State, and
certainly not without a disqualified candidate having a clear
avenue
for
judicial
review
consistent
with
the
time
constraints involved and due-process considerations.
As noted above, Chief Justice Moore concludes in his
special writing that the Secretary of State has an affirmative
duty to investigate the qualifications of a candidate for
President of the United States of America before printing that
candidate's name on the general-election ballot in this State.
Although logically the Secretary of State, being the chief
elections official of the state, should be vested with such a
duty, under our present constitutional and statutory framework
addressing elections, including presidential elections, not
only is that not the case, but the Secretary of State would be
bereft of written authority for such an action and ill
equipped from a practical standpoint to carry out such an
important duty.
The Office of Secretary of State is a constitutional
office whose general duties are prescribed in Ala. Const.
1901, Art. I, § 134, as follows:
1120465
8
"The secretary of state shall be the custodian
of
the
great
seal
of
the
state,
and
shall
authenticate therewith all official acts of the
governor, except his approval of laws, resolutions,
appointments to office, and administrative orders.
He shall keep a register of the official acts of the
governor, and when necessary, shall attest them, and
lay copies of same together with copies of all
papers relative thereto, before either house of the
legislature, when required to do so, and shall
perform other duties as may be prescribed by law."
The general duties and scope of the Secretary of State's
office are codified in § 36-14-1 et seq., Ala. Code 1975.
Section 17-1-3, Ala. Code 1975, provides that the Secretary of
State is the chief elections official in the State and, as
such,
shall
provide
uniform
"guidance"
for
election
activities. It is, however, a nonjudicial office without
subpoena power or investigative authority or the personnel
necessary to undertake a duty to investigate a nonresident
candidate’s qualifications, even if such a duty could properly
be implied.
Section 17-9-3, Ala. Code 1975, provides:
"(a) The following persons shall be entitled to
have their names printed on the appropriate ballot
for
the
general
election,
provided
they
are
otherwise qualified for the office they seek:
"(1) All candidates who have been put
in nomination by primary election and
certified in writing by the chair and
1120465
9
secretary of the canvassing board of the
party holding the primary and filed with
the judge of probate of the county, in the
case of a candidate for county office, and
the Secretary of State in all other cases,
on the day next following the last day for
contesting the primary election for that
office if no contest is filed. ...
"(2) All candidates who have been put
in nomination by any caucus, convention,
mass meeting, or other assembly of any
political party or faction and certified in
writing by the chair and secretary of the
nominating
caucus,
convention,
mass
meeting, or assembly and filed with the
judge of probate, in the case of a
candidate for county office, and the
Secretary of State in all other cases ....
"(3) Each candidate who has been
requested to be an independent candidate
for a specified office by written petition
signed by electors qualified to vote in the
election to fill the office when the
petition has been filed with the judge of
probate, in the case of a county office and
with the Secretary of State in all other
cases ....
"(b) The Secretary of State, not later than 45
days after the second primary, shall certify to the
judge of probate of each county in the state, in the
case of an officer to be voted for by the electors
of the whole state, and to the judges of probate of
the counties composing the circuit or district in
the case of an officer to be voted for by the
electors of a circuit or district, upon suitable
blanks to be prepared by him or her for that
purpose, the fact of nomination or independent
candidacy of each nominee or independent candidate
or candidate of a party who did not receive more
1120465
10
than 20 percent of the entire vote cast in the last
general election preceding the primary who has
qualified to appear on the general election ballot
...."
"The provisions of Section 17-9-3 ... shall apply to
presidential preference primaries held under the provisions of
this
article
unless
clearly
inconsistent
herewith
or
inappropriate for the conduct of a presidential preference
primary." § 17-13-101, Ala. Code 1975. Section 17-14-31(a),
Ala. Code 1975, provides:
"(a) When presidential electors are to be
chosen, the Secretary of State of Alabama shall
certify to the judges of probate of the several
counties the names of all candidates for President
and Vice President who are nominated by any national
convention or other like assembly of any political
party or by written petition signed by at least
5,000 qualified voters of this state."
These sections, when read together, require only that the
Secretary of State certify and include on the general-election
ballot those presidential candidates who have been nominated
by their respective parties following that party's national
convention and who are otherwise qualified to hold the office
of President. However, nothing in the express wording of
these statutory provisions imposes upon the Secretary of State
the duty to affirmatively investigate the qualifications of a
1120465
11
presidential candidate. Consistent with this conclusion is
Op. Att'y Gen. No. 1998-00200 (August 12, 1998), which states:
"The Secretary of State does not have an
obligation to evaluate all of the qualifications of
the
nominees
of
the
political
parties
and
independent candidates for state offices prior to
certifying such nominees and candidates to the
probate judges pursuant to [§ 17-9-3, Ala. Code
1975]. If the Secretary of State has knowledge
gained from an official source arising from the
performance of duties prescribed by law, that a
candidate has not met a certifying qualification,
the Secretary of State should not certify the
candidate."
(Emphasis added.)
Rather, the Secretary of State contends that the task of
ensuring a candidate's qualifications is left to the
leadership of that candidate's respective political party, a
less than ideal procedure for all challengers because of its
partisan nature. See generally Knight v. Gray, 420 So. 2d 247
(Ala. 1982) (holding that the Democratic Party had the
authority to hear pre-primary challenges to the political or
legal qualifications of its candidates).
Courts in other states have tended to agree that the
investigation of eligibility requirements of a particular
candidate is best left to the candidate's political party. In
Keyes v. Bowen, 189 Cal. App. 4th 647, 117 Cal. Rptr. 3d 207
1120465
12
(2010), the plaintiffs brought an action against California's
Secretary of State and others, alleging that there was
reasonable doubt that President Obama was a natural-born
citizen, as is required to become President of the United
States (U.S. Const., Art. II, § 1) and that the Secretary of
State had a ministerial duty to verify that President Obama
met the constitutional qualifications for office before
certifying him for inclusion on the ballot. The trial court
entered a judgment against the plaintiffs, concluding that the
Secretary of State was required to see that state election
laws were enforced, but that the plaintiffs had failed to
identify a state election law imposing a duty upon the
Secretary of State to demand documentary proof of birthplace
from presidential candidates. Id. The plaintiffs appealed.
Like Alabama's Secretary of State, the California
Secretary of State is the chief elections official of that
state and is charged with ensuring "'that elections are
efficiently conducted and that state election laws are
enforced.'" 189 Cal. App. 4th at 658, 117 Cal. Rptr. 3d at 214
(quoting California Gov't Code, § 12172.5). Also similar to
1120465
13
§ 17-14-31(a) is California Election Code § 6901, which
governs general elections and states:
"'Whenever a political party, in accordance with
Section 7100, 7300, 7578, or 7843 [none of which
concern constitutional eligibility], submits to the
Secretary of State its certified list of nominees
for electors of President and Vice President of the
United States, the Secretary of State shall notify
each candidate for elector of his or her nomination
by the party. The Secretary of State shall cause the
names of the candidates for President and Vice
President of the several political parties to be
placed upon the ballot for the ensuing general
election.'"
189 Cal. App. 4th at 659, 117 Cal. Rptr. 3d at 214 (emphasis
omitted). In concluding that the California statutes did not
impose a duty on the Secretary of State to determine whether
a presidential candidate meets the eligibility criteria of the
United States Constitution, the appellate court stated:
"[T]he truly absurd result would be to require each
state's
election
official
to
investigate
and
determine
whether
the proffered candidate met
eligibility
criteria
of
the
United
States
Constitution, giving each the power to override a
party's selection of a presidential candidate. The
presidential nominating process is not subject to
each
of
the
50
states'
election
officials
independently
deciding
whether
a
presidential
nominee is qualified, as this could lead to chaotic
results. Were the courts of 50 states at liberty to
issue
injunctions
restricting
certification
of
duly-elected presidential electors, the result could
be conflicting rulings and delayed transition of
power in derogation of statutory and constitutional
1120465
14
deadlines. Any investigation of eligibility is best
left to each party, which presumably will conduct
the appropriate background check or risk that its
nominee's election will be derailed by an objection
in Congress, which is authorized to entertain and
resolve the validity of objections following the
submission of the electoral votes. (3 U.S.C. §
15.)."
Keyes, 189 Cal. App. 4th at 660, 117 Cal. Rptr. 3d at 215-16.
Chief Justice Moore would impose upon the Secretary of
State a duty to investigate the qualifications of all
presidential candidates. However, Chief Justice Moore has
failed to demonstrate how the Secretary of State, a
nonjudicial officer with no subpoena power or investigative
authority, could carry out this duty in those cases where an
actual dispute arises regarding a candidate's qualifications,
or, as in this case, could demand delivery to her of a
certified copy of a candidate's birth certificate from the
official-records depository in another state in which the
birth certificate is kept. Chief Justice Moore has cited
cases in which federal district courts have upheld decisions
of state officials, including secretaries of state, who had
refused to qualify proposed candidates who were less than 35
years old. See Socialist Workers Party of Illinois v. Ogilvie,
357 F. Supp. 109 (N.D. Ill. 1972), and Peace & Freedom Party
1120465
15
v. Bowen, 912 F. Supp. 2d 905 (E.D. Cal. 2012). However, in
each of those cases there was no real dispute as to the
candidates' qualifications, because both candidates conceded
they did not satisfy the age requirement of Art. II, § 1, U.S.
Const. Therefore, there was no need for the secretary of
state to affirmatively investigate the matter of the
candidates' qualifications.
The plaintiffs in this case did not necessarily challenge
whether President Obama met the "natural-born citizen"
requirement of Art. II, § 1, cl. 4 of the United States
Constitution. Rather, the plaintiffs sought a writ of
mandamus ordering the Secretary of State to authenticate the
eligibility of each presidential candidate by requiring the
candidates to produce a certified copy of his birth
certificate. Although this requested relief, as stated above
but worthy of repetition, may be highly desirable, I conclude
that the Secretary of State had neither the duty nor the
authority to compel a presidential candidate to produce a
certified copy of a birth certificate or independently to
obtain by other lawful means such a certified copy; therefore,
the question remains as to what recourse a party with standing
1120465
The probate judge is the chief elections official of a
4
county. § 17-1-3, Ala. Code 1975.
16
has to challenge the qualifications of a presidential
candidate.
As a former probate judge in this State, I am well aware
4
of the void created in Alabama election law by the fact that
the office of Secretary of State is without authorization, and
concomitantly
without
the tools and enforcement power
necessary thereto, to undertake the necessary and desirable
burden
of
affirmatively
investigating
a
presidential
candidate's qualifications. The citizens of the State of
Alabama are always entitled to have the names of only
qualified candidates appear on their election ballot, most
particularly when voting for the President of the United
States. Looking forward, I would respectfully call upon the
legislature to provide legislation that imposes this duty upon
the Secretary of State and to give that office the authority
and tools necessary to compel the compliance by a candidate,
and that candidate's party, upon penalty of disqualification.
The office of President is the only elective office that does
not require a state residency to be a candidate, which makes
the authority to obtain foreign records or documents a vital
1120465
17
investigative tool. Under our current structure, however, the
burden
of
investigating
a
presidential
candidate's
qualifications is best left -- unfortunately or not -- to that
candidate's particular party, which as aptly stated in Keyes,
supra, is "presumed" to conduct a thorough investigation of
the candidate's qualifications or risk a challenge to that
candidate's candidacy in Congress, the appropriate forum for
a post-election challenge to a President's qualifications.
See 3 U.S.C. § 15. However, it should not be necessary to rely
on a post-election Congressional remedy if it can be proven
before the election that the candidate is not qualified. The
Secretary of State should have the written mandate to
determine
requisite
qualifications,
and
a
disqualified
candidate should have a defined path of expedited judicial
review.
Adding further to the need for a state statutory means of
determining the qualifications of presidential candidates is
the lack of a pre-election remedy in the federal courts
resulting from the potential of the political-question
doctrine to divest a federal court of jurisdiction to hear a
challenge to a presidential candidate's qualifications and the
1120465
18
difficulty a party seeking to challenge a presidential
candidate's qualifications in federal court would have in
establishing standing under Article III of the United States
Constitution. The Court in Keyes, supra, explained:
"Indeed, in a case very similar to this one, the
United States District Court for the Northern
District of California dismissed a challenge to John
McCain's citizenship, holding that presidential
qualification issues are best resolved in Congress.
(Robinson v. Bowen (N.D. Cal. 2008) 567 F. Supp. 2d
1144, 1147.)
"The federal court noted that Title 3 United
States Code section 15 sets forth a process for
objecting to the President elect, and the Twentieth
Amendment provides that, 'if the President-elect
shall have failed to qualify, then the Vice
President-elect shall act as President until a
President shall have qualified; and the Congress may
by law provide for the case wherein neither a
President-elect nor a Vice President-elect shall
have qualified, declaring who shall then act as
President, or the manner in which one who is to act
shall be elected, and such person shall act
accordingly until a President or Vice President
shall have qualified.' Thus, 'mechanisms exist under
the Twelfth Amendment and 3 U.S.C. § 15 for any
challenge to any candidate to be ventilated when
electoral votes are counted, and that the Twentieth
Amendment provides guidance regarding how to proceed
if a president elect shall have failed to qualify.
Issues regarding qualifications for president are
quintessentially suited to the foregoing process.
Arguments concerning qualifications or lack thereof
can be laid before the voting public before the
election and, once the election is over, can be
raised as objections as the electoral votes are
counted in Congress. The members of the Senate and
1120465
19
the House of Representatives are well qualified to
adjudicate any objections to ballots for allegedly
unqualified candidates. Therefore, this order holds
that the challenge presented by plaintiff is
committed under the Constitution to the electors and
the legislative branch, at least in the first
instance. Judicial review--if any--should occur only
after the electoral and Congressional processes have
run their course.' (Robinson v. Bowen, supra, 567 F.
Supp. 2d at p. 1147.)"
Keyes, 189 Cal. App. 4th at 661, 117 Cal. Rptr. 3d at 216.
Thus, I do agree with Chief Justice Moore that the political-
question doctrine would likely divest a federal court of
jurisdiction to hear a challenge to a presidential candidate's
qualifications. It is also very unlikely that a party seeking
to challenge a presidential candidate's qualifications in
federal court would be able to establish standing under
Article
III.
See
Daniel
P.
Tokaji,
Commentary,
The
Justiciability of Eligibility: May Courts Decide Who Can Be
President?, 107 Mich. L. Rev. First Impressions 31 (2008), and
the cases cited therein.
As called for above, the only real alternative to a
judicial
challenge
to
the
eligibility,
or
the
disqualification, of a presidential candidate in federal court
is a pre-election challenge to the candidate's qualifications
1120465
20
or disqualification brought in state court pursuant to state
laws. Professor Tokaji has explained:
"Although
the
possibility
for
state-court
litigation of a presidential candidate's eligibility
may seem counterintuitive, there is a good reason
for believing that this sort of dispute belongs in
state
court.
Article
II,
Section
1
of
the
Constitution provides: 'Each State shall appoint, in
such Manner as the Legislature thereof may direct,
a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may
be
entitled
in
the
Congress.'
In
litigation
surrounding the 2000 election, Bush's legal team
argued that the Florida Supreme Court violated this
provision
by
failing
to
follow
the
Florida
legislature's
instructions
on
post-election
proceedings. Chief Justice Rehnquist's concurring
opinion in Bush v. Gore[, 531 U.S. 98 (2000),]
accepted this argument, concluding that the state
supreme court's construction of certain provisions
of state election law went beyond the bounds of
proper statutory interpretation. Yet none of the
Justices disputed that state courts may hear cases
alleging violations of state election statutes or
that state courts generally possess the power to
interpret and enforce those laws.
"State-court litigation might proceed as a
lawsuit seeking to keep a presidential candidate off
the primary or general election ballot, on the
ground that he or she does not satisfy the requisite
qualifications. There exists some recent precedent
for this type of case. In 2004, supporters of
presidential candidate John Kerry brought a number
of state-court actions seeking to deny Ralph Nader
access to state ballots. In In re Nomination Papers
of Nader[, 580 Pa. 134, 869 A.2d 1 (2004)], for
example, registered voters in Pennsylvania filed
suit in state court, seeking to have the names of
independent candidate Nader and his running mate
1120465
21
Peter Camejo excluded from the ballot. As in several
other states, the objectors challenged the petition
signatures submitted by the Nader-Camejo campaign.
In addition, the Pennsylvania objectors argued that
Nader and Camejo were not qualified to appear on the
general election ballot by virtue of the state's
'sore loser' law, which prohibited candidates from
running in a general election after running in state
primaries. Although the Pennsylvania Supreme Court
found that its statute did not in fact justify the
exclusion of Nader and Camejo from the ballot, there
was no doubt as to the state court's ability to
entertain a challenge to a presidential candidate's
qualifications in the course of determining whether
to deny that candidate access to the state ballot.
"It is conceivable
that
a
comparable
state-court
lawsuit could be filed, in Pennsylvania or another
swing state, to challenge a presidential candidate's
constitutional qualifications to serve. There is no
requirement that a plaintiff in a state-court
lawsuit
meet
the
Article
III
or
prudential
requirements for standing. Further, the federal
political question doctrine does not bar state-court
litigation
seeking
to
exclude
a
presidential
candidate from the ballot on the ground that he or
she is ineligible. It is also conceivable that a
state-court
case
challenging
a
presidential
candidate's eligibility could be brought after an
election. State law might allow a post-election
contest of primary or general election results on
the ground that the candidate who gained the most
votes does not meet the qualifications for office.
A losing presidential candidate could bring a
contest petition in state court, seeking an order
invalidating the election results if state law
allows such a remedy.
"There
are
obvious
reasons
why
such
post-election challenges would be undesirable. As
Rick Hasen has argued in Beyond the Margin of
Litigation, pre-election litigation is generally
1120465
22
preferable
to
post-election litigation. It is
generally better to resolve disputes before an
election, allowing problems to be avoided in advance
rather than putting courts in the difficult position
of cleaning up the mess afterwards. This is
particularly true in the context of a challenge to
a presidential candidate's qualifications. In the
event that a candidate is deemed ineligible, the
party could still put up a substitute.
"Of course, it is up to states--and, in
particular, to state legislatures--to define the
rights and remedies available in cases where a
presidential candidate is alleged to be ineligible.
There is certainly no constitutional requirement
that the state provide either a pre-election remedy
(such as denial of ballot access) or a post-election
remedy (like an order invalidating election results)
for
such
disputes.
But
there
remains
no
constitutional bar to such state-law remedies. In
fact, such remedies would seem to fall squarely
within what Article II contemplates in leaving it to
state legislatures to define the manner by which
presidential electors are appointed."
107 Mich. L. Rev. First Impressions at 37-38 (some emphasis
added).
Even though I submit that a statutory procedure for
addressing pre-election presidential-candidate-qualification
resolution, while also imposing an affirmative duty upon the
Secretary of State to investigate and pursue the necessary
review, is the best vehicle to accomplish the desired result,
an action brought in state court challenging a presidential
1120465
23
candidate's qualifications is not without potential problems.
In that regard, Professor Tokaji has further noted:
"A downside of such lawsuits is that they could
lead to mischief and inconsistency in the state
courts. That is particularly true where members of
one party or another dominate a state's highest
court. For example, a majority of Florida's judges
were appointed by Democratic Governor Lawton Chiles,
and Ohio's supreme court currently is dominated by
elected Republican justices. Suppose that a group of
Florida voters brought a state-court action seeking
to exclude McCain's name from that state's ballot on
the
ground
that
he
is
ineligible
to
serve.
Alternatively, suppose that Ohio voters brought a
state lawsuit attempting to knock Obama off the Ohio
ballot, alleging that he is ineligible. Suppose
further that the state supreme court in either state
actually grants the relief requested, excluding the
challenged candidate from the ballot on the ground
that
he
is
not
a
natural
born
citizen.
Notwithstanding Article II's language conferring
authority on state legislatures to appoint electors,
the prospect of a renegade state court excluding a
presidential candidate who is, in fact, qualified is
enough to give one pause. It is also possible that
state courts in different states could reach
conflicting
decisions on whether a challenged
presidential candidate satisfies the eligibility
requirements in Article II.
"Fortunately, there would be an avenue for
federal judicial review of such cases. Because the
state court's decision would rest on federal law--in
this
case
Article
II's
specification
of
the
requirements to serve as president-- the U.S.
Supreme Court could hear the case on a petition for
writ of certiorari. This is true even if the
original state-court action would not have been
justiciable in federal court. In ASARCO v. Kadish,
[490 U.S. 605 (1989),] for example, the Court held
1120465
24
that defendants who lost in state court could obtain
U.S. Supreme Court review of federal issues decided
against them, even though the original plaintiffs
would not have had standing to bring the action in
a federal court. The Court held that defendants had
standing to seek Supreme Court review on the theory
that they had suffered an 'injury' by virtue of the
adverse state-court judgment against them. For
similar reasons, if a candidate were removed from
the Florida ballot as part of a state-court action,
on
the
ground
that
he
was
constitutionally
ineligible to serve as president, that candidate
would presumably have standing to seek U.S. Supreme
Court review--even if the original plaintiffs (the
voters who sought to remove his name from the
ballot) would not have had standing to sue in
federal court as an initial matter. The prospect of
U.S. Supreme Court review provides some assurance
against a renegade state court rejecting a candidate
who is eligible to be president, and against the
possibility of two or more state courts reaching
different conclusions on the same presidential
candidate's eligibility."
107 Mich. L. Rev. First Impressions at 38-39.
The courts of this State are without jurisdiction to hear
a post-election challenge to a presidential election. See §
17-16-44, Ala. Code 1975. Alabama law currently provides no
express means by which a party with standing may make, outside
political-party machinery, a pre-election challenge to a
presidential candidate's qualifications. The problem is
further exacerbated by the compressed time period between a
presidential
nomination
by
a
national-party-nominating
1120465
25
convention and the date ballot preparation must be finished
and absentee ballots delivered to counties in Alabama. As
Professor Tokaji stated, a pre-election challenge to a
presidential
candidate's
qualifications
in
state
court
pursuant to state election laws may be the best, or perhaps
the only, relief available to an aggrieved party with
standing. I agree, and, accordingly, I would respectfully
invite the Alabama Legislature to enact a statutory process
that defines a pre-election course of conduct, consistent with
due process for the candidate, that vests an investigative
duty upon the Secretary of State, while providing rights and
remedies available to a party with standing who seeks to
challenge the qualifications of a candidate for the office of
President of the United States of America.
1120465
26
BRYAN, Justice (concurring specially).
I concur with this Court's no-opinion affirmance of the
circuit
court's
judgment
dismissing
the
plaintiffs'
complaint.
I write specially to note that I understand the
plaintiffs' desire to ensure that only the names of qualified
presidential candidates are placed on this State's general-
election ballot. However, I agree with Justice Bolin's
special writing insofar as he concludes that no "statutory
framework" presently exists in this State that imposes an
affirmative duty on the Secretary of State to investigate the
qualifications of a candidate for President of the United
States of America before printing that candidate's name on the
general-election ballot in this State. Furthermore, I agree
with Justice Bolin that no statutory procedure presently
exists that permits Alabama courts to entertain a pre-election
challenge to the qualifications of a presidential candidate
appearing on a general-election ballot in this State. Because
no law currently exists that could afford the plaintiffs the
relief they sought below and because the creation of such law
is strictly within the purview of the legislature, I concur to
affirm the circuit court's judgment.
1120465
While
this
case
was
pending
on
appeal,
Secretary
Bennett,
5
who took office on August 1, 2013, was substituted as the
appellee for his predecessor, Beth Chapman. See Rule 43(b),
Ala. R. App. P. Because the trial below and the filings on
appeal took place before Secretary Bennett's appointment, I
will generally, in keeping with the record, refer to Beth
Chapman as the Secretary of State in this writing.
27
MOORE, Chief Justice (dissenting).
For the reasons stated below I dissent from this Court's
decision to affirm without opinion the judgment of the
Montgomery Circuit Court granting the motion of the Secretary
of State to dismiss this action.
Hugh McInnish and Virgil H. Goode, Jr. (hereinafter "the
plaintiffs"), appeal from an order of the Montgomery Circuit
Court dismissing their complaint against the Alabama Secretary
of State. The complaint alleged that the Secretary of State
failed to perform a constitutional duty to verify the
eligibility of all presidential candidates appearing on the
ballot in the 2012 general election. McInnish is a citizen of
Alabama, a qualified elector, and a member of the Alabama
Republican
Executive
Committee. Goode qualified as an
independent candidate for President of the United States in
the 2012 Alabama general election. Jim Bennett is currently
the Alabama Secretary of State.5
1120465
"The Secretary of State is the chief elections official
6
in the state and shall provide uniform guidance for election
activities." § 17-1-3(a), Ala. Code 1975.
28
I. Facts and Procedural History
On October 11, 2012, the plaintiffs filed a verified
complaint in the Montgomery Circuit Court seeking a writ of
mandamus ordering the Alabama Secretary of State to verify the
eligibility of candidates for the office of President of the
United States before placing their names on the 2012 general-
election ballot. The plaintiffs specifically petitioned the
6
circuit court to order the Secretary of State to demand as a
precondition to placing the names of presidential candidates
on the ballot that "a certified copy of their bona fide birth
certificate be delivered to her direct from the government
official who is in charge of the records depository in which
it is stored." The plaintiffs also sought injunctive relief to
prevent the placing of the names of candidates for President
on the ballot "until their eligibility has been conclusively
determined." Finally, the plaintiffs requested the circuit
court to remove from the ballot the names of candidates whose
eligibility could not be verified. The plaintiffs attached
1120465
The presidential-qualifications clause, of which the
7
natural-born-citizen requirement is a part, also denies
eligibility for the office of President to any person "who
shall not have attained to the Age of thirty five Years, and
been fourteen Years a Resident within the United States."
U.S. Const. Art. II, § 1, cl. 4.
29
three affidavits, two articles, and a copy of an e-mail to
their complaint.
On October 15, 2012, three weeks before the November 6
general election, the plaintiffs moved for a summary judgment,
arguing that the Secretary of State had a duty to enforce the
natural-born-citizen
requirement
of
the
United
States
Constitution in determining whether candidates for President
of the United States were eligible for placement on the 2012
Alabama general-election ballot. See U.S. Const. Art. II, §
1, cl. 4 ("No Person except a natural born Citizen, or a
Citizen of the United States, at the time of the Adoption of
this Constitution, shall be eligible to the Office of
President ...."). Although the plaintiffs attached no
7
affidavits or other supporting evidentiary material to their
motion for a summary judgment, the motion did cite to the
verified complaint, which states:
"On February 2, 2012 Plaintiff McInnish, together
with his attorney and others, visited the Office of
the Secretary of State, at which the Hon. Emily
1120465
Because the Secretary of State has not challenged the
8
correctness of this statement, I do not consider whether it
might be hearsay or, alternatively, an admission by a party
opponent. See Rule 801(d), Ala. R. Evid. In her renewed motion
to dismiss, ¶ 1, Secretary Chapman asserted that she "has no
legal duty to investigate the qualifications of a candidate
...." See Peace & Freedom Party v. Bowen, 912 F. Supp. 2d 905,
907 (E.D. Cal. 2012) (finding that an attorney's statement
admitting that the plaintiff, who sought placement on the
presidential primary ballot, was only 27 years old was
nonhearsay under Rule 801(d)(2), Fed. R. Evid.).
30
Thompson, Deputy Secretary of State, speaking in the
absence of and for the Secretary of State, stated
that her office would not investigate the legitimacy
of any candidate, thus violating her duties under
the U.S. and Alabama Constitutions."
(Emphasis added.)8
On October 18, 2012, the Secretary of State answered the
motion for a summary judgment and simultaneously moved to
dismiss the case, arguing that the duty to investigate the
qualifications of presidential candidates lies with Congress
and not the office of the Secretary of State. She also argued
that the plaintiffs had failed to join necessary parties,
namely the presidential candidates and their electors, and
that the complaint and motion were untimely because many
ballots had already been printed and absentee voting had
begun. On October 24, 2012, the plaintiffs filed an opposition
to the motion to dismiss, reiterating their request that the
1120465
"Praecipe" is defined as "a writ ordering a defendant to
9
do some act or to explain why inaction is appropriate" and
"[a] written motion or request seeking some court action."
Black's Law Dictionary 1292 (9th ed. 2009).
31
circuit court "order the Secretary of State to verify the
eligibility of all presidential candidates for the 2012
Alabama General Election Ballot."
In the remaining two weeks before the general election,
the circuit court did not rule on the pending motions. On
November 10, 2012, four days after the election, the
plaintiffs filed a document entitled "Praecipe," noting that
9
President Obama had been reelected and asking that the pending
motions be decided "well before the Alabama electors vote on
December 17, 2012." On November 20, 2012, the Secretary of
State filed a "renewed" motion to dismiss, arguing that the
occurrence of the election rendered the case moot and that
under Alabama law the circuit court lacked subject-matter
jurisdiction over a challenge to a presidential election. The
plaintiffs opposed the motion, arguing the "capable of
repetition, yet evading review" exception to mootness.
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515
(1911). The plaintiffs also requested that the circuit court
order the Secretary of State to decertify the Alabama votes
1120465
32
for any 2012 presidential candidate who did not provide an
authenticated birth certificate. On December 6, 2012, the
circuit court heard argument on the pending motions. The same
day the court issued a "Final Order," which stated in its
entirety: "This cause having come before the Court on
Defendant's
Motion
To
Dismiss,
the
same
having
been
considered, it is hereby ORDERED, ADJUDGED AND DECREED said
Motion is GRANTED."
The plaintiffs timely filed a notice of appeal to this
Court on January 17, 2013.
II. Standard of Review
"Where a [Rule] 12(b)(6)[, Ala. R. Civ. P.,]
motion has been granted and this Court is called
upon to review the dismissal of the complaint, we
must examine the allegations contained therein and
construe them so as to resolve all doubts concerning
the sufficiency of the complaint in favor of the
plaintiff. First National Bank v. Gilbert Imported
Hardwoods, Inc., 398 So. 2d 258 (Ala. 1981). In so
doing, this Court does not consider whether the
plaintiff will ultimately prevail, only whether he
has stated a claim under which he may possibly
prevail. Karagan v. City of Mobile, 420 So. 2d 57
(Ala. 1982)."
Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985). "[I]f
under a provable set of facts, upon any cognizable theory of
1120465
33
law, a complaint states a claim upon which relief could be
granted, the complaint should not be dismissed." Id.
In this case, the plaintiffs seek a writ of mandamus as
well as other relief.
"Mandamus is a drastic and extraordinary writ,
to be issued only where there is (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court."
Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).
III. Analysis
At the outset I note that the plaintiffs did not ask the
circuit court to determine whether Barack Obama or any other
presidential candidate on the 2012 ballot met the "natural-
born-citizen" requirement of Art. II, § 1, cl. 4, of the
United
States
Constitution.
Instead,
the
plaintiffs
petitioned
the circuit court to issue a writ of mandamus ordering the
Alabama Secretary of State to authenticate the eligibility of
each candidate for President by requiring delivery to her of
a certified copy of each candidate's birth certificate from
"the records depository in which it is stored." The plaintiffs
also requested injunctive relief preventing the placement of
1120465
34
the name of any presidential candidate on the general-election
ballot until such evidence of eligibility had been supplied
and the removal from the ballot of the names of presidential
candidates "whose eligibility cannot be verified." In a post-
election brief to the circuit court, the plaintiffs also
requested that the circuit court order the Secretary of State
to decertify the votes of any candidate who did not provide an
authenticated birth certificate.
A. Threshold Issues
I first address four preliminary issues before turning to
the
merits
of
this
case: subject-matter jurisdiction,
standing, timeliness, and mootness.
1. Subject-Matter Jurisdiction
"[The circuit court] shall have authority to issue such
writs as may be necessary or appropriate to effectuate its
powers ....." Art. VI, § 142(b), Ala. Const. 1901. See also §
6-6-640, Ala. Code 1975 ("All applications for mandamus ...
shall be commenced by a petition, verified by affidavit
...."). This Court has jurisdiction to hear appeals from the
circuit courts concerning extraordinary writs. Art. VI, §
140(b), Ala. Const. 1901. See Rice v. Chapman, 51 So. 3d 281
1120465
35
(Ala. 2010) (hearing an appeal from a denial by the Montgomery
Circuit Court of a petition for a writ of mandamus that sought
an order directing the Secretary of State to exclude a
candidate
from
the
primary-election
ballot);
Alabama
Republican Party v. McGinley, 893 So. 2d 337 (Ala. 2004)
(reversing the issuance of a writ of mandamus by the
Montgomery Circuit Court that ordered the Republican Party to
place a candidate on the primary ballot and ordered the
Secretary of State to certify the votes cast for that
candidate).
2. Standing
Goode, as the Constitution Party candidate for President
on the 2012 Alabama general-election ballot, had standing to
challenge the presence on the ballot of other candidates for
the same office. See Hollander v. McCain, 566 F. Supp. 2d 63,
68 (D.N.H. 2008) (noting that a candidate "has standing to
challenge the inclusion of an allegedly ineligible rival on
the ballot, on the theory that doing so hurts the candidate's
... own chances of prevailing in the election"); Drake v.
Obama, 664 F.3d 774, 782-83 (9th Cir. 2011) (recognizing the
doctrine of "competitive standing" as a basis for challenging
1120465
36
the eligibility of a ballot rival). The plaintiffs filed their
complaint before the date of the 2012 general election.
"[J]urisdiction of the Court depends upon the state of things
at the time of the action brought, and that after vesting, it
cannot be ousted by subsequent events." Mullen v. Torrance, 22
U.S. (9 Wheat.) 537, 539 (1824). By contrast, the United
States Court of Appeals for the Ninth Circuit denied
competitive standing to candidates who did not file their
complaint until after President Barack Obama was sworn in to
office. Drake, 664 F.3d at 784 (holding that, once President
Obama was sworn in, "[p]laintiffs' competitive interest in
running against a qualified candidate had lapsed").
Therefore, Goode, a presidential candidate on the 2012
general-election ballot who filed his complaint before the
election, has standing to pursue this case. Because Goode has
standing and his coplaintiff, McInnish, alleges the same
claims as Goode, I need not address whether McInnish also has
standing. See Watt v. Energy Action Educ. Found., 454 U.S.
151, 160 (1981) ("Because we find [one plaintiff] has
standing, we do not consider the standing of the other
plaintiffs."); Arlington Heights v. Metropolitan Hous. Dev.
1120465
37
Corp., 429 U.S. 252, 264 & n.9 (1977) (noting that "[b]ecause
of the presence of [one] plaintiff [who has demonstrated
standing], we need not consider whether the other individual
and corporate plaintiffs have standing to maintain the suit");
Buckley v. Valeo, 424 U.S. 1, 12 (1976) (holding that case was
justiciable when at "least some of the appellants have a
sufficient 'personal stake'" in its adjudication).
3. Timeliness
"'Objections relating to nominations must be timely made.
It is too late to make them after the nominee's name has been
placed on the ballot and he has been elected to office ....'"
State ex rel. Norrell v. Key, 276 Ala. 524, 525-26, 165 So. 2d
76, 77 (1964) (quoting 29 C.J.S. Elections § 141). The
plaintiffs filed their complaint on October 11, 2012, 26 days
before the November 6 general election. The Republican and
Democratic Party candidates for President were nominated at
their national conventions on August 29, 2012, and September
5, 2012, respectively. Allowing time for the parties to
certify their candidates and electors to the Secretary of
State pursuant to § 17-14-31, Ala. Code 1975, the plaintiffs
1120465
38
filed suit approximately one month after the candidates were
known.
Laches, an affirmative defense, Rule 8(c), Ala. R. Civ.
P., which the Secretary of State raised in her pre-answer
motion to dismiss, "'is inexcusable delay in asserting a right
... causing prejudice to an adverse party ....'" Dunn v.
Ponceler, 235 Ala. 269, 276, 178 So. 40, 45 (1937) (quoting 21
Corpus Juris, pp. 210-11). In his dissent in Roper v. Rhodes,
988 So. 2d 471, 485 (2008), Justice Murdock noted that the
challenge to ballot certification at issue in that case was
brought over two months after the candidate's nomination and
only six days before the general election: "This delay,
coupled with the apparent prejudice to the parties and to the
orderly conduct of the general election itself that would
result if the primary election were to be undone at such a
late date, compels a ruling ... on the ground of laches."
Other courts have rejected ballot-eligibility challenges on
timeliness grounds. See, e.g., Fulani v. Hogsett, 917 F.2d
1028 (7th Cir. 1990) (denying relief on laches ground when
plaintiff filed complaint three weeks before November general
election but irregularity had occurred in early August); Liddy
1120465
39
v. Lamone, 398 Md. 233, 919 A.2d 1276 (2007) (denying on
laches ground eligibility challenge brought 18 days before
general election when candidate had been certified for the
ballot over 4 months before the general election).
In the cases cited above decided on the doctrine of
laches, the ballot-access challenge had been brought 2 to 4
months after certification of the nomination and from 6 to 21
days before the election. In this case, the plaintiffs brought
their challenge only 5 weeks after selection of the
presidential nominees and 26 days before the election. Because
of the brevity of the two-month interval between the national-
convention nominations and the November general election,
plaintiffs' filing of their action midway through that period
did not constitute "inexcusable delay."
4. Mootness
The Secretary of State argues that the holding of the
election renders this case moot. The plaintiffs argue an
exception to mootness -- that the certification of ineligible
candidates is a matter "capable of repetition, yet evading
review." They have preserved this argument, presenting it both
in their opposition to the Secretary of State's renewed motion
1120465
"[E]lections happen every year and the potential for
10
harm is just as present in the next election cycle. This claim
must therefore move forward and be heard so as to prevent this
harm from occurring not only during this election but for
future elections as well." Plaintiffs' Opp. to Def's Renewed
Motion to Dismiss, at 2.
"Since we have elections pretty much every year, the
11
potential harm is here that we would have an issue that would
have evaded review." Transcript of Proceedings on Motion to
Dismiss, Dec. 6, 2012, at 6 (statement of plaintiffs' attorney
Dean Johnson).
40
to dismiss
and also during the hearing before the circuit
10
court on December 6, 2012.
In their appellate brief they ask
11
this Court not only to reverse the judgment of the circuit
court on the issue of requiring birth certificates from the
presidential candidates whose names appeared on the 2012
general-election ballot, but also to direct the circuit court
to order that the Secretary of State "do the same for all
candidates in future presidential elections."
In a case similar to this one, the United States Court of
Appeals for the Third Circuit held that the shortness of the
election cycle qualifies presidential-candidate-eligibility
challenges for the "capable of repetition, yet evading review"
exception to mootness. The Third Circuit Court of Appeals
reasoned:
1120465
During the hearing on the motion to dismiss, the
12
plaintiffs' attorney quoted this passage and stated: "So we
have an Alabama case that points out this case is not moot."
41
"Although the defendants argue that [plaintiff's
challenge to President Obama's eligibility] is moot
because the election is over, we consider the issue
because '[t]his controversy, like most election
cases,
fits
squarely
within
the
"capable
of
repetition yet evading review" exception to the
mootness doctrine.' Merle v. United States, 351 F.3d
92, 94 (3d Cir. 2003)."
Berg v. Obama, 586 F.3d 234, 239 n.5 (3d Cir. 2009). This
Court has ruled similarly. See Allen v. Bennett, 823 So. 2d
679, 682 (Ala. 2001) ("[B]ecause the outcome of this case
could impact future elections, we hold that the interpretation
of [the constitutional provision at issue in] this case -- and
hence this appeal -- is not moot.");
Griggs v. Bennett, 710
12
So. 2d 411, 412 n.4 (Ala. 1988) (same).
The United States Supreme Court, rejecting a mootness
challenge to a ballot-access law affecting presidential
electors, has stated:
"But while the 1968 election is over, the burden ...
allowed to be placed on the nomination of candidates
for statewide offices remains and controls future
elections, as long as Illinois maintains her present
system as she has done since 1935. The problem is
therefore
'capable of repetition, yet evading
review,' Southern Pacific Terminal Co. v. Interstate
Commerce Commission, 219 U.S. 498, 515 [(1911)]."
1120465
The Secretary of State argues that this case is not
13
capable of repetition because President Obama may not
constitutionally run for a third term. Secretary of State's
brief, at 8-9 (citing U.S. Const. amend. XXII, § 1). President
Obama, however, is not the defendant in this case; the
Secretary of State is, and her refusal to investigate the
eligibility of presidential candidates for the general-
election ballot is capable of repetition.
42
Moore v. Ogilvie, 394 U.S. 814, 816 (1969). See Rice v.
Sinkfield, 732 So. 2d 993, 994 n.1 (Ala. 1998) (citing Ogilvie
as authority for the "capable of repetition, yet evading
review" exception to mootness). See also Morse v. Republican
Party of Virginia, 517 U.S. 186, 235 n.48 (1996) ("Like other
cases
challenging
electoral
practices,
therefore,
this
controversy is not moot because it is 'capable of repetition,
yet evading review.'"); Swanson v. Worley, 490 F.3d 894, 903
n.10 (11th Cir. 2007) ("Although the 2002 election cycle has
passed, it is well settled that ballot access challenges fall
under the 'capable of repetition, yet evading review'
exception to the mootness doctrine.").13
Ordinarily the "capable of repetition, yet evading
review" exception to mootness requires the satisfaction of two
conditions: "'[T]he challenged action was in its duration too
short to be fully litigated prior to its cessation or
expiration; and there was a reasonable expectation that the
1120465
43
same complaining party would be subjected to the same action
again.'" Albert P. Brewer Dev. Ctr. v. Brown, 782 So. 2d 770,
772 n.1 (Ala. 2000) (quoting Charles Alan Wright, Law of
Federal Courts § 12 (5th ed. 1994)). In this case, as in most
election cases, the first prong is easily satisfied. The two-
month period between the national-presidential-nominating
conventions and the subsequent general election is too short
to fully litigate the Secretary of State's duty to investigate
presidential candidates under the qualifications clause. This
Court has stated:
"The
capable-of-repetition-but-evading-review
exception
has
been
applied
in
contexts
that
generally involve a significant issue that cannot be
addressed by a reviewing court because of some
intervening factual circumstance, most often that
the issue will be resolved by the passage of a
relatively brief period of time. See, e.g., ...
Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23
L. Ed. 2d 1 (1969) (involving challenges to election
procedures after the completion of the election);
and [State ex rel.] Kernells [v. Ezell, 291 Ala.
440, 444, 282 So. 2d 266, 270 (1973)], supra
(same)."
McCoo v. State, 921 So. 2d 450, 458 (Ala. 2005). See also
Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005)
("Challenges to election laws are one of the quintessential
categories of cases which usually fit this prong because
1120465
44
litigation has only a few months before the remedy sought is
rendered impossible by the occurrence of the relevant
election."); Van Bergen v. State of Minnesota, 59 F.3d 1541,
1547 (8th Cir. 1995) ("Elections, including the preelection
campaign period, are almost invariably of too short a duration
in which to complete litigation and, of course, recur at
regular intervals.").
In the context of election cases, the second-prong
requirement that "the same complaining party would be
subjected to the same action again" is relaxed. The case is
customarily not moot if the challenged action could affect any
candidate in the future, not just the one presently before the
court.
"The 1972 election is long over, and no effective
relief can be provided to the candidates or voters,
but this case is not moot, since the issues properly
presented,
and
their
effects
on
independent
candidacies, will persist as the California statutes
are applied in future elections. This is, therefore,
a case where the controversy is 'capable of
repetition, yet evading review.'"
Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (emphasis
added). Similarly, the United States Supreme Court, without
inquiring as to future plans of the respondents to run for
office, held that a challenge to ballot-access requirements
1120465
45
was not rendered moot by the occurrence of the election.
Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977). See also
Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983) (same);
Brown v. Chote, 411 U.S. 452, 457 n.4 (1973) (same); North
Carolina Right to Life Comm. Fund v. Leake, 524 F.3d 427, 435
(4th Cir. 2008). ("[W]e reject, as other circuits have, the
argument that an ex-candidate's claims may be 'capable of
repetition, yet evading review' only if the ex-candidate
specifically alleges an intent to run again in a future
election.").
United States Supreme Court Justice Antonin Scalia
summarized this jurisprudence in a case in which he disagreed
with the majority's finding that the issue was not moot. Some
of the Supreme Court's election-law decisions, he stated,
"differ from the body of our mootness jurisprudence
not in accepting less than a probability that the
issue will recur, in a manner evading review,
between the same parties; but in dispensing with the
same-party requirement entirely, focusing instead
upon the great likelihood that the issue will recur
between the defendant and the other members of the
public at large without ever reaching us."
Honig v. Doe, 484 U.S. 305, 335-36 (1988) (Scalia, J.,
dissenting).
1120465
Although this Court used the phrase "and those similarly
14
situated" to describe future potential plaintiffs, Ezell was
not a class action.
46
In Moore v. Ogilvie, 394 U.S. at 816 (quoted above), the
Supreme Court rejected a mootness challenge to an election
case because "candidates for statewide offices" not before the
Court might encounter the same ballot obstacle in the future.
Similarly, this Court, relying on Ogilvie, has stated:
"[T]his exception for cases 'capable of repetition,
yet evading review' has been specifically applied by
the United States Supreme Court to the elections
context in Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct.
1493, 23 L. Ed. 2d 1 (1969), where a challenged
nominating procedure was dealt with on the merits
even after the election because of the likelihood of
its being used in future elections.
"This exception is properly applicable to the
case at bar. The short 30-45 day time period between
filing and election, coupled with the possibility of
future elections in other counties, convinces us
that if the rights of appellant, and those similarly
situated, are to be afforded the protection they
deserve, the occurrence of the election should not
be permitted to effectively deny all review by this
court. The cause, therefore, is not moot."
State ex rel. Kernells v. Ezell, 291 Ala. 440, 444, 282 So. 2d
266, 270 (1973) (emphasis added).14
Under both federal and state precedent, the plaintiffs'
claim that the Secretary of State has a legal duty under the
natural-born-citizen clause of the United States Constitution
1120465
47
to verify the eligibility of candidates for the office of
President of the United States before placing their names on
the general-election ballot has not been mooted by the
occurrence of the 2012 election. I now turn to the merits.
B. State-Law Issues
Before addressing the duty of the Secretary of State
under
the
presidential-qualifications
clause,
I
first
identify
the extent to which state law obligates her to determine
whether presidential candidates are legally qualified for
placement on the general-election ballot. I then examine the
extent to which Alabama law provides state courts with
jurisdiction to hear challenges to candidate qualifications.
1. Duty of the Secretary of State to Investigate the
Eligibility of Presidential Candidates
Alabama law mandates that the Secretary of State certify
presidential candidates for inclusion on the ballot in two
circumstances: (1) nomination by a national convention or (2)
nomination by a petition signed by 5,000 qualified voters.
"When presidential electors are to be chosen, the
Secretary of State of Alabama shall certify to the
judges of probate of the several counties the names
of all candidates for President and Vice President
who are nominated by any national convention or
other like assembly of any political party or by
1120465
For a list of the qualifications for state office in
15
Alabama, see § 36-2-1, Ala. Code 1975. "A candidate for public
office must show that he meets the eligibility requirements of
all categories of § 36-2-1(a) ...." Osborne v. Banks, 439 So.
2d 695, 698 (Ala. 1983).
48
written petition signed by at least 5,000 qualified
voters of this state."
§ 17-14-31(a), Ala. Code 1975 (emphasis added). This statute
by itself does not require the Secretary of State to question
the eligibility of candidates who fulfill either method of
qualifying for certification.
However, § 17-9-3(a), Ala. Code 1975, which also provides
for placing candidates on the general-election ballot,
contains a proviso that such candidates be "otherwise
qualified for the office they seek." This statute in isolation
applies only to candidates for state office. See § 17-9-
3(a)(1)-(3).
Another statute, however, extends the reach of
15
§ 17-9-3 to presidential primaries. Section 17-13-101, Ala.
Code 1975, states: "The provisions of Section 17-9-3 ... shall
apply to presidential preference primaries ... unless clearly
inconsistent herewith or inappropriate for the conduct of a
presidential preference primary." Thus, § 17-13-101 renders §
17-9-3,
including
its
"otherwise
qualified"
language,
applicable to presidential-preference primaries. Accordingly,
1120465
49
candidates who qualify for placement on the ballot in a
presidential-preference primary, see § 17-13-302, Ala. Code
1975, are "entitled to have their names printed on the
appropriate ballot for the general election, provided they are
otherwise qualified for the office they seek." § 17-9-3(a).
To qualify for placement on the general-election ballot
as a candidate for President after participating in the
presidential-preference
primary,
a
candidate
must
be
nominated
by the national convention of his or her party. See § 17-14-
31, Ala. Code 1975. Thus, by the combined effect of §§ 17-9-
3(a) and 17-13-101, the "otherwise qualified" proviso of § 17-
9-3(a) applies to presidential nominees who have appeared on
the ballot in the presidential-preference primary. Under
Alabama law, therefore, the Secretary of State, as the chief
elections official, has a legal duty to determine that
presidential-convention
nominees
who
have
run
in
the
presidential primary are duly "qualified for the office they
seek" before placing their names on the general-election
ballot.
2. Jurisdiction of Alabama Courts over Plaintiffs'
Request for Relief
1120465
50
"The circuit court shall exercise general jurisdiction in
all cases except as may otherwise be provided by law." Art.
VI, § 142(b), Ala. Const. 1901. One such exception is found in
§ 17-16-44, Ala. Code 1975: "No jurisdiction exists in or
shall be exercised by any judge or court to entertain any
proceeding for ascertaining the legality, conduct, or results
of any election, except so far as authority to do so shall be
specially and specifically enumerated and set down by statute
...." (Emphasis added.) This statute appears in Chapter 16,
Article 3, of the Election Code. Chapter 16 is entitled "Post
Election
Procedures." Article 3 is entitled "Election
Contests." Its location in the Code indicates that the
jurisdictional restrictions of § 17-16-44 apply only in post-
election contests.
Section
17-16-44
refers
to
"any
proceeding
for
ascertaining the legality, conduct, or results of any
election." Certainly the "results" of an election may not be
ascertained prior to election day. But ascertaining the
"legality" or "conduct" of an election could potentially apply
before the election as well as after. Construing § 17-16-44,
this Court has stated: "'Construing this statute as a whole,
1120465
51
it appears, broadly speaking, to cover cases inquiring into
the validity of elections theretofore held -- a proceeding in
the nature of a contest of an election, whether the legality,
conduct or results of the election be the point of attack.'"
King v. Campbell, 988 So. 2d 969, 977 (Ala. 2007) (quoting
Dennis v. Prather, 212 Ala. 449, 452, 103 So. 59, 62 (1925),
which construes a predecessor statute to § 17-16-44).
An election contest can occur only after an election has
taken place. See Sears v. McCrory, 43 So. 3d 1211, 1215 n.4
(Ala. 2009) (stating that "an election contest cannot be filed
until after a candidate is 'declared elected'" (citing Smith
v. Burkhalter, 28 So. 3d 730, 735 (Ala. 2009))). The
plaintiffs' pre-election request for an injunction preventing
the placement of constitutionally unqualified presidential
candidates on the ballot (or ordering their removal) thus does
not implicate the jurisdiction-stripping statute, which
applies only to post-election actions. However, § 17-16-44
does interdict the plaintiffs' post-election request for
relief. No Alabama statute "specially and specifically"
provides any state court with jurisdiction to entertain a
contest of a federal election. See § 17-16-40, Ala. Code 1975
1120465
By contrast, the Florida Supreme Court reviewed a
16
contest of the vote in the 2000 presidential election under
Fla. Stat. § 102.168, which provides that "'the certification
of election ... of any person to office [except for state
legislators] ... may be contested in the circuit court.'" Gore
v. Harris, 772 So. 2d 1243, 1251 n.9 (Fla. 2000) (emphasis
added), rev'd on other grounds, Bush v. Gore, 531 U.S. 98
(2000).
52
(providing for an eligibility challenge as part of a post-
election contest of enumerated state offices).
In their post-
16
election "praecipe" the plaintiffs requested that the circuit
court order the Secretary of State to decertify the Alabama
votes for any 2012 presidential candidate who did not provide
an authenticated birth certificate. Under § 17-16-44 no
jurisdiction exists in any Alabama court to decertify the
votes of a federal election.
C. Federal-Law Questions
The Secretary of State has a duty under state law to
examine
the
qualifications
of
national-convention
nominees
who
ran in the presidential primary before placing their names on
the
general-election
ballot.
The
jurisdiction-stripping
statute forbids inquiry into the eligibility of presidential
candidates once an election has occurred, but it does not
preclude such an inquiry before the election.
1120465
The
President-elect
becomes
President
at
the
17
inauguration held on January 20. U.S. Const. amend XX. When a
presidential candidate becomes the President-elect, however,
is a matter of definition. The three possible dates are the
53
I now address whether the Secretary of State as part of
her limited state-law duty to qualify certain presidential
candidates for the ballot must take cognizance of the
presidential-qualifications clause of the United States
Constitution and, in particular, the natural-born-citizen
requirement. I also address whether, regardless of the
requirements or limitations of state law, the Secretary of
State has a duty arising directly under the United States
Constitution to qualify all presidential candidates under the
presidential-qualifications
clause
before
printing
their
names
on the general-election ballot. "The relative importance to
the State of its own law is not material when there is a
conflict with a valid federal law, for the Framers of our
Constitution provided that the federal law must prevail." Free
v. Bland, 369 U.S. 663, 666 (1962). Because the duty of state
executive officers to enforce the qualifications clause may
differ depending on whether a challenge is brought before the
identity of the President-elect is determined or afterwards,
I treat these two scenarios separately.
17
1120465
general election in early November, the date the electors cast
their ballots in mid-December, 3 U.S.C. § 7, and the counting
of the electoral votes by Congress on January 6. 3 U.S.C. §
15. The most relevant date for this analysis is the date the
electors cast their votes. Between the November general
election and the casting of electoral votes in mid-December,
a state, if it chooses, is at liberty to resolve any
"controversy or contest" in regard to the selection of its
electors, if done at least six days before the electors "meet
and give their votes." 3 U.S.C. §§ 5 and 7. Thus, under
federal law, the states are empowered to resolve challenges to
the validity of electors, and by implication the candidates to
whom they are pledged, for about a month beyond election day.
Alabama has not enacted legislation to avail itself of this
option. Section 17-16-44 removes from Alabama courts the
jurisdiction to hear such challenges.
54
1.
Challenges
to
the
Qualifications
of
the
President-Elect
When federal courts discern a "textually demonstrable
constitutional commitment of [an] issue to a coordinate
political department," Baker v. Carr, 369 U.S. 186, 217
(1962), they ordinarily consider the matter a nonjusticiable
political question and defer to the designated branch under
the separation-of-powers doctrine. The Constitution assigns
Congress the responsibility to resolve challenges to the
qualifications of a President-elect or a sitting President.
Article 2, § 1, of the United States Constitution establishes
the electoral college. The Twelfth Amendment designates how
electors certify their votes for President and Vice President
1120465
55
to the president of the Senate, how those electoral votes are
counted, and how a President is chosen if no candidate has a
majority. The Twentieth Amendment in turn details how the
President is chosen if the President-elect dies or "shall have
failed to qualify." The Twenty-Fifth Amendment provides for a
transfer of power in the event the President "is unable to
discharge the powers and duties of his office." Finally, §§ 2
and 3 of Article I provide for impeachment and removal of the
President.
These provisions, taken together, lodge with Congress the
power to confirm the election of a President and to remove a
President from office. Additionally, 3 U.S.C. § 15 provides
detailed instructions for the counting of electoral votes,
including a mechanism to hear and resolve objections. A
federal district court has stated:
"It is clear that mechanisms exist under the Twelfth
Amendment and 3 U.S.C. § 15 for any challenge to any
candidate to be ventilated when electoral votes are
counted, and that the Twentieth Amendment provides
guidance regarding how to proceed if a president
elect shall have failed to qualify. Issues regarding
qualifications for president are quintessentially
suited to the foregoing process. ... The members of
the Senate and the House of Representatives are well
qualified to adjudicate any objections to ballots
for allegedly unqualified candidates."
1120465
After the 1872 election, Congress rejected three
18
electoral votes cast for Horace Greeley, who was ineligible
for office, having died three weeks after the election. Cong.
Globe, 42d Cong., 3d Sess. 1285-87, 1289 (1873).
56
Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal.
2008).
Once the states have cast their electoral votes, "the
18
issue of the President's qualifications and his removal from
office are textually committed to the legislative branch and
not the judicial branch." Grinols v. Electoral Coll., (No.
2:12–cv–02997–MCE–DAD, May 23, 2013) (E.D. Cal. 2013) (not
reported in F. Supp. 2d). See also Rhodes v. MacDonald, 670 F.
Supp. 2d 1363, 1377 (M.D. Ga. 2009) (noting that "if the
President were elected to the office by knowingly and
fraudulently
concealing
evidence
of
his
constitutional
disqualification,
then
[the]
mechanism
[of
impeachment]
exists
for removing him from office").
In State v. Albritton, 251 Ala. 422, 37 So. 2d 640
(1948), the State of Alabama brought suit seeking to restrain
Democratic Party electors from refusing to vote for Harry
Truman were he to be the party's presidential nominee. This
Court refused to intervene in what it considered a "political
matter," citing among other authority the predecessor to § 17-
16-44 and pointing the litigants to a federal remedy: "Section
1120465
Bush v. Gore, 531 U.S. 98 (2000), appears to be an
19
exception to this principle. See Erwin Chemerinsky, Bush v.
Gore was not Justiciable, 76 Notre Dame L. Rev. 1093 (2001);
See also Erwin Chemerinsky, How Should We Think about Bush v.
Gore?, 34 Loy. U. Chi. L.J. 1, 2 (2002) (describing George W.
Bush as "the first President chosen by the Supreme Court"). In
Bush v. Gore, neither party raised
the
justiciability
question
and the Court did not address it.
57
17, Title 3, U.S.C.A. [currently 3 U.S.C. § 15], provides a
complete remedy for contesting irregularity of casting votes
by presidential electors." 251 Ala. at 425, 37 So. 2d at 643.
Compare Hutchinson v. Miller, 797 F.2d 1279, 1284 (4th Cir.
1986) ("Had the framers wished the federal judiciary to umpire
election contests, they could have so provided. Instead, they
reposed primary trust in popular representatives and in
political correctives.").
Because Congress completely occupies the field of
determining the qualifications of a President-elect or a
sitting President to hold office, the political-question
doctrine ousts federal courts from having jurisdiction over
those particular questions.
State courts should not rush in
19
where federal courts decline to tread. See Strunk v. New York
State Bd. of Elections, 35 Misc. 3d 1208(A), 950 N.Y.S.2d 722
(table) (Sup. Ct. 2012) (unreported disposition) ("Federal
courts have no role in this process. Plainly, state courts
1120465
58
have no role."). The doctrine of field preemption requires
that states not regulate in an area exclusively occupied by
Congress. Preemption occurs "where Congress has legislated
comprehensively, thus occupying an entire field of regulation
and leaving no room for the states to supplement federal law
...." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368
(1986) (quoted in General Motors Corp. v. Kilgore, 853 So. 2d
171, 174 (Ala. 2002)). Field preemption has been found when
the need exists for uniform federal treatment of a subject.
See Davis v. Redstone Fed. Credit Union, 401 So. 2d 49, 51
(Ala. Civ. App. 1979).
Under the political-question and preemption doctrines,
Alabama state courts are without power to regulate the conduct
of a presidential election after the President-elect has been
selected. Likewise, the Secretary of State also lacks
authority to decertify Alabama's electoral votes for the
President-elect.
2. Challenges to the Qualifications of Presidential
Candidates
A state law that required birth certificates from
presidential candidates as a precondition to placement on the
ballot would likely pass muster under federal preemption law.
1120465
Congress is also free to pass legislation in aid of the
20
presidential-qualifications clause. See, e.g., H.R. 1503,
111th Cong. (1st Sess. 2009) (seeking to amend federal
campaign law to require the principal campaign committee of a
presidential candidate to include a copy of the candidate's
birth certificate with its statement of organization).
59
Such a law would not conflict with the Constitution, but would
rather harmonize with the natural-born-citizen clause. New
Hampshire, for example, requires an affirmation that a person
is a "natural born citizen" as a condition to placing that
person's name on a presidential-election ballot. N.H. Rev.
Stat. Ann. § 655:47. See also Hassan v. Colorado, 870 F. Supp.
2d 1192, 1201 (D. Colo. 2012), aff'd, 495 F. App'x 947 (10th
Cir.
2012)
(upholding
a
Colorado
law
requiring
all
presidential candidates to affirm that they are natural-born
citizens).
Although
states
have
no
power
"to
add
qualifications to those enumerated in the Constitution," U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995), they
certainly are not limited in enforcing those stated therein.20
a. The Grant of Power to the States to Appoint
Presidential Electors
The selection of presidential electors is an exclusive
state function subject only to congressional determination of
1120465
60
when the electors shall be selected and when they shall cast
their votes.
"Each State shall appoint, in such Manner as the
Legislature
thereof
may
direct,
a
Number
of
Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled
in the Congress ....
"The Congress may determine the Time of choosing
the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout
the United States."
U.S. Const. Art. II, § 1, cls. 2 & 3 (emphasis added). "In
short, the appointment and mode of appointment of electors
belong exclusively to the states under the constitution of the
United States." McPherson v. Blacker, 146 U.S. 1, 35 (1892).
See also Opinion of the Justices No. 87, 250 Ala. 399, 401, 34
So. 2d 598, 600 (1948) (same). "Congress has never undertaken
to interfere with the manner of appointing electors ... but
has left these matters to the control of the states."
Fitzgerald v. Green, 134 U.S. 377, 380 (1890). The electors,
called into existence by the United States Constitution, act
by authority of the state in choosing a President and Vice
President:
"The
presidential
electors exercise a federal
function
in
balloting
for
President
and
Vice-President but they are not federal officers or
1120465
61
agents any more than the state elector who votes for
congressmen. They act by authority of the state that
in turn receives its authority from the federal
constitution."
Ray v. Blair, 343 U.S. 214, 224-25 (1952). See also Burroughs
v. United States, 290 U.S. 534, 545 (1934) (same); Opinion of
the Justices No. 194, 283 Ala. 341, 343, 217 So. 2d 53, 55
(1968) (quoting Green, 134 U.S. at 379) (same); U.S. Term
Limits, 514 U.S. at 805 (noting that the Constitution provides
"express delegations of power to the States to act with
respect to federal elections").
In contrast to the detailed provisions in the Twelfth
Amendment that allocate to Congress the authority to count the
electoral votes and, in the absence of a majority, to choose
the President and Vice President, the Constitution grants
"plenary power to the state legislatures in the matter of the
appointment of electors." McPherson, 146 U.S. at 35 (emphasis
added). No constitutional division of power between the states
and the federal government or between the different branches
of government hinders any state from selecting its allocated
portion of the members of the electoral college. State power,
far from being preempted in this area, is expressly bestowed.
For implementation in Alabama see §§ 17-14-30 through -37,
1120465
62
Ala. Code 1975 ("Elections for Presidential and Vice
Presidential Electors").
The authority of the states to select electors, however,
does not extend to abrogating the qualifications clause.
"Congress is empowered to determine the time of
choosing the electors and the day on which they are
to give their votes, which is required to be the
same day throughout the United States; but otherwise
the
power
and
jurisdiction
of
the
state
is
exclusive, with the exception of the provisions as
to the number of electors and the ineligibility of
certain persons ...."
McPherson, 146 U.S. at 35 (emphasis added). "[T]he First
Section of the Second Article of the Constitution" "does grant
extensive power to the States to pass laws regulating the
selection of electors .... [T]hese granted powers are always
subject to the limitation that they may not be exercised in a
way
that
violates
other
specific
provisions
of
the
Constitution." Williams v. Rhodes, 393 U.S. 23, 29 (1968)
(emphasis added). See also Ray v. Blair, 343 U.S. at 227
(noting "the state's right to appoint electors in such manner,
subject to possible constitutional limitations, as it may
choose" (emphasis added)); Williams v. Virginia State Bd. of
Elections, 288 F. Supp. 622, 626 (E.D. Va. 1968), aff'd mem.,
1120465
In
the
first
presidential
election
five
state
21
legislatures directly appointed the electors without any
participation by the voters. McPherson, 146 U.S. at 29-30.
Today "in each of the several States the citizens themselves
vote for Presidential electors." Bush v. Gore, 531 U.S. at
104.
63
393 U.S. 320 (1969) ("In short, the manner of appointment must
itself be free of Constitutional infirmity.").
Although the electoral college was originally established
to be an independent body of judicious individuals who would
exercise their discretion in the same manner as other chosen
representatives, in practice the electors have been chosen by
popular vote in tandem with the presidential candidates they
are pledged to support.
Alabama law makes this practice
21
mandatory. See § 17-14-31(c), Ala. Code 1975. Although the
names of the electors are not printed on the presidential
ballot, § 17-14-32, Ala. Code 1975, "[a] vote for a particular
presidential candidate is counted as a vote for the slate of
electors pledged to support him." Hitson v. Baggett, 446 F.
Supp. 674, 675 (M.D. Ala. 1978), aff'd mem., 580 F.2d 1051
(5th Cir. 1978). Accordingly, when the Secretary of State,
pursuant to state law, authorizes the printing of names of
presidential candidates on the general-election ballot, he or
she is also participating in executing the state's power under
1120465
64
Article II of the United States Constitution to select
presidential electors. This power, however, expressly granted
to the States by the Constitution, must be exercised in
conformity
with
other
provisions of the Constitution,
including the qualifications clause.
b. The Duty of the Secretary of State to Support the
United States Constitution
The United States Constitution is the supreme law of the
land. "This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof ... shall be the
supreme Law of the Land ...." U.S. Const. Art. VI, cl. 2. In
the immediately following clause the Constitution binds state
officials to obey this mandate: "[A]ll executive and judicial
Officers ... of the several states, shall be bound by Oath or
Affirmation, to support this Constitution ...." U.S. Const.
Art. VI, cl. 3. The Alabama Constitution requires state
officials to take a similar oath or affirmation to support the
federal and state constitutions:
"All members of the legislature, and all
officers, executive and judicial, before they enter
upon the execution of the duties of their respective
offices,
shall
take
the
following
oath
or
affirmation:
1120465
65
"'I, ........, solemnly swear (or
affirm, as the case may be) that I will
support the Constitution of the United
States, and the Constitution of the State
of Alabama, so long as I continue a citizen
thereof; and that I will faithfully and
honestly discharge the duties of the office
upon which I am about to enter, to the best
of my ability. So help me God.'"
Art. XVI, § 279, Ala. Const. 1901. See also Speiser v.
Randall, 357 U.S. 513, 536 (1958) (Douglas, J., concurring)
("All public officials -- state and federal -- must take an
oath to support the Constitution by the express command of
Article VI of the Constitution."); The Federalist No. 27, at
175 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (noting
that "all officers, legislative, executive, and judicial, in
each State, will be bound by the sanctity of an oath" to
support the constitution as the supreme law of the land);
Shuttlesworth v. Birmingham Bd. of Educ., 162 F. Supp. 372,
381 (N.D. Ala. 1958) ("As executive officers of the State, the
members of the defendant [Birmingham] Board [of Education] are
likewise required to 'be bound by Oath or Affirmation to
support this Constitution.'").
The oath to support the constitution, wrote Justice
Story,
1120465
66
"results from the plain right of society to require
some guaranty from every officer, that he will be
conscientious in the discharge of his duty. Oaths
have a solemn obligation upon the minds of all
reflecting men, and especially upon those, who feel
a deep sense of accountability to a Supreme being."
III Joseph Story, Commentaries on the Constitution of the
United States § 1838 (1833). Story explained the purpose for
state officers to execute the oath: "The members and officers
of the state governments have an essential agency in giving
effect
to
the
national constitution. ... [F]unctions,
devolving on the state authorities, render
it highly
important, that they should be under a solemn obligation to
obey the constitution." Id., § 1839. George Washington
admonished his countrymen that "'"the constitution which at
any time exists, till changed by an explicit and authentic act
of the whole people, is sacredly obligatory upon all."'" State
v. Manley, 441 So. 2d 864, 867 (Ala. 1983) (quoting In re
Opinion to the Governor, 55 R.I. 56, 61, 178 A. 433, 436
(1935), quoting in turn R.I. Const. Art. I, § 1).
Under the Constitutions of the United States and of the
State of Alabama, the Secretary of State, as an executive
officer of the State of Alabama, has an affirmative legal duty
to recognize and support the United States Constitution as the
1120465
The Secretary of State argues that she does investigate
22
the qualifications of candidates in "a very specific set of
circumstances," namely,
"when
she has
knowledge
gained from
an
official source while performing her duties as prescribed by
law, that a candidate has not met a certifying qualification."
Secretary of State's brief, at 11. The Attorney General's
opinion on which she relies states: "The Code does not require
the Secretary of State to determine whether each nominee meets
all the qualifications for his or her particular office." Op.
Att'y Gen. No. 1998-00200 (August 12, 1998), at 3. Further,
"the Secretary of State has no duty to investigate facts not
within his official knowledge ...." Id., at 5. The Attorney
General's opinion, however, cites only state-law requirements
for ballot access that may give rise to "official knowledge,"
such as an ethics-commission notice or a duty to verify
petition signatures. Id., at 3. The opinion does not mention
the federal qualifications clause implicated in this case.
67
supreme law of the land.
The United States Constitution does
22
not supply a detailed catalog of the specific duties
encompassed by the Article VI oath of allegiance. "A
constitution, to contain an accurate detail of all the
subdivisions of which its great powers will admit, and of all
the means by which they may be carried into execution, would
partake of the prolixity of a legal code, and could scarcely
be embraced by the human mind." M'Culloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 407 (1819). Nonetheless, as Chief Justice John
Marshall stated for the Court in regard to the oath for
judicial office:
1120465
68
"Why otherwise does [the Constitution] direct
the judges to take an oath to support it? This oath
certainly applies, in an especial manner, to their
conduct in their official character. How immoral to
impose it on them, if they were to be used as the
instruments,
and the knowing instruments, for
violating what they swear to support!
"....
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if
that
constitution
forms
no
rule
for
his
government?"
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also Collier v. Frierson, 24 Ala. 100, 109 (1854) (discussing
the
constitutional
provisions
for
amending
the
state
constitution and asking: "But to what purpose are these acts
required, or these requisitions enjoined, if the Legislature
or any other department of the government, can dispense with
them").
The "last and closing clause of the Constitution" binds
all executive and judicial officers of the several states "to
preserve it in full force, in all its powers, and to guard
against resistance to or evasion of its authority, on the part
of a State." Ableman v. Booth, 62 U.S. (21 How.) 506, 524
(1858) (emphasis added).
1120465
69
"[E]very State has plighted to the other States to
support the Constitution as it is, in all its
provisions, until they shall be altered in the
manner which the Constitution itself prescribes. In
the emphatic language of the pledge required, it is
to support this Constitution."
62 U.S. (21 How.) at 525.
c. Enforcing the Qualifications Clause
The qualifications clause is justiciable. In two cases
federal district courts have upheld decisions of state
officials, including secretaries of state, who refused to
qualify proposed candidates for the presidential ballot who
were less than 35 years old. In Socialist Workers Party of
Illinois v. Ogilvie, 357 F. Supp. 109 (N.D. Ill. 1972), the
court declined to enjoin the decision of the State Electoral
Board, which included as a member the Illinois Secretary of
State, refusing to place on the presidential ballot the
Socialist Workers Party candidate for President, who was
admittedly 31 years old. The candidate, the court found, "does
not fulfill the eligibility requirements specified in Article
II, Section 1 of the United States Constitution." 357 F. Supp.
at 113. Recently, in Peace & Freedom Party v. Bowen, 912 F.
Supp. 2d 905 (E.D. Cal. 2012), the court upheld a decision of
the California Secretary of State refusing to list Peta
1120465
70
Lindsay on the 2012 primary ballot as the Peace and Freedom
Party candidate for President. The Court noted that Lindsay,
whose attorney admitted in a letter that she was 27 years old,
"is ineligible to serve as president due to her age." 912 F.
Supp. 2d at 908.
These cases address situations in which allegedly
ineligible
presidential
candidates
have
sought
judicial
relief
from the decisions of state election officials excluding them
from the ballot because they were underage. See also Hassan v.
Colorado, 870 F. Supp. 2d 1192, 1195 (D. Colo. 2012), aff'd,
495 F. App'x 947 (10th Cir. 2012) (denying a motion to enjoin
the Colorado Secretary of State from refusing to certify for
the presidential ballot a naturalized citizen who could not
affirm that he was "'a natural-born citizen of the United
States'"). The case before us seeks inverse relief: to require
the Secretary of State to investigate for ineligibility
candidates she has already certified for the presidential-
election ballot and to screen all such candidates for
eligibility in the future. In Jones v. Bush, 122 F. Supp. 2d
713 (N.D. Tex. 2000), aff'd, 234 F.3d 134 (5th Cir. 2000)
(table), registered voters in Texas sought an injunction to
1120465
"The Electors shall meet in their respective states, and
23
vote by ballot for President and Vice-President, one of whom,
at least, shall not be an inhabitant of the same state with
themselves ...." U.S. Const. Amend. XII.
71
restrain the 32 Texas electors from casting their votes for
both George W. Bush as President and Richard B. Cheney as Vice
President on the ground that both were inhabitants of Texas in
violation of the first clause of the Twelfth Amendment.
The
23
court found that the voters lacked standing for failure to
show particularized injury, id. at 716-18, but nevertheless
addressed the merits of the case to "assist the parties in
obtaining full appellate review in the short period that
remains before the Electoral College votes." Id. at 718.
Equating the term "inhabitant" as used in the Twelfth
Amendment with the term "domicile" as used in personal-
jurisdiction law, the court found that Mr. Cheney was
domiciled in, and thus an inhabitant of, Wyoming. Accordingly,
the plaintiffs failed to satisfy their burden to show a
likelihood of success on the merits of their claim that the
Vice President-elect was an inhabitant of Texas. Id. at 718-
21.
In Jones v. Bush, the court directly adjudicated,
although as dicta, an alleged violation of an eligibility
1120465
72
provision of the United States Constitution without any
auxiliary grounding in state law. In this case the plaintiffs
seek to require the Alabama Secretary of State to respect her
duty and oath of allegiance to the United States Constitution
either as an adjunct requirement to the "otherwise qualified"
phrase in § 17-9-3 or as a freestanding duty under the United
States Constitution. The presidential-eligibility provisions
of the United States Constitution, where unambiguous and
directly applicable to the actions of a particular state
official, do not require the existence of a parallel state
statute to be enforceable. Otherwise a state could nullify
within its borders the eligibility provisions of the federal
constitution simply by not passing enabling legislation.
"Constitutional
provisions
are
presumed
to
be
self-executing." 16 C.J.S. Constitutional Law § 89 (2005). "A
constitutional provision is considered to be self-executing
when additional legislation is not required for it to be
effective." Cole v. Riley, 989 So. 2d 1001, 1005 n.2 (Ala.
2007). The qualifications clause prohibits anyone from being
eligible for the office of President who does not meet the
three
qualifications
stated
therein.
"[U]sually
no
legislation
1120465
73
is required to effectuate a constitutional provision that is
prohibitory
in
its
language
...."
16
Am.
Jur.
2d
Constitutional Law § 101 (2009).
As the gatekeeper for presidential-ballot access in
Alabama, the Secretary of State is the official upon whom
rests the duty to enforce the qualifications clause. "A state
acts by its legislative, its executive, or its judicial
authorities. It can act in no other way." Ex parte Virginia,
100 U.S. 339, 347 (1879). If the responsible state official
could defy or deliberately ignore the Constitution, "the
restrictions of the Federal Constitution upon the exercise of
state power would be but impotent phrases." Sterling v.
Constantin, 287 U.S. 378, 397-98 (1932). "'[A]n official,
whose duty it was to enforce the law, [may not] disregard the
very law which it was his duty to enforce ....'" Faubus v.
United States, 254 F.2d 797, 807 (8th Cir. 1958) (quoting
Strutwear Knitting Co. v. Olson, 13 F. Supp. 384, 391 (D.
Minn. 1936)). Compare Seay v. Patterson, 207 F. Supp. 755, 756
(M.D. Ala. 1962) (noting that "the governor of a state when he
acts or fails to act in his official capacity must be and is
1120465
74
always subject to the constitutional limitations imposed upon
him by the Constitution of the United States").
To the extent that state laws did not empower the
Secretary of State to implement the requirements of the
qualifications clause or even forbade her so to act, such laws
would have to recede before her oath to support the
Constitution and the superior mandate of the Supremacy Clause.
"[C]onflicting obligations" under state law are "without
effect" in the face of superseding federal law. Washington v.
Washington State Commercial Passenger Fishing Vessel Ass'n,
443 U.S. 658, 691-92 (1979). Section 17-14-31 requires the
Secretary of State to place the names of national-convention
nominees on the presidential ballot without any necessity to
examine their qualifications unless the candidates ran in the
presidential primaries. This provision cannot diminish the
eligibility requirements of the presidential-qualifications
clause. "There is no such avenue of escape from the paramount
authority of the Federal Constitution." Sterling, 287 U.S. at
398.
Further, the Secretary of State may not expressly disavow
in her official capacity a requirement of the United States
1120465
75
Constitution that she is bound by oath to support and that
directly implicates her duties as an executive officer of the
State. "The States and their officers are bound by obligations
imposed by the Constitution ...." Alden v. Maine, 527 U.S.
706, 755 (1999). Two scholars observe:
"[P]owerful rule-of-law concerns militate against
the proposition that state actors ought to be able
to ignore some parts of the Constitution on the
ground that those parts really aren't all that
important. The very point of a written constitution,
one might think, is to put such arguments off limits
to the governmental officials who are bound by the
document's requirements."
Sanford Levinson & Ernest A. Young, Who's Afraid of the
Twelfth Amendment?, 29 Fla. St. U. L. Rev. 925, 943 (2001). As
Chief Justice John Marshall noted: "To what purpose are powers
limited, and to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed by those
intended to be restrained?" Marbury v. Madison, 5 U.S. (1
Cranch) at 176. The statement of the Deputy Secretary of State
in an agency capacity that the Secretary of State's "office
would not investigate the legitimacy of any candidate" is
legally untenable, as is the statement of the Secretary of
State in her motion to dismiss that she "has no legal duty to
investigate the qualifications of a candidate." Under both the
1120465
See U.S. Term Limits, 514 U.S. at 817 (noting Thomas
24
Jefferson's observation that "'to add new qualifications to
those of the Constitution would be as much an alteration as to
detract from them'" (quoting letter of Jan. 31, 1814, to
Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A.
Lipscomb ed. 1904) (emphasis added))).
76
Supremacy Clause and the oath she took to support the United
States Constitution, the Secretary of State has a legal duty
to observe the presidential-eligibility requirements of
Article II, § 1, clause 4 of the United States Constitution.
She may not refuse to recognize this duty without violating
her oath of office or offending the Supremacy Clause.
The
24
absence of a specific state-law requirement to enforce the
qualifications clause does not operate as a waiver of her
superior duty under federal constitutional law. "The laws of
the United States are as much a part of the law of Alabama as
its own local laws." Forsyth v. Central Foundry Co., 240 Ala.
277, 282, 198 So. 706, 710 (1940).
IV. Remedy
Under Alabama law, the Secretary of State is bound by the
"otherwise qualified" clause of § 17-9-3 in making a decision
to print on the general-election ballot the names of
presidential candidates nominated by a national convention who
have
also
participated
in
the
presidential-preference
primary.
1120465
77
Those
qualifications
include
the
requirements
of
the
presidential-qualifications
clause
that
the
Secretary
of
State
is bound by oath and the Supremacy Clause to observe. Because
the mandate of the presidential-qualifications clause is self-
executing, its effectiveness does not depend on implementing
legislation. Thus, regardless of state law, the Secretary of
State has a duty to observe the requirements of the
presidential-qualifications
clause
in
certifying
any
candidate
for the presidential ballot in the general election.
Section 17-16-44 forbids any state court from ordering
the Secretary of State to decertify the votes cast for a
presidential candidate after a general election has taken
place. Further, any remedy in regard to the qualifications of
a President-elect is a congressional responsibility. Once the
election of 2012 occurred and Alabama's electoral votes were
certified by the Governor and cast on the day designated, the
State lost jurisdiction under both state and federal law to
alter
its
electoral
votes,
thereby
making
issues
of
ineligibility or decertification moot. Under the "capable of
repetition, yet evading review" exception to mootness,
however, the circuit court should have granted the petition
1120465
The plaintiffs assert that "a teenager applying for a
25
learner's license must submit an original, bona fide birth
certificate. The same is true for a Boy Scout before he joins
a troop." Plaintiffs' brief, at 37. See § 32-6-8(b), Ala. Code
1975 (stating that "[t]he age of the applicant [for a
learner's license] shall be substantiated by the applicant
78
for a writ of mandamus to the extent of ordering the Secretary
of State to recognize and implement in future presidential
elections the mandate of the federal constitution that
presidential
candidates
satisfy
the
citizenship
requirement
of
Art. II, § 1, cl. 4, of the United States Constitution.
The Secretary of State is a constitutional officer. Art.
V, § 134, Ala. Const. 1901. The manner in which the Secretary
of State implements the federal constitutional mandate falls
in the first instance within her executive discretion. Henley
v. Birmingham Trust Nat'l Bank, 295 Ala. 38, 56, 322 So. 2d
688, 704 (1975) (Maddox, J., dissenting on other grounds)
(noting that the attorney general "is a constitutional officer
and is vested with executive discretion"). The plaintiffs
sought a writ of mandamus from the circuit court ordering the
Secretary of State to require from each presidential candidate
a verified birth certificate. Presentation of a birth
certificate is indeed a common means of determining age and
citizenship.
Although I would not prescribe the manner in
25
1120465
filing with the department a certified copy of his or her
birth certificate"). Federal passport regulations state that
a birth certificate is "[p]rimary evidence of birth in the
United States." 22 C.F.R. § 51.42(a).
79
which the Secretary of State is to verify eligibility of
presidential candidates, I believe she has a duty as the chief
elections official of Alabama to implement the natural-born-
citizen requirement of Article II, § 4, of the United States
Constitution.
V. Conclusion
Although the plaintiffs' request for relief is moot as to
the legality, conduct, and results of the 2012 election, under
the "capable of repetition, yet evading review" exception to
mootness, the circuit court, in my view, should have granted
the petition for a writ of mandamus to the extent of ordering
the Secretary of State to implement the natural-born-citizen
requirement of the presidential-qualifications clause in
future elections.
Furthermore, I believe the circuit court should have
granted the petition for a writ of mandamus to order the
Secretary of State to investigate the qualifications of those
candidates who appeared on the 2012 general-election ballot
for President of the United States, a duty that existed at the
1120465
80
time this petition was filed and the object of the relief
requested. Although the removal of a President-elect or a
President who has taken the oath of office is within the
breast of Congress, the determination of the eligibility of
the 2012 presidential candidates before the casting of the
electoral votes is a state function.
This matter is of great constitutional significance in
regard to the highest office in our land. Should he who was
elected to the presidency be determined to be ineligible, the
remedy of impeachment is available through the United States
Congress, and the plaintiffs in this case, McInnish and Goode,
can pursue this remedy through their representatives in
Congress.
For the above-stated reasons, I dissent from this Court's
decision to affirm the judgment of the circuit court
dismissing this action on the motion of the Secretary of
State.
1120465
81
PARKER, Justice (dissenting).
I agree with Chief Justice Moore's dissent with the
exception explained below.
I agree with Chief Justice Moore's conclusion that the
Secretary of State, as the chief elections official of
Alabama, has a duty, under both Alabama and federal law, to
ensure that the candidates for President of the United States
whose names are placed on an Alabama election ballot meet the
applicable qualifications. I write separately, however, to
clarify that I do not believe that the Secretary of State has
an affirmative duty to investigate, on his or her own
volition, all the qualifications of every proposed candidate,
but that the Secretary of State's duty to investigate a
potential
candidate's
qualifications
arises
once
the
Secretary
of State has received notice that a potential candidate may
lack the necessary qualifications to be placed on an Alabama
election ballot. For the following reasons, I believe that,
in the present case, the Secretary of State received notice
sufficient to raise a duty to investigate the qualifications
of President Barack Hussein Obama before including him as a
candidate on Alabama's election ballot.
1120465
82
This is not the first time that Hugh McInnish has
appeared before this Court concerning this issue. On March 6,
2012, one week before Alabama's primary elections were held on
March 13, 2012, McInnish filed in this Court a petition for a
writ of mandamus requesting that this Court order the
Secretary of State
"to demand that [President] Obama cause a certified
copy of his Bona Fide birth certificate to be
delivered to her direct from the government official
who is in charge of the records in which it is
stored,
and
to
make
the
receipt
of
such
a
prerequisite to his name being placed on the Alabama
ballot for the March 13, 2012, primary election, and
on the ballot for the November 6, 2012, general
election."
(Case no. 1110665.) As I noted in my unpublished special
concurrence to this Court's order striking McInnish's petition
for
a
writ
of
mandamus:
"McInnish
attached
certain
documentation to his mandamus petition, which, if presented to
the appropriate forum as part of a proper evidentiary
presentation,
would
raise serious
questions about the
authenticity of both the 'short form' and the 'long form'
birth certificates of President Obama that have been made
public."
1120465
83
On March 6, 2012, the Secretary of State was served with
McInnish's petition for a writ of mandamus, including the
attached documentation raising questions about President
Obama's qualifications. That documentation served by McInnish
on the Secretary of State was sufficient to put the Secretary
of State on notice and raise a duty to investigate the
qualifications of President Obama before including him as a
candidate on an Alabama election ballot.
Therefore, I respectfully dissent from the majority's
decision affirming the circuit court's judgment. | March 21, 2014 |
9da534d0-7bf9-4af0-912b-176fe2bd04e9 | Coward v. McKinney | 172 So. 2d 538 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 538 (1965)
George COWARD et al.
v.
W. H. McKINNEY et al.
5 Div. 807.
Supreme Court of Alabama.
March 4, 1965.
Hooton & Hooton, Roanoke, and Robertson & Beasley, Clayton, for appellants.
Billie Anne Tucker, La Fayette, for appellees.
LAWSON, Justice.
This is an appeal from a judgment granting a motion for new trial.
*539 W. H. McKinney and W. L. Rogers, d/b/a McKinney-Rogers Leasing Company, filed their complaint in the Circuit Court of Randolph County against George Coward and Boyd Brothers Transportation Company, Inc., and others who were later dropped as parties defendant by an amendment to the complaint.
In their amended complaint the plaintiffs claimed damages for the loss of the use and services of their truck alleged to have been damaged in a collision with a truck owned by the defendant Boyd Brothers Transportation Company and driven by the defendant George Coward. The damage to plaintiffs' truck was alleged to have resulted from the negligence of the defendant Coward while acting within the line and scope of his employment as an agent, servant or employee of the defendant Boyd Brothers Transportation Company.
The "defendant" pleaded the general issue in short by consent in the usual form.
Plaintiffs called four witnesses and then rested. None of the witnesses called by plaintiffs gave any testimony tending to connect either defendant with the ownership or operation of the truck with which plaintiffs' truck collided.
Immediately after the plaintiffs rested, the defendants called as their witness one Richard O. Mize, an Alabama State Trooper, who reached the scene of the collision about an hour after it occurred.
After the defendants concluded their direct examination of the witness Mize, one of their attorneys stated to the court as follows:
The jury was removed from the courtroom and counsel renewed his motion to exclude the evidence as to the defendant Boyd Brothers Transportation Company "based on the absolute failure on the part of the plaintiffs to prove any agency whatsoever between George Coward, the driver of the vehicle, and Boyd Brothers Transportation Company * * *."
Thereafter a colloquy ensued between the Court and counsel for both sides. During the course of the colloquy one of the attorneys for the defendants was asked by the Court if the defendants rested their case. The reply was in the negative. The Court then directed the following question to the attorney for the defendants: "You are limiting your motion just to Boyd Brothers, without the other defendant?" The attorney replied: "We make it as to Boyd Brothers separately, as to George Coward separately, and that's all the defendants, We make it as to each defendant separately and severally." Despite the fact that counsel for the plaintiffs pointed out that the plaintiffs had not been given an opportunity to cross-examine the witness Mize, the trial court granted the motion to exclude the evidence.
The jury was recalled and was advised that the court had granted the defendants' motion to exclude the evidence and the jury was instructed to find a verdict for the defendants.
Based on such instructions, the jury returned a verdict for the defendants and a judgment in accord with the verdict was entered.
Thereafter the plaintiffs filed their motion for new trial, which was granted. Hence, this appeal by the defendants.
The rule in respect to a motion in a civil case by a defendant to exclude all the plaintiff's evidence is that the trial court will not be put in error for refusing the motion, nor will it be put in error for granting it if the evidence does not make a prima *540 facie case. Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266; Riley v. Riley, 257 Ala. 636, 60 So. 2d 432, and cases cited; Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561; McMullen v. Daniel, 229 Ala. 194, 155 So. 687; Dorough v. Alabama Great Southern R. Co., 221 Ala. 305, 128 So. 602.
The plaintiffs in this case did not offer any proof tending to connect either of the defendants with the operation or ownership of the truck which was involved in the collision with plaintiffs' truck and, if the trial had terminated when the plaintiffs rested their case, the trial court could have granted without reversible error a motion by defendants to exclude all of the plaintiffs' evidence. But the trial did not end at that point. As we have shown, the defendants called one Mize as their witness, whom they examined at considerable length on direct examination. Without resting their case, the defendants moved to exclude all of the evidence and the trial court granted that motion even before the defendants had rested and without giving the plaintiffs an opportunity to cross-examine Mize. In so doing the trial court was in error and, therefore, correctly granted the plaintiffs' motion for a new trial.
Testimony was elicited by counsel for the defendants from their witness Mize which was sufficient to warrant the jury in finding that the truck which collided with plaintiffs' truck was owned by the corporate defendant Boyd Brothers Transportation Company, Inc. And there was ample evidence to go to the jury on the question of the negligence of the driver of that truck.
However, no evidence was adduced by either the plaintiffs or the defendants tending to connect the defendant George Coward with the Boyd Brothers truck. The evidence does not show who was the driver of that truck.
But the plaintiffs were not permitted to cross-examine Mize. If they had been permitted to cross-examine him they may have been able to show that Coward was the driver of the Boyd Brothers truck.
It is part of our statute law that every party has the right of cross-examination, thorough and sifting, of the witnesses who testify against him. § 443, Title 7, Code 1940; Sowell v. State, 30 Ala.App. 18, 199 So. 900; Mobile & O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199.
In this state, the so-called English rule of cross-examination prevails, that is, the cross-examination is not limited to matters brought out on direct examination of a witness, but extends to all matters within the issues of the case. Madden v. State, 40 Ala.App. 271, 112 So. 2d 796, cert. denied, 269 Ala. 697, 112 So. 2d 800.
The judgment granting the plaintiffs' motion for new trial is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | March 4, 1965 |
e8f45220-93ff-44c7-8b91-00d7c3c47b5d | Smith v. Moore | 176 So. 2d 868 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 868 (1965)
Martha E. SMITH
v.
Robena MOORE.
5 Div. 811.
Supreme Court of Alabama.
May 27, 1965.
Rehearing Denied July 15, 1965.
Walker & Hill, Opelika, for appellant.
Samford, Torbert & Denson, Opelika, for appellee.
SIMPSON, Justice.
Wallace L. Griffin, who was approximately 80 years old at the time of his death, died in Lee County leaving a will which devised 100 acres of farm land to his stepdaughter, Robena Moore, the appellee, and an additional 99 acres to his grandson, Lee Isaac Wallace. The appellant, who is the daughter of the decedent and an illegitimate daughter were bequeathed jointly the proceeds of insurance policies. The residuary estate was left to appellee.
*869 The appellant contested the will on two grounds:
(1) That it had been procured by the undue influence of the appellee, Robena Moore;
(2) That the will was subsequently revoked by the testator by an instrument in writing.
The appellee, proponent of the will, denied that it was procured by undue influence, but rather contended that the revocation was procured by the undue influence of contestant's son, Lee Isaac Wallace, or others.
The cause was duly removed from the Probate Court of Lee County to the Circuit Court at law. The case was tried to a jury on October 26, 1964. The jury returned a verdict in favor of proponent. The contestant filed a motion for a new trial which was denied. This appeal followed.
The court charged the jury as follows:
* * * * * *
* * * * * *
"As to the will, the contestant, Martha E. Smith, charges that the proponent, Robena Moore, exercised undue influence over her stepfather in the execution of the will. On the other hand, Robena Moore charges that either Martha E. Smith or Lee Isaac Wallacethe same person as Pete Wallaceor some other person exercised undue influence over the old man, Wallace L. Griffin, in procuring the execution of the revocation. * * the existence of a confidential relationship between the testator and the principal or large beneficiary under the will, coupled with activity on the part of the latter in or about the preparation or execution of the will, will raise a presumption of undue influence, and casts upon him the burden of showing that it was not induced by coertion or fraud on his part, directly or indirectly. * * * In other words, gentlemen of the jury, whatever confidential relation exists between the testator and Robena Moore, as far as the will is concerned, or whatever confidential relationship existed between the testator, Wallace L. *870 Griffin, and Martha E. Smith or Lee Isaac Wallace as far as the revocation is concerned, that confidential relationship alone would not raise a presumption of any undue influence on their parts. It would have to go further and show that there was some activity on the part of the person attempting to exercise the undue influence.
* * * * * *
At the conclusion of the oral charge, the contestant, appellant, requested that the following written charges be given the jury. The refusal of these charges is assigned as error:
Charges No. 1 and No. 2 amount to affirmative charges in favor of the contestant-appellant. The refusal to give these charges was not error. As we have so often stated, the scintilla rule prevails in this state and a mere spark of evidence or inference to be drawn from any evidence in support of the theory of the case against whom the affirmative charge is sought is sufficient to compel the denial of the affirmative charge. 18A Ala. Digest, Trial, et seq. We have read the record and find sufficient evidence on the factual matters to warrant submitting the case to the jury.
The refusal of Charges No. 5 and No. 6 was without error. They call upon the court to charge the jury that there is no evidence of a stated fact. It is not error to refuse such charges. Pollard v. Williams, 238 Ala. 391, 191 So. 225; Little v. Sugg, 243 Ala. 196, 8 So. 2d 866; Montgomery St. Ry. v. Rice, 142 Ala. 674, 38 So. 857; 18A Ala. Digest, Trial,
Appellant next complains that the court erred in giving the following charges at the request of proponent-appellee:
*871 These charges contain correct statements of the law. The appellant contends that Charge No. 2 submits to the jury the question of whether the instrument of revocation was executed in accordance with the statute. We do not agree. The court in its oral charge carefully impressed the jury that both the will and revocation were in proper form. There could not have been any doubt in the minds of the jury that the sole issue for its decision was whether either or both instruments were the product of undue influence on the testator by any person.
These are solely questions of fact as to whether any person exercised undue influence upon the testator to procure the execution of the will and/or the execution of the revocation of the will.
The jury was well charged. It returned a verdict declaring that the instrument contested was the last will and testament of Mr. Wallace L. Griffin and that the subsequent revocation thereof was procured by undue influence. It is unimportant that we might have reached a different conclusion on the evidence as shown by the record. We did not see the witnesses nor have a chance to observe the parties first hand. The important consideration is that there is evidence in the record from which the jury could have reached the verdict it rendered. It is conceded by all parties that it is next to impossible to produce direct evidence of the exercise of undue influence over another person. Frequently the best evidence which can be offered for either proponent or contestant is circumstantial, tending only to support inferences which can be drawn therefrom. The court quite properly submitted these issues to the jury. Romano v. Romano, 277 Ala. 207, 168 So. 2d 236; Grady v. Wallace, 272 Ala. 119, 130 So. 2d 21; Brooks v. Everett, 271 Ala. 354, 124 So. 2d 105.
There is evidence here that the son of appellant, Lee Isaac Wallace, said on at least one occasion that "that will ain't going to go through. It won't stand." Evidently the jury concluded from all of the evidence that the revocation was procured by fraud or undue influence. Most of the actions of the appellee which appellant contends support her theory of undue influence by the proponent of the will occurred some ten years prior to the execution of the will. The jury was unconvinced that the will was the product of undue influence and it is not our province to substitute our judgment for theirs when there is some evidence to support the verdict.
Clearly any evidence which would tend to shed light on the issues should be admitted. On this principal appellant bases her argument that certain deeds running from H. C. Crayton and wife to P. L. Huguley and wife, dated December 2, 1911, and a deed from Ella Huguley and others to A. L. Thomas and Dalphine F. Thomas, dated June 15, 1948, should have been admitted and assigns as error the court's exclusion of them. The basis of appellant's argument regarding the admission of these instruments stems from the fact that the legal description of the real property as contained in the will incorrectly described the decedent's property. This is the matter which appellee's Charge No. 10 aludes to. On the facts as set forth in the record we find no error in refusal to admit the above deeds into evidence nor in the giving of the requested Charge No. 10. It is uncontroverted that the scrivener of the will, an attorney, testified that he obtained the description of the property which he described in the will from a personal examination of the records in the tax assessor's office. We cannot see how these documents could have thrown any light upon the issues in the case.
This case was well tried and well argued here and we find no error to reverse.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | May 27, 1965 |
a202702e-0a66-4dc5-a019-7b6c443815ef | Mitchell v. Vann | 174 So. 2d 501 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 501 (1965)
R. C. MITCHELL
v.
Jerry Franklin VANN.
4 Div. 154.
Supreme Court of Alabama.
February 18, 1965.
Rehearing Denied April 22, 1965.
J. Hubert Farmer, Dothan, for appellant.
Lee & McInish, Dothan, for appellee.
COLEMAN, Justice.
Plaintiff appeals from judgment for defendant in action for personal injury allegedly sustained by plaintiff as the proximate result of the negligence of defendant in operating an automobile so as to cause it to run into the plaintiff.
Plaintiff assigns as error the action of the court in denying plaintiff's motion that the court qualify the prospective jurors "as to whether any of the jurors is a stockholder, officer or agent, or employee of the Dixie Auto Insurance Company, of Anniston, *502 Alabama." Insurer will be referred to as Dixie.
Overruling the ground of the motion for new trial which raises the same point is also argued as error.
Plaintiff stated to the court that at the time of the injury sued for, plaintiff had in full force and effect an insurance policy with Dixie, under the terms of which policy the insurer would be liable to pay "to the plaintiff on any judgment of any damages caused by the defendant in this case at the time of the collision, not exceeding $5,000.00 . . . ." Plaintiff stated to the court that defendant did not carry liability insurance at the time of collision. On the hearing of the motion for new trial, it was stipulated that defendant had no liability insurance at the time of the alleged accident.
On hearing the motion for new trial, the court overruled defendant's objection to a question propounded to plaintiff, and said:
The policy contains the following provisions:
"In Consideration of the payment of the premium for this endorsement, the company agrees with the named insured subject to the limits of liability, exclusions, conditions and other terms of this endorsement and to the applicable terms of the policy:
"1. Damages for Bodily Injury Caused by Uninsured Automobiles: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury', sustained by the insured' caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"This endorsement does not apply:
"(a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor;
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"6. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand by either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.
"7. Trust Agreement: In the event of payment to any person under this endorsement:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Defendant cites Hudson v. Stripling, 261 Ala. 196, 73 So. 2d 514, where this court said:
See also: Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So. 2d 212; Code 1940, Title 30, § 55, as amended by Act No. 260, 1955 Acts, page 605.
Underlying this rule seems to be the ancient principle that "A man cannot, under the law, be a judge or a juror in his own case. * * *" Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 577, 62 So. 199, 205.
Voir dire examination of jurors seems to be necessary to allow parties to ascertain whether prospective jurors be disqualified or subject to challenge.
It cannot be doubted that the law demands that jurors who administer justice in its courts should be free from bias or prejudice. They should be impartial and indifferent to the result of the suit, save as the evidence and the law direct. Citizens' Light, Heat & Power Co. v. Lee, supra, at page 577, 62 So. 199.
As we understand defendant's brief, he argues that the inquiry moved for by plaintiff was properly denied for four reasons, to wit:
1. The policy was issued to plaintiff and not to defendant.
2. Subdivision 12 of § 55, Title 30, Code 1940, as amended, allows as ground for challenge that any juror is officer, etc. of "an insurance company indemnifying any party to the suit against liability," and the policy issued here by Dixie did not indemnify any party to this suit.
3. The policy provided for arbitration and was merely a contract between plaintiff and Dixie in which defendant was not interested.
4. Not only must plaintiff submit his claim against Dixie to arbitration, but Dixie shall have all rights against defendant which plaintiff had against defendant.
*505 The reason for disqualifying a juror who is stockholder, etc., in an insurance company, does not depend, as we see it, on whether the policy was issued to plaintiff or defendant. The juror is disqualified because he is interested in the company and the company stands to gain or lose as a result of the verdict.
Subdivision 12 of § 55, Title 30, supra, as amended, recites:
"Section 55. It is a good ground for challenge by either party:
". . . . . . . . . . . . . . . . . . . .
Subdivision 12 provides, that it is good ground for challenge "that the juror is an officer . . . of . . . an insurance company indemnifying any party. . . or being otherwise financially interested in the result of the suit." Moreover:
Is Dixie, under the uninsured motorist clause, financially interested in the result of this suit?
This coverage is "a new type of automobile insurance which came into being as the result of public concern over the increasingly important problems arising from injuries inflicted by negligent motorists who are uninsured and financially irresponsible." 79 A.L.R.2d 1252.
In Boughton v. Farmers Ins. Exchange, (1960, Okl.), 354 P.2d 1085, 79 A.L.R.2d 1245, 1254,
". . . The insured, after securing a judgment against an uninsured motorist after notice to but without the consent of the insurer, refused to arbitrate and sued on the policy. Pointing out that Oklahoma had no arbitration statute and the common law governed, and that the policy provided for the payment of all sums which the insured was legally entitled to recover whereas the arbitration clause sought to limit the amount to the damages agreed upon or determined by arbitration, the court reversed a judgment for the insurer on demurrer, and held that the arbitration provision was contrary to public policy and unenforceable because it was a stipulation depriving the courts of jurisdiction as to future controversies, and that the `no action' clause was void under a statute which nullified agreements restricting parties from enforcing contractual rights by the usual legal proceedings and ordinary tribunals. Rejecting the insurer's contention that all parts of the insuring agreement were thereby voided, the court said the essential part of the contract for which the consideration was paid was insurance protecting against uninsured motorists, not procedure for determining liability, and the insurer was charged with knowledge that such policy provisions were unenforceable and void and could not deny liability by reason thereof. The court also held that the insurer could not relitigate the questions of the liability of the uninsured motorist or the *506 amount of the insured's damages and that the judgment in the action against the uninsured motorist was conclusive of the issues therein determined, subject to any defenses the insurer might have against it, since it had notice of and a full opportunity to participate in that action."
We are not to be understood as deciding, at this time, whether Dixie can invoke the arbitration provisions of its policy or whether a judgment for plaintiff against defendant, in the instant case, would be conclusive also against Dixie.
We do hold that Dixie is interested in the result of the instant suit, although: (1) the policy was issued to plaintiff and not to defendant; (2) the policy does not indemnify defendant or any party to this suit; (3) whether the arbitration provisions of the policy be effective or not; and (4) although Dixie, on payment to plaintiff of a recovery against defendant, may be subrogated to plaintiff's rights against defendant.
We hold this because a recovery by plaintiff against defendant, who was admittedly uninsured, can result in a recovery by plaintiff against Dixie. Dixie agreed to pay "all sums which the insured. . . shall be legally entitled to recover . . . from the owner or operator . . . of the uninsured automobile."
Defendant's automobile was uninsured. If plaintiff is legally entitled to recover from defendant, Dixie has promised to pay. We see nothing here to relieve Dixie from the result of its promise. If plaintiff wins a verdict against defendant, then we see no reason why Dixie should not pay, and if Dixie is liable to pay, Dixie is interested in the result of the suit.
Even if the arbitration provisions should be effective, which we do not decide, we see no reason to suppose that Dixie would, by arbitration, escape a lawfully imposed obligation. It would appear appropriate to presume that the arbitrators would do what is right.
Being of opinion that Dixie is interested in the result of this suit, we are of opinion that plaintiff was entitled to ascertain whether the jurors were stockholders, etc., of Dixie, and that the court erred in refusing to so inquire on voir dire.
Reversed and remanded.
LAWSON, GOODWYN and HARWOOD, JJ., concur.
COLEMAN, Justice.
Defendant earnestly insists that our decision in this case is wrong and respectfully asks that we answer questions, or arguments, posed in brief which defendant filed in support of application for rehearing.
First, defendant says:
We do not clearly understand how an action in name of plaintiff could be maintained against defendant if plaintiff had agreed to a settlement with defendant, or how either plaintiff or insurer would be interested in bringing an action against defendant if a settlement had been made, because we understand the expression, "made a settlement," to mean that the parties agreed on the amount of damage and that defendant paid to plaintiff the agreed amount. Defendant may intend to suppose *507 that defendant had not paid the agreed amount.
Second, defendant says:
Third, defendant says:
We note in passing that Subdivision 12 of § 55, Title 30, refers to "an insurance company" interested, etc., and that the statute gives the right of challenge to "either party."
As defendant says, his three contentions rest on supposed factual situations. We think it sufficient answer to say that the transcript does not show that any of the three supposed situations existed in this case.
Defendant argues further that even if the court erred in refusing to inquire whether any juror was interested in Dixie, such error, for aught that appears, would be without injury.
We take this to mean that defendant is saying that, in order to justify a reversal for the error in refusing to qualify jurors as to their connection with Dixie, plaintiff should be required to show that one of the veniremen was an officer, stockholder, or employee of Dixie. It may be that defendant is arguing that plaintiff should further show that one of the jurors who tried the case was such an officer, stockholder, or employee.
*508 We are of opinion that plaintiff should not be required to carry such a burden. In Duke v. Gaines, 224 Ala. 519, 522, 140 So. 600, 602, in holding that plaintiff had a right to examine jurors, this court said:
Neither do we think plaintiff can be deprived of the right conferred by the statute; § 8662 of Code 1923, § 52, Title 30, Code 1940; by holding denial of such right to be without injury unless plaintiff assumes and carries the burden of showing affirmatively that one or more of the veniremen was then an officer, stockholder, or employee of an interested insurer.
In refusing to hold harmless the error of requiring a party to strike from a list of 28 jurors when the law provided for 24, this court said:
We are of opinion that the foregoing quotations apply to this case and that we should adhere to our original ruling.
Opinion extended.
Application overruled.
LAWSON, GOODWYN and HARWOOD, JJ., concur. | February 18, 1965 |
e1baa57f-0a1d-4a46-aef3-2be416336cc2 | Traywick v. Transcontinental Gas Pipe Line Corp. | 170 So. 2d 802 | N/A | Alabama | Alabama Supreme Court | 170 So. 2d 802 (1965)
Artemus TRAYWICK
v.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION.
5 Div. 790.
Supreme Court of Alabama.
January 7, 1965.
L. Lister Hill and Godbold, Hobbs & Copeland, Montgomery, for appellant.
Johnston, Johnston & Courtney, Mobile, for appellee.
*803 GOODWYN, Justice.
Appeal by plaintiff from judgment of nonsuit induced by adverse rulings on pleadings (Code 1940, Tit. 7, § 819) in a statutory action of ejectment (Code 1940, Tit. 7, § 938; § 223, Form 32) brought against appellee to recover possession of certain lands in Coosa County. River Construction Corporation, originally a co-defendant, was stricken by amendment and is not a party to this appeal.
The complaint, as amended, seeks possession of the following land, viz: NW ¼ of the SE ¼, less 6 acres on the North side thereof, and the E ½ of the NE ¼, all in Sect. 10, Tp. 21 North, R. 17 East, in Coosa County, Alabama.
Appellee filed the following plea to the complaint, viz:
Two right of way agreements are attached to and made a part of the plea. Both were executed on March 17, 1949. One, reciting a paid cash consideration of $100, grants a right of way across the E ¼ of the NE ¼ of Sect. 10. The other, reciting a $5 cash consideration, grants a right of way across the remainder of the land sued for. In other respects, the agreements are identical. They "grant, bargain, sell and convey" to appellee, its successors and assigns, "a right of way and easement for the purposes of laying, construction, maintaining, operating, repairing, altering, replacing and removing pipe lines (with valves, regulators, meters, fittings, appliances, tie-overs, and appurtenant facilities) for the transportation of gas, oil, petroleum products, or any other liquids, gases, or substances which can be transported through a pipe line, the Grantee to have the right to select the route, under, upon, over, through and across the lands of Grantor," described in the respective agreements.
The agreements also contain the following pertinent provisions, viz:
"TO HAVE AND TO HOLD said right of way and easement unto said Grantee, its successors and assigns, until such first pipe line be constructed and so long thereafter as a pipe line is maintained thereon; and the undersigned *804 hereby bind themselves, their heirs, executors and administrators (and successors and assigns) to warrant and forever defend all and singular said premises unto the Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
Appellant demurred to the plea on the ground that "it affirmatively appears from said plea that the right of way agreements therein alleged, insofar as they purport to grant to the said defendant the right or option to lay or construct one or more additional lines of pipe under, upon, over, through or across the lands of plaintiff from time to time subsequent to the execution and delivery of the alleged agreements, violate the Rule against Perpetuities and are therefore void and invalid and are not a defense to this action."
Appellant then filed three replications to the plea, as follows:
1. Joined issue on the plea.
2. "That in, to-wit, November 1961 said defendant did lay or construct a pipe line across the lands of plaintiff described in plaintiff's complaint, as amended, that the said pipe line was the third such pipe line laid or constructed by said defendant across said lands, that more than sixty (60) days had expired subsequent to the completion of the construction of said pipe line before the filing by plaintiff of his said complaint in this cause and that the said defendant had not upon the filing of said complaint or prior thereto paid to plaintiff or deposited in the First National Bank at Wetumpka, Alabama, a sum equivalent to One Dollar ($1.00) per lineal rod of such said pipe line."
3. The same as 2 except alleging, in effect, that appellee had not paid or deposited the required $1 per lineal rod at the time of filing the replication (February 21, 1963).
Appellee demurred to replications 2 and 3, separately and severally. The substance of the demurrer is that the replication does not confess or avoid the plea and that the failure to pay the $1 a lineal rod is not sufficient ground to cancel or void the agreements. The demurrer was sustained.
Appellant, because of the adverse rulings on the demurrers, moved for a nonsuit and a judgment of nonsuit was rendered. This appeal is from that judgment.
We have concluded that the rulings on the demurrers were without error and that the judgment appealed from is due to be affirmed.
The common law rule against perpetuities, applicable in this jurisdiction (Code 1940, Tit. 47, § 16), has been stated as follows:
This "Rule" is referred to sometimes as the rule against remoteness of vesting. "The purpose of the `Rule' is to prevent property from being inalienable after *805 a reasonable time, and to that end * * estates must become vested within a certain time * * *." Edward W. Faith, "Perpetuities," 2 Ala. Law Journal 172 (May, 1927). As said in Lyons v. Bradley, 168 Ala. 505, 513, 53 So. 244, 247, per Sayre, J.: "Vested interests are not subject to the rule against perpetuities. Gray, § 205 et seq. The rule is directed against the creation of remote contingent interests the creation of such interests at a time beyond the limit fixed by the rule." See, also: Rountree v. Richardson, 268 Ala. 448, 452, 453, 108 So. 2d 152; Dozier v. Troy Drive-In-Theatres, Inc., 265 Ala. 93, 104-105, 89 So. 2d 537; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 466, 34 So. 2d 835, supra.
In the Rountree and Dozier cases it was held that the rule against perpetuities does not apply when "both the grantor and grantee have an interest in the fee which they can convey and thereby relieve the property of the exemption from trade which the rule seeks to prohibit." We view the right of way instruments as conveying to appellee a presently vested interest in the fee; thereby making it possible for appellee and the other owners of fee interests in the lands to convey the full fee by joining in a conveyance of such fee.
Although this court has not considered instruments like these, similar instruments have been before other courts which have generally held them not to be obnoxious to the rule against perpetuities. See: Sorrell v. Tennessee Gas Transmission Company, (Ky.) 314 S.W.2d 193; Texas Eastern Transmission Corporation v. Carman, (Ky.) 314 S.W.2d 684; Vandiver v. Transcontinental Gas Pipe Line Corporation, 222 F. Supp. 731 (1963); Hamilton v. Transcontinental Gas Pipe Line Corp., 236 Miss. 429, 110 So. 2d 612; Ashcot, Inc. v. Texas Eastern Transmission Corporation, 241 Miss. 392, 129 So. 2d 405; Baker v. Tennessee Gas Transmission Company, 194 Tenn. 368, 250 S.W.2d 566; Crawford v. Tennessee Gas Transmission Company, Tex.Civ.App., 250 S.W.2d 237; Caruthers v. Peoples Natural Gas Company, 155 Pa.Super. 332, 38 A.2d 713; Restatement of the Law, Property, § 399, p. 2341; Gray, The Rule Against Perpetuities, 4th Ed., § 279, p. 309. These authorities are to the effect that such instruments convey presently vested easements as distinguished from options to acquire additional servitudes at indefinite future times.
We think the following from Sorrell v. Tennessee Gas Transmission Company, supra, very adequately disposes of the question of the instruments violating the rule against perpetuities, viz:
Appellant further insists that the trial court erred in sustaining appellee's demurrers to his replications 2 and 3 to appellee's plea. The question presented is whether *807 the failure of appellee to pay or deposit the $1 per lineal rod for each additional pipe line, as provided for in the right of way agreements, is ground for cancelling or voiding said agreements. One answer to this is found in the following from Caruthers v. Peoples Natural Gas Co., 155 Pa. Super. 332, 38 A.2d 713, 715, supra, with which we are in accord, viz.:
Another answer to the question is the rule that failure to pay the consideration recited in a deed is not ground for cancelling the deed. See: Planners v. Hanners, 262 Ala. 143, 145, 77 So. 2d 484; Wilfe v. Waller, 261 Ala. 436, 437, 74 So. 2d 451; Wells v. Wells, 252 Ala. 390, 391, 41 So. 2d 564; Wells v. Wells, 249 Ala. 649, 651, 32 So. 2d 697.
Our view is that appellee, upon receiving the right of way agreements, acquired a vested interest in appellant's land with the right to lay a pipe line in and across said land, and with the right also to lay, from time to time, additional pipe lines across it; that the provision for payment of $1 per lineal rod within 60 days after completion of any additional line was not a *808 condition of the granting of the easement but simply fixed the time for making payment; and that appellee's failure to pay said additional sum has not rendered inoperative the grant of either easement and is not ground for cancelling either right of way agreement. Accordingly, the judgment appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | January 7, 1965 |
15e7bcf3-6612-49e0-a761-8794fbce50a6 | Ward v. State | 170 So. 2d 504 | N/A | Alabama | Alabama Supreme Court | 170 So. 2d 504 (1965)
Charlie Lee WARD
v.
STATE.
6 Div. 168.
Supreme Court of Alabama.
January 7, 1965.
Morell Montgomery, Birmingham, for petitioner.
Richmond M. Flowers, Atty. Gen., and Mary Lee Stapp, Asst. Atty. Gen., opposed.
GOODWYN, Justice.
Petition of Charlie Lee Ward for certiorari to the Court of Appeals to review and revise the judgment and decision in Ward v. State, 170 So. 2d 500 (6 Div. 989).
Writ denied.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | January 7, 1965 |
c06fa74d-f643-4973-a548-544a011359fe | Alabama Electric Cooperative, Inc. v. Alabama Power Co. | 176 So. 2d 483 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 483 (1964)
ALABAMA ELECTRIC COOPERATIVE, INC. et al.
v.
ALABAMA POWER COMPANY et al.
3 Div. 96.
Supreme Court of Alabama.
September 10, 1964.
Rehearing Denied April 8, 1965.
Opinion Extended on Further Denial of Rehearing June 30, 1965.
*484 Adams, Gillmore & Adams, Grove Hill, and Rushton, Stakely & Johnston, Montgomery, for Ala. Elec. Coop.
Jas. T. Hardin, Montgomery, for Director of Finance.
Martin, Balch, Bingham & Hawthorne, Birmingham, and Steiner, Crum & Baker, Montgomery, for Ala. Power Co.
Goodwyn & Smith, Montgomery, for Gulf Power Co.
MERRILL, Justice.
This is an appeal by Alabama Electric Cooperative, Inc. and Seymore Trammell, as Director of Finance of the State of Alabama, from a judgment of the Circuit Court of Montgomery County, quashing and holding for nought the order of former Finance Director, Maurice Patterson, granting consent for appellant to issue bonds amounting to $20,350,000 to construct a steam electric generating plant and over 700 miles of electric transmission lines and related facilities in Alabama and Florida.
Appellant AEC filed its petition with the Department of Finance on February 5, 1962. Alabama Power Company was allowed to intervene on March 28, and Gulf Power Company was permitted to intervene in September, 1962. After various proceedings and hearings, Maurice Patterson, the Finance Director on January 9, 1963, approved the petition of appellant based upon the findings that:
The appellees filed a petition for certiorari to the Circuit Court of Montgomery County and on July 9, 1963, that court quashed the order of the Finance Director and remanded the cause to the Director with directions to enter an order denying the petition. Maurice Patterson had been succeeded as Finance Director by Seymore Trammell and on August 6, 1963, AEC and Finance Director Trammell appealed to this court.
Alabama Electric Cooperative filed its petition with the Department of Finance pursuant to Tit. 55, § 155, Code 1940, as amended, which provides that no bonds of any authority such as AEC shall be issued without the consent of the Finance Department, given after the filing of a petition and a public hearing. "The department of finance shall grant such consent only after it finds that such issue or sale serves some public need and is in the public interest."
The following legal principles govern us in this review:
(1) On appeal to this court, we must review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of Director of Finance than we are. Alabama Public Service Com'n v. Decatur Transfer & Storage, Inc., 257 Ala. 346, 58 So. 2d 887; Alabama Public Service Com'n v. Nunis, 252 Ala. 30, 39 So. 2d 409.
(2) When we review the proceedings of an inferior tribunal on common law *485 writ of certiorari, and the record shows jurisdiction and that the proceedings were valid and regular, the order of the lower tribunal should be sustained if there is any substantial evidence to support the order. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So. 2d 148; Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337.
(3) The supervisory jurisdiction of the court on certiorari is restricted to an examination into the external validity of the proceeding had in the lower tribunal. It cannot be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the case. In this respect the supervisory powers of the court should not be confused with its appellate jurisdiction. And when the court examines the evidence, it does so, not to determine the probabilities preponderate one way or the other, but merely to determine whether the evidence will justify the finding as a legitimate inference from the facts proved regardless of whether such inference would or would not have been drawn by the appellate tribunal. Byars v. Town of Boaz, 229 Ala. 22, 155 So. 383; Ex parte Watkins, 268 Ala. 567, 109 So. 2d 671, 10 Am.Jur., Certiorari, Sec. 3, pp. 525, 526.
The basic question before us is whether there was any substantial evidence before the Director of Finance to sustain his finding that the issuance of the bonds "serves some public need and is in the public interest." We have concluded that there was such evidence.
The record consists of over 3,200 pages with other voluminous exhibits certified separately. We list some of the evidence merely to show that the evidence, if believed by the Director of Finance, was sufficient to support his finding and that his finding was not arbitrary and capricious.
1. The evidence shows that the REA Administrator has contracted to lend AEC $20,350,000 to construct electric facilities and that these facilities will serve approximately 77,000 individual consumers (42,900 present and 34,700 future consumers) living in most of the counties in South Alabama and Northwest Florida; that the need and demand for electric power is growing in the State and an additional supply is beneficial to the State.
2. Many elected public officials and other representative citizens in the area testified that the proposal was in the public interest and filled some public need, and there were numerous resolutions of county and city governing bodies, industrial development boards, civic clubs and farmer associations to like effect.
3. Thirty-five year contracts signed by each of the electric distribution cooperatives to be served were introduced into evidence. The cooperatives expressed their desire to serve themselves rather than to be dependent on appellees, whom they consider to be an unfriendly source of wholesale power.
4. Appellants' engineer testified that the construction of the proposed plant and related facilities would provide a payroll of approximately $5,000,000 during construction, create from 25 to 30 new permanent jobs and that the new plant would consume about 225,000 tons of Alabama coal annually; that the State would be benefited by increasing the available power supply; that it would make available a new source, since they would contract for one-half the output of electric power from the Walter F. George Dam on the Chattahoochee River and that the cooperative could and would sell power cheaper to its patrons than they were now paying appellees for the power.
In fairness to appellees, it should be stated that they contested the evidence adduced by appellants and made a strong case for their position that the issuance of the bonds would not serve a public need and would not be in the public interest. They also had testimony from public figures, resolutions, *486 etc. from many organizations supporting their contentions. The decision of the Director of Finance was not an easy one, but once made, we are convinced that there was substantial evidence to support it, even though this court might not have drawn the same inference from all the facts. As already shown, in reviewing by common law certiorari, neither the circuit court nor this court weighs the evidence and substitutes its judgment for that of the Finance Director.
Appellees contend that the expenditure of public funds to construct electric facilities to furnish electric service to persons receiving adequate central station service is in violation of the federal law authorizing such expenditure. Central station service is defined as electric service from a generating station transmitted or distributed over a wide area, as distinguished from the generation of power by a small individual generating unit, for example a Delco plant.
Appellees' contentions are based upon the provision in the federal law (7 U.S. C.A. § 904) that the administration is authorized and empowered to make loans for rural electrification to persons and cooperative associations "for the purpose of financing the construction and operation of generating plants, electric transmission and distribution lines or systems for the furnishing of electric energy to persons in rural areas who are not receiving central station service" and it further provides that no loan for a generating plant shall be made unless the consent of the State authority having jurisdiction is first obtained. Appellees argue that they are either furnishing the central station service to most of the territory covered or that they are prepared to do so.
This very question was decided in Kansas City Power & Light Co. v. McKay, D.C., 115 F. Supp. 402, where the court said:
* * * * * *
The case was appealed to the District of Columbia Circuit Court of Appeals. That court did not reach the merits of the case and reversed, holding that the eight power companies did not show a sufficient interest to enable them to sue to enjoin the execution of the power contracts. The court said:
Thus, we have a decision on the merits in the District Court that the contract does not violate the central station provisions of the federal statute, and a Circuit Court of Appeals decision that power companies do not have such an interest as to enable them to enjoin the execution of such contracts as were entered into in the instant case. Certiorari was denied by the Federal Supreme Court.
It has been consistently held that the legality of a loan approved by the Administrator of the REA is not subject to a collateral attack in a hearing before a public service commission or the duly constituted state authority which, in Alabama, is the Director of Finance. Re Southern Maryland Elec. CO-OP., Inc., 49 PUR 3d 163; Re Missouri Electric Power Co., 50 PUR (NS) 257; Re Iowa Utilities Co., 47 PUR (NS) 321; State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40; Missouri Power & Light Co. v. Lewis County R. E. C. Ass'n., 235 Mo.App. 1056, 149 S.W.2d 881. In each of these decisions, the question of the violation of the central station service feature of the federal act was raised but, in each instance, the decision was in favor of the cooperatives. In view of the authorities cited supra, we feel that we cannot agree with the contention of appellees that this is a question on which we should pass.
It follows that the learned trial court erred in ordering the order of the Finance Director to be quashed. The judgment of the circuit court is reversed and one is here rendered affirming the order of the Director.
Reversed and rendered.
LAWSON, SIMPSON, GOODWYN, COLEMAN and HARWOOD, JJ., concur.
LIVINGSTON, C. J., dissents.
MERRILL, Justice.
Appellee Alabama Power Company argues strenuously that we have overruled the holdings in Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337, and Alabama Electric Cooperative, Inc. v. Alabama Power Co., 251 Ala. 190, 36 So. 2d 523, that Alabama Power Company does not have the right to intervene in a proceeding before the Director of Finance as was done in those cases and in the instant case. We have not overruled those cases and we remain of the opinion that Alabama Power Company and Gulf Power Company had the right to intervene and be heard in this cause.
In addition to the more or less general reasons stated in our original opinion showing that the approval of the issuance of the bonds "serves some public need and is in the public interest," we note other examples *488 of testimony. Such testimony fills Vol. III of the record, and only a few excerpts are here listed.
1. The Cooperative's engineer, C. M. Stanley, who holds an Alabama license, and was fully qualified as an electrical engineer, testified that if AEC purchased its deficiencies (power required in excess of that which it generates) from Alabama Power Company rather than to build an additional plant and purchase power from SEPA, over a ten year period, the resulting costs to AEC would be increased five million four hundred forty-five thousand dollars.
2. He further testified that AEC's plan to increase its generating and transmission facilities would bring about practically no duplication of Alabama Power Company's existing system. He stated that any duplication "is of a minimal nature."
3. W. P. Albritton, city councilman from Frisco City, testified that they had only one line from Frisco City to Andalusia. If these improvements were made, they could have two lines. When the current from the one line went off, their small industries, which employed about 400 people, were closed until repairs were made, and a two-line feed would remedy this situation. Also, the new small industries there used twice as much electricity now as the entire town formerly used.
4. Businessmen, city and county officials testified that a competitive source of power would be good for their communities and the area.
5. Many witnesses testified that there was a growing need for electrical power in their area, that their relations with their cooperatives were good and their continued growth depended upon an adequate supply of electricity. For example, Troy doubled the capacity of their transmission lines in two years.
6. The need for additional power for rural and farm homes was also shown together with evidence that the standard of living had increased sharply in rural sections since the cooperatives had begun functioning.
This type of evidence was given from witnesses all over South Alabama. Some witnesses may have been overenthusiastic and their figures may not have been exactly accurate, but it is impossible to read the testimony presented to the Finance Director in behalf of the application and not hold that there was substantial evidence, if believed by the Director of Finance, that the issuance of the bonds in question would serve some public need and be in the public interest.
Application for rehearing overruled.
LAWSON, SIMPSON, COLEMAN and HARWOOD, JJ., concur.
LIVINGSTON, C. J., and GOODWYN, J., dissent.
LIVINGSTON, Chief Justice (dissenting):
There is no conflict or dispute in the record as to the following:
AEC seeks to borrow from the Federal Government $20,350,000 to build a steam generating plant and over 700 miles of transmission lines to duplicate facilities which Alabama Power Company already has constructed or has committed to construct with funds from private investors. AEC seeks to use these funds in order to supply electricity in seven counties in Alabama and three counties in Florida in which it has never operated. As I see it, the sole justification for this expenditure of Federal funds is the desire of AEC to compete with and to duplicate investor-owned utilities. As proof thereof, there is no evidence in this record which shows or tends to show that one person who lives in the rural area will receive electricity by this multimillion dollar expenditure who is not today already receiving electric service.
*489 So long as any investor-owned utility in Alabama is ready, willing and able to furnish electric service to consumers at reasonable ratesas prescribed and continuously regulated by the Public Service Commissionthen there is no public need, nor is it in the public interest for a cooperative to borrow from the Federal Government and to build duplicating or competing generating and transmission facilities. This is the proper construction of Sec. 155 of Title 55, and this is my understanding of the holding in prior cases of Alabama Power Co. v. City of Ft. Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337; Alabama Electric Cooperative v. Alabama Power Co., 251 Ala. 190, 36 So. 2d 523.
I respectfully dissent.
GOODWYN, Justice (dissenting):
Of concern here is a state statute (Code 1940, Tit. 55, § 155) requiring approval of the proposed loan by the State Director of Finance and containing the following pertinent provisions:
The modified and extended majority opinion, as I understand it, in effect holds it is of no consequence, in determining whether the loan should be approved, that the proposed use of the borrowed funds, as disclosed by the evidence, is contrary to the federal law (7 U.S.C.A. § 904) authorizing the loan or is contrary to the purposes stated in the petition to the Finance Director (§ 155, Tit. 55, supra). In other words, the Finance Director is rendered impotent to find that the loan is not "in the public interest" even if the evidence shows the proceeds will be used for purposes contrary to the Rural Electrification Act (7 U.S.C.A. § 904, supra) and contrary to the purposes stated in the petition to the Finance Director. I am unable to agree with this. My view is that § 155, Tit. 55, supra, in requiring that such loan shall serve some public need and shall be in the public interest, declares the public policy of this state (Warren v. Alabama Farm Bureau Cotton Ass'n, 213 Ala. 61, 64, 104 So. 264; Denson v. Alabama Fuel & Iron Co., 198 Ala. 383, 391, 73 So. 525); Denton v. Alabama Cotton Co-op. Ass'n, 30 Ala.App. 429, 432, 7 So. 2d 504; 16 Am. Jur.2d, Constitutional Law, § 167, p. 379; 82 C.J.S. Statutes § 9, p. 24; 72 C.J.S. Policy, p. 214); and that the legislature surely could not have intended that a proposed loan, the proceeds of which will be used for an unauthorized or unlawful purpose (whether under the federal law or the state law), can be said to be in the public interest. The Finance Director acts under the state statute, and action taken by him must be in conformity with the public policy there declared. Significantly, the Rural Electrification Act specifically requires approval of the loan by "the State Authority having jurisdiction in the premises." This obviously means the State Director of Finance, as provided for in § 155, Tit. 55, supra.
*490 It is of note that appellant's petition to the Director of Finance shows that the proposed facilities are to be used "for the purpose of furnishing electric energy to consumers not receiving central station electric service." [Also, the loan contract provides that the loan is to finance the construction and operation of an electric system "for the purpose of furnishing electric energy to persons in rural areas not receiving central station electric service."] This stated purpose is in accord with the requirements of the Rural Electrification Act (7 U.S.C.A. § 904, supra).
It is my view, also, that when a petition specifies the use "to which it is proposed to put the proceeds" of a proposed loan, as is required by § 155, Tit. 55, supra, the petitioner thereby assumes the burden of showing, at the public hearing provided for by § 155, that the proceeds will be used for the stated purpose. If that premise is correct, and I do not see how it could be otherwise, how can it be said that the Finance Director, in determining whether the proposed use is "in the public interest," cannot consider the evidence on the issue presented by the petition itself? In this connection, it seems appropriate to note again that § 155, Tit. 55, supra, makes it unlawful for a petitioner to use the proceeds of a loan "contrary to the plan and purposes presented" in obtaining the Finance Director's consent to such loan. When the evidence shows that the proceeds will not be used according to the "plan and purposes" stated in the petition, whereby the intended use would be unlawful, how can it be said that the loan is "in the public interest"? The doing of something unlawful cannot be "in the public interest."
As I see it, there is really no question of a collateral attack being made on the legality of the loan contract. The contract, as already noted, shows that the loan is being made for a purpose consistent with the requirements of the Rural Electrification Act; and as already noted, the petition to the Finance Director also shows this. The question is simply whether there is evidence to support a finding that the proposed loan "is in the public interest," as required by § 155, Tit. 55, supra; and I do not see how that question can be resolved without considering the evidence on the issue of proposed use presented by the petition.
This further question is posed: What would be the holding in a case where the Finance Director denies approval of a proposed loan, such as the one here involved, on the ground the evidence shows that the proceeds of the loan will not be used for the prescribed (by 7 U.S.C.A., § 904, supra) and proposed (by the petition) purpose of financing the construction and operation of facilities "for the furnishing of electric energy to persons in rural areas who are not receiving central station service" and, therefore, cannot be said to be "in the public interest"?
I concurred in the original opinion but find, after further consideration on this rehearing, that I must register disagreement as above indicated. Therefore, I respectfully dissent. | June 30, 1965 |
e7622752-15a8-4164-b74c-7f5b3c316e9f | Bryan v. WT Smith Lumber Co. | 179 So. 2d 287 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 287 (1965)
C. E. BRYAN et al.
v.
W. T. SMITH LUMBER CO., Inc.
4 Div. 160.
Supreme Court of Alabama.
January 7, 1965.
Rehearing Denied October 21, 1965.
*288 Prestwood & Prestwood, Andalusia, for appellants.
*289 Thornton & McGowin, Mobile; Poole & Poole, Greenville, and Ben H. Lightfoot, Luverne, for appellee.
COLEMAN, Justice.
From an adverse decree, complainants in suit to determine and establish a disputed boundary appeal.
Complainants are two brothers. Respondent, Earl Bryan, is their brother. By bill of complaint filed March 21, 1960, complainants aver that they own an undivided one-third interest in E ½ of NW ¼ of Section 22, T 7 N, R 16 E, in Crenshaw County; that respondent Earl Bryan, owns the other two-thirds interest; that respondent, W. T. Smith Lumber Company, a corporation, sometimes herein referred to as Smith, owns the W ½ of NW ¼ of said section; and that the dividing line between the E ½ and W ½ of said quarter section is uncertain and disputed. The prayer is that the court enter a decree establishing the true boundary.
Decree pro confesso was entered against Earl Bryan.
By amended answer, filed February 22, 1962, Smith averred lack of knowledge of ownership of E ½ of NW ¼ of said section and demanded proof. As to ownership of W ½ of NW ¼, Smith denied the averments of the bill and averred that Smith now owns that part of W ½ of NW ¼ that lies west of Patsaliga River; that Smith did own that part of W ½ of NW ¼ east of Patsaliga River prior to October, 1960, when it was conveyed to Earl Bryan and his wife; that Earl Bryan was respondent in Case No. 2594 in the Circuit Court of Crenshaw County, in which case the disputed line was established by survey approved by said circuit court; that, on the line in suit, Smith owns only land adjoining that part of the line that lies north of Patsaliga River, that is, land adjoining only the north fifty feet of the line; that, by decree rendered "February 24, 1959," the circuit court approved an agreement ordering Smith to convey to Earl Bryan and wife forty-eight acres east of Patsaliga River in W ½ of NW ¼ of said section; that September 29, 1959, the circuit court entered an order confirming a survey made of the line in suit; that in October, 1960, in obedience to the decree, Smith conveyed to Earl Bryan and wife all W ½ of NW ¼ east of the river; that the line in suit is not uncertain and disputed but was established by the circuit court; that the line established by that court is binding on Earl Bryan under the doctrine of res judicata and on complainants under stare decisis. Smith prays that the court, in the suit at bar, confirm the line established by the circuit court.
Smith introduced in evidence the file in Case No. 2594. In that case, Smith, as complainant, filed bill of complaint against Earl Bryan and wife to establish the true boundary between Smith's land and Earl Bryan's land. In its bill, Smith alleged that it owned the W ½ and that Earl Bryan and wife owned the E ½ of NW ¼ of Section 22, T 7 N, R 16 E.
Thus it appears that the location of the line between W ½ and E ½ of NW ¼ of Section 22 was at issue in the prior suit and is the same line which complainants seek to have the court establish in the instant suit.
It is readily apparent, however, that the parties in the two suits are not identical. The complainants in the instant suit were not parties in the prior suit, and it does not appear that the instant complainants stand in privity with any party to the prior suit.
The prior suit terminated in an agreement entered into by Smith and Earl Bryan and his wife. The circuit court, by decree of February 25, 1959, confirmed the agreement and by amendment to the decree, made March 20, 1959, the circuit court retained jurisdiction for making orders to enforce the agreement.
By its terms, Smith and Earl Bryan agreed that Patsaliga River is to be the dividing line in the W ½ of W ½ of Section 22; the land west of the river to be *290 owned by Smith and the land east of the river to be owned by Earl Bryan and wife; this to be accomplished by appropriate conveyances.
Patsaliga River appears to meander on a course, roughly from north east to south west, diagonally across section lines.
With respect to the line, or part of the line, involved in the instant case the parties agreed as follows:
The agreement also concerned other lands of the parties, mutual conveyances, and adjustment to compensate for differences in value of timber conveyed.
It appears that some difficulty was experienced in carrying out the agreement. On August 5, 1959, Smith filed its petition complaining that Earl Bryan and wife would not perform their part of the agreement, and alleging, among other things, that Earl Bryan and wife "are now claiming that they do not own the entire interest in the E ½ of NW ¼ of Section 22 .... and that they cannot comply with the land exchange called for in the agreement...."
On September 1, 1959, Earl Bryan and wife replied to Smith's petition, saying:
There appear in the transcript as exhibits several deeds purportedly executed by Smith to Earl Bryan and wife. Apparently these deeds were executed in October, 1960, in an effort to carry out the agreement contained in the decree of February 25, 1959.
All this is significant to show that, in August, 1959, Smith, according to its own petition, had notice that Earl Bryan did not own the entire fee in E ½ of NW ¼ of Section 22; and that Smith, with such notice, proceeded to carry out the agreement by executing deeds fourteen months later in October, 1960. The record shows that process had been served on Smith in the instant case seven months earlier on March 23, 1960. We do not hold, however, that any such notice to Smith was necessary to support the result which we reach on this appeal.
The foregoing will probably suffice to show the pertinent elements of the decree in the prior suit which Smith sought to interpose as binding against complainants in the instant case.
In the instant case, the court decreed ". . . that the decree rendered by the Circuit Court of Crenshaw County correctly defines the land line between the coterminous owners, a decree is hereby rendered sustaining the line as established by the Circuit Court as the line between the coterminous owners in this suit."
Complainants assign rendition of the decree as error. There are six assignments of error. Appellants argue them together. Appellee Smith says that at least one assignment is bad, and invokes the rule that where several assignments are argued together, and one is without merit, the others will not be considered.
The instant writer, as well as others, has been guilty of stating the rule as relied on by appellee Smith. Bertolla v. Kaiser, 267 Ala. 435, 440, 103 So. 2d 736. The rule, that we consider no assignments when several are argued together and one is without merit, applies only when they are *291 not kindred or related. Southern Electric Generating Company v. Lance, 269 Ala. 25, 33, 110 So. 2d 627. Where several assignments are governed by the same legal principles and argument, it is not objectionable to argue them in bulk in the brief. Socier v. Woodard, 264 Ala. 514, 518, 88 So. 2d 783.
All six assignments here are related and are governed by the same legal principles and argument. They assert only one error, i. e., that the court erred in rendering the decree. We do not commend the assignments as examples of good pleading but they do state, however imperfectly, that the court erred in rendering the decree, and arguing them together does not preclude consideration of one assignment, even if others should be without merit.
Appellee singles out assignment 6 as being without merit. It recites:
Appellee Smith says ".... this does not constitute an assignment of error."
In Robinson v. Murphy, 69 Ala. 543, 545, the assignment was: "`the court below erred in the final decree rendered Oct. 8th, 1881.'" This court said that the assignment is very general, yet it conforms to the long practice in this court, and that, when the decree is assailed as erroneous in the whole, an assignment in the general terms of this assignment must be accepted as conforming to the rules of practice. See Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 156, 47 So. 2d 455, Paragraph [9].
Assignment 6 in the case at bar is imperfect, but is due to be considered in spite of its imperfection, because it fairly asserts that the court erred in rendering the decree, which, if erroneous at all, is erroneous in the whole.
Appellants argue that the circuit court decree is not conclusive against them, because they were not parties or privies to the suit in the circuit court, and that the court in the instant case erred in rendering a decree which declares that complainants are concluded by the circuit court's decree.
Broadly stated, to sustain a plea of res judicata, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point. Ivey v. Wiggins, 271 Ala. 610, 612, 613, 126 So. 2d 469. Counsel for Smith appear to agree that this is the correct rule. As already stated, complainants were not parties to the prior suit and, for lack of identity of parties, the decree in that suit is not conclusive against complainants unless some exception to the rule requires a contrary result.
In a suit to settle a disputed boundary, this court held a mortgagee a necessary party. See Rollan v. Posey, 271 Ala. 640, 126 So. 2d 464, and reasons there considered. See Pope v. Melone, 2 A. K. Marsh. 239, 9 Ky. 239. We think tenants in common are necessary parties in such a suit.
Smith argues, first, that equity has jurisdiction in disputed boundary cases only when there is a dispute between adverse parties to the suit, and that, because no dispute is here shown between Smith and complainants, the court had no jurisdiction. We think that a dispute between Smith and complainants is shown by Smith's answer, or plea, to at least the north fifty feet of the line. Whether the dispute be actually as to a greater distance is not clear from what is before us. Complainants are not required to prove that they are entitled to all the relief sought in order to be able to obtain some substantial relief sought which is proven. Elliott v. Lenoir, 263 Ala. 73, 75, 81 So. 2d 274. If complainants do not satisfactorily show that their contention is correct as to the true line, the cause is not due to be dismissed, nor does it necessarily result in finding according to the contentions *292 of respondent; but the court will proceed to find the true line, whether it be as either party contends. Both may be wrong in respect to their contentions. Crew v. W. T. Smith Lumber Co., 268 Ala. 628, 634, 635, 109 So. 2d 721. We hold that a dispute is shown between Smith and complainants as to part of the line at least.
Smith argues, second, that because final decrees are not subject to collateral attack, and because the instant suit is a collateral attack, by complainants or Earl Bryan, on the prior decree of the circuit court, the decree appealed from should be affirmed.
In Miller v. Thompson, 209 Ala. 469, 471, 96 So. 481, in a suit to quiet title, this court quoted approvingly to effect that any proceeding provided by law for the purpose of avoiding or correcting a judgment is a direct attack, which will be successful upon showing error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.
Whether the instant suit be a collateral attack on the decree of the circuit court we do not decide. Even if, however, this suit be a collateral attack on the circuit court's decree, that is no bar to the success of attack because here it is shown that the circuit court had no power to adjudicate and conclude complainants' rights because the circuit court did not acquire jurisdiction of complainants.
Smith argues, third, that judicially established boundaries should be preserved by stare decisis. Smith seeks to apply the principle that a judgment by a court of last resort in a prior case as to location of boundaries, although involving different lands and different parties, is conclusive in later suits when the same surveys, the same boundary lines, and substantially the same evidence is presented. The prior judgment has been held binding and conclusive in subsequent litigation involving those surveys, boundary lines, and acts of the same surveyors, not as res judicata, but under the doctrine of stare decisis. Porter v. State, 15 S.W.2d 191, (Tex.Civ.App.1929). See Bibb v. Bibb, 79 Ala. 437; Tallapoosa County v. Elmore County, 230 Ala. 440, 161 So. 500.
While respect is accorded to the decisions of all courts whose judges are learned in the law, and what they determine is entitled to such weight as the ability of the judges composing those courts, and the care evidenced by the particular opinions under consideration, show they deserve, yet it is settled that stare decisis, especially as respects rules of property, has no application to decisions other than those of courts of last resort. Brolasky's Estate, 302 Pa. 439, 446, 153 A. 739. See: 14 Am.Jur. 290, Courts, § 74; 21 C.J.S. 398 Courts § 216.
The circuit court is not a court of last resort in this state, and for that reason, if for no other, the doctrine of stare decisis does not make the circuit court decree conclusive in the instant case.
Smith argues, fourth, that it has not been shown that the line fixed by the circuit court decree is erroneous. It is not argued and, for that reason, we do not rule on the question, but we are inclined to inquire whether the circuit court file was admissible in evidence against complainants. As to them, the file was a record of things done among persons other than complainants. If the file be excluded from consideration there is no evidence of any established line at all.
We have examined the several maps in the transcript and do not understand any of them to show the location of the line between W ½ and E ½ of NW ¼ of Section 22. If we are mistaken and the maps do show the line, it is certainly not clear, and, if the line be shown, it is a line established by an agreement to which complainants were not parties, and was established by agreement and not as the result of any survey, as we understand the transcript. Both parties may be wrong in respect to their *293 contentions. Crew v. W. T. Smith Lumber Co., supra.
Because complainants were not parties to the prior suit, we are of opinion that the learned court in the instant case erred in holding the prior decree binding on complainants.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.
COLEMAN, Justice.
The brief of appellee on rehearing discloses a bitterness toward Earl Bryan which does not assist this court in deciding a difficult case. Light, not heat, is what the court needs.
Appellee argues that by reversing the decree we give Earl Bryan a third day in court on the same controversy. To set that idea at rest, we say here that we are of opinion that Earl Bryan is bound by the decree in the prior suit. So far as Earl Bryan and Smith are concerned, the line was established by the decree in Case No. 2594 in the circuit court. In the case at bar, the line will be established as between appellants and Smith. If it should result that the line finally fixed in the instant case does not coincide with the line fixed in Case No. 2594, it seems that the parties would be entitled to the land between the two lines as tenants in common according to their respective interests, but that question is not before us and may not arise.
In response to appellee's earnestness we have again examined the transcript in the light of appellee's criticism of the opinion. Appellee's brief concludes as follows:
As to No. 1, that we erred in assuming that appellants were precluded from showing anything in this case, appellee says that the trial judge "did not blindly accept Judge Thagard's line and he did not close any doors to C. E. and R. C. Bryan. They had their day in Court. They just had a bad day, and they failed to show Judge Kettler where Judge Thagard was in error."
We did not say that the trial court refused to allow appellants to present evidence. What we said was: "Appellants argue that the circuit court decree is not conclusive against them, because they were not parties or privies to the suit in the circuit court, and that the court in the instant case erred in rendering a decree which declares that complainants are concluded by the circuit court's decree."
We may not fully comprehend appellee's argument. We do not wish to indulge in idle play on words or an exercise in semantics. The trial court's decree, complained of on this appeal, recites that "a decree is hereby rendered sustaining the line as established by the Circuit Court as the line between the coterminous owners in this suit"
*294 If we understand the meaning of the quoted language, the decree just quoted from sustains the circuit court boundary line and makes that line, or the decree establishing it, conclusive against appellants. As we undertook to show on original deliverance, we are of opinion that appellants are not bound by the circuit court decree because they were not parties or privies to that suit. We do not think appellants have the burden of showing to the instant trial court, or to this court on appeal, that the circuit court decree is in error, and this view we hold because we do not think appellants are bound by the circuit court decree.
We will say this, that we are not persuaded that the line running "south to the river from the existing corner, said corner being witnessed by twenty-four inch water oak and designated on the map of Carlos Botts now in evidence in this proceeding as Exhibit Four," is necessarily the true line dividing the east half from the west half of northwest quarter of Section 22. The last quotation is from the circuit court decree.
Appellee says said Exhibit Four, referred to in the circuit court decree, is not in the transcript before us but was before the trial court, and, therefore, we ought to assume that the omitted evidence sustains the decree appealed from. We note that Exhibit Four was an exhibit in Case No. 2594 in the circuit court and not in the trial court in the instant case. The register's certificate in the record before us recites that "the foregoing pages numbered One through 100, both inclusive, contain a full and complete transcript of a certain cause ..." wherein appellants are complainants, etc. We think, on this certificate, we should regard the transcript as complete.
As to the reason we are not persuaded that the line established in the circuit court is necessarily the correct line we note the following statement from appellee's brief:
Perhaps unnecessarily, we set out here Complainant's Exhibit 2, which is Botts' survey of March 5, 1959:
*295
*296 Now we understand that by order of September 29, 1959, Tr. 77, the circuit court disapproved said Exhibit 2, but our understanding is that appellee concedes that Exhibit 2 correctly shows the "existing corner" marked by the 24-inch water oak. As we read the map, the Merrill Corner, which may not be correct but was apparently accepted as the northeast corner of Section 22, is located 39.086 chains plus 11.961 chains, a total of not more than 51.047 chains, from the 24-inch water oak. If the north boundary of Section 22 is the length of 80 chains or 79.87 chains, as we understand the field notes, then the dividing line between east and west halves of Northwest quarter ought to lie 60 chains, or at least 59.90 chains, west of the northeast corner of the section. But, the distance shown on Exhibit 2 is only 51.047 chains, which is almost nine chains or 594 feet short. Thus, we are not persuaded that the line established by the circuit court is necessarily correct. It may be that we do not understand the map correctly, but, if we misunderstand, that fact further persuades us that the circuit court line is not necessarily the true line. Appellee admits in brief that the line agreed on as the river is not the true line. We are not persuaded that the same condition does not exist as to the line running south from the 24-inch water oak. That line also was fixed by an agreement to which appellants were not parties.
As to appellee's second criticism, that we erred in assuming "That Smith's pleadings established the jurisdictional requirements of a disputed boundary line," we should observe that we are not here concerned with a ruling as to the sufficiency of pleadings. We do not think appellee questions the sufficiency of the bill of complaint. As we understand appellee's argument, appellee contends that there is a failure to prove that the line between the east and west halves of northwest quarter of Section 22 is in dispute. Our statement, that a dispute as to the north fifty feet is shown by Smith's answer or plea, is misleading and we will undertake to correct it.
Smith's answer recites:
What we should have said is that Smith's answer shows that Smith and appellants are coterminous owners to at least the north fifty feet.
Smith argues, however, that the evidence fails to show a dispute as to the location of the north fifty feet of the line. Smith says, "But Complainants never testified in this case." Such is the case, but we know of no rule that requires the landowner, in a boundary dispute, to take the witness stand and testify that the location of the line is disputed.
Appellee says ".... there is much testimony in this case about Earl Bryan disputing the line established by Judge Thagard," and
"But nowhere does Earl Bryan testify that
Earl Bryan was called as a witness by appellants. He testified:
and further, respecting the same line as we understand it:
The estate referred to is the estate of appellants' father. Appellants claim as heirs of their father. We think this testimony shows a dispute between Smith and appellants as to location of the line.
In paragraph 5 of its answer, appellee avers that ".... the line in suit was litigated and finally established by a survey made under the direction and supervision of and specifically approved by the said Court," referring to Case No. 2594 in the circuit court. Thus appellee itself says the line was litigated in and established by the suit in the circuit court. If the line was ever established, it was established in that suit, but we are of opinion that the establishment in the circuit court in Case No. 2594 is not binding on appellants. We disagree with appellee and are of opinion that the existence of a dispute as to location of the line is sufficiently shown.
Appellee's third criticism is that we erred in assuming that only the circuit court file showed the line fixed by Judge Thagard. Appellee takes us to task for questioning the admissibility of the file in Case No. 2594. It should be sufficient answer to this criticism to repeat ".... we do not rule on the question ...."
Appellee argues that there is evidence other than in the circuit court file to show the line fixed by Judge Thagard. Conceding arguendo that there is other evidence to show the line, we are still of opinion that the line so fixed by the circuit court is not binding on appellants.
As to the fourth contention that we erred in assuming that the line was not clearly shown in the transcript, whether the line fixed by the circuit court be clearly shown or not, it remains a line fixed by an agreement to which appellants were not parties.
The fifth criticism is that we erred in assuming that the line approved by Judge Thagard was fixed only by agreement. Appellee says:
We have already undertaken to show that we are not persuaded that the "existing corner" marked by the 24-inch water oak is correctly located at the northwest corner of northeast quarter of northwest quarter of Section 22. Merely to say that it is an existing corner does not persuade us that the corner is correctly located. We do not understand that any presumption of correctness attends a decree fixed by agreement in a lawsuit to which appellants were not parties.
The sixth unnumbered criticism is that we erred in assuming that boundary line cases depend solely on title rather than rightful possession. We do not think we made that assumption. We do not understand that the evidence shows or that the trial court considered the possession, or lack of it, by either party. We do not find proof of actual occupancy by anyone. In that situation, it would seem that the location of the boundary would depend on title. In the absence of possession and monuments, what basis, other than title, exists on which to determine the location of the boundary? This court has said:
We do not think anything we have said conflicts with recognized rules as to what evidence is admissible in cases of disputed boundaries. In this connection, see Pounders v. Nix, 222 Ala. 27, 29, 130 So. 537.
Appellee asks what will be tried on remandment of this case. We think the court should determine the boundary according to accepted practices and procedure. This court has said:
§§ 4 and 5 et seq., of Title 47, Code 1940, seem to provide authority for the court to order a survey to fix a disputed boundary between coterminous owners.
We are not persuaded that we should affirm the decree appealed from.
Opinion extended.
Application overruled.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | January 7, 1965 |
0a7a7428-f0a7-4cea-8f8d-ae5a8f0252fb | Carter Oil Co. v. Blair | 57 So. 2d 64 | N/A | Alabama | Alabama Supreme Court | 57 So. 2d 64 (1951)
CARTER OIL CO.
v.
BLAIR.
3 Div. 563.
Supreme Court of Alabama.
December 21, 1951.
Rehearing Denied March 6, 1952.
*65 Ball & Ball, Montgomery, for appellant.
A. A. Carmichael, Atty. Gen., and H. Grady Tiller and W. W. Livingston, Asst. Attys. Gen., for appellee.
LAWSON, Justice.
This is a bill in equity filed in the circuit court of Montgomery County, in equity, by appellant, The Carter Oil Company, against Philip J. Hamm, as Commissioner of Revenue of the State of Alabama.
The bill alleges that it is filed under the authorization of § 810, Title 51, Code 1940, which section in substance provides that use tax may be paid under protest; that within two years from the date such tax was due and payable, the taxpayer may maintain an action for declaratory judgment against the Commissioner of Revenue, in the circuit court of Montgomery County, in equity, for a determination of the taxpayer's liability for the amount of use tax paid under protest or his rights to a refund thereof; that upon the rendition of a judgment declaring that the taxpayer is entitled to a refund, it is the duty of the comptroller, upon presentation of a certified copy of the judgment or decree, to issue his warrant in favor of the taxpayer for the sum determined to be due, together with interest at six per cent per annum; that "failure to bring suit within said two years shall constitute waiver of any and all demands against the state on account of alleged overpayments hereunder." See Ex parte State ex rel. Lawson, Attorney General, 241 Ala. 304, 2 So. 2d 765; Poer v. Curry, Commissioner of Revenue, 243 Ala. 76, 8 So. 2d 418; Layne Central Co. v. Curry, Commissioner of Revenue, 243 Ala. 165, 8 So. 2d 839.
It is alleged, in effect, that the use tax which complainant paid under protest was illegally exacted on two grounds: first, that the tax was paid on items which are exempt from use tax by virtue of § 789(p), Title 51, Code 1940; second, that sales tax had already been paid on the items, or some of them, in the state where such items were purchased and from which they were removed to this state and, therefore, the State of Alabama could not legally exact payment of use tax on such articles.
The bill prays: "Wherefore, complainant brings this its suit asking for a declaratory judgment determining its tax liability for the amounts so paid and its right to a refund thereof, in accordance with Section 810 of Title 51 of the Code of Alabama, and for the recovery by complainant of the amounts paid under verified protests as Use Tax, all as set out above, and prays that by due and proper process the respondent *66 be made party hereto and required to answer, plead or demur hereto within the time provided by law and the rules of this Honorable Court, and upon a final hearing of this cause a judgment be entered clarifying and fixing the status of the parties hereto with reference to said Use Tax on the class of articles set out above, and that complainant recover a judgment for the amounts of tax paid under protest as above set out."
Demurrer was sustained to the original bill. Complainant thereafter amended its bill to describe in greater particularity the items which it claims are exempt from the payment of use tax, but upon which such tax was paid under protest. Demurrer filed to the bill as amended was sustained. From the decree sustaining the demurrer to the bill as amended, the complainant has appealed to this court.
Subsequent to appeal, but prior to submission in this court, Philip J. Hamm resigned as Commissioner of Revenue and Roy E. Blair was appointed his successor. By agreement of the parties, the name of Roy E. Blair has been substituted for the name of Philip J. Hamm.
Complainant, appellant here, seems to have completely abandoned its contention that there was no liability for use tax to the State of Alabama because sales tax had been paid on the items in other states in which they had been purchased.
In brief filed here on behalf of appellant, complainant below, it is said: "There are two questions presented by the appeal, (1) whether oil is a mineral and the extraction thereof from beneath the surface of the ground constitutes `mining' and (2) whether the machinery described in the assessments made by the State Department of Revenue and which is also described in the bill of complaint is exempt under subdivision (q) [now subdivision (p)] of Section 789, Title 51, Code of Alabama 1940, which refers to machines and machinery used for mining tangible personal property."
It is not always appropriate to make a construction or determination of rights or status on a demurrer to a bill seeking a declaratory judgment. Ordinarily, where the bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. As pointed out in Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11, the test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. If the complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated and the demurrer should be overruled. City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658, and cases cited.
But where, as here, counsel for both sides seem to desire to have the matter considered by this court on the appeal from the ruling on demurrer, we may proceed to do so. McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635.
It is complainant's contention that it is entitled to be refunded the use tax paid by it under protest on certain equipment used in connection with its oil drilling operations in this state for the reason that the equipment used is a machine and the process of extracting oil from beneath the surface of the earth is mining and therefore the use of such equipment is expressly exempt from use tax by the terms of § 789(p), Title 51, Code 1940, as amended. § 789, Title 51, supra, deals with exemptions from use tax. Subdivision (p) of that section is as follows: "Machines used in mining, quarrying, compounding, processing, and manufacturing of tangible personal property; provided that the term `machines,' as herein used, shall include machinery which is used for mining, quarrying, compounding, processing, or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operation of such machines and *67 which are necessary to the operation of such machines and are customarily so used."
The bill as amended avers in detail the type of equipment used and the function which the several types perform as going to show that the equipment is a machine within the meaning of subdivision (p) of § 789, Title 51, supra. But that question need not be considered unless we are in accord with the position of complainant below, appellant here, that the process of extracting oil from beneath the surface of the earth constitutes "mining" as that word is used in subdivision (p), § 789, Title 51, supra. We think it well to point out that it is not argued here that complainant was exempt from payment of use tax because the equipment is a machine used in "compounding, processing, or manufacturing tangible personal property". Subdivision (p), § 789, Title 51, Code 1940, as amended.
It seems to be generally recognized that the term "mineral" ordinarily embraces oil, petroleum and natural gas unless it appears in the particular case that it is used in a more restricted sense. The following cases from other jurisdictions cited by counsel for appellant seem to support appellant's contention that oil is a mineral. Mid-Northern Oil Co. v. Walker, 65 Mont. 414, 211 P. 353; Burke v. Southern Pacific R. R. Co., 234 U.S. 669, 34 S. Ct. 907, 58 L. Ed. 1527; Texas Pacific Coal & Oil Co. v. Howard, Tex.Civ.App., 212 S.W. 735; Isom v. Rex Crude Oil Co., 147 Cal. 659, 82 P. 317; Weaver v. Richards, 156 Mich. 320, 120 N.W. 818; Fourth & Central Trust Co. v. Woolley, 31 Ohio App. 259, 165 N.E. 742; Rice Oil Co. v. Toole County, 86 Mont. 427, 284 P. 145; In re Great Western Petroleum Corp., D.C., 16 F. Supp. 247; Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986; Lovelace v. Southwestern Petroleum Co., D.C., 267 F. 504, affirmed 6 Cir., 267 F. 513; Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N.E. 818, 36 L.R.A.,N.S., 1108; Poe v. Ulrey, 233 111. 56, 84 N.E. 46; Crain v. Pure Oil Co., 8 Cir., 25 F.2d 824; Warren v. Clinchfield Coal Corp., 166 Va. 524, 186 S.E. 20; Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 So. 867; Standard Pipe & Supply Co. v. Red Rock Co., 57 Cal. App. 2d 897, 135 P.2d 659; Shell Petroleum Corp. v. Caudle, 5 Cir., 63 F.2d 296; Ryan v. Amazon Petroleum Corp., 5 Cir., 71 F.2d 1; People ex rel. Carrell v. Bell, 237 Ill. 332, 86 N.E. 593, 19 L.R.A.,N.S., 746; Gulf Refining Co. v. Garrett, 209 La. 674, 25 So. 2d 329.
In Rechard v. Cowley, 202 Ala. 337, 338, 80 So. 419, 420, we said: "* * * Oil and gas are furtive, migratory, self-transmissive minerals; and because of this characteristic or quality contracts and rights relating thereto require the application of principles different, in many respects, from those applicable to other minerals that are not affected with the characteristics a learned court has described as ferae naturae. Ohio Oil Co. v. Indiana, 177 U.S. 190, 202 et seq., 20 S. Ct. 576, 44 L. Ed. 729; 18 R.C.L. pp. 1205 et seq; White on Mines and Mining, §§ 162 et seq. * * *" See McCombs v. Stephenson, 154 Ala. 109, 44 So. 867.
But the fact that it is generally recognized that oil is a mineral is not decisive of the question at hand.
The question is presented as to whether the extraction of oil from beneath the surface of the earth constitutes "mining" as that word is used in § 789(p), Title 51, Code 1940, as amended.
We have been furnished with excellent briefs by counsel for both parties and authorities have been cited from other jurisdictions both for and against the proposition that an oil well is a mine and the process of extracting oil is mining.
It has been held that the process of extracting oil from beneath the surface of the earth is mining and that an oil well is a mine. Mid-Northern Oil Co. v. Walker, supra; Rice Oil Co. v. Toole County, supra; People ex rel. Carrell v. Bell, supra; Etchison Drilling Co. v. Flournoy, supra; Gulf Refining Co. v. Garrett, supra; In re Great Western Petroleum Corp., supra; Shell Petroleum Corp. v. Caudle, supra; Ryan v. Amazon Petroleum Corp., supra. The holdings in these cases must, of course, be considered in the light of the specific question before the court.
The opposite view is expressed in the following cases: Guffey Petroleum Co. v. *68 Murrel, 127 La. 466, 53 So. 705; Barton v. Wichita River Oil Co., Tex.Civ.App., 187 S.W. 1043; Carter v. Phillips, 88 Okl. 202, 212 P. 747; Kreps v. Brady, 37 Okl. 754, 133 P. 216, 47 L.R.A.,N.S., 106; Hollingsworth v. Berry, 107 Kan. 544, 192 P. 763, 11 A.L.R. 151; Cornwell v. Buck & Stoddard, Inc., 28 Cal. App. 2d 333, 82 P.2d 516.
We see no occasion to make an analysis of the cases bearing on this point cited above. However, since cases from Louisiana are cited in support of both sides of the question, we call attention to the fact that the later decisions from that state which tend to hold that the extraction of oil is mining are predicated on the fact that the legislature of that state so defined it subsequent to the decision in Guffey Petroleum Co. v. Murrel, supra, which holds to the contrary view. It is also pointed out in the later cases that in the Guffey case the court was dealing with a claim of exemption from taxation. In the Great Western Petroleum Corp. case, supra, the Federal District Court construed a California statute containing the words "mining purpose" as including oil wells. However, subsequent to that decision the California courts in construing their own statute have held to the contrary. Cornwell v. Buck & Stoddard, Inc., et al., supra. In Standard Pipe & Supply Co. v. Red Rock Co., supra, it is said: "* * * Also, in California, oil is recognized as a mineral, Callaham v. Martin, 3 Cal. 2d 110, 43 P.2d 788, 101 A.L.R. 871, and drilling for it is classified as a placer mining operation (Berentz v. Belmont Oil Mining Co., supra [148 Cal. 577, 84 P. 47], although it has been held that drilling for oil does not come within the technical definition of `mining' as that word is used in section 2980 of the Civil Code. Cornwell v. Buck & Stoddard, Inc., 28 Cal. App. 2d 333, 82 P.2d 516." 135 P.2d 662.
Our question is, did the legislature intend to exempt from use tax machines used in drilling for oil? Otherwise expressed, the question is, did the legislature intend that the word "mining" include the process of extracting oil from beneath the earth's surface?
There is no language in the statute, § 789(p), Title 51, Code 1940, which can be said to clearly show such an intent. So in addition to the principle that exemptions from taxation are strictly construed against the taxpayer and in favor of the state, we must consider another generally accepted canon of statutory construction, which is that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is generally accepted in popular, every-day usage. Pullman-Standard Car Mfg. Co. v. State, 253 Ala. 638, 46 So. 2d 500.
We certainly cannot say that at the time the use tax law was enacted in this state, the word "mining" in its everyday usage was considered to include the process of extracting oil. While the search for oil has gone on to some extent in this state for many years, there was very little, if any, oil produced in the state prior to the time the use tax law became effective.
At the time the use tax law of this state became effective there was, in so far as our research discloses, no expression of the legislature contained in any of the numerous statutes relating to mines and mining showing that the lawmakers considered the process of extracting oil to constitute mining. On the other hand, there was on our statute books a comprehensive law, complete in itself, dealing with "oil" and "gas" and nowhere in it are the terms "mine" or "mining" used. §§ 5085-5097, Code 1923, §§ 167-179, Title 26, Code 1940. The terms "oil wells" and "drilling" are used throughout.
There was no decision of this court indicating that the process of extracting oil constituted mining. No Alabama case has come to our attention wherein the word "mining" has been defined or its meaning applied. However, we have dealt with the meaning of the word "mine" as it appeared in § 1035, Code 1907. In Cole v. Sloss-Sheffield Steel & Iron Co., 186 Ala. 192, 65 So. 177, we held that the word "mine" as used in § 1035, Code 1907, included ore as well as coal mines. But in Sloss-Sheffield Steel & Iron Co. v. Bearden, 199 Ala. 132, 74 So. 230, the majority of the court held that the *69 word "mine" as used in that section applied to underground mines only and not to open or surface mines. That conclusion was reached in view of the purpose to be accomplished by the statute, to protect employees in underground mines, whether coal or ore.
When tested by the rules of construction here applicable, we do not believe the legislature intended that the word "mining" as used in § 789(p), Title 51, Code 1940, as amended, include the process of extracting oil from beneath the earth's surface.
The decree appealed from is affirmed.
Affirmed.
All the Justices concur. | December 21, 1951 |
b8b47b00-9503-4073-802b-7029a7b3ada8 | Hurst v. State | 174 So. 2d 325 | N/A | Alabama | Alabama Supreme Court | 174 So. 2d 325 (1965)
Shelman HURST
v.
STATE of Alabama.
8 Div. 188.
Supreme Court of Alabama.
April 15, 1965.
*326 Kenneth Shelton and Thos. A. Caddell, Decatur, for appellant.
Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
SIMPSON, Justice.
The appellant, Shelman Hurst, was indicted by the Grand Jury of Morgan County for the offense of murder in the second degree. Counsel was appointed to represent him. A plea of not guilty was entered and trial was held. The jury returned a verdict of guilty as charged in the indictment and fixed punishment at 30 years in the penitentiary. This appeal followed.
Appellant argues that the court erred in admitting into evidence a photograph of the deceased victim taken by the State Toxicologist at the time an autopsy was performed. The appellant claims error on the part of the court in admitting this photograph on the grounds that it shows more of the surrounding body than was necessary to show the knife wounds from which the State Toxicologist testified the victim died; that it tended to inflame the minds of the jurors and because it was taken three days after the incident causing death.
We have examined the picture. It is a photograph of the deceased's body lying on its back. It shows deceased's entire body from the head to a point just above the pelvic area. It shows two wounds on either side of the upper abdomen area, which the Toxicologist testified were the entrance wounds causing death. Also shown is a long incision vertically along the length of the abdomen which Dr. Johnson, the Toxicologist, testified was "a surgical incision that possibly occurred after the incident in question". All of these wounds are sewed with black silk sutures according to the testimony; the picture shows them to be sutured.
The appellant relies upon McKee v. State, 33 Ala.App. 171, 31 So. 2d 656 for reversal. We do not think this case supports his contentions. There the Court of Appeals found no error in the trial court's admission of five different photographs of the deceased's body taken during the autopsy by the State Toxicologist. The autopsy there was made and the photographs were taken some eight days after death and after the body was disinterred. The Court of Appeals there observed that all of the photographs were unpleasant, stating further:
"Grewsomeness is however no grounds for excluding this type of evidence (photographs, clothing, etc.) if it has a `reasonable tendency to prove or disprove some material fact in issue, or which at the time appeared to be probably in dispute or material' (Grissett v. State, 241 Ala. 343, 2 So. 2d 399, 401), and if it illuminates the issues in *327 any way, and is relevant, it is admissible even though possessing a tendency to inflame the minds of a jury. Grissett v. State, supra. Or, as stated by Chief Justice Anderson in Boyette v. State, 215 Ala. 472, 110 So. 812, the admissibility of this type of evidence is dependent upon whether it has `some tendency to shed light upon some material inquiry'."
The Court of Appeals found that five of the six photographs introduced in the McKee case met these tests, but reversed for the admission of the sixth photograph. That picture was said to be not only grewsome, but ghastly. The Court of Appeals observed:
The picture introduced in this case is in no manner ghastly. In fact we do not find it grewsome. Unpleasant, perhaps, but not grewsome. We think it clearly admissible as cumulative of the oral testimony of Dr. Johnson.
As noted in McKee, supra, the fact that the photograph was taken some three days after death is no ground for not admitting it, if it is otherwise admissible.
Appellant next argues that the court erred in allowing the testimony of a fifteen-year-old witness for the State to the effect that the deceased said he was dying. Counsel for appellant says in his brief that he is "aware of the fact that there does not appear, of record, any ruling by the court overruling this objection of" defendant. In this circumstance there is nothing for this court to review. See Appeal & Error, Alabama Digest, Key No. 236, et seq. "In the absence of a motion to exclude the alleged prejudicial matter and an adverse ruling by the trial court upon said motion nothing is invited for review". Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138.
Lastly, appellant claims he requires a new trial because the trial court sustained the State's objection to appellant's testimony "that he [the decedent] didn't seem like he was cut or anything". However, this evidence was before the jury before the State interposed its objection. The defendant had answered the question. No motion was made by the State that the court instruct the jury to disregard the testimony. In no way could appellant have been prejudiced by this failure on the part of the solicitor; on the contrary, assuming that defendant, appellant, believed the evidence favorable to him, as obviously he did and does, surely he cannot be entitled to a new trial for the court's failure to instruct the jury to disregard it. "Where objection to question was made after question had been answered, and no motion to exclude was made, the trial court would not be put in error on appeal for having overruled the objection." McBee v. McBee, 265 Ala. 414, 91 So. 2d 675. Conversely, the trial court will not be put in error for sustaining the objection.
Consistent with our duty in such cases, we have searched the record for error prejudicial to defendant and find none.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | April 15, 1965 |
f40518b8-3cdd-4672-9e33-5d68dcafdf0e | Edmonson v. First Nat. Bank of Birmingham | 55 So. 2d 338 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 338 (1951)
EDMONSON et al.
v.
FIRST NAT. BANK OF BIRMINGHAM et al.
6 Div. 148.
Supreme Court of Alabama.
November 23, 1951.
*339 Wilkinson & Skinner, Birmingham, for appellants.
Cabaniss & Johnston, Howze & Brown, Leader, Tenenbaum, Perrine & Swedlaw and Martin, Turner, Blakey & Bouldin and Alvin W. Vogtle, Jr., all of Birmingham, for appellees.
BROWN, Justice.
This appeal is prosecuted by the complainants from a decree of the circuit court, sitting in equity, sustaining the demurrers of the several defendants to the substituted bill and dismissing the same.
The bill as amended is designated "Amendment to Bill of Complaint" and recites: "By leave of the Court first had and obtained the complainants in the above styled cause amend their bill of complaint, and make the same read as follows: * * *." [Italics supplied.] Said amendment was made and filed after demurrers had theretofore been filed to the original bill by the defendants and sustained by the court and complainants granted time to amend from September 9th, 1949, to January 10th, 1950.
The sufficiency of the bill as rewritten as against the demurrers filed thereto presents the only question to be here considered. Moates v. City of Andaiusia, 254 Ala. 629, 49 So. 2d 294; McGowin v. McGowin, 232 Ala. 601, 169 So. 232.
The complainants are four of the beneficiaries of a trust set up by a trust indenture executed by William D. Tynes on December 31, 1931, to himself and The First National Bank of Birmingham, as Trustees, for the use and benefit of himself, his wife, children and grandchildren, a copy of which was attached to the bill and made a part thereof. By said trust indenture William D. Tynes conveyed to said Trustees, "80 shares Eighth Avenue (Land Company) common stock and 1030 shares Hardie-Tynes Manufacturing Company common stock", "To have and to hold the same unto the said William D. Tynes and The First National Bank of Birmingham, and their successors in trust but in trust nevertheless for the uses and purposes, upon the terms and conditions and with the powers and duties hereinafter stated."
The following are the defendants: Hardie-Tynes Manufacturing Co., a corporation, The First National Bank of Birmingham, the surviving trustee (William D. Tynes died August 19th, 1933), R. C. Stobert, a member of the board of directors and one of the managing officers of the corporation; Mrs. Mary Poliard Tynes, the widow of the grantor, one of the beneficiaries; Mrs. Hazel Tynes Stobert and W. Fisher Tynes, children of the grantor, the last named being a member of the Board of Directors of said corporation and the other managing officer of the corporation. W. Fisher Tynes died November 26, 1948 and the suit was revived against his executors.
The bill alleges that of the total outstanding 1060 shares of stock of Hardie-Tynes Mfg. Co., the trust estate of which the bank is trustee, owns 988 shares, R. C. Stobert 99, W. Fisher Tynes 72 and Luther Strange 1.
The bill further alleges: "The said Luther Strange holds the legal title to one share of said stock in order to qualify him as a director of the Hardie-Tynes Manufacturing Company, but said share of stock in truth and in fact is the property of the Trust Estate and is held by said Strange for its account. He exercises no independent judgment as a director but follows the direction and instruction of said Stobert, said Tynes and said Bank.
"(8) From 1934 to 1942 the Board of Directors of the Hardie-Tynes Manufacturing Company was composed of R. C. Stobert, W. Fisher Tynes and W. S. Shields who was a long time employee of the Company and who held the legal title to one share of stock in said corporation for the account of the Trust Estate and who exercised no independent judgment but followed the direction and instruction of said Stobert and said Tynes and said Bank, and Charles Zukoski who was Vice-President and Trust Officer of said Bank. Said Shields was succeeded by said Luther Strange in the fall of 1943 or the spring of 1944 as a director of the Hardie-Tynes *340 Manufacturing Company and about July 23, 1942, said Zukoski resigned from said Board of Directors. His resignation was accepted and from 1943 to date the Board had been composed of said Stobert, said Tynes and said Luther Strange. The Bank as Trustee of a majority of the voting stock in the Hardie-Tynes Manufacturing Company voted for the election of R. C. Stobert and W. Fisher Tynes as directors of the Hardie-Tynes Manufacturing Company in the year 1934, and in each year thereafter."
The bill further alleges: "(10) Prior to and from 1934 to date the Bank has been engaged in the banking business in Birmingham, Alabama. During said time it loaned Hardie-Tynes Mfg. Co. large sums of money from time to time. It was also the depository of Hardie-Tynes Mfg. Company and up until the fall of 1941 Hardie-Tynes Mfg. Company's sole banking connection in Birmingham, Alabama. In the fall of 1941 or early in 1942 the said Tynes and the said Stobert negotiated with the Bank as Trustee for compensation for the year 1941 which was subsequently fixed or approved by the Bank for the year 1941 at $167,037.00 for them. The said Tynes and the said Stobert were paid said sum of $167,037 for services alleged to have been rendered the Hardie-Tynes Company for the year 1941, and said sum included a straight salary of $40,000 and an alleged bonus of $127,037. About the time negotiations got under way, between the said Tynes and Stobert and said Bank for their compensation for the year 1941, the said Tynes and the said Stobert, caused the Hardie-Tynes Mfg. Company to deposit a substantial sum of money in the Birmingham Trust and Savings Company, a banking institution in Birmingham, Alabama, in competition with said First National Bank of Birmingham. About the time said negotiations got under way, or about the time they were concluded, an officer of the Birmingham Trust and Savings Company proposed said Tynes and Stobert for membership in the Mountain Brook Country Club, which they greatly desired. This was done to cultivate good relations between the Birmingham Trust and Savings Company and the said Tynes and the said Stobert, and to influence them to divide the commercial account of the Hardie-Tynes Company with said Birmingham Trust and Savings Company.
"(11) The said Stober and the said Tynes undertook, by causing the Hardie-Tynes Mfg. Company to make the aforesaid deposit in the Birmingham Trust and Savings Company, to create the impression on the First National Bank of Birmingham, they were about to cause the Hardie-Tynes Mfg. Company to divide its commercial account with the Birmingham Trust and Savings Company in a substantial way, or that it was going to remove its commercial account, which was a large and profitable account, to that banking institution. The First National Bank of Birmingham was advised or learned that said deposit had been made. Following the making of said deposit and the proposal of the said Tynes and Stobert for membership in said Club as above set forth the total compensation of the said Tynes and the said Stobert for the year 1941 was fixed by the bank or approved by the Bank at $167,037.00.
"(12) Complainants aver that in fixing the total compensation of the said Tynes and the said Stobert for the year 1941, at said figure, the said Bank was influenced by its desire to retain the commercial account of the Hardie-Tynes Mfg. Company, and that in fixing their compensation for said year at said figure, said Bank endeavored to offset the attention that the Birmingham Trust and Savings Company was paying to said Tynes and said Stobert at said time in an effort to obtain the commercial account, or a part thereof, of the said Hardie-Tynes Mfg. Co.
"(13) Complainants are informed and believe, and on such information and belief charge and state, that the said sum of $167,037.00 fixed or approved by said Bank as compensation for the said Tynes and the said Stobert for the year 1941, was grossly excessive and unreasonable, and constituted a waste of the funds of the said Hardie-Tynes Mfg. Company, in that the said Bank and the said Tynes and the said Stobert knew, or by the exercise of reasonable diligence, could have ascertained, that the sum so fixed was greatly in excess of the true value of the services rendered, and was *341 greatly in excess of the amount paid by other corporations in the Birmingham District for similar services rendered, and greatly in excess of amounts paid by other corporations in the Birmingham District for the rendition of similar services in connection with the handling of a like volume of business transacted during that year.
"(14) In 1942, the complainants claimed that said sum paid said Tynes and said Stobert, was excessive; they employed counsel and made preparations for instituting a suit against said Tynes and said Stobert and said Bank, on behalf of the said Hardie-Tynes Mfg. Company to require them to restore to the corporate treasury, approximately $85,000 of the said $167,037.00 which they received for services in the year 1941. After some negotiations, the said Stobert and the said Tynes and the said Bank agreed that said Tynes and said Stobert should restore said $85,000.00 to the treasury of said corporation, and, they did by executing and delivering their notes for that amount payable in 1942 and 1943, which they paid.
"(15) In 1943 the Bank as trustee, approved a bonus to said Tynes and said Stobert in the sum of, towit: $80,840, which was within $5000.00 of the amount they restored to the treasury of said Hardie-Tynes Mfg. Company in 1942 and 1943. The $80,840, bonus paid to the said Stobert and the said Tynes for the year 1943 was grossly excessive and unreasonable and constituted a waste of the funds of the said Hardie-Tynes Mfg. Company, in that the said Bank and the said Tynes and the said Stobert, knew, or by the exercise of reasonable diligence, could have ascertained, that the sum so fixed was greatly in excess of the true value of the services rendered, and was greatly in excess of the amount paid by other corporations in the Birmingham District for similar services rendered, and greatly in excess of amounts paid by other corporations in the Birmingham District for the rendition of similar services in connection with the handling of a like volume of business transacted during that year.
"(16) At various times between 1934 and 1941 the Bank loaned W. Fisher Tynes, and R. C. Stobert large sums of money, knowing that their principal means of repaying said loan was the compensation said Tynes and said Stobert would receive from Hardie-Tynes Mfg. Company. Complainants aver that the compensation paid said Stobert and said Tynes in each of the years 1941 to 1946, inclusive, as above set forth, was illegal and constituted waste of the assets of Hardie-Tynes Mfg. Company and a waste of the assets of the trust estate in that the only authority for the payment of said compensation was a resolution of the Board of Directors of said Hardie-Tynes Mfg. Company adopted by vote of the said Stobert and the said Tynes as directors of Hardie-Tynes Mfg. Company purporting to authorize the payment of said compensation, which purported authority, complainants charge, was null and void because said Stobert and Tynes as directors of the Hardie-Tynes Mfg. Company were disqualified from fixing their compensation.
"(17) Complainants aver that the Bank as Trustee was disqualified to authorize or approve the payment of said amounts, because it had an interest adverse to the trust in authorizing or approving said compensation in that one purpose in fixing said compensation was to place said Stobert and said Tynes in funds with which they might repay loans made by the Bank to them, and another purpose was to retain the good will of the said Stobert and the said Tynes and the commercial account of the Hardie-Tynes Mfg. Company.
"(18) Complainants aver that the facts showing that said compensation paid to said Tynes and said Stobert in each of the years following the year 1941 was grossly excessive was in the peculiar knowledge of said Stobert and said Tynes and said Bank at the time said payments were made, and instead of communicating said facts to complainants said Tynes, said Stobert and said Bank as Trustee represented to complainants that said sums were fair and reasonable.
"(19) Complainants aver that since 1934 the said Hardie-Tynes Mfg. Company has been operated by the said Stobert and said Tynes under the direction and with the approval of said Bank, and over the protest *342 of complainants, mainly in the interest of said Stobert and said Tynes and said Bank as shown by the following:
"From 1934 to 1946, inclusive, Hardie-Tynes Mfg. Company has paid $993,671.00 to said Stobert and said Tynes in salary and bonus, and during the same period of time it has paid its stockholders only $562,306 in dividends. Complainants aver that said Stobert and said Tynes were heavily indebted to said Bank during the years 1941 to 1946, inclusive, and that had they not been so indebted the compensation paid to them by Hardie-Tynes Mfg. Company during said time, with the approval of the Bank as Trustee, would have been materially less than the sums they received.
"(20) Complainants aver that prior to February 1942 the Bank as trustee did not disclose to them any facts with respect to the amount of compensation it approved for said Stobert and said Tynes. In February, 1942, complainants took up with said Bank, as trustee, the matter of the compensation payable to Stobert and Tynes for the year 1942 and on ascertaining the amount paid to them in 1941 and vigorously protested the sum paid to them for the year 1941. Their base pay for 1942 was fixed at $32,000.00 over complainant's protest as being excessive although it was $8,000.00 less than the previous year.
"(20-a) About the 20th day of March, 1941, Admiral Emory S. Land of the United States Maritime Commission called W. Fisher Tynes and insisted that it was the duty of Hardie-Tynes Mfg. Company to arrange to build some marine engines for the Maritime Commission. Hardie-Tynes Mfg. Company had built similar engines during World War I at a price under $100,000 each. Hardie-Tynes Mfg. Company had previously quoted Gibbs & Cox, Marine Architects of New York, who were purchasing a number of said engines for said Maritime Commission, a price of $128,000 each for six engines and $123,000 each for additional engines. Gibbs & Cox advised that they had bought about 60 of the engines at $95,000 to $97,000 each and that the maximum figure they would consider would be around $100,000. Hardie-Tynes Mfg. Company declined to manufacture the engines at that price. Whereupon Admiral Land insisted that Hardie-Tynes Mfg. Company should build said engines for the Maritime Commission. At that time Hardie-Tynes Mfg. Company was doing a large amount of profitable work for the Navy and said W. Fisher Tynes was of the opinion that if it refused to build said engines for the Maritime Commission the refusal would be held against it. At said time the Bank was financing work under way by Hardie-Tynes Mfg. Company and was making it large loans from time to time. There was in Birmingham, Alabama, at said time a concern known as Birmingham-Goslin Mfg. Company, of which Mr. George M. Morrow, Jr., was President. This concern was a competitor of the Hardie-Tynes Company. Said concern was heavily indebted to the Bank at said time and in truth and in fact was being largely operated by the Bank in an effort to enable it to earn sufficient money to pay its indebtedness to the Bank. The Bank, W. Fisher Tynes and R. C. Stobert and George M. Morrow, Jr., worked out a plan whereby R. C. Stobert, W. Fisher Tynes and George M. Morrow, Jr., three incorporators, would incorporate a company to be known as Alabama Marine Engine Company with an authorized capital stock of $6,000.00 Said company was incorporated on the 25th day of March, 1941, by said parties with an authorized capital of $6,000.00 paid in at the time and 60 shares of common stock of the par value of $100.00 each were authorized, and R. C. Stobert, W. Fisher Tynes and George M. Morrow, Jr., were each issued 20 shares of said stock. Said Stobert, Tynes and Morrow were the three incorporators, the officers and directors of said corporation. At a meeting of the directors of said corporation on January 26, 1942, the authorized capital stock was increased to 300 shares of common stock with par value of $100.00 per share. This additional stock was immediately subscribed for and issued to the original incorporators, 80 shares each. Said Morrow did not have the funds available with which to pay for the stock issued to him and it was necessary that he borrow same from Birmingham-Goslin Mfg. Company, *343 which in turn would have to borrow the money from the Bank. The Bank made a loan to Birmingham-Goslin Mfg. Company necessary to pay for the stock subscribed for by said Morrow and the Bank either had Birmingham-Goslin Mfg. Company to take over said Morrow's stock in the Alabama Marine Engine Company or said stock was taken over by the Bank.
"(21) Although Hardie-Tynes Mfg. Company endeavored to obtain orders for said engines from Gibbs & Cox, Marine Architects of New York, and quoted them a price of $128,000 each for six engines and $123,000 each for additional engines, Hardie-Tynes Mfg. Company, speaking through W. Fisher Tynes, informed Admiral Land of the United States Maritime Commission, that Hardie-Tynes Mfg. Company would be unable to accept a contract that would make them responsible for the production of the complete engine in their own plant. Said Tynes then suggested to Admiral Land the formation of a corporation to be organized with R. C. Stobert, George M. Morrow, Jr., and W. Fisher Tynes as stockholders and officers, with a small paid in capital, which would accept a contract for the complete engine and sublet contracts for certain of the larger parts of the engines, and the erection thereof, to Hardie-Tynes Mfg. Company and Birmingham-Goslin Mfg. Company, the remaining work, consisting mostly of small machine work for which Hardie-Tynes and Birmingham-Goslin did not have available capacity, to be let to smaller shops over the Country. In this interview and correspondence with Admiral Land, Hardie-Tynes Mfg. Company, acting through its President W. Fisher Tynes, stated:
"`It is obvious that the operation of the new corporation would require considerable over-time work of its officials and that permission and agreement to the plan would have to be obtained from the respective directors of the two companies involved. While the plan has not as yet been discussed with them, it is believed that approval could be obtained on the grounds that they would benefit by reason of the work subcontracted to them.'
"Complainants aver that as a matter of fact said Tynes and the Bank and said R. C. Stobert and said George W. Morrow, Jr., had discussed the plan fully and in detail at the time it was submitted to Admiral Land on March 20, 1941.
"(22) Following the incorporation of the Alabama Marine Engine Company on March 25, 1941, said Tynes and said Stobert, with the approval of said Bank, caused Hardie-Tynes Mfg. Company to purchase, on its credit, material and supplies to the extent of $119,566.50 to be used in assembling the marine engines and the Alabama Marine Engine Company had contracted to build for the Maritime Commission, at a contract price of, towit: $108,000 each. On February 5, 1942, the Alabama Marine Engine Company borrowed $300,000 from the First National Bank of Birmingham for the term of one year, and executed and delivered a note in that amount to the Bank due February 5, 1943. On the same day the Alabama Marine Engine Company executed and delivered to Hardie-Tynes Mfg. Company a note due February 5, 1943, in the amount of $119,566.50 covering the price of materials purchased by Hardie-Tynes Mfg. Company to be used in assembling of said marine engines. By arrangement with the Bank the Hardie-Tynes Mfg. Company acting through said Stobert and said Tynes subordinated the payment of the note given by the Alabama Marine Engine Company to Hardie-Tynes Mfg. Company in the amount of $119,566.50 to the note given by the Alabama Marine Engine Company to the Bank in the sum of $300,000.
"(23) About the 4th of April, 1942, F. Hopkinson Smith & Company, Certified Public Accountants in Birmingham, Alabama, made a report on an examination of accounts of the Alabama Marine Engine Company for the fiscal year ended March 31, 1942, in which attention was called to the facts averred in the preceding paragraph, and upon learning about those matters these complainants employed and paid counsel a fee of, towit: $5,000.00 to save Hardie-Tynes Mfg. Company from any loss in connection with its transaction with *344 the Alabama Marine Engine Company, and to recover for the Hardie-Tynes Mfg. Company approximately $85,000, of the sum paid to Tynes and Stobert in 1941, and to have the compensation of said Stobert and said Tynes for the year 1942 fixed at a reasonable figure. After several months of discussion and negotiations and the announcement of an intention on the part of the complainants to place the matter in Court if it was not otherwise adjusted, a settlement was reached in the case which was embodied in the minutes of a special meeting of the Board of Directors of the Hardie-Tynes Mfg. Company held on September 10, 1942, and approved by said Company, the beneficiaries under the Trust of William D. Tynes, deceased, dated December 31, 1931, the stockholders of Hardie-Tynes Mfg. Company and the Bank, a true copy of which is attached to the original bill and marked Exhibit `B' and here adopted and made a part hereof as if fully set out herein. In said settlement, among other things, it was provided:
"1. Stobert and Tynes, jointly and severally, guaranteed the performance by the Engine Company of its contract with Hardie-Tynes.
"2. They guaranteed that Hardie-Tynes Mfg. Company would not sustain any loss by reason of any contract which had been or may be entered into by Hardie-Tynes Mfg. Company and the Engine Company while they had any interest in the latter.
"3. Stobert and Tynes agreed that no dividends should be paid by the Engine Company and that all funds of the Engine Company not disbursed in the payment of its proper costs of operation, of performing its contract and liability to persons other than Stobert and Tynes should be impounded until the full amount due or to become due by the Engine Company to Hardie-Tynes Mfg. Company has been paid.
"4. Said Stobert and Tynes were to refund to the Hardie-Tynes Mfg. Company $42,518.50 each as overpayment on their salaries and compensation for the year 1941, said sums payable as follows: $9,518.50 each to be paid in cash within ten days from date of the settlement and notes for $16,500.00 each payable on or before December 31, 1942, and notes for $16,500.00 payable on or before December 31, 1943, secured by depositing with the Trustees 50 shares each, separately and not jointly, duly endorsed, stock in Hardie-Tynes Mfg. Company as collateral.
"5. The salaries and compensation to be paid or credited to Stobert and Tynes for 1942 $16,000 each without incentive (percentage of earnings) or other compensation for that year and without prejudice or commitment as to such base or as to incentive compensation as to the subsequent years. This had the effect of making the total compensation payable for the year 1941 to Stobert and Tynes, towit: $41,000 each and the total compensation for the year 1942 $16,000 eachthey to retain whatever profit and compensation was payable to them from the Alabama Marine Engine Company.
"6. The Bank terminated the subordination agreement executed by Hardie-Tynes Mfg. Company by which it agreed to subordinate the obligation due it by the Engine Company in favor of loans made or to be made by the Bank, and acknowledged that there was no obligation on the part of Hardie-Tynes Mfg. Company for any obligation of the Engine Company.
"Some time after said settlement was consummated the Bank, without advising with the complainants, extended the time for the payment of notes of W. Fisher Tynes and R. C. Stobert given as evidence of the amount they were to restore to the Treasury of Hardie-Tynes Mfg. Company.
"(24) Complainants aver that the services of their counsel were reasonably worth $5,000.00 and that it resulted in a recovery by the Hardie-Tynes Mfg. Company of, towit: $85,000 from said Stobert and said Tynes which inured to the benefit of all the stockholders of said Company, beside the other advantages obtained in said settlement set forth in Exhibit `E' hereto attached and that a suit would have been instituted for the recovery of same had not the controversy been settled as aforesaid. That they had made demand on Hardie-Tynes Mfg. Company for the payment of the fee paid their counsel and for reimbursement of said payment, and that the *345 same has been refused; and they are informed and believe and on such information and belief charge and state that said Stobert and said Tynes and said Hazel Stobert who is the wife of the said R. C. Stobert, refuse to consent to the payment of the same because complainants insisted that said Tynes and said Stobert restore to the Treasury of the corporation the amounts they agreed to restore on the date the same were payable.
"(25) In 1934 and in each year thereafter, up to and including the year 1947, the said Bank as Trustee voted the trust stock for the election of directors of said corporation and in each of said years it has voted the said stock for the said W. Fisher Tynes and R. C. Stobert as directors, well knowing that in 1942 and each year thereafter that the said Tynes and the said Stobert, as such directors, had, without authority of law, voted themselves large and excessive salaries and bonuses. Complainants aver that said Bank, as Trustee, disregarded its fiduciary duty when it enabled the said Stobert and the said Tynes to dominate and control said corporation and to annually vote themselves excessive salaries or excessive bonuses, during each of the years subsequent to 1937. The nature, the amount and extent of said salaries and said bonuses are shown in detail in the statement incorporated in paragraph (5) of the bill as amended.
"(26) On, towit: the 20th of December, 1937, the Bank, as trustee, caused to be written and presented to complainants, or if it did not cause to be written and presented to complainants it had knowledge that someone else had written and proposed to present to complainants, beneficiaries of said trust, a document of which the following is a copy:
"`The First National Bank of Birmingham Birmingham, Alabama.
Gentlemen:
"For future reference and in order that consideration in regard to officer's compensation and common stock dividends of Hardie-Tynes Mfg. Company may be put on a more definite basis than has existed since the death of W. D. Tynes, we, the undersigned adult beneficiaries under the Indenture of Trust executed by W. D. Tynes dated December 31, 1931, do hereby approve and subscribe to the following general statement of policy:
"`1. The yearly salaries of W. F. Tynes and R. C. Stobert, for their services in the management of Hardie-Tynes Mfg. Company, shall, as heretofore, be fixed by the Board of Directors, with the approval and consent of the Trustees.
"`In fixing said salaries full consideration shall be given by the Trustee to (a) the responsibility that is involved, (b) a comparison with salaries of officials of equal worth and ability employed by other concerns. (c) the present and prospective earning power of the company at that period.
"`2. In addition to a fixed salary, it is provided in Section 1, paragraph "E" of the above mentioned Indenture of Trust, that W. F. Tynes and R. C. Stobert shall receive, as additional compensation, after deduction for taxes and depreciation five (5) per cent of the net profits of the Company for any one year. It is further provided in this section that in the sound discretion of the Trustee that the above compensations may be increased.
"`An examination of the company records indicates that during the life of W. D. Tynes, there existed a well established custom, during prosperous years, of declaring substantial increases in salaries or bonuses to the responsible officials of the Company, in proportion to the earnings of the Company for those years. It is hereby agreed by the undersigned that this custom, as a matter of policy, is fair and equitable, and that such a policy shall again be placed in effect.
"`It is believed that in the interest of all concerned, such increases in compensation to the above named officials, should be fixed with adequate regard for the dividends paid on the outstanding common stock, and to this end the following procedure is herewith approved.
"`(a) Determine net profits, after deductions for taxes and depreciation in the *346 usual manner, for each year beginning with the year 1937.
"`(B) Deduct and pay to W. F. Tynes and R. C. Stobert each, five (5%) percent of the said net profits as provided in Section 1, paragraph "E" of the Indenture of Trust.
"`(c) From the profit remaining, deduct and make available for distribution a minimum dividend on the outstanding common stock of $11,600 (this equals $10.00 per share on the 1160 shares outstanding).
"`(d) From the amount remaining from above deduct and pay to W. F. Tynes and R. C. Stobert an additional bonus of five (5%) percent each, as additional compensation.
"`(e) From the amount remaining from above the Directors of the company and the Trustee shall in their sound discretion determine or deduct the amount that is to be retained by the company for use as operating capital, capital investment and similar purposes.
"`(f) The amount remaining from above shall be available for distribution as extra dividends to be paid on the common stock outstanding, and is in addition to the minimum dividend set forth in (c) above.
"`3. Due to the effect of existing or new Revenue Laws that may be passed in the future, and in order that to some extent the heavy taxes on retained profits may be avoided, the Directors and Trustee may in their discretion declare a dividend on the outstanding common stock as in (c) and (f) above, but distribution of the Trustee's share of said dividends may be paid all or in part to the beneficiaries under the trust with the understanding and agreement that all or a portion of such payments, less a proper deduction for individual income taxes, shall be returned or recontributed to the company, in such manner as may be determine by the Directors and Trustee.
"`4. It is understood by the undersigned that final authority and discretion in the matters referred to above are vested and must remain in the Directors and Trustee and that this instrument is executed merely to approve so far as the interests of the undersigned are concerned what they deem to be reasonable and proper action of the Directors and Trustee in the respects stated. It is further understood that due to changes in business conditions, enactment of new laws or other reasons, it may be deemed wise by the Directors and Trustee to make modification in the foregoing policy of compensation and dividends herein approved. It is therefore agreed that while the undersigned approved the foregoing policy as an appropriate exercise of the authority and discretion vested in the Directors and Trustee, for the year 1937 and for all years subsequent thereto, it is agreed that the Directors and Trustees may make such modifications of said policy as may be necessary to conform to future conditions, including a modification of the percentage of additional bonus payable to W. F. Tynes and R. C. Stobert under the provisions of subsection (d) of Section 2 hereof. It is understood, however, that such percentage of additional bonus shall not exceed (5%) five percent each for the years 1937 and 1938, and that while the Trustee may thereafter agree to an increase of such percentage without further consultation with the undersigned, the receipt by the Trustee of this instrument shall not be construed in any way to commit the Trustee to any such increase.
"The said document was entrusted to one or more of said directors for presentation to certain of such beneficiaries. At the time of such presentation the true state of the financial affairs of said Hardie Tynes Mfg. Company were unknown to complainants who were not then familiar with the actual net income of Hardie-Tynes Mfg. Company and were inexperienced in business and did not know or understand *347 what was or what would be a reasonable sum to be paid to the said Tynes and the said Stobert for their services; but complainants relied upon the said Trustee for guidance in this respect and relied upon the trustee performing its duty to disclose the true facts in connection with the financial affairs of said Hardie-Tynes Mfg. Company and to advise complainants as to whether or not to sign said document. The said trustee failed to do so. The complainants allege that at the very time of the presentation of such document all of said facts were well known (a) to said bank both in its Commercial Department and in its Trust Department, (b) to said Tynes, (c) to said Stobert, (d) to Forney Johnston, the attorney who drafted the trust instrument and who was at the time of the presentation of said document the attorney for said bank both in its Commercial Department and in its Trust Department, the attorney for Hardie-Tynes Mfg. Company, the attorney for and who prepared the incorporation papers of said Engine Company, the attorney for said Stobert the attorney for said Tynes and the attorney for Birmingham-Goslin Mfg. Company. Notwithstanding their knowledge of said facts and their familiarity with the true conditions, neither of the aforesaid individuals nor the trustee disclosed to these complainants at or before the presentation of said document the facts above referred to although such facts were then well known to each of them. Notwithstanding the fiduciary relations in the premises and notwithstanding the duty to make full and fair disclosures to complainants, neither of them observed such fiduciary relations and neither made full and fair disclosures to complainants and the complainants remained at the time some of them signed said document in ignorance of the financial condition and in ignorance of the net income of Hardie-Tynes Mfg. Company and also in ignorance of what would be or what was a reasonable sum to be paid to said Tynes and to said Stobert. The complainants who signed said document did so in ignorance of the true facts, being misled in the premises by the silence of those whose duty it was to make such disclosures. Some of the complainants thereafter repudiated their said signature and declined to be bound thereby as a result of such conduct on the part of the respondents or some of the respondents as herein averred.
"(27) Complainants aver that the statement in writing referred to in the preceding paragraph that `In addition to a fixed salary, it is provided in Section 1 paragraph "e" of the above mentioned Indenture of Trust, that W. F. Tynes and R. C. Stobert shall receive, as additional compensation, after deduction for taxes and depreciation, five (5) per cent of the net profits of the company for any one year. It is further provided in this section that in the sound discretion of the Trustee that the above compensation may be increased'. was a misrepresentation of fact and untrue.
"The trust indenture reads: `Except as herein provided, such management and control shall be complete and free from direction by the surviving Trustee (the Bank) as to contracts and all other operating policies and details, as to which the Trustee shall have no responsibility so long as, without consent or acquiescence of the trustee in writing:
"`(e) The salary of either W. Fisher Tynes or R. C. Stobert is not increased to an amount per annum more than $7500.00 plus a total of 5% of the net earnings of said company, after provision for all taxes and depreciation deemed adequate by the Trustee. In considering the matter of consent to any larger compensation Trustee may, if deemed appropriate, advise with the available adult beneficiaries.'
"`Determination of what part of the net earnings of said company shall be distributed among the owners of the common or "equity" stock or ownership therein, shall remain in the Trustee, so long as it shall have the controlling ownership of said company.'
"(28) Complainants are advised by counsel, informed and believe and on such advice, information and belief aver that the arrangement the Bank as Trustee undertook to commit these complainants to by *348 obtaining their signature to the writing set out in paragraph 26 of the bill as amended, providing for the payment of bonuses and `incentive pay' is in violation of the trustee's duty to the beneficiaries of the trust, in that it was the duty of said Tynes and the said Stobert to faithfully perform their duties as officers and directors of the Hardie-Tynes Mfg. Company for reasonable compensation, and the payment of any sum to them as a bonus or as incentive compensation was without consideration and the amount so paid in equity belongs to the said Hardie-Tynes Mfg. Company, because of the fact that a trustee or those occupying a trust relation towards the corporation or its stockholders cannot be paid additional and unreasonable amounts as an incentive to get them to perform their duty.
"(29) In December, 1941, the complainants, or some of them, undertook to acquire information with respect to the financial affairs of Hardie-Tynes Mfg. Company. Request was made of said Tynes and he wrote a letter to Mildred Edmonson DeBardeleben in words and figures as follows:
"Dear Mildred:
"Enclosed is a letter from the Trust Department to you which is a duplicate of a letter presented to each of the adult beneficiaries at a meeting held last Thursday night.
"You will note that the letter recites the fact that we gave figures and told about the financial position and earnings of the Company etc. This was done at the meeting `by word of mouth' and every one seemed well pleased and agreed that the increase in sakary was justified by the earnings record. They signified their approval by signing the letter, that is the copy thereofon the line provided and giving it back to me to return to the Trust Department.
"It is strictly against a rule in the bylaws of the Company to publish a financial statement of the Company except to the bank, when making a loan and for that reason I would not be allowed to furnish this statement here. I will say, however, that the value of the Company has been increased approximately three times what it was in 1933. We feel very proud of this record. The next time you are here I will be glad to tell you more details.
"Incidentally today, we had a directors meeting and declared a dividend, which will result in a distribution to you by the Trust of $2,600.00. You will see that this is $1,000.00 more than you received the last two years. You should be receiving a check for this amount from the Trust Department within the next few days. Hope you can use it?????????
"If you approve of the action of the Trustee as outlined in the letter, please sign the tissue copy on the line provided and return to them in the enclosed addressed envelope.
"Best wishes for a Merry X'mas to all of you.
"Enclosed in the letter was a letter from the First National Bank addressed to Mrs. Mildred E. DeBardeleben, a copy of which was furnished to each of the complainants. Said letter reads as follows:
"`Dear Mrs. DeBardeleben:
"`We understand that Messrs. Stobert and Tynes have acquainted all available adult beneficiaries with the present and indicated status of Hardie-Tynes Mfg. Company corporate earnings, increase in surplus, and business on the books.
"`It has been the practice of the company for some time to authorize base salaries and upon occasion to make adjustments towards the end of the year when earnings are more definitely known. Messrs. Stobert and Tynes have reminded us of the results which have been accomplished and of the business which is now committed, in support of their request for an increase in salary base, and we have reached the conclusion that for the year 1941 the salaries paid Messrs. Stobert and Tynes should be increased to an annual basis of $20,000.00 each, which is in addition to the bonus heretofore approved and concurred in by the adult beneficiaries.
*349 "`While this increase in base salary might properly be limited to 1941 and for subsequent years left for year end adjustments, there seems to be no particular reason why it should not be continued at that rate on a monthly basis, with the understanding on part of the Board that these salaries would be subject to reduction at any time on request by the Trustee to the Board in the event that change in conditions might indicate that such reduction is desirable.
"`Meanwhile, as to the bonus, it should we think be understood that this is a matter for year-end consideration by the Trustee, to a reasonable extent dependent upon results, and that, because of the greatly changed bearing of income taxes, the Trustee should not be held committed to the bonus or to the particular percentage heretofore approved by the adult beneficiaries or to the method of computing it, that is, whether before or after income taxes. We are approving the bonus application for 1941 calculated before deduction of income taxes on the assumption that this is the method heretofore employed and concurred in by the letter of December 20, 1937, signed by the adult beneficiaries.
"`We are forwarding this to all adult beneficiaries with the suggestion that they advise us of any objection and if not, to let us have concurrence.
"The complainants aver that the contents of the letter was the nature and extent of the information furnished them at said time. No earnings record was given and no information about the salaries of Stobert and Tynes was furnished the complainants until February, 1942. Previous to February, 1942, no figures relating to the compensation paid Stobert and Tynes by the Hardie-Tynes Mfg. Company were ever furnished the complainants with one exception. That exception was on the Thursday night referred to in the letter of December 15, 1941, from said Tynes to Mrs. Mildred DeBardeleben. The information given by word of mouth referred to in said letter was on a piece of paper not seen by the beneficiaries at the meeting, but a copy was later, early in 1942, obtained from said Tynes by one of the complainants through the Bank as Trustee. Said memorandum did not contain any information about the earnings of the Company or the compensation paid Stobert and Tynes, in the past or to be paid them in the future, nor any approximation thereof.
"(30) Shortly before filing the bill in this cause the complainants, through their attorney, requested of the Bank that it disclose to complainants the dates and amounts of loans made to W. Fisher Tynes and R. C. Stobert during the years 1941 to 1946, inclusive, and in reply to that request the Bank, on May 22, 1947, wrote counsel for the complainants as follows:
"`Our loan records with respect to individual customers are confidential records which we cannot disclose to other customers or their attorneys. I therefore am unable to comply with your request of May 21st relative to loans, if any, made by the bank to W. F. Tynes or R. C. Stobert.
"And complainants aver that the relation between the Bank and said Stobert and said Tynes with respect to loans and other commercial transactions are peculiarly within the knowledge of the Bank and said Stobert and said Tynes."
The bill prays: "Premises Considered, complainants pray that The First National Bank of Birmingham, a corporation, Hardie-Tynes Mfg. Company, a corporation, Mrs. Mary Pollard Tynes, Mrs. Hazel Tynes Stobert, R. C. Stobert, Edith Whatley Tynes and The First National Bank of Birmingham as Executors of the estate of W. Fisher Tynes, deceased, each be made parties respondent to this bill by appropriate legal process; that they be required to plead, answer or demur thereto within the time prescribed by law, and that upon a final hearing the court will order, adjudge and decree, that
*350 "(1) R. C. Stobert has abused his trust and should be removed as a director of the Hardie-Tynes Mfg. Company.
"(2) The First National Bank of Birmingham, a corporation, has been guilty of grave breaches of trust as the surviving trustee of the William D. Tynes Trust, and mal-administration of the William D. Tynes Trust, and that it be removed as trustee of the said trust.
"(3) The sums paid W. Fisher Tynes and the sums paid R. C. Stobert as compensation by the Hardie-Tynes Mfg. Company for the year 1941 and each year following said year, separately and severally, were excessive, unreasonable and constituted a waste of the funds of the Hardie-Tynes Mfg. Company, and that each of them be required to restore to the treasury of said Company all sums received by them in excess of $24,000.00 per year during said time, and that a judgment or decree be rendered in favor of Hardie-Tynes Mfg. Company and against the estate of W. Fisher Tynes, R. C. Stobert and against The First National Bank of Birmingham, a corporation, for $500,000.00, with interest thereon, and that a lien be fixed on the respective holdings of W. Fisher Tynes and R. C. Stobert in said corporation to secure the payment of said amount, and that complainants be allowed a reasonable fee for their solicitor to be paid out of the sum so recovered by the said Hardie-Tynes Mfg. Company for recovering same for said corporation.
"(4) Hardie-Tynes Mfg. Company be required to pay to its stockholders a dividend in the sum of $500,000.00 out of the sum recovered for it.
"(5) Complainants are entitled to recover the sum of $500,000.00, with interest thereon, from Hardie-Tynes Mfg. Company and W. Fisher Tynes and R. C. Stobert and The First National Bank of Birmingham, and that a judgment be rendered against them for said sum in addition to the decree prayed for above, * * *."
The pertinent applicable provisions of the trust indenture are:
"1. One of the primary purposes Grantor has in mind in the creation of the within trust is to set apart for the benefit of his wife and children or grandchildren a reserve fund to consist in large part of preferred and secured obligations. To that end Grantor hereby authorizes the Trustees, at any time during his lifetime, or The First National Bank of Birmingham, or successor, as surviving trustee, at any time after his death, to cause Hardie-Tynes Manufacturing Company or any other corporation, business or property in which the trust may hold an interest, to issue preferred stock, bonds or other securities or obligations of any kind or class deemed by Trustee as having a fixed liquidating value, and issue or deliver same to Trustee for other stock, obligations or other securities of said Company or cash or other assets then held as an asset of said Trust.
"It is Grantor's intent that such issuance and exchange shall take place when deemed practicable by Trustee and that the amount of such preferred or secured stock or obligations shall be sufficient to create in the hands of Trustee, taking into consideration other securities of the same kind or class at the time held in the trust, also cash and liquid assets, a total fund of preferred or secured stocks, investments or obligations having a conservative value of Six Hundred Thousand dollars, as may be determined conclusively by Trustee, and subject to revision or reconsideration by Trustee at any time before distribution of any excess estate as provided herein. For convenience said fund is sometimes referred to herein as the reserve fund.
"Grantor suggests that in the issuance of such preferred or secured stock or obligations of said Hardie-Tynes Manufacturing Company, they should be safe-guarded with restrictions or rights reserved to holder similar to those reserved to Trustee with reference to the active management or control of said company after Grantor's death, as hereinafter provided, or such other reservations as Trustee may deem appropriate." [Italics supplied.]
Further applicable provisions of the trust indenture are:
"Recognizing that the stock of Hardie-Tynes Manufacturing Company consists of stock in a closely held corporation subject to the hazards of business and dependent *351 for success upon management which is trained and has special knowledge, Grantor directs that in the event of his death or incapacity or retirement from executive control or actual direction of its affairs, the immediate management and operating control of said Company shall by action or vote of Trustee and to the extent of its voting power to that end be vested in Grantor's son and son-in-law, W. Fisher Tynes and R. C. Stobert, or in the event of the death, incapacity, inability to work in harmony, inattention to the business, disqualification or retirement of either, to be determined by Trustee, in the survivor or other of them.
"Except as herein provided, such management and control shall be complete and free from direction by the surviving Trustee as to contracts and all other operating policies and details, as to which the Trustee shall have no responsibility so long as, without consent or acquiescence of Trustee in writing:
"(a) There shall be no failure to pay currently dividends or interest of preferred or secured stock or obligations of the Company:
"(b) No lien prior to the interest of the trust in said company is placed or allowed upon any property of said company;
"(c) The ratio of current assets to current liabilities of said Company is two to one or better;
"(d) No liability other than a current liability is assumed by the Company;
"(e) The salary of either W. Fisher Tynes or R. C. Stobert is not increased to an amount per annum more than $7,500.00, plus a total of 5% of the net earnings of said company, after provision for all taxes and depreciation deemed adequate by the Trustee. In considering the matter of consent to any larger compensation Trustee may, if deemed appropriate, advise with the available adult beneficiaries.
"(f) Average net earnings, for the latest fiscal years, after such taxes and depreciation, shall equal two or more times dividends or interest on preferred or secured stock or obligations of said Company; and,
"(g) Not more than fifty per cent (50%) of net earnings per year, after such depreciation and taxes, is invested in plant or equipment in any one year.
"Determination of what part of the net earnings of said company shall be distributed among the owners of the common or `Equity' stock or ownership therein, shall remain in the trustee, so long as it shall have the controlling ownership of said company, and in the event said W. Fisher Tynes and R. C. Stobert shall, without the Trustee's consent, given in writing, violate or permit the failure of any of the restrictions hereinabove placed upon the management and control of said company, the Trustee shall thereupon have the right to take over such management and control for such period of time, down to the termination of the within trust, as it seems to the best interest of the beneficiaries hereunder. In order to make effective the control reserved to the Trustee under the conditions above stated, the Trustee shall have the right to require resignations, and may take them in advance, subject to filing by the Trustee. So long as said W. Fisher Tynes and R. C. Stobert shall jointly manage and control said company, it is Grantor's desire that they shall work harmoniously together, giving due weight to the opinions of each other. In the event of any disagreement between them, however, the decision of said W. Fisher Tynes shall govern. * * *
"(9) To vote in person or by proxy upon all stocks held by them, to unite with other owners of similar property in carrying out any plan for the reorganization of any corporation or company whose securities form a portion of the trust estate, to exchange the securities of any corporation for other securities upon such terms as they shall deem proper, to assent to the consolidation or merger of any such corporation, or lease or sale of the property or any portion thereof by such corporation to any other corporation, to pay all assessments, expenses and sums of money as they may deem expedient for the protection of the interest of the trust estate as the holders of such stocks, bonds or other securities, and generally to exercise in respect to all *352 securities held by them the same rights and powers as are or may be exercised by persons owning similar property in their own right. * * *
"III. (a) The Trustees shall not be liable for any error in judgment in administering the trust, nor be liable for any acts of omission or commission, except wilful disregard of duty, and may act by agent or attorney and shall not be responsible for their acts of omission or negligence, but shall be held to the exercise of reasonable care in selecting, retaining and discharging them, and shall be entitled to credit for any and all expenditures deemed necessary by them respectively in protecting or caring for the trust property. * * *
"(d) In the event that at any time during the lifetime of the Grantor the Trustees shall be unable to agree upon any act or course of action affecting said trust estate the decision of William D. Tynes as one of the Trustees shall govern the administration of the within trust and determine the action to be taken hereunder. From and after the death of the Grantor, The First National Bank of Birmingham or its successor, subject to the provisions hereafter stated, shall thereafter act as sole Trustee, with all of the rights, powers, duties and discretion herein vested in the joint Trustees.
"IV. The within trust shall continue until the expiration of twenty-one years after the death of the last to die of the Grantor, his wife, Mary P. Tynes, his son, W. Fisher Tynes, and his daughters, Lilla T. Sevier, Hazel T. Stobert, and Margaret Tynes, and his grandchildren, John Heron Edmonson, Mildred Edmonson and William Tynes Edmonson, provided that if and when, not earlier than fifteen years after the death of Grantor, his wife shall not be living, none of his grandchildren living at the time of Grantor's death shall be living and under the age of twenty-five years, said trust shall terminate.
"Upon the expiration of said period or happening of said condition, whichever shall be earlier, the trust shall terminate, and the Trustee shall thereupon transfer and pay over said trust estate to such of the descendants of the Grantor as may then be living, in equal shares per stirpes. The adopted daughter, Edith, of the Grantor's son, W. Fisher Tynes, shall be regarded as his child and as a grandchild of the Grantor for the purpose of such final distribution, provided that the aggregate share of the corpus of the reserve fund to which she and her descendants may be entitled under this section and/or under section XIV shall not in any event exceed in value the amount of Thirty-five Thousand dollars ($35,000.00), any distributable excess over that amount which would have gone to descendants of the body of W. Fisher Tynes to be distributed to Grantor's other descendants per stirpes.
"The foregoing limitation shall not include or extend to any distribution of corpus not set up as or constituting a part of said reserve fund. In the event of distribution of any such corpus in excess of or not set up in the reserve fund the aggregate share of such excess distribution of corpus to said Edith and her descendants (not including any part of said reserve fund) shall not exceed the total amount so distributed divided by the number of my grandchildren (including said Edith) living at the time of my death, the intention of this limitation being that she and her descendants shall be entitled, subject to the conditions hereof, to the average amount which would be distributable out of such excess to my grandchildren living at the time of my death had they constituted the sole beneficiaries. * * *"
Said indenture is unique in its provisions, scope and purpose, partaking of the nature of the grantor's last will and testament. Respecting the law in the interpretation of wills, in Thurlow v. Berry, 249 Ala. 597 (604), 32 So. 2d 526, 532, this court said:
"It has been authoritatively stated that the intent and purpose of the settlor of the trust is the law of the trust. Lovelace v. Marion Institute, et al., 215 Ala. 271, 272, 110 So. 381. And, again, `"The fundamental and cardinal rule in the interpretation of wills is that the intention of the testator, if not inconsistent with some established rule of law or with public policy, must control, and it is the duty of the courts *353 to ascertain such intention and to give force and effect to the scheme that he had in mind for the disposition of his estate." 30 Am. & Eng. Ency.Law, (2d Ed.) p. 661.' Castleberry v. Stringer, 176 Ala. 250, 57 So. 849, 850.
"We reaffirm these principles as the settled law in this jurisdiction."
The "reserve" provided for in paragraph 1 of the indenture of trust, which we have italicized, set up for the benefit and use of the grantor's wife, children and grandchildren "per stirpes", is a thing apart from the discretionary powers conferred on the trustee and the other stockholders in respect to the conduct and operation of the business of the corporation.
The grantor recognized the fact that the continued existence and successful and skillful operation of Hardie-Tynes Manufacturing Company was necessary to the accomplishment of the purposes of the trust, that it is, so to speak, the "goose" that would lay "the golden egg." Hence he named in the indenture the personnel to take over if and when his dominating personality and skillful management and control should falter. Hence he made provision for their salaries and the incentive that would induce and attract such personnel to abandon other pursuits in other fields of business opportunities, investing them with broad powers and discretion in handling the intricate business and the promotion of its successful operation.
This is not a stockholder's bill. It is a bill by the beneficiaries of the Tynes Trust, consisting of the "reserve", seeking to enforce rights and recover money for and in behalf of the corporation (the Hardie-Tynes Manufacturing Company). The bill violates the rules of good pleading in that it does not "contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition," as required by Equity Rule 11, Title 7, Appendix, Code of 1940, p. 1050. It is redundant, in that it pleads facts in respect to a passed transaction between the parties,the settling of a claim for refund, in part, of allowances from 1934 to and including 1942, which the bill shows has been settled and fully adjusted. It sets out matters of evidence in hæc verba in respect to said controversy and pleads conclusions not supported by the allegations of the bill.
On demurrer the allegations of a bill are construed most strongly against the pleader, and facts not alleged are deemed not to exist. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150 (154), 77 So. 574; Berman v. Wreck-A-Pair Bldg. Co., 236 Ala. 301, 182 So. 54.
The gravamen or gist of the bill of complaint, as above stated, seeks to recover damages for alleged wrongs committed by the governing board of said corporation, who were selected by and acted with the approval or sanction of the stockholders in fixing the compensation and incentivespercentage bonuseson the alleged conclusion that such payments were excessive and a waste of the assets of the corporation. The property and assets of a corporation, including choses in action, are owned by the corporation and the corporation in equity is owned by its stockholders. First Nat'l Bank of Gadsden v. Winchester, 119 Ala. 168, 24 So. 351, 72 Am.St.Rep. 904. Said alleged wrongs are matters of which the corporation itself or the stockholders, or some of them, may proceed to redress. Decatur Mineral & Land Co. v. Palm, 113 Ala. 531, 21 So. 315, 59 Am.St.Rep. 140; Holcomb v. Forsyth, 216 Ala. 486, 113 So. 516; Rogers v. Hill, 289 U.S. 582, 53 S. Ct. 731, 77 L. Ed. 1385.
The bill, as pointed out by some of the specific grounds of demurrer, does not allege that the payments to Stobert and Tynes were in excess of the amount authorized by the indenture creating the Tynes Trust. There is an absence of allegation that either Tynes, Stobert or the bank were guilty of fraud or wilful neglect of duty or that the trust consisting of the "Reserve" of which the bank is the surviving trustee, suffered any loss in consequence of such payments. Ingalls Steel Products Co. v. Foster & Creighton Co., 226 Ala. 112, 145 So. 464; 37 C.J.S., Fraud, § 80, p. 374; Terrell v. Marion County, 250 Ala. 235, 34 So. 2d 160; Hays v. Alrichs, *354 115 Ala. 239, 22 So. 465. Furthermore there is an absence of allegation that there was a failure to pay dividends or interest on "preferred or secured stock obligations."
The power to contract and to supervise the internal affairs of a corporation is vested in its board of directors and in the absence of fraud, when there exists self-interest, the majority of the stockholders have power to ratify and approve the fixation of salaries and the allowances to members of the board. As we construe the averments of the bill the election of Stobert and Tynes and the fixation of allowances to them was so ratified.Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 So. 315, 59 Am.St.Rep. 140. Moreover for aught that appears in the allegations of the bill, such trust reserve has been built up to its full capacity as required by the trust indenture. Hence no injury has resulted to the complainants as beneficiaries growing out of the conduct of the business of the corporation by its directors or stockholders.
We are of opinion that the bill is without equity and there is nothing appearing on its face showing that it can be amended so as to give it equity. The decree of the circuit court is due to be affirmed. So ordered.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | November 23, 1951 |
7ed26299-66ed-47c4-bc97-b66d0649e35b | Garrett v. Kirksey | 181 So. 2d 80 | N/A | Alabama | Alabama Supreme Court | 181 So. 2d 80 (1965)
W. M. GARRETT et ux.
v.
J. I. KIRKSEY et al.
7 Div. 598.
Supreme Court of Alabama.
December 9, 1965.
Jas. S. Hubbard, Anniston, for appellants.
John W. Coleman, Talladega, for appellees.
*81 LAWSON, Justice.
This is an appeal from a final decree of the circuit court of Talladega County reforming the description in a deed.
For the purpose of a better understanding of the questions presented by this appeal, we are including in the opinion a rough sketch of the locus in quo. This sketch is not intended to be identical to the survey introduced in evidence; it is not drawn to scale; it is merely our understanding of the general location of the land involved.
The sketch is an attempt to portray the W ½ of the Northwest Quarter, Section 8, Township 17, Range 5, Talladega County, Alabama. We will sometimes refer to the two divisions of that half-quarter section as the north forty and the south forty, although there is no proof in this record that those subdivisions do, in fact, each include forty acres.
On May 26, 1958, W. M. Garrett and wife executed and delivered to J. I. Kirksey a warranty deed to the south forty for a consideration of $1,500.
In July of 1958 J. I. Kirksey and wife executed and delivered to Paul Kirksey and wife a warranty deed to a strip of land 440 feet wide on the west side of the south forty which extended from the northern boundary of that forty to its southern boundary. At about the same time J. I. Kirksey and wife executed and delivered to T. G. Yonge and wife a warranty deed to a strip of land lying immediately east of the strip conveyed to Paul Kirksey and wife and of the same dimensions.
It is shown beyond peradventure that J. I. Kirksey thought that the land he bought from Garrett and wife was all situated north and west of Choccolocco creek. It was on that assumption that the deeds were executed by J. I. Kirksey and wife to Paul Kirksey and wife and to T. G. Yonge and wife. The land was purchased by J. I. Kirksey to enable him, his brother Paul and T. G. Yonge to obtain camp sites.
Based on the belief that the deed from Garrett and wife to J. I. Kirksey covered all of the land north and west of Choccolocco Creek in both forties, the Kirkseys and Yonge proceeded to go into possession of that land. No survey had been made at that time and the Kirkseys and Yonge did not know that the land north and west of the creek consisted of more than 40 acres and they were not certain of the location of the line dividing the two forties. They built a road and divided the land in a manner which they thought complied with the deeds from J. I. Kirksey and wife to Paul Kirksey and wife and to Yonge and wife. Paul Kirksey was allotted a strip 440 feet wide on the west side, which extended from the north boundary of the W ½ of Northwest Quarter of Section 8 to the creek. Yonge was assigned a 440-foot strip in the center, which also extended from the same north boundary to the creek. J. I. Kirksey retained the land east of that allotted to Yonge *82 which lies south of the same north boundary to the creek.
Yonge built a cabin on the strip allotted to him. Garrett knew that the cabin was being built and of its location. He made no protest. Garrett asked for and secured permission of the Kirkseys and of Yonge for some of his stock to graze on the lands of which the Kirkseys and Yonge had gone into possession north and west of the creek in both forties.
The Kirkseys and Yonge later discovered that the land which they had divided, other than the part of the south forty which lies north and west of Choccolocco Creek, was not covered by the deed from the Garretts to J. I. Kirksey. They requested the Garretts to give them a deed to the property north and west of the creek. The Garretts refused to execute such a deed.
Thereafter this suit was instituted in the Circuit Court of Talladega County, in Equity, by the Kirkseys and their wives and by Yonge and his wife against Garrett and his wife to reform the description in the deed from the Garretts to J. I. Kirksey.
The bill alleged in part:
The bill prayed that the Court:
There was no contention made in the trial court, and none is made here, that there was a misjoinder of parties complainant. Hence we do not consider that question.
The Garretts filed an answer wherein they denied many of the material averments of the complaint. The Garretts also filed a cross bill wherein they prayed that:
The complainants-cross respondents answered the cross bill.
Following a hearing where the witnesses were examined in the presence of the court, the trial court filed with the Register an instrument which, in the transcript filed in this court, bears the heading "Decree." But it is not a decree, except, perhaps, insofar as it dismisses the cross-bill. In other respects its adjudicates or decrees nothing. In such respects it contains only findings of fact and suggestions as to further action on the part of complainants before a final decree would be rendered. *83 See Lyall v. Lyall, 250 Ala. 635, 35 So. 2d 550; Employers Ins. Co. of Alabama v. Brooks, 250 Ala. 36, 33 So. 2d 3; Gaines v. Milner, 266 Ala. 447, 97 So. 2d 584.
In that instrument the trial court found from the evidence (1) that, because of a mutual mistake of the parties, the property intended to be conveyed in the deed from the Garretts to J. I. Kirksey was erroneously described; (2) that the Garretts should have conveyed to J. I. Kirksey forty acres of land lying north and west of Choccolocco Creek situated in the two "forties" here involved; (3) that there is more than forty acres so situated; (4) "From all the evidence, including indications on the blackboard used in presenting the testimony, the parties seemed to intend that the northern boundary of the tract conveyed should generally run parallel with the creek which formed most of the south boundary. However, the court does not think the parties intended to have the north line surveyed to follow all the meanderings of the creek."
That instrument contains the following language: "The Court has ascertained, outside the record, that there is agreement that the portion of the said SW ¼ of the NW ¼ (the south forty) lying north and west of the creek does not exceed 10 acres in area." (Emphasis supplied)
Based on those findings the trial court in the so-called "Decree" presently under consideration included the following provisions:
* * * * * *
Thereafter the complainants filed with the Register a "Waiver of Claim" as suggested by the trial court.
After the "Waiver of Claim" was filed by the complainants the trial court rendered a so-called "Supplemental Decree" which is, in fact, the only final decree actually rendered by the court, except, perhaps, as to the cross-bill. In the so-called "Supplemental Decree" the trial court reformed and corrected the description in the deed from the Garretts to J. I. Kirksey so as to read as follows:
From the so-called "Supplemental Decree" the Garretts have appealed to this court.
In order to warrant equity to grant relief by reformation, the complainant has the burden of showing by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties. Crane v. Blackburn, 187 Ala. 298, 65 So. 812; Hertzler v. Stephens, 119 Ala. 333, 24 So. 521; Hill v. Harding, 233 Ala. 343, 172 So. 98.
The burden upon the complainants is not only to show that the writing sought to be reformed does not express the intention of the parties, but the complainants also have the burden of showing what, in fact, the parties had intended the writing should contain. Lipham v. Shamblee, 205 Ala. 498, 88 So. 569.
The appellants' insistence that the complainants failed to show by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties is without merit. We will not dignify appellants' argument on this point by a detailed treatment of the evidence. We will observe, however, that the respondent W. M. Garrett, although claiming that he agreed only to sell forty acres in the south forty, admitted that he had no title to nor had ever been in possession of any of the land in the south forty situated south and east of the creek. The evidence is overwhelmingly in favor of the trial court's finding to the effect that the deed sought to be reformed did not correctly describe the property. Moreover, as shown above, the trial court saw and heard the witnesses, hence his findings of fact are to be accorded all the presumptions indulged in favor of a verdict of a jury. Franklin v. Scott, 222 Ala. 641, 133 So. 684.
Appellants also insist that the complainants failed to sustain the burden upon them to show exactly what land J. I. Kirksey intended to buy and the Garretts intended to convey.
As we have shown by a quotation from the so-called "Decree," the trial court's finding of facts, the trial court found in effect that J. I. Kirksey intended to purchase and the Garretts intended to convey forty acres of land north and west of Choccolocco Creek with the creek being the southern boundary and a line to be run substantially parallel with the creek being the northern boundary. We cannot disturb this finding based as it was on testimony taken orally before the trial court. Particularly is this true in this case where the record is full of questions and answers which obviously refer to a point on a diagram or plat. The points referred to in those questions and answers are designated in the record by nothing except the words "here" and "there". Such testimony is meaningless without the pointing finger, or some additional information, to designate the particular spot on the diagram or plat intended by the witnesses. The diagram or plat which was drawn on the blackboard is not before us. The trial court could see the place on the drawing on the blackboard to which the witnesses pointed. We cannot. Consequently we cannot disturb the trial court's finding as to where the parties placed the northern line of the land to be conveyed by the Garretts. Christian v. Reed, 265 Ala. 533, 92 So. 2d 881; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13.
The trial court found, in effect, from the evidence that complainant, J. I. Kirksey, bought and the respondents sold a fortyacre tract north and west of Choccolocco Creek and agreed that the northern boundary of that tract should run in a northeasterly-southerwesterly direction as nearly parallel with the creek as possible.
*85 We can discover nothing' in the circumstances of the transaction which would render the reformation of the deed to comply with those findings inequitable; especially is this true in view of the fact that respondents have allowed complainants to possess and improve the land north and west of the creek. See Hataway v. Carnley, 198 Ala. 39, 73 So. 382.
But we cannot agree that the northern line of the tract should remain as fixed in the decree here under review. That line was based on an ascertainment made by the trial court outside of the record that the land north and west of the creek in the south forty "did not exceed 10 acres in area" and on the assumption that the so-called north forty did in fact contain 40 acres. There was no proof as to how many acres are within the boundaries fixed by the trial court.
Consequently we feel constrained to reverse the decree appealed from and remand the cause for the purpose of having a determination made as to the number of acres north and west of the creek in the south forty and after that determination is made to have a straight line established running from the northeast corner of the north forty to the west line of that forty as parallel with the creek as practicable so as to include 40 acres, more or less, within the line so established and the creek as it traverses the two so-called forties here involved.
We do not think the trial court is without authority to reform the deed so as to make it describe a tract of only forty acres simply because the complainants alleged in their bill that it was the intention of the parties that the deed from the Garretts to J. I. Kirksey should have conveyed "All of the West half of the Northwest quarter (W ½ of NW ¼) of Section 8, Township 17, Range 5 lying North and West of Choccolocco Creek" which area the trial court concluded contains more than forty acres. We have read with care the cases cited by appellants in support of their assertion that the trial court could only reform the deed to comply with those allegations and do not believe they apply to the situation here presented.
The decree of the trial court is reversed and the cause remanded for compliance with the directions set out above.
Reversed and remanded with directions.
LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., concur. | December 9, 1965 |
e24ded3f-fd61-4865-a881-26a39b91f23c | Clemons v. City of Birmingham | 171 So. 2d 456 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 456 (1965)
Joe Lewis CLEMONS
v.
CITY OF BIRMINGHAM.
6 Div. 162.
Supreme Court of Alabama.
January 7, 1965.
Rehearing Denied February 18, 1965.
*457 Arthur Shores and Orzell Billingsley, Jr., Birmingham, Jack Greenberg and Norman C. Amaker, New York City, for petitioner.
Wm. C. Walker, Birmingham, opposed.
LAWSON, Justice.
Petition for writ of certiorari by Joe Lewis Clemons to reverse the judgment of the Court of Appeals in the case of Clemons v. City of Birmingham, Ala.App. 171 So. 2d 455.
Clemons, a negro, was convicted in the Circuit Court of Jefferson County of violating § 1436 of the 1944 General City Code of Birmingham, as amended, which reads in pertinent part as follows:
"Sec. 1436. After Warning.
Clemons appealed to the Court of Appeals, which court on October 6, 1964, affirmed the judgment of the trial court without opinion. Application for rehearing, duly filed, was overruled by the Court of Appeals. Following that action, Clemons filed in this court the petition presently under consideration.
We have frequently said that where the Court of Appeals does not render an opinion a review by this court cannot be undertaken.Smith v. State, 241 Ala. 99, 1 So. 2d 313; Honeycutt v. State, 264 Ala. 70, 84 So. 2d 362, and cases cited; Crawford v. State, 276 Ala. 98, 159 So. 2d 457.
However, in State v. Parrish, 242 Ala. 7, 5 So. 2d 828, we held that where the question as to the correctness of a judgment of the Court of Appeals is primarily a federal question it "must be determined from the whole record before us on petition for certiorari," irrespective of the fact that the Court of Appeals did not write an opinion. See Espey v. State, 263 Ala. 207, 82 So. 2d 270; Lindsay v. State, 273 Ala. 325, 139 So. 2d 119. Of course, we do not search the record for federal questions, but treat only those matters raised in the petition for certiorari we consider to be federal questions.
In support of his first ground for reversal of the judgment of the Court of Appeals, petitioner Clemons says in his brief that "a conviction will not be sustained unless there is evidence of every essential element of the offense" and that *458 "there was no evidence that petitioner was forbidden to remain on the premises of Holiday Inn by Mr. Walter L. Anderson." Anderson was apparently the manager of Holiday Inn. He referred to himself as the innkeeper.
In dealing with the question thus presented, we are not concerned with the sufficiency of the evidence, but with the question as to whether Clemons' conviction rests upon any evidence at all, for it is a violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States to convict and punish a person without any evidence of his guilt.Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654; Garner v. Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L. Ed. 2d 207.
Clemons was one of a group of twenty-four or twenty-five persons who entered a Holiday Inn located at 1313 Third Avenue North, in the City of Birmingham, about 1:10 P.M. on the afternoon of May 7, 1963. Holiday Inn is private property licensed "under the City of Birmingham, the state and the county" to do business as a motel. It rents rooms to members of the public and has dining facilities which are open to the public.
It is not clear from the evidence as to whether the group was composed entirely of negroes, but the record indicates that Clemons was not the only negro in the group. Some members of the group sat in chairs, others sat on tables and others sat or sprawled out on the floor. There were not sufficient chairs in the small lobby for all of them to be seated, so some of them remained standing. Tendencies of the evidence indicate that they split up into two or three smaller groups. They were in the way of others who sought to pass to and from the restaurant, which was in another room. They interfered with the motel personnel in the performance of their duties.
Shortly after the twenty-four or twenty-five persons entered the lobby, Walter L. Anderson, the "innkeeper," was notified by some of his clerks that "there was a disturbance in the lobby." Anderson went into the lobby and told the "group of people," including Clemons, that he was the innkeeper and he "asked them to vacate the premises, that they were causing a disturbances [sic] and also in the way of my doing business."
Apparently no member of the group acceded to Anderson's request. They remained as they were around the lobby. Anderson repeated his request that the group leave. When his plea went unheeded Anderson told one of his employees "to call the City and report it." As the employee was making the call one Bowers, who was in the lobby, approached Anderson and identified himself as a police officer. Anderson told Bowers that he "wanted them to move out of the way to where I could do business." Bowers then reminded the members of the group that Anderson had asked them to leave. At Bowers' suggestion Anderson repeated his request. This request by Anderson went unheeded. Bowers then "asked them to leave and told them if they did not they would be placed under arrest." They did not move. Apparently Bowers called the police department of the City of Birmingham. In response to a call Office Grubbs went to the motel. He saw Clemons and others "sitting around in the lobby." The people he saw were not loud and boisterous. He heard no one ask them to leave. He placed the members of the group under arrest on instructions from Bowers. The entire group, including Clemons, "were placed under arrest and placed in jail."
In support of the first asserted ground for reversal it is argued in brief filed here on behalf of Clemons that the evidence which we have summarized above fails to show that Clemons was asked to leave the premises of Holiday Inn and it is, therefore, argued that Clemons' conviction was illegal because one of the essential elements of the offense for which he was *459 convicted was not proven. It is conceded that a warning not to stay on the premises was directed to the entire group of which Clemons was a member, but such a warning is said to be insufficient. It is contended that a warning should have been directed to Clemons individually. We do not agree. If Clemons was not entitled to be on the premises of the Holiday Inn then the warning to leave given him, as a member of the group, was sufficient in our opinion to meet the warning requirements of § 1436 of the 1944 General City Code of Birmingham, as amended.
The next ground for reversal asserted in Clemons' petition is that the ordinance under which he was charged (§ 1436 of the 1944 General City Code of Birmingham, as amended) is "inconsistent with due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution because the ordinance does not clearly specify what type of conduct is proscribed."
In our opinion § 1436, supra, clearly specifies that the type of conduct therein made a criminal offense is trespass after warning, the act of going upon the premises of another after having been forbidden to do so or warned not to do so, and the act of remaining on the premises of another after having been forbidden to do so or warned not to do so. Section 1436, supra, is not in our opinion subject to the construction that it makes unlawful the act of remaining on the premises of another without having been forbidden to do so or warned to leave.
As we have said above, the evidence shows that Clemons remained on the premises of Holiday Inn after he was asked to leave. If he had no right to remain on the premises he was guilty of an act proscribed by § 1436, supra.
We see no field of operation here for the rule stated in Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349, in the following language: "A generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Section 1436, supra, has not been said to have application to those who have a right to be on the premises ordered to be vacated. It applies to trespassers.
We hold that § 1436, supra, is not invalid for the reasons asserted by petitioner.
We come to the next ground for reversal relied upon by Clemons in his petition. It is that his arrest and prosecution "served racial discrimination, contrary to the equal protection and due process clause of the Fourteenth Amendment to the Constitution of the United States." In support of that assertion Clemons says in his brief as follows: "Despite the fact that petitioner was ostensibly convicted for trespass after warning, he was actually sentenced to jail and fines for having violated the segregation policy of the City of Birmingham."
In our opinion there is no evidence in the record to support that statement. At the time of Clemons' arrest and conviction § 369 of the 1944 General Code of the City of Birmingham provided:
But there is no evidence in this record to show that the Holiday Inn restaurant was so constructed or that Clemons or any member of his group was refused service in the restaurant. It cannot be determined *460 from the record before us why Clemons and his associates went to the Holiday Inn and conducted a so-called sit-in demonstration. What their grievance was, if any, is not disclosed. For aught appearing Holiday Inn practiced no form of racial discrimination and it affirmatively appears that negroes had been accepted as guests of Holiday Inn prior to the time of the demonstration. The evidence does not show that Clemons or any of the other demonstrators carried placards whereby they could publicize their grievance, if any. (By this statement we do not indicate that it is our view that a group of people has the right to completely occupy the lobby of a hotel or motel solely for the purpose of publicizing some alleged grievance.) They simply went into the small lobby and so placed themselves as to interfere with the business activities of Holiday Inn without seeking room or food and without making known to the management or the public the purpose of their visit. They did not enter the restaurant and demand service or seat themselves at a counter or table, thereby at least suggesting that they sought services of the restaurant offered to the public, as appears to have been the situation in Peterson v. City of Greenville, 373 U.S. 244, 83 S. Ct. 1119, 10 L. Ed. 2d 323, and in Gober v. City of Birmingham, 373 U.S. 374, 83 S. Ct. 1311, 10 L. Ed. 2d 419. In Lombard v. State of Louisiana, 373 U.S. 267, 83 S. Ct. 1122, 10 L. Ed. 2d 338, Lombard and his companions entered a store in New Orleans, Louisiana, sat at a lunch counter reserved for white people, and requested service, which was refused.
We do not believe that the recent decision of the Supreme Court of the United States in Hamm v. City of Rock Hill, South Carolina, and Lupper v. Arkansas, 85 S. Ct. 384, released on December 14, 1964, has application to the case at bar. In those two cases, which were consolidated for argument, the petitioners had been convicted of violating state laws which made it an offense to remain on the premises of a business establishment after having been requested to leave. Petitioners were convicted prior to the enactment of the Civil Rights Act of 1964, but the Court held:
As pointed out previously, the evidence in this case does not support a finding that Clemons or any of his associates entered the restaurant or sought to enter it. They did not seek to obtain a room in the motel. So even if it be assumed that Holiday Inn was engaged in interstate commerce, we do not believe that under the evidence presented it can be said that there has been a violation of the public accommodations provision of the Civil Rights Act of 1964.
We hold that the evidence does not support a finding that Clemons was sentenced to jail and fined for having violated the segregation policy of the City of Birmingham. Nor can it be said that the evidence justifies a finding that Anderson, the innkeeper, "was merely conforming to the segregation provisions of § 369 of the Code of the City of Birmingham when he ordered the removal of the Negro group in the lobby," as asserted in Clemons' brief. There is nothing in the record to show a compliance by Holiday Inn with the provisions of § 369, supra, an unconstitutional enactment, which was expressly repealed by the City of Birmingham subsequent to Clemons' conviction.
We repeat that one may search this record in vain for the reason why Clemons and his associates entered the lobby and so placed themselves as to occupy all of the available chairs and to interfere with *461 the normal business activities of Holiday Inn.
The fourth and last ground for reversal asserted by Clemons in his petition is to the effect that the trial court erred in refusing to quash the petit jury on the ground that under the evidence presented by him he made a prima facie case of systematic exclusion of negroes from jury service which was not rebutted by the State.
In support of his "Motion to Quash the Venire" and his "Motion to Declare Void Composition of Jury Sworn to Try Defendant," Clemons called one witness, Henry G. Matthews, the jury room bailiff of Jefferson County. Matthews stated that he had served in that position since 1962; that he observed ten negroes in the jury room on the morning of the trial; that he has not seen over two negroes serve on any single petit jury since he became jury room bailiff, but there are a large number that "appear in the venire."
In a colloquy between the Court and counsel it was agreed that on the list from which the Clemons jury was struck there were the names of six or seven negroes. There were twenty-seven names on the list.
It is, of course, well established that a criminal defendant is denied equal protection of law as guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race.Eubanks v. State of Louisiana, (decided May 26, 1958) 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991, and cases cited. However, in our opinion the evidence presented by Clemons in support of his motions was not sufficient to create a prima facie showing that negroes had been systematically excluded because of race from the trial venire or from the jury box from which the venire was drawn. Neither of the motions which attacked the petit jury is a sworn motion. However, we observe that the motion to quash contains averments to the effect that the 1960 census shows that the white male population of Jefferson County twenty-one years of age and over numbers 120,205, while the negro male population of the county in the same age group totals 51,961. If this statement is accepted as being correct, Clemons has not proven discrimination by showing that out of the twenty-seven persons whose names appeared on the list from which the jury was selected, there were only six or seven names of colored people. As far as we are advised lawyers still have the right to strike from a jury list the name of any person for any reason. Evidence which merely shows that no more than two negroes had been observed serving on a trial jury by a single witness is not sufficient to make a prima facie showing of exclusion from the jury boxes because of race.
We hold the motions here under discussion were overruled without error.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | January 7, 1965 |
b3432ba9-94d2-4af8-947f-0c5eba439475 | Stringfellow v. Rambo | 170 So. 2d 494 | N/A | Alabama | Alabama Supreme Court | 170 So. 2d 494 (1965)
Willie STRINGFELLOW et al. d/b/a Evans' Feed Mill
v.
Carl RAMBO.
1 Div. 214.
Supreme Court of Alabama.
January 7, 1965.
*495 Collins, Galloway & Murphy, Mobile, for appellants.
M. A. Marsal and Howell, Johnston & Langford, Mobile, for appellee.
COLEMAN, Justice.
Defendants appeal from a judgment for plaintiff in action for personal injury sustained by plaintiff when one of defendants drove a truck into the rear of an automobile plaintiff was driving. At time of collision, plaintiff's vehicle was in a line of cars stopped at a traffic light.
The jury returned a verdict for plaintiff for $17,000.00 and judgment was entered accordingly.
Defendants argue that the court erred in overruling the grounds of their motion for new trial which assert that the verdict is excessive.
There is no yardstick by which compensatory damages for pain and suffering can be measured, and the ascertainment of the amount due plaintiff for such damages must be left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So. 2d 375, 386.
The verdict of the jury should not be interfered with merely because, in the opinion of the court, the jury gave too little or too much, and the authority vested in courts to disturb a jury verdict on the ground of excessiveness should be exercised with great caution. Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689.
Where the trial court refuses to grant a new trial because he does not believe the verdict to be excessive, the favorable presumption attending the jury's verdict is thereby strengthened. Vest v. Gay, 275 Ala. 286, 288, 154 So. 2d 297.
Trial was had in November, 1963. Plaintiff testified that the injury occurred in June, 1961; he went to a Mobile doctor a few days thereafter; four or five days after he returned to his home in Tennessee, plaintiff consulted an orthopedic surgeon who examined plaintiff and took X-rays; plaintiff was "Suffering from muscle spasm or pains in my neck that was piercing down into my shoulder and aches and pain I still have today"; plaintiff was treated by the Tennessee physician for about two weeks, and then was hospitalized; he stayed in the hospital seven to nine days; he was put in head traction and slept in head harness; plaintiff was a salesman traveling in north Florida across into Louisiana; he went back to work; he felt very comfortable but still had something wrong with his neck; he was hospitalized again in November, 1961, for thirty-one days; during the interval between the two *496 hospitalizations he had a standing appointment with the doctor not more than once a month and was re-examined and re-Xrayed; he went back to the doctor more often when he had spasms or pain, and, in November, was sent back to the hospital; he had primarily the same treatment; they would give him sonic treatment and stretch his neck up, 21 pounds for a few minutes at a time and 6 pounds while in bed; at the end of the month he was improved but still had pain; after two weeks' rest he went back to work; he changed companies; a factory salesman covers 50,000 miles a year; his later job did not require as much driving but he still has to do a lot of continuous driving; he continued to go to the doctor until in June, 1962, the doctor told plaintiff that he had a permanent disability; plaintiff has been on the road since January, 1962; his neck would tighten up from trip to trip; if plaintiff could get off a long weekend and rest it would help some, but it continues to bother him; today and over the last weeks plaintiff has more pain than he did after six weeks of rest coming out of the hospital; he has a steady pain in his neck and spends a great part of the time driving with his left hand behind his neck after hours of driving; plaintiff uses heating pad and massage; plaintiff does not have full range of motion in his neck; plaintiff lost six weeks from work; plaintiff feels pain every day; plaintiff had never in his life experienced any trouble with his spine or neck prior to this accident.
Dr. Brashear, an orthopedic surgeon, testified as to his treatment of plaintiff; that the witness in May, 1962, was of opinion that plaintiff "has a real disability of about 15% to his body as a result of the pain, stiffness, soreness, and limitation of motion in his neck"; that the witness did not then expect plaintiff to improve ever; at the time of testifying, the witness had not seen plaintiff in over a year and did not know what changes in plaintiff's condition, if any, had occurred; that the injury to plaintiff's neck aggravated his pre-existing arthritis; that the damage is greater than it would have been to a normal neck.
On defendant's request, the court appointed Dr. Bender, another orthopedic surgeon, to examine plaintiff a few days prior to the date of trial. Dr. Bender testified, among other things, that he examined plaintiff and found "limitation of motion of the cervical spine in all directions and the extremes of motion caused pain"; in opinion of witness plaintiff has approximately ten percent permanent partial disability of the cervical spine; that X-rays showed "Loss of the normal lordotic curve." The physicians were extensively examined and cross-examined. By stipulation, plaintiff sustained medical expenses amounting to $1,400.00. Actual loss of wages amounted to $600.00.
Defendants cite several cases, some from neighboring states, to support the contention that verdict is excessive. Plaintiff cites similar cases to support the contrary view.
In passing on the question of excessiveness of damages, this court will look to the decreased purchasing power of money, the present inflationary trends, and the enormous increase in the cost of living and give approval to a larger verdict than under normal conditions. W. S. Fowler Rental Equipment Co. v. Skipper, supra; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830.
On review of the question here, we will not reverse unless the amount is so excessive or inadequate as to indicate prejudice, passion, partiality, corruption, or the like. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447.
On careful consideration of the evidence in light of well-known, established rules of review, we are unwilling to pronounce our judgment, based only on the printed page, to be so superior to that of the jury and the trial judge as to supersede their view and substitute our judgment for theirs.
*497 The grounds of the motion for new trial taking the point that the verdict was excessive were overruled without error.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | January 7, 1965 |
65e11508-b52f-4905-bec0-f721b1f03970 | Royals v. State | 56 So. 2d 368 | N/A | Alabama | Alabama Supreme Court | 56 So. 2d 368 (1951)
ROYALS
v.
STATE.
4 Div. 642.
Supreme Court of Alabama.
March 22, 1951.
Rehearing Granted April 25, 1951.
Affirmed November 15, 1951.
E. C. Boswell, of Geneva, for petitioner.
Si Garrett, Atty. Gen., opposed.
LIVINGSTON, Chief Justice.
In its opinion on rehearing the Court of Appeals states that: "The identity of the accused as the perpetrator of the offense is a part and parcel of the corpus delicti of every offense." This statement is not a correct statement of the law, as is shown by the authorities cited by the Court of Appeals. The statement is a correct statement relative to the proof of the offense charged but not as to the proof of the corpus delicti.
The above statement is mere dictum and, in our opinion, in no way affects the soundness of the conclusions reached by the Court of Appeals. The writ of certiorari is therefore denied.
Writ denied.
BROWN, SIMPSON and STAKELY, JJ., concur.
We granted the application for rehearing in the instant case and ordered writ of certiorari to issue to the Court of Appeals, 56 So. 2d 363, to determine whether or not the Court of Appeals held in its opinion that the defendant was properly convicted on evidence from which the jury could only reasonably infer that the defendant was guilty as charged.
"The proof of the charge, in criminal causes, involves the proof of two distinct propositions: first, that the act itself was done; and, secondly, that it was done by the person charged, and by none otherin other words, proof of the corpus delicti, and of the identity of the prisoner. The ascertainment that an offense has been committed, is as essential to conviction, as that the defendant is the guilty agent.
"Both of these essential propositions are for the determination of the jury, and both must be proved beyond a reasonable doubt."
Winslow v. State, 76 Ala. 42; DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183.
We have made a careful study of the opinion of the Court of Appeals and are to the conclusion that the Court of Appeals did not intend to hold, and did not hold, that the defendant could be convicted on evidence from which the jury could only reasonably infer his guilt. We think that court held, in effect, that both the corpus delicti and the defendant's guilty participation must be proved by evidence which convinced the jury that the defendant was guilty beyond a reasonable doubt. So considered, the opinion of the Court of Appeals is affirmed.
Affirmed.
FOSTER, SIMPSON and GOODWYN, JJ., concur. | November 15, 1951 |
e5f17c76-b9c5-4c02-9015-a1a8c91aab05 | Brown v. State | 170 So. 2d 504 | N/A | Alabama | Alabama Supreme Court | 170 So. 2d 504 (1964)
Wallace Allen BROWN
v.
STATE of Alabama.
2 Div. 465.
Supreme Court of Alabama.
January 7, 1965.
*505 Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for petitioner.
Wallace Allen Brown, pro se.
LAWSON, Justice.
This is a petition for writ of certiorari filed by the State of Alabama through its Attorney General to reverse the judgment of the Court of Appeals in the case of Brown v. State of Alabama.
Brown was indicted in the Fall of 1960 by a grand jury of Sumter County of the offense of burglary. On or about October 12, 1960, Brown entered a plea of guilty to the offense of burglary in the second degree. Judgment of guilt was duly entered and Brown was sentenced to a term of five years imprisonment in the penitentiary.
On July 25, 1963, Brown filed in the Circuit Court of Sumter County a petition for writ of error coram nobis wherein he attacked his conviction and sentence on the ground, among others, that he "was forced to plead guilty because he did not have the assistance of counsel for his defense."
After a hearing at which Brown was represented by counsel, the trial court rendered a judgment denying the relief sought by Brown in his petition for writ of error coram nobis. From that judgment Brown appealed to the Court of Appeals, which court on October 6, 1964, reversed the judgment of the Circuit Court of Sumter County. The Court of Appeals rendered its judgment of reversal without an opinion by placing on the record the following entry: "October 6, 1964. Reversed and Remanded on the Authority of Pickelsimer v. Wainwright, 375 U.S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41. Per Curiam. No op." Application for rehearing filed in the Court of Appeals by the State having been overruled, the State has filed in this court a petition for writ of certiorari.
The threshold question is whether this court can review the judgment of the Court of Appeals because that court failed to render an opinion in support of its action. We have said in many cases that where the Court of Appeals does not render an opinion, a review by this court cannot be undertaken. Smith v. State, 241 Ala. 99, 1 So. 2d 313; Honeycutt v. State, 264 Ala. 70, 84 So. 2d 362, and cases cited; Crawford v. State, 276 Ala. 98, 159 So. 2d 457.
But in State v. Parrish, 242 Ala. 7, 5 So. 2d 828, we said that where the question as to the correctness of the judgment of the Court of Appeals is primarily a federal question, it "must be determined from the whole record before us on petition for certiorari," irrespective of the fact that the Court of Appeals did not write an opinion. See Espey v. State, 263 Ala. 207, 82 So. 2d 270; Lindsay v. State, 273 Ala. 325, 139 So. 2d 119.
It appears from the judgment of the Court of Appeals here sought to be reviewed that a federal question is presented, for that judgment shows that the reversal of the Court of Appeals of the judgment of the Sumter Circuit Court was predicated solely *506 on the authority of a decision of the Supreme Court of the United States, Pickelsimer v. Wainwright, 375 U.S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41.
The Pickelsimer case is one of ten cases which the Supreme Court of the United States reversed and remanded to the Supreme Court of Florida for further consideration in light of the holding of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733. The Per Curiam decision of the Supreme Court of the United States in Pickelsimer and related cases does not show the nature of the question presented. But the dissenting opinion of Mr. Justice Harlan shows that the question was whether the denial of an indigent defendant's right to court-appointed counsel in a state criminal trial, as established in Gideon v. Wainwright, supra, invalidates his pre-Gideon conviction. The action of the Supreme Court in reversing and remanding the Pickelsimer case and related cases shows that the question was answered in the affirmative. The Court of Appeals of Alabama in Barnes v. State, 169 So. 2d 313, expressed the same view. We denied certiorari Ala., 169 So. 2d 313.
Since the Court of Appeals based its action in the case at bar on the Pickelsimer case, supra, it evidently found from the record that Brown was indigent at the time he was convicted of the offense of burglary in the second degree in the Circuit Court of Sumter County and that he was denied the right to State-appointed counsel.
We have gone to the record in accordance with our holding in State v. Parrish, supra, and we are constrained to hold that Brown was an indigent at the time he was convicted in the Circuit Court of Sumter County and that he was denied the right of court-appointed counsel.
It is without dispute in the record before us that Brown was not represented by counsel and that he was not able to employ counsel.
The State's contention here is that Brown was offered the services of court-appointed counsel and that he refused such services, thereby waiving his right to be represented by court-appointed counsel.
Brown testified at the coram nobis trial that he "wanted to talk to counsel but I didn't have any." He denied that the trial judge told him that if he wanted to go to' trial he would appoint a lawyer for him. He said that the trial judge did not appoint a lawyer to represent him and did not offer to make such an appointment, although he asked for a lawyer.
One Leonard Harris, who was a codefendant of Brown, testified that Brown did not have a lawyer, although he requested one.
The Circuit Clerk of Sumter County testified in the coram nobis trial that he was present at the time Brown was convicted of burglary in the second degree and that he did not hear Brown request an attorney; that he has never "heard" the trial judge "carry anybody to trial without a lawyer." He did not testify that Brown was asked whether he wanted a lawyer and answered in the negative.
A State criminal investigator was also a witness at the coram nobis trial. Both he and the circuit clerk were called by the State. He testified that he was present at the time Brown was sentenced; that he did not hear Brown demand a lawyer or say he wanted a lawyer; that he did not remember hearing the trial court advise Brown that if he wanted to go to trial the court would appoint a lawyer to represent him but that such was the trial judge's custom; that "every time a case has gone to trial in his court, the defendant has always had an attorney," in non-capital as well as capital cases.
The foregoing summary of the evidence does not in our opinion justify a finding that Brown "competently and intelligently waived" his right to court-appointed counsel (Gideon v. Wainwright, supra). The *507 testimony of the State's witnesses perhaps supports an inference to the effect that because it was the custom of the trial judge to appoint counsel in all indigent cases where counsel is desired, that such an offer was made to Brown. We do not think that inference is sufficient to overcome the testimony of Brown and Harris to the effect that no such offer was tendered, although a request for counsel was made.
The writ of certiorari is denied.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | January 7, 1965 |
625cd93d-acea-4f97-a1f6-c6b27d89b8cc | Phillips v. Frederick | 58 So. 2d 584 | N/A | Alabama | Alabama Supreme Court | 58 So. 2d 584 (1951)
PHILLIPS
v.
FREDERICK.
6 Div. 230.
Supreme Court of Alabama.
November 23, 1951.
Rehearing Denied May 15, 1952.
*585 Fite & Fite, Jasper, for appellant.
Chas. E. Tweedy, Jr., Jas. L. Beech, Jr., and Still Hunter, Jasper, for appellee.
LIVINGSTON, Chief Justice.
This appeal is from a decree of the Circuit Court, in Equity, of Walker County, Alabama, allowing a claim for $7,000.00, filed against the estate of John W. Phillips, deceased, by Paul Frederick, a minor, by his next friend, Ola Gregory, who is the maternal grandmother of the minor.
John W. Phillips, a resident citizen of Walker County, Alabama, departed this life intestate on or about January 26, 1950. On February 6, 1950, E. C. Phillips was granted letters of administration on the estate of John W. Phillips, deceased. On June 26, 1950, the administration of said estate was removed to the Circuit Court, in equity, of Walker County.
The claim of Paul Frederick was filed in both the Probate Court of Walker County and the Circuit Court of Walker County, on August 3, 1950, and, as originally filed, claimed the sum of $12,000.00. The claim was later reduced by amendment to $7,000.00. On October 4, 1950, the administrator filed, and gave notice, that the claim of Paul Frederick was disputed in whole and would be contested. On October 26, 1950, Ola Gregory demanded a jury for "the trial of the question" of the validity of the claim.
A motion to strike the amended claim of Paul Frederick was overruled. The trial court proceeded to make up the issues between the parties, and, in the language of appellant's brief, appellant's defenses against the claim were stated to be: "We deny that any such agreement was made as set up in the claim, for one defense, and also we say that the agreement set up in the claim was void under the Statute of Frauds, and another defense is that the said agreement was against public policy and also void for that reason, and also that said agreement is vague and indefinite."
On the issues made and the evidence submitted to them the jury returned a verdict sustaining the claim of $7,000.00. The court rendered a decree on the verdict and this appeal followed.
The basis of the claim of Paul Frederick against the estate of John W. Phillips is, in substance, an oral agreement made by Alene Frederick, the mother of Paul Frederick, with the said John W. Phillips, whereby Phillips was to have the care, custody and control of the minor during his, Phillips' lifetime, and, in consideration whereof, Phillips agreed to care for, feed, clothe and educate, including a college education, the minor, and that in the event Phillips died before the minor received his education, the minor was to receive $7,000.00 for that purpose.
Claimant's evidence tended to prove the following facts:
John W. Phillips died in Walker County, Alabama, in January, 1950. He was a widower and never had any children. He left considerable property, both personal and real. Surviving him was one brother, who was made the administrator of his estate, and one sister, Mrs. Dora P. Handley, both over the age of 21 years. John W. Phillips was about 68 years of age when he died. Mrs. Ola Gregory was his housekeeper at the time of his death, and had been for some 18 or 20 years. Mrs. Gregory was the maternal grandmother of Paul Frederick. Douglas Frederick and Alene Frederick are the parents of Paul *586 Frederick. During the month of July, 1945, Douglas, Alene and Paul Frederick visited Ola Gregory for some time in the home of John W. Phillips, deceased. Paul Frederick was then some 13 or 14 months old. The deceased became attached to the child and on several occasions asked that he be allowed to adopt him. The mother refused. The deceased then proposed that he be allowed to keep the baby as long as he, Phillips, lived and he would give him a complete education, including four years of college, which he could do, "with careful handling, for seven thousand dollars." The deceased also told Alene Frederick that "regardless of what happens to me, it will be fixed whether I live or die." Alene Frederick agreed to the proposal of the deceased and left the infant, Paul Frederick, with the deceased when she returned to her home, and the infant remained with Phillips as long as Phillips lived.
Claimant's evidence further tended to show that Phillips loved the child; that he kept the child with him as much as he could, considering the child's age; that the child slept with Phillips, and that Phillips was good and kind to him as long as he lived.
Mrs. Gregory testified, in substance, that, about two weeks before he died, Phillips called her to his bedside and told her that it looked like he was at the end of the trail; gave her a ring with several keys on it; pointed out one key and told her to hold on to that key, that he had a "lot of stuff in a locker at the bank," and that if anything happened to him, Phillips, for her to go down to the bank and get what was in the locker and look through it; that about two days after Phillips died she turned the key over to Mr. E. C. Phillips and never did see what was in the bank.
Appellant does not argue the applicability of the Statute of Frauds and that question is therefore waived. Although there are some thirty assignments of error, two principal questions are presented. First, is the alleged agreement contrary to public policy and for that reason null and void? Second, is Alene Frederick, the mother of claimant Paul Frederick, a competent witness in view of section 433, Title 7, Code 1940,the so called "dead man's statute"?
The first inquiry is one of first impression in this jurisdiction. The authorities appear to be divided. An annotation of the decisions will be found in 15 A.L.R. at page 223, following the case of Hooks v. Bridgewater.
The Hooks case, 111 Tex. 122, 229 S.W. 1114, 1118, 15 A.L.R. 216, declares a contract, similar to the one here under review, contrary to public policy. The Supreme Court of Texas there said:
The foregoing rule was reaffirmed in the case of Mulkey v. Allen, Tex.Com.App., 36 S.W.2d 198.
On the other hand there are many cases in other jurisdictions which have upheld contracts or agreements similar to the one under review. See 15 A.L.R. Notes, p. 223.
In Godine v. Kidd, 64 Hun. 585, 19 N.Y.S. 335, 338, it was said:
We also quote from Van Tine v. Van Tine, N.J.Ch., 15 A. 249, 251, 1 L.R.A. 155, as follows:
Appellant also argues that there is a lack of mutuality between the parties and for that reason the contract is unenforcible.
On this point the Supreme Court of Missouri in the case of Healey v. Simpson, 113 Mo. 340, 20 S.W. 881, 883, said:
To the same effect see Winne v. Winne, 166 N.Y. 263, 59 N.E. 832, 82 Am.St.Rep. 647; Brinton v. Van Cott, 8 Utah 480, 33 P. 218.
Appellant lays much stress on the case of Campbell v. Sowell, 230 Ala. 109, 159 So. 813, 814, where this court held:
We do not think the Campbell case supports appellant's argument. In fact we think it supports the contrary view.
In the instant case the agreement was fully performed by the parent and child. Phillips, the deceased, received all that he bargained for. Although a contract by a parent to surrender the custody of a child to another in consideration of his promise to care for, rear, and educate it may not be binding when made because of the peculiar character of the duty and rights of the parent in respect to the child, and where the welfare of the child demands it, it is binding on the other party after the parent and child have, as here, fully executed their part. Its enforcement has no element of immorality or illegality, and so far as we can see, is not violative of public policy.
The further question is, was Alene Frederick, the mother of Paul Frederick, the claimant, a competent witness in view of section 433, Title 7, Code 1940? We think she was.
While the mother, no doubt, had an interest in the outcome of the suit, in that it would relieve her of the financial burdens of educating her son, she had no pecuniary interest in the results as that phrase has been interpreted by our decisions. See Belcher Lbr. Co. v. Harrell, 252 Ala. 392, 41 So. 2d 385; Eidson v. McDaniel, 216 Ala. 610, 114 So. 204; Oliver v. Williams, 163 Ala. 376, 50 So. 937; Manegold v. Mass. Mut. Life Ins. Co., 131 Ala. 180, 31 So. 86; Huckaba v. Abbott, 87 Ala. 409, 6 So. 48.
As stated above, there are numerous assignments of error. They relate, principally, to the admission of evidence and the giving or refusing of charges. We have carefully examined all of them and feel that they have been substantially answered above.
Affirmed.
FOSTER and STAKELY, JJ., concur.
BROWN, J., concurs especially.
BROWN, Justice (concurring especially).
I have no quarrel with the principles enunciated above, but am of the opinion that in the absence of a motion to set aside the verdict of the jury in this case the record presents nothing for this court to review. Karter v. East, 220 Ala. 511, 125 So. 655; Hill v. Cowart, 251 Ala. 260, 37 So. 2d 103, and cases there cited. | November 23, 1951 |
42361996-3caa-4bbb-8435-257959cc1da6 | Penney v. Speake | 54 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 709 (1951)
PENNEY et al.
v.
SPEAKE.
8 Div. 563.
Supreme Court of Alabama.
October 18, 1951.
*710 Eyster & Eyster, Decatur, for appellants.
Julian Harris and Norman W. Harris, Decatur, for appellee.
LAWSON, Justice.
Plaintiff below, H. R. Speake, on October 14, 1946, filed his suit in the circuit court of Morgan County against J. E. Penney and Kate M. Penney, claiming the sum of $1,500 with interest, which he alleged to be due him as a result of his effort to sell certain real estate situate in Decatur, Morgan County, which belonged to the defendants.
Summons was issued by the clerk of the court on the day suit was filed, but service was never had on either defendant due to their illness.
The defendant Kate M. Penney died testate on or about July 17, 1947. On November 12, 1947, plaintiff made known to the court that Kate M. Penney had died and that Paul M. Penney was appointed executor by the probate court of Jefferson County on August 19, 1947. Plaintiff prayed that the cause be revived against Paul M. Penney, as executor, and that a citation issue to him requiring him to appear within thirty days and defend the cause in the place of Kate M. Penney, deceased. On the same day, November 12, 1947, the trial court made an order requiring the clerk to issue a citation to Paul M. Penney, as prayed. The citation was issued on November 12, 1947, and was served on Paul M. *711 Penney on November 17, 1947. No copy of the summons and complaint was served on Paul M. Penney.
On May 21, 1948, Paul M. Penney, as executor of the will of Kate M. Penney, filed his motion to quash the citation served on him on November 17, 1947, on three grounds, viz.: (1) that at the time of the death of Kate M. Penney she had not been served with a copy of the summons and complaint; (2) for that the cause has not been revived against movant as executor of the will of Kate M. Penney; (3) because no copy of the summons and complaint has been served upon movant as executor of the will of Kate M. Penney.
On July 28, 1948, plaintiff made known to the court that the defendant J. E. Penney died testate on or about May 17, 1948, and that Paul M. Penney and the Birmingham Trust National Bank were appointed executors by the circuit court of Jefferson County, to which court the administration of the estate of J. E. Penney, deceased, had been removed. Plaintiff prayed that citation issue to the said executors requiring them to appear within thirty days and defend the cause in the place of J. E. Penney, deceased. On the same day, July 28, 1947, the trial court made an order requiring the clerk to issue a citation to the same executors as prayed. The citation was issued on July 28, 1947, and was served on executors on August 2, 1948. No copy of the summons and complaint was served on the executors of the estate of J. E. Penney, deceased.
On August 17, 1948, the executors of the estate of J. E. Penney, deceased, namely, Paul M. Penney and the Birmingham Trust National Bank, filed a motion to dismiss them as defendants, assigning grounds substantially the same as those set up in the motion to quash filed by Paul M. Penney, as executor of the estate of Kate M. Penney.
On October 26, 1948, without acting on either the motion to quash filed by Paul M. Penney, as executor of the will of Kate M. Penney, deceased, or the motion to dismiss filed by Paul M. Penney and the Birmingham Trust National Bank, as executors of the will of J. E. Penney, deceased, the trial court entered an order which reads in part as follows: "It is therefore considered, ordered and adjudged that this cause be and the same is hereby revived against Paul M. Penney, as executor of the will of Kate M. Penney, deceased, and against Paul M. Penney and Birmingham Trust National Bank, a corporation, as executors of the will of J. E. Penney, deceased."
Thereafter on November 12, 1949, the trial court overruled the motions to quash and dismiss, to which we have heretofore referred. To this action of the court the executors separately excepted.
After such motions were overruled, the executors, who were sought to be substituted as parties defendant, filed a plea in abatement, which averred in substance that the cause was not at issue as to them because no summons and complaint was ever served on Kate M. Penney or J. E. Penney prior to their death and that since their death no summons and complaint has ever been served on their executors. Plaintiff's demurrer to this plea was sustained.
Thereupon, on November 12, 1949, the executors filed their plea setting up the statute of nonclaim of six months, § 211, Title 61, Code 1940, averring in substance that the court never obtained jurisdiction of Kate M. Penney and J. E. Penney because no summons and complaint was ever served upon them and further alleging that the plaintiff did not, within a period of six months after the appointment of the personal representatives of the respective estates, file a verified claim and that no summons and complaint was ever served on the executors. Plaintiff's demurrer to this plea was sustained.
Thereafter the defendants, the executors, filed their plea of the general issue in short by consent in the usual form.
The case came on for trial on November 21, 1949, and resulted in verdict and judgment in favor of the plaintiff and against the defendants in the sum of $1,813.13.
On December 15, 1949, the defendants filed their motion for a new trial, which was continued from time to time. Upon the hearing of the motion for new trial, plaintiff consented that the judgment be reduced to $1,791.40 because of an error made by *712 the jury in computing interest. Judgment was entered in favor of the plaintiff for the sum of $1,791.40. The motion for new trial was overruled.
The executors appealed from the judgment and the ruling of the trial court on their motion for new trial.
Assignments of error 1, 2, 3, and 4 all relate to the action of the trial court in not granting the motions to quash and dismiss and in sustaining plaintiff's demurrer to the plea in abatement. These assignments of error are argued together in brief filed here on behalf of appellants. The only argument presented in support of appellants' assertion that these assignments of error should work a reversal is that neither the original defendants nor the executors, the appellants here, were ever served with a copy of the summons and complaint.
This suit was commenced by the filing of the complaint. § 43, Title 7, Code 1940, is as follows: "The filing of the complaint, bill of complaint, or other statement of plaintiff's cause of action, in the office of the clerk or register of the circuit court, or other ministerial office of courts of like jurisdiction, shall constitute the commencement of suit."
Although summons and complaint had not been seved on J. E. Penney and Kate M. Penney at the time of their death, the suit against them was pending at that time.
The cause of action survived. Hence the suit did not abate upon the death of the original defendants if there was compliance with the provisions of §§ 153 and 154, Title 7, Code 1940, which sections read:
"§ 153. When actions do not abate by death; revivor in twelve months.No action abates by the death or other disability of the plaintiff or defendant, if the cause of action survive or continue; but the same must, on motion, within twelve months thereafter, be revived in the name of or against the legal representative of the deceased, his successor, or party in interest; or the death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor."
"§ 154. Revivor on death of defendant pending suit.If the cause of action survive on the death of a defendant, suggestion thereof must be made of record, and the proper representative may voluntarily come in and make himself a party defendant, but if such representative does not come in and make himself a party, citation must issue to him, on his being made known, to appear within thirty days from the date on which the citation was served on him and defend, and after that time, the suit may be revived against him; but final judgment must not be rendered against a personal representative if he objects until after the expiration of six months from the grant of letters testamentary or of administration. This action shall abate, however, unless the personal representative is brought in and made a party within twelve months after the death of the defendant."
There is no requirement in either of the sections above quoted that in order to revive, a copy of the summons and complaint must be served on the party sought to be substituted. The manner of obtaining jurisdiction of the personal representative of a deceased defendant is to cite him to appear. Walker v. English Adm'r, Ala.Sup., 53 So. 2d 733; Waddill, Ex'r v. John, Guardian, 48 Ala. 232, 237. In the case last cited, it is said: "The manner of obtaining jurisdiction of the personal representative of a deceased defendant is to cite him to appear at the next term of court and defend. Revised Code, § 2544 [Code 1940, Tit. 7, § 154]. This citation, called a scire facias prior to the Code, and commonly so called since, is perhaps not technically such. It must, however, be considered as a mesne process to be issued from the court, and to contain the essential qualities of a writ to be served on the party, thereby summoning him to appear in court to hear the complaint against him. These essential qualities are, that it must be signed and tested by the clerk, and directed to the sheriff. It must describe the court properly, have proper parties and contain a proper cause of action. 3 Chit.Gen.Prac. 163; Nabors v. Nabors, 2 Port. 162; Revised Code, §§ 2559, 2560 [Code 1940, Tit. 7, §§ 183, 184]. When as in this case, the citation is merely *713 a continuation of a pending suit, and its only purpose is to bring the party into court, where he will find the declaration, it is sufficient if he is directed to the case which he is required to defend. Toulmin v. Bennett, 3 Stewart & Porter, 220." (Emphasis supplied.)
The death of each of the original defendants was duly suggested, citation issued and served within twelve months from the date of death. This, in our opinion, is sufficient compliance with the last sentence of § 154, supra. When the personal representative is cited, he is brought in and made a party defendant, and it is not necessary that the formal order of revivor be entered within the period of twelve months from the date of the death of the original defendant. Nothing said in the recent case of Walker v. English, Adm'r, supra, should be construed as holding to the contrary. In that case the personal representative had not been cited within the twelve-months period. The rule in equity is different. See Osbourn v. LoBue, Ala.Sup., 53 So. 2d 610.
Assignment of error 5 relates to the action of the trial court in sustaining plaintiff's demurrer to the plea setting up the statute of nonclaim. § 211, Title 61, Code 1940. There is no merit in this assignment of error. § 215, Title 61, reads: "The revival of any action pending against any person at the time of his death, which by law survives against his personal representative, by notice served on the executor or administrator, within six months after the grant of letters, shall be considered as a presentation of the claim on which the action is founded." In the instant case, notice by citation was served on the personal representatives within the six-months period.
Assignments of error 13, 14, 15, 18, 19, 21, 22, and 23 are argued together. They all relate to the refusal of the trial court to give at the request of the defendants the general affirmative charge with hypothesis. It is argued that appellants, defendants below, were entitled to have such charges given on several theories.
At the outset we will restate the well-recognized rule that the test in reviewing the propriety of the affirmative charge is not what our view may be of the weight of the evidence, or even what inferences we may think more probable, but if from proven facts and circumstances a reasonable inference may be drawn to substantiate the claimed culpability of the defendant, the affirmative charge must be held to have been correctly refused the defendant. Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So. 2d 598, and cases cited.
We will not detail the entire evidence in the case, but will make only such references thereto as will demonstrate our conclusion that the general affirmative charges requested by defendants below were properly refused.
Mr. and Mrs. J. E. Penney (Mrs. J. E. Penney being the same person as Kate M. Penney), residents of Birmingham, had extensive real estate holdings in Morgan County, principally in the city of Decatur. In April, 1945, their son, Paul Penney, came to Decatur from his home in Birmingham and secured the services of plaintiff, of Mr. Lamar Penney, a cousin of Paul Penney, and of a Mr. Orr to appraise the said real estate. The evidence fully supports a finding that at this time Paul Penney was the agent of his father and mother, both of whom were quite old and not well. An appraisal was made, to be used in connection with the sale of most of the property. Plaintiff and Lamar Penney were to have the property listed with them for sale. The various items of property were listed and the appraised value of each item of property noted on the list.
Paul Penney returned to Birmingham, where he consulted his father in regard to the values fixed by the appraisers. Mr. J. E. Penney was not satisfied with the value fixed on some of the items of the property and put other values thereon. As to some items, no change was made in the valuation.
Thereafter, on May 1, 1945, Paul Penney wrote the following letter to Lamar Penney who, as before indicated, lived at Decatur: "Enclosed herewith is a list of property owned by Father and Mother in Morgan *714 County, together with the prices Father had placed on same.
"You may proceed to sell this at any time you can, with 5% commission on the first $10,000, and 2½% on all over that.
"I was out home this morning and both Father and Mother seem to be much better."
The list referred to in the letter contained the various items of property on which the appraisers had placed valuations, together with the changes made in the valuations by Mr. J. E. Penney.
A copy of the letter to Lamar Penney and a copy of the list of the items of property were sent to the plaintiff, Russell Speake. Plaintiff was at the time a duly qualified and licensed real estate agent of the city of Decatur.
We think the evidence fully supports a finding by the jury that, upon the receipt of the copy of the letter and the list of the property, plaintiff had full authority to proceed to make sales of the property listed at the prices specified.
The evidence for the plaintiff is to the effect that on or about August 27, 1946, he procured a purchaser for one of the pieces of property listed, who was able, ready and willing to pay the price fixed on the property, but that the owners refused to sell. It was the plaintiff's theory that he was entitled to recover his commission as agreed upon, irrespective of the fact that the sale was not consummated, because the failure to consummate was due solely to the refusal of the owners to sell.
One of the reasons asserted for the trial court's error in refusing to grant the general affirmative charges requested by the defendant is that the piece of property involved had been taken off the market prior to August 27, 1946, of which fact both the plaintiff and the alleged purchaser were aware; in other words, plaintiff's authority had been revoked. We see no necessity of discussing in detail the evidence as it relates to this contention. It is sufficient to say that the evidence on this point is in sharp conflict and the jury could well have believed the testimony on behalf of plaintiff to the effect that neither he nor the alleged purchaser had been advised that the property had been taken off the market. Overton v. Harrison, 207 Ala. 590, 93 So. 564.
Appellants insist that the contract between the owners and plaintiff was one to sell the property, rather than to find a purchaser ready, willing and able to purchase, and that since the sale was not made, plaintiff was not entitled to any commission. We see no reason to deal with the question of whether the contract was one to sell or to find a purchaser, for the reasons hereinafter stated.
While there is a distinction between contracts by which a broker is employed to procure a purchaser for property and contracts by which he is employed to effect a sale or to sell, the rule in this jurisdiction is that brokers employed under the latter type of contract, as well as those employed under the first-mentioned type, are entitled to their compensation where they have procured a purchaser ready, able and willing to perform the terms specified or agreed upon, notwithstanding no actual transfer takes place because of the refusal of the seller to convey. Sayre v. Wilson, 86 Ala. 151, 5 So. 157; O'Neal v. Plowden, 220 Ala. 317, 124 So. 882; McCormick v. Tissier, 222 Ala. 422, 133 So. 22; Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Bailey v. Padgett, 195 Ala. 203, 70 So. 637.
The case of Terry Realty Co. v. Martin, 220 Ala. 282, 124 So. 901, on which appellants rely, is an essentially different case from the case at bar and those cited above, but it recognizes the principle set out above. There the defendants owned an undivided two-thirds interest in the property and the other one-third interest was owned by certain minors and their mother. The defendants who owned the two-thirds interest made a written agreement with the broker for the sale of the property, which agreement recited the state of the title and stated that in order to conclude a sale of the property, it would be necessary for a guardian to be appointed for the minors and for the probate court to confirm the sale of the minors. After such recitals and provisions, the agreement continued: "If a sale is made and put through as authorized by law, we agree to pay or see that you are paid a commission of $500." *715 The broker procured a purchaser, but when the proposed sale was submitted to the mother of the minors, she refused to approve and the matter proceeded no further and was dropped. Under such circumstances, we held that the defendants were not liable for the alleged commission. The contract had expressly provided that the commission was payable only in the event the sale was completed and the defendants had done nothing to prevent or interfere with the completion of the sale.
The case of Walker v. Dorsett, 221 Ala. 623, 130 So. 380, also fully recognizes the right of a broker to recover commissions where the consummation of the sale is prevented by the refusal or intermeddling of the seller.
It is without conflict in the evidence that the sellers refused to sell when they were notified by the plaintiff that he had procured a purchaser. The only ground for refusal was that the property had been taken off the market and the plaintiff's right to sell had in effect been revoked.
The evidence as to whether the alleged purchaser was able, ready and willing to pay was in sharp conflict and presented a question for the jury's determination. It was not necessary that there be any agreement in writing between the alleged purchaser and the plaintiff relative to the purchase and sale of the property. O'Neal v. Plowden, supra; Bailey v. Padgett, supra; Stevens v. Bailey & Howard, 149 Ala. 256, 42 So. 740.
The affirmative charges were correctly refused the defendants.
All of the assignments of error not allready considered, with the exception of one, are based on the action of the trial court in giving certain written charges requested by the plaintiff. We see no necessity of treating these assignments of error separately or at length. We have examined each of the charges so given and are of the opinion that they state principles of law in accord with the decisions of this court already referred to in this opinion.
The remaining assignment of error is based on the alleged refusal of the trial court to give a certain charge requested by the defendants. In this connection, it is sufficient to say that this charge was neither given nor refused, as appears from a stipulation of counsel set out in the record. Hence, we have no action of the trial court to review in so far as that charge is concerned.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER, SIMPSON and GOODWYN, JJ., concur. | October 18, 1951 |
da01dead-9219-4126-9ca1-b292ae3c2f7c | Ex Parte Abercrombie | 172 So. 2d 43 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 43 (1964)
Ex parte O. L. ABERCROMBIE et al.
In re Carolyn COUCH
v.
Charlie Harvey COUCH.
8 Div. 162.
Supreme Court of Alabama.
February 18, 1965.
*44 H. T. Foster and Wm. E. Garner, Scottsboro, for petitioners.
W. D. Wilkes, Jr., Guntersville, for respondent.
LAWSON, Justice.
This is an original petition addressed to this court and seeks to review by certiorari a decree of the Circuit Court of Marshall County, in Equity, adjudging petitioners in contempt of that court, in that they willfully failed, refused and declined to comply with an order of the court to deliver two minor children into the custody of their paternal grandparents. The petitioners here are the maternal grandparents of the children.
The decree adjudging the petitioners to be in contempt further provided:
The contempt decree was rendered and entered on February 11, 1964. On February 19, 1964, a writ of certiorari issued out of this court to the register of the Circuit Court of Marshall County commanding and requiring him to make and certify to this court a true and correct copy of the record and proceedings in the cause. It was provided in the order of this court granting the petition for certiorari that the decree of the trial court be stayed upon *45 petitioners entering into a bond in the sum of $500. Such a bond was approved and filed on February 21, 1964. In response to said writ, the record of the contempt proceedings in the trial court is before us for review.
Certiorari is the proper way, in a case of this kind, to review the decree of the trial court holding the petitioners to be in contempt. Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So. 2d 722; Jordan v. Jordan, 266 Ala. 386, 96 So. 2d 809.
A court of equity has wide discretionary powers to enforce its orders, and they are so expressly granted by statute. Section 4, Title 13, Code 1940, gives every court the power "[t]o compel obedience to its judgments, orders and process." Section 5, Title 13, Code 1940, provides in effect that a court may punish for contempt as a means of compelling obedience to its judgments, orders and process. Ex parte Hill, 229 Ala. 501, 158 So. 531. See Ex parte Dickens, 162 Ala. 272, 280, 50 So. 218, 221, where it is said:
The petitioners argue only two points in their brief sufficiently to justify treatment here. They say, first, that the evidence did not justify a finding that they had willfully failed, refused and declined to comply with the order of the equity court in that the evidence shows that the children had been surreptitiously removed from petitioners' custody by their mother and carried to some place unknown to petitioners, hence petitioners were unable to comply with the court's order to deliver the children at the specified time.
We have held that on review of contempt proceedings by certiorari we do not review questions of fact but only questions of law; but if the court below has misapplied the law to the facts as found by it or there is no evidence to support the finding, a question of law is presented to be reviewed. Fields v. City of Fairfield, 273 Ala. 588, 143 So. 2d 177, rev'd on other grounds, 375 U.S. 248, 84 S. Ct. 360, 11 L. Ed. 2d 311; Ex parte Wetzel, 243 Ala. 130, 8 So. 2d 824; Ex parte Evett, 264 Ala. 675, 89 So. 2d 88.
All the evidence taken in the court below is before us and has been carefully studied. A discussion here of the facts would serve no useful purpose. Suffice it to say that we are of the opinion that there was some evidence sufficient to sustain the conclusion of the trial judge, hence we are constrained to hold that there is no merit in petitioners' contention that the decree should be reversed because of lack of evidence to support the finding that the parties were in contempt of the court's order. See Ex parte Wetzel, supra.
The only other point which may be said to be adequately argued in brief of petitioners is to the effect that the Circuit Court cannot imprison a person for contempt for a period exceeding five days. In support of that statement is cited the case of Ex parte Hill, supra, and § 9, Title 13, Code 1940. We assume that counsel for petitioners intended to cite § 143, Title 13, Code 1940, which provides as follows: "The circuit court, or judges thereof when exercising equity jurisdiction and powers may punish for contempt by fine not exceeding fifty dollars, and by imprisonment, not exceeding five days, one or both." The limitations prescribed by the section just quoted apply to punishment for criminal contempt and have no application to civil contempt. Ex parte Dickens, supra; Ex parte National Association for Advancement of Colored People, 265 Ala. 349, 91 So. 2d 214, rev'd on other grounds, 353 U.S. 972, 77 S. Ct. 1056, 1 L. Ed. 2d 1135; Ex parte King, 263 Ala. 487, 83 So. 2d 241; Atkins v. State, 34 Ala.App. 101, 40 So.2d *46 444, cert. denied, 252 Ala. 227, 40 So. 2d 446. Ex parte Hill, supra, cited by petitioners, was a criminal contempt case.
The question is presented, therefore, as to whether the contempt in the instant case is in its nature "civil" or "criminal." If "criminal" the term of imprisonment prescribed exceeds the statutory limitation.
The contempt decree here reviewed is in some respects very similar to that considered by the Court of Appeals in Atkins v. State, supra, where it was held in effect that the contempt was civil rather than criminal. The difference in the two decrees is that the decree in the Atkins case did not require the payment of a fine, whereas a fine of $50 is imposed in the decree here under review. However, the fact that a fine is imposed does not in and of itself indicate that the trial court considered the contempt to be criminal rather than civil. Ex parte National Association for Advancement of Colored People, supra.
In Ex parte Dickens, supra, we approved the rule to the effect that a civil contempt consists in failing to do something ordered to be done by a court in a civil action, for the benefit of the opposing party therein. A criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience to the orders of the court, as distinguished from a civil contempt which invokes the power of the court to commit one who is continuing to violate its orders until he complies with them. Ex parte Hill, supra.
The decree here under review does not state that the penalties inflicted are for the purpose of punishing the petitioners, as did the decrees in Ex parte Hill, supra, and Ex parte King, supra. However, even if the word "punishment" had been used in the decree it would not necessarily be decisive of the question as to whether the contempt was civil or criminal. See Ex parte National Association for Advancement of Colored People, supra.
It seems to us that the decree here under review, like that considered in Atkins v. State, supra, was imposed to compel obedience to the court's order rather than for past disobedience.
Under this interpretation of the decree, it results that it is due to be affirmed. It is so ordered.
Affirmed
GOODWYN, COLEMAN and HARWOOD, JJ., concur. | February 18, 1965 |
3b1ccf19-2ecb-4c3a-837f-02b849edad8b | Board of Education of Choctaw County v. Kennedy | 55 So. 2d 511 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 511 (1951)
BOARD OF EDUCATION OF CHOCTAW COUNTY et al.
v.
KENNEDY.
2 Div. 296.
Supreme Court of Alabama.
December 6, 1951.
*512 Lindsey & Christopher, Butler, for appellant.
Scott & Porter, Chatom, for appellee.
STAKELY, Justice.
L. J. Kennedy (appellee) is a teacher and high school principal of continuing service status in the public school system of Choctaw County, Alabama. He has established his tenure by virtue of the fact that he has been employed under contract with the Board of Education of Choctaw County, Alabama, as principal of the South Choctaw High School at Silas, Alabama, for the last twenty-two consecutive years. § 352, Title 52, Code of 1940.
On or about March 30, 1951, L. J. Kennedy received notice in the form of a letter addressed to him from Wiley C. Allen, who was then Superintendent of Education of Choctaw County, Alabama, advising *513 him that the Choctaw County Board of Education would meet on April 30, 1951, for the purpose of considering the cancellation of his contract with the Board of Education of Choctaw County. L. J. Kennedy requested a written statement of the reasons for considering the cancellation of his contract. Within a period of less than fifteen days after receiving notice of the time and place of the proposed consideration of the canceling of his contract, he requested in writing a hearing on the charges made against him by the County Board of Education. The County Board of Education set April 20, 1951, as the date for the hearing. The hearing was held at the appointed time at Butler, Choctaw County, Alabama. By agreement between the parties a reporter was present and transcribed all of the testimony and made up the record of this proceeding before the County Board of Education. Witnesses testified both for and against L. J. Kennedy. At the conclusion of the hearing the County Board of Education took under advisement the matter of the cancellation of the foregoing contract and on April 30, 1951 rendered their decision by resolution purporting to cancel the contract of L. J. Kennedy.
L. J. Kennedy then filed in the Circuit Court of Choctaw County, Alabama, a petition for writ of mandamus against the members of the County Board of Education and Wiley C. Allen, as Superintendent of Education of Choctaw County, Alabama (appellants), ordering them to vacate and annul their resolution and order purporting to cancel appellee's contract and further requesting the court to direct appellants to reinstate appellee as principal of the foregoing school and to renew his contract as principal. At the same time L. J. Kennedy filed in the Circuit Court of Choctaw County, Alabama, the transcript of the record of the proceedings held by the County Board of Education.
The Circuit Court of Choctaw County, Alabama, issued an alternative writ of mandamus as prayed for in the petition, directing appellants to show cause on or before the 19th day of June, 1951 as to why they should not be required to comply with the prayer of the petition. Appellants filed their answer to the petition and the appellee filed his replication thereto. On June 19, 1951 the court at a hearing set for the purpose reviewed the record of the proceedings before the County Board of Education, with the result that the court ordered a writ of mandamus to issue against appellants, directing them to reinstate appellee as principal of the foregoing school. The court found, as shown in its judgment or order, that the evidence offered at the hearing before the County Board of Education in support of the charges against appellee, was not sufficient to prove the charges and that the order and resolution of the County Board of Education was arbitrarily unjust. Appellants made a motion for a rehearing which the court overruled. This appeal followed.
I. The present proceedings were commenced by the Board of Education of Choctaw County for the cancellation of the contract of L. J. Kennedy under the provisions of the Teacher Tenure Law. § 351 et seq., Title 52, Code of 1940. It is claimed by appellants that this act is unconstitutional because it fails to provide for due process. But the County Board of Education cannot invoke action of the court under the statutes which comprise the Teacher Tenure Law and then later, when dissatisfied with the result, assail their own action on the theory that the statutes under which the action was taken are constitutionally offensive. Baldwin v. Kouns, 81 Ala. 272, 2 So. 638; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Larry et al. v. Taylor, 227 Ala. 90, 149 So. 104. It can be pointed out that no constitutional question was raised until the motion was made in the circuit court to set aside the judgment of the circuit court, which means that the constitutional question was raised too late. Vernon v. State, 240 Ala. 577, 200 So. 560, certiorari denied Vernon v. Wilson, 61 S. Ct. 837, 313 U.S. 559, 85 L. Ed. 1519; Alabama Cartage Co. v. International Brotherhood of Teamsters, etc., 250 Ala. 372, 34 So. 2d 576, 2 A.L.R.2d 1273; 11 Am.Jur. p. 772. We could rest our opinion here but think it well to proceed so as not to leave any *514 impression that the statute is lacking in due process requirements.
No particular form of procedure is prescribed for hearings under the statutes here in question but of course due process must be observed. This is the rule generally applicable as to hearings provided for by statute before administrative agencies. State ex rel. Steele v. Board of Ed. of Fairfield, 252 Ala. 254, 40 So. 2d 689. The Teacher Tenure Law in its provisions clearly contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made and opportunity to controvert such charges, the right to examine and cross-examine witnesses and submit evidence and be heard in person and by counsel. Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So. 2d 58; Almon v. Morgan County, 245 Ala. 241, 16 So. 2d 511; State ex rel. Steele v. Board of Ed. of Fairfield, supra. It is claimed that it is only required that a written statement be given the teacher of the reasons for cancellation of his contract and in other words that no evidence must be adduced against him on the hearing. The statute provides that the contract with the teacher can not be canceled until a hearing is held, if a hearing is requested by the teacher. The use of the word "hearing" in § 357, Title 52, Code of 1940, shows a manifest purpose of compliance with the requirements of due process of law. "A requirement of a hearing in the exercise of quasi-judicial powers has obvious reference to the tradition of judicial proceedings with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature." 42 Am. Jur. p. 481, § 138. "It is the duty of the court to construe a statute so as to make it harmonize with the constitution if this can be done without doing violence to the terms of the statute and the ordinary canons of construction." Almon v. Morgan County et al., 245 Ala. 241, 16 So. 2d 511, 516. A statute can be adopted without expressly containing provisions which meet constitutional requirements but in such terms as not to exclude them, and so to justify a court in holding that the statute was intended to be subject to such requirements and considered as embodied in the statute. Montgomery Southern Railway Co. v. Sayre, 72 Ala. 443; Almon v. Morgan County et al., supra. In this connection in Almon v. Morgan County et al., supra, it was aptly said: "And so when an act confers on an administrative officer or board the power and duty to make a conclusive finding of facts which affects the substantial rights of another, when to do so requires procedural due process, and there is nothing to indicate an intention that such process shall not be applied, the court may in carrying out the intention of the legislature hold that such process was intended to be applied, when to do so is necessary to uphold its constitutionality on that account. * * * This applies to one's tenure of office under an act providing for his removal for cause. * * *"
We have no hesitation in holding that the statutes in question meet the requirements of due process.
II. Citing State v. Board of Education of Fairfield, 252 Ala. 254, 40 So. 2d 689, it is argued that the court erred in setting aside the action of the County Board of Education in canceling the contract of L. J. Kennedy and in reinstating him as a tenure teacher without making such reinstatement subject to another hearing before the County Board of Education. In the cited authority the teacher was prevented from presenting evidence which she had the right to present. Here the parties presented all the evidence which they wished to present or thought advisable to present and there is no complaint to the contrary. There is, therefore, no point in referring the case back to the County Board of Education for another hearing. The statute makes no such requirement. § 358, Title 52, Code of 1940.
III. It is contended that the action of the County Board of Education may not be reviewed by mandamus proceedings as now provided by § 358, Title 52, Code of 1940, as amended, Pocket Part, but must be by appeal. There is no merit *515 in this position. The legislature clearly has the right to provide for a review by mandamus to determine whether the action of the Board of Education is made in compliance with the statutes comprising the Teacher Tenure Law and whether such action is arbitrarily unjust. In State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166 So. 36, 39, this court said: "`When a statute provides for the removal of an officer for cause, it contemplates notice to the officer of the charge, and requires a tribunal of some kind to determine whether the cause for removal exists and whether such officer can be removed.' * * * The Legislature prescribed that tribunalthe court of county commissioners. The finding of that tribunal may be reviewed by certiorari or mandamus (respectively when appropriate), if it is wholly `unsupported by the evidence, or is wholly dependent upon a question of law, or is seen to be clearly arbitrary, or capricious'."
IV. A number of reasons were advanced as grounds for the cancellation of the contract of L. J. Kennedy which may be briefly stated in substance as follows: (1) L. J. Kennedy had written a check for $125.00 on school funds to make a personal loan to a third party. (2) The school buildings were in an unsanitary condition on one or two occasions when the Superintendent of Education visited the school. (3) L. J. Kennedy had not made certain improvements on the school campus from a $200.00 appropriation which the Board of Education had made for making such improvements. (4) L. J. Kennedy had failed to cooperate with the lunch room program. (5) L. J. Kennedy had failed to cooperate with the bus drivers. (6) L. J. Kennedy had failed to cooperate with the teachers in the school.
V. With reference to the check for $125.00 drawn by L. J. Kennedy on school funds, Wiley C. Allen, then Superintendent of Education of Choctaw County, testified that he was unable to find a check stub entered in the check book for this check and he was also unable to find an invoice to justify this expenditure. He thereupon reported the matter to the County Board of Education and was authorized by the board to notify the chief examiner of public accounts and request that an accountant be sent to Choctaw County to examine the books of the school of which L. J. Kennedy is principal. According to the testimony of Charles K. White, an accountant with the Examiners for the State of Alabama, he explained to Mr. Kennedy that the check for $125.00 was charged on the bank statement on July 7, 1950 and L. J. Kennedy then told him that he had made a few advances or loans with school funds and this check for $125.00 represented a loan to a former janitor of the building. L. J. Kennedy however stated to him that he had paid back or redeposited all amounts that he had advanced or loaned and that this particular amount was entirely replaced in the bank not later than September, 1950. The witness then testified that he attempted to see if the deposits in the bank exceeded the total recorded receipts. He found that the deposits exceeded the receipts by the amount of $191.50.
The witness testified that the amount replaced could not be verified by the items or amounts deposited. The bank balance for the year's operation indicated that all funds were accounted for with the exception of the small amount of $1.93. He further testified that none of the money handled by L. J. Kennedy represented state or county funds. All of this money which L. J. Kennedy handled was money raised within the school by the different classes and the different departments.
L. J. Kennedy testified at the hearing. He did not deny writing the $125.00 check. His testimony shows that through error he wrote the $125.00 check unintentionally on school funds. He showed that from time to time he had loaned money in small amounts from his personal funds to some of his friends. On this particular occasion a Mr. Tindle requested a loan in the amount of $125.00. Neither of them having a check, he (L. J. Kennedy) tore a check from the back of the check book used to write checks and withdrawals of school funds in the payment of school bills. He testified that he wrote many more *516 checks on school funds in paying the school bills than he wrote on his personal account. He testified that without being conscious of what he had done, he gave Mr. Tindle the check drawn on the school account. This check was drawn on June 26, 1950 and cleared the bank in the early part of July, 1950. During the summer months when a less number of checks were being written the bank did not send him a bank statement each month. But that the first of September 1950 he received a bank statement from the bank covering the school account together with the canceled checks he had drawn in paying school accounts and the checks included the $125.00 check referred to. He then learned or discovered for the first time that he had drawn the check on the wrong account. He immediately replaced the money in the school account before the Board of Education or anyone else ever said anything about the matter or had complained about it. Some two months later on or about November 2nd, Mr. White, the Auditor from the State Department, appeared on the scene and made his audit stating that complaint had been made about the $125.00 check. The money, however, had been replaced long before that time. He showed that there is no bank in Silas, where the school is located, and he had to do business with the Choctaw Bank of Butler, some 25 or 30 miles away. In taking in a great amount of small change at the little store operated within the school where candy and soft drinks, etc., are sold, along with other small change, taken in from various sources, it was necessary for him to convert this money into a check to be mailed to the bank for deposit. He used a system of exchanging this currency and small change with one of the local merchants for the merchant's personal check and then deposited the check given him by the local merchant in the bank by mail. He then received from the bank a post card indicating a lump sum deposit for whatever amount the check was made. This accounts for the reason that the auditors could not trace or identify replacement of the particular $125.00. However the auditor agreed that L. J. Kennedy's deposits in the bank according to the bank statement exceeded the amount that he had taken in from the various sources. With reference to the fact that there was no check stub or entry made for the $125.00 check, it was pointed out that if L. J. Kennedy unintentionally wrote the check on school funds, he would not have thought to enter the amount of the check on his journal, nor would he have made on the school checking book a stub for the amount of the check. It was shown that L. J. Kennedy at all times had in his personal account in the bank ample funds on the date the check was given to the date the check cleared the bank to have more than paid the $125.00 check.
On the undisputed testimony in the case with reference to this particular charge, we think that the court was correct in finding that an unintentional and honest mistake had been made and that immediately upon discovery of the error and before any complaint had been made about the matter, full replacement was made for the withdrawal. We feel satisfied that the court was correct in holding that as to this item the finding of the board, that this matter constituted embezzlement or wrong, was arbitrarily unjust.
We have carefully considered the evidence in respect to the other charges made before the County Board of Education against L. J. Kennedy and see no reason to state the evidence in respect to these other charges. The court was entirely justified in holding that any action of the County Board of Education in sustaining these other charges was arbitrarily unjust. It results that the judgment of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | December 6, 1951 |
8c868b60-e596-4e01-a98d-a11c9e9bc399 | Fitts v. Alexander | 170 So. 2d 808 | N/A | Alabama | Alabama Supreme Court | 170 So. 2d 808 (1965)
Ruth Watts FITTS et al.
v.
Houston D. ALEXANDER.
2 Div. 469.
Supreme Court of Alabama.
January 14, 1965.
Edgar P. Russell, Jr., and Sam Earlie Hobbs, Selma, for appellants.
Reeves & Stewart and Pitts & Pitts, Selma, for appellee.
LAWSON, Justice.
William P. Watts at the time of his death in 1906 was survived by his widow, *809 Allie Houston Watts. He left surviving him no child or children, nor descendants of any child or children. At the time of his death William P. Watts was the owner of a plantation in Dallas County known as Riverdale Plantation, which contained 831 acres of land more or less. Watts died testate. Under the terms of his will, which was duly probated, Watts devised to his wife, Allie Houston Watts, all said lands for and during her lifetime. It was provided further in the will that should testator's wife, Allie Houston Watts, die without issue resulting from her marriage to Watts, then she should have the power of appointment to devise one half of the land by her will, the other one half to be expended "in the buying, paying for and erecting monuments to the memory of myself [William P. Watts], my first wife and my wife Allie Houston Watts."
After the death of William P. Watts his widow, Allie Houston Watts, married one Sheppard. She died during the year 1936, leaving a will with codicil, which was duly probated. Mrs. Sheppard's will devised to her nephew, Houston D. Alexander, all of the real estate of which she died seized and possessed.
On the 12th day of June, 1964, Houston D. Alexander filed his verified bill in the Circuit Court of Dallas County, in Equity, to quiet the title to the said 831 acres of land. The bill was filed against the said 831 acres of land and against the heirs at law of William P. Watts, deceased. All persons, known or unknown, constituting the heirs at law of William P. Watts, deceased, were made parties respondent to the bill.
The bill was filed under the provisions of §§ 1116-1132, Art. 2, Chapter 32, Title 7, Code 1940, as amended by an act approved September 12, 1951, Acts 1951, Vol. II, p. 1521. Such provisions have been referred to as "Proceedings in Rem to Establish Title to Land." Hart v. Allgood, 260 Ala. 560, 72 So. 2d 91, and cases cited.
Service of the bill of complaint was had on all known respondents and upon failure of such respondents to plead, answer or demur within the time prescribed by statute, decrees pro confesso were duly entered against each by the trial court.
Pursuant to order of the trial court, notice of the pending action was given to such of the respondents whose whereabouts and addresses were unknown, if living, and to the respondents' heirs at law and devisees of such respondents, if deceased, by publishing the same for four consecutive weeks. Upon expiration of sixty days from the date of the first publication of said notice, decrees pro confesso were duly taken and entered against such respondents.
A guardian ad litem was appointed by the trial court to represent the interests of any and all unknown or unborn heirs or devisees of any of the named persons made parties respondent to the bill of complaint, who might be deceased, or any other persons under any legal disability, whose interests might be affected by the complainant's action in the trial court. On suggestion of complainant's counsel of lunacy of the respondent Estes Clifford Watts, the trial court appointed a guardian ad litem to protect said respondent's interests in the proceedings.
The demurrer of Edgar P. Russell, Jr., as guardian ad litem for respondent Estates Clifford Watts, a person alleged to be of unsound mind, testing the sufficiency of the bill of complaint, was overruled by the trial court. Answers denying the allegations of the bill of complaint were duly filed by Edgar P. Russell, Jr., as guardian ad litem for Estes Clifford Watts, and by Sam Earle Hobbs, as guardian ad litem for all of the unknown parties respondent.
The cause was submitted for final decree on the oral testimony taken before the trial court, the decrees pro confesso, the answer of the guardians ad litem, and the entire record in the cause, all as shown by note of testimony for submission.
The final decree of the trial court vested title in fee simple to the lands described *810 in the bill of complaint in the complainant, Houston D. Alexander. From that decree all of the parties respondent have prosecuted this appeal.
Under the provisions of § 1116, Title 7, Code 1940, as amended, one who claims to own lands or any interest therein, if no suit is pending to test his title to, interest in, or his right to the possession of the lands, may file a verified bill of complaint in the circuit court, in equity, of the county in which such lands lie, against the lands and any and all persons claiming or reputed to claim any title to, interest in, lien or encumbrance on said lands, or any part thereof, to establish the right or title to such lands, or interest, and to clear up all doubts or disputes concerning the same, when either of the following situations is shown to exist:
1. When the complainant is in the actual, peaceable possession of the lands.
2. When neither the complainant nor any other person is in the actual possession of the lands and complainant has held color of title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding the filing of the bill, and has paid taxes on the lands or interest during the whole of such period.
3. When neither the complainant nor any other person is in the actual possession of the lands and complainant, together with those through whom he claims, have held color of title and paid taxes on the lands or interest so claimed for a period of ten or more consecutive years next preceding the filing of the bill.
4. When neither the complainant nor any other person is in the actual possession of the lands and complainant and those through whom he claims have paid taxes during the whole of such period of ten years on the lands or interest claimed, and no other person has paid taxes thereon during any part of said period.
In Hart v. Allgood, 260 Ala. 560, 72 So. 2d 91, we enumerated situations under which a proceeding" in rem might be filed under the provisions of § 1116, Title 7, as amended, but we failed to mention situation 3 set out above. The opinion in the Hart case, supra, may also be subject to the interpretation that such a bill will lie under the situation numbered 3 in the Hart opinion where the complainant and those under whom he claims have paid taxes on the property during the ten-year period preceding the filing of the bill regardless of the fact that the respondents or some other person might be in actual possession of the land. We did not intend to so hold. Such a bill will lie in only two fundamental situations, one of which is where the complainant is in the actual peaceable possession of the property, and the other is where no one is in the actual possession of the property. See the article by Hon. Shuford B. Smyer of the Birmingham Bar Published in 23 Alabama Lawyer at page 209.
The decree of the trial court overruling the demurrer was general, even though there were grounds of demurrer addressed to the amended bill as a whole and to two so-called aspects. The effect of such a decree is a ruling only on the demurrer to the bill as a whole, and if any aspect is good, the decree overruling the demurrer is due to be affirmed. Robinson v. Robinson, 273 Ala. 192, 136 So. 2d 889, and cases cited.
In our opinion the bill as amended met each and every requirement of §§ 1116 and 1117, Title 7, Code 1940, as amended, and hence was sufficient as a proceeding in rem to establish title to the land described. No error is made to appear in connection with the decree overruling the demurrer to the amended bill.
The evidence shows without dispute that complainant was in the actual, peaceable possession of the suit property at the time the bill was filed, which, as shown above, is one of the conditions under which a proceeding in rem to quiet title may be filed.
*811 The evidence fully supports the finding of the trial court to the effect that complainant had been in the open, notorious, absolute, hostile and exclusive possession of all of the suit property, claiming to own the same in fee simple for more than twenty-eight consecutive years prior to the filing of the bill of complaint.
Appellants' contention seems to be that appellee's title could never ripen into a fee simple title for the reason that the will of Mrs. Allie Watts Sheppard, under which complainant claims, did not constitute "color of title." Even if it be conceded that the devise to complainant under the Sheppard will was not "color of title" to an undivided one-half interest in the lands in suit, the correctness of the trial court's decree vesting title in complainant under the doctrine of prescription is not jeopardized because § 828, Title 7, Code 1940, which is the adverse possession statute and which requires color of title in order to establish title by adverse possession of ten years, unless certain other conditions are shown, has no application to the prescriptive period of twenty years. In Alford v. Rodgers, 242 Ala. 370, 372, 6 So. 2d 409, 410, it was said: "* * * This statute [§ 828, Title 7] does not prescribe a limitation on the right acquired by the twenty year prescription period of adverse possession. * * *" To like effect see Davis v. Wells, 265 Ala. 149, 90 So. 2d 256; Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553; Walker v. Coley, 264 Ala. 492, 88 So. 2d 868; Howard v. Harrell, 275 Ala. 454, 156 So. 2d 140.
This court has adhered with uniform tenacity to the doctrine of prescription and has repeatedly held that the lapse of twenty years, without recognition of right or admission of liability, operates as an absolute rule of repose. Walker v. Coley, supra; Morris v. Yancey, supra, and cases cited.
In Stearnes v. Woodall, 218 Ala. 128, 117 So. 643, after quoting from Kidd v. Borum, 181 Ala. 144, 61 So. 100, we said:
The amended bill contained all the statutory requirements for a proceeding in rem to establish title to lands. The decree of the trial court adjudged that they existed. The evidence shows beyond peradventure that complainant had acquired title to the lands in suit by the twenty-year prescriptive period of adverse possession.
The decree of the trial court vesting title in fee simple to the lands described in the bill of complaint in the complainant, Houston D. Alexander, is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, COLEMAN, and HARWOOD, JJ., concur. | January 14, 1965 |
3211fd69-188e-484c-b5c7-bc6d58af9115 | Johnson v. Howard | 181 So. 2d 85 | N/A | Alabama | Alabama Supreme Court | 181 So. 2d 85 (1965)
Andrula JOHNSON,
v.
Hillard HOWARD.
2 Div. 446.
Supreme Court of Alabama.
December 9, 1965.
*87 Harry W. Gamble and J. E. Wilkinson, Jr., Selma, for appellant.
Pitts & Pitts, Selma, for appellee.
PER CURIAM.
The contestants of a will appeal from an adverse judgment of the Circuit Court of Dallas County, Alabama, wherein a jury rendered a verdict in favor of the proponent of the will of Mattie Douglas Johnson, known also as Mattie Jones.
The contestants, Andrula Johnson, a person of unsound mind, by Sam Lewis, as guardian, and Sam Lewis as guardian of Andrula Johnson, a person of unsound mind, contend, by appropriate pleadings, that the testatrix was mentally incompetent to make and execute a will on the 11th day of January, 1961, the date the will in question was executed; and also that the execution of said will was obtained by undue influence exercised over her by the two principal beneficiaries of said will; namely, Hillard Howard and his wife, Alberta Holmes Howard, one or both of them.
It appears that the testatrix, whom we will refer to as Mattie Jones, willed all of her Alabama real and personal property to the Howards, and $1.00 to a mentally retarded child, Andrula Johnson, approximately 48 years of age at the time.
Appellants here assert by assignment of error that the trial court erred in overruling their motion for a new trial. This assignment presents for consideration of this court all questions of law and fact *88 sufficiently set forth in the motion and adequately argued on this appeal. Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358(8).
We will first consider grounds numbered 2 and 3 of the motion, as follows:
The evidence on the issue of testatrix's mental competency at the time she executed the will on January 11, 1961, is conflicting. It appears from the record before us that appellants introduced five witnesses who testified as to their knowledge of testatrix, and that she was a person of unsound mind, and also to facts and circumstances concerning testatrix from which the jury could infer such incompetency on the date in question.
Proponent of the will introduced eleven witnesses whose testimony tended to support proponent's contention that testatrix was mentally competent when she executed the will on January 11, 1961.
We here accord full recognition to the many pronouncements of this Court that jury verdicts are presumed to be correct and no ground of a new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. Smith v. Smith, 254 Ala. 404, 48 So.2d 546(5).
In view of this conflicting evidence, we are unwilling to disturb the verdict on the issue of mental competency. A delineation of the evidence on this issue would unnecessarily burden and lengthen this opinion.
Appellants insist that the will of testatrix was the product of undue influence exercised by the two principal beneficiaries, Hillard Howard and his wife. This insistence is not so devoid of merit as the issue of mental competency vel non.
The evidence shows that testatrix owned her home and two or three other houses and lots in the neighborhood of the home. This property was the subject of the will, but not some real property in Detroit, Michigan, which testatrix specially requested not to be included in the will.
On November 30, 1960, she had a joint savings account in a Selma bank in the sum of $3252.90, which she checked out and turned over to Alberta Howard on the same date. This savings account was in the name of Mattie Jones or Andrula Johnson. The withdrawal, less $350.90, was deposited to the account of Alice Howard, in the same bank on the same date. Alice Howard was the niece of the Howards. Some of this money was used by the Howards to repair the real property of the donor, Mattie Jones. A substantial amount of the withdrawal was used by Hillard Howard to buy cattle for himself.
It also appears from the evidence that at the time of the execution of the will, testatrix also executed and delivered a deed to the Howards that conveyed her real property in Selma. The Circuit Court of Dallas County vacated the deed. The proceedings concerning this real property were not introduced in evidence, but excerpts of Alberta Howard's testimony at this trial were admitted in evidence in the case at bar over the objection of proponent. The rulings of the trial court in the case at bar on the objections to the admission of this testimony are not before us.
These excerpts tended to show a course of conduct between the Howards and testatrix which appellants here contend, along with other testimony, establish a confidential relationship between the Howards and testatrix. The evidence was admitted to that end. The Howards in the case at bar did not take the witness stand. Alberta Howard testified in the former trial to set aside the deed that Mattie Jones talked to her first and told her what she wanted *89 to do and "she recommended that we see somebody that know more about it than we did and we went and talked to Mr. Zimmerman." After seeing Mr. Zimmerman, who employed Hillard Howard, they went to the office of Mr. Esco (the attorney who prepared the deed and will). Testatrix told him what she wanted done, and also discussed before witness the making of a will and a divorce from her husband. Mr. Esco, according to witness, subsequently prepared a deed and other instruments for her to sign. Further, Alberta Howard testified that Mr. Esco did not tell her that he did not want her or her husband present at the time Mattie Jones signed the instruments. Witness was present when the instruments were signed. Further, witness stated that "we" saw Mr. Esco several times before the instruments were signed. Witness did not remember that Mr. Esco told her to have testatrix come up to his office by herself in a taxicab and sign her will and deed. She didn't know that Mattie Jones came to Mr. Esco's office several times by herself.
Attorney Sam Esco, a witness, introduced by proponent of the will, testified that he had been representing Mattie Jones for about five years prior to January 11, 1961, the date the will was executed. At an interview on December 29, 1960, prior to the date of the execution of the will, he took down all the facts and placed them in his regular will information sheets. He saw her three different times between December 29, 1960 and January 11, 1961, and discussed with her about the will and how it was to be drawn. On January 11, 1961, testatrix came to his office in a taxicab, and on arrival she went to Mr. Esco's private office where he presented her with the prepared will. Testatrix read the will, studied it, and then discussed with him various provisions of the will. Mr. Esco explained to her the contents of the will. He then testified as to its execution.
Mr. Esco testified on cross-examination that at the time Mattie Jones executed the will he understood that Alberta Howard was in an outer office; she was not in his private office; that he sent a taxicab for Mattie Jones, and then put her in a taxicab and sent her home; that he called Mr. Zimmerman to come to his office; that Mattie Jones paid him for his legal services for preparing the will and the deed; and she insisted on various changes in the will. Further, he testified that he did not know if the Howards ever told him they were looking after Mattie Jones' property.
Witness James Zimmerman, called by proponent, testified as to Mattie Jones signing the will in his presence in the office of Mr. Esco; that no one else was present in the office where the will was signed except Mattie Jones and the three witnesses. Also, he stated that he had known Mattie Jones for 5, 6 or 7 years and Hillard Howard and his wife for 20 or 25 years; that he would see Mattie Jones two or three times a week, either in the pasture or in his store.
On cross-examination, he testified that he had seen the Howards and Mattie Jones together on his place; that they came to him a short while before he witnessed Mattie Jones' will and told him about Mattie Jones wanting to make a deed (no mention was made of a will) to her property to the Howards. He advised them to see Mr. Esco.
On further Re-direct Examination, witness testified that one of the Howards and Mattie Jones talked to him about making a deed. This was a short time before he witnessed the purported will. Mattie Jones wanted to convey her property to the Howards, but not her Detroit real property. Witness also testified that he did not know a deed was executed on the same date that the will was executed. Witness also testified about selling Hillard Howard some cattle for $1749.50 for which he received a check drawn by Alice Howard on the bank account created in her name by depositing the money that Mattie Jones had withdrawn from the joint bank account and delivered to the Howards.
*90 While we have not delineated the entire testimony adduced at the trial of this will contest, we think the above fairly depicts the evidence adduced on the issue of undue influence as a ground of contest. We do not deem it necessary to set out or narrate the testimony on the issue of insanity. We have carefully reviewed all the testimony and read the text of the same. We noted the conflicting evidence as to the mental state of Mattie Jones, before, at the time, and after the execution of the will. Suffice it to say, the jury resolved the mental issue in favor of proponent; also her mental condition favorably to proponent as it affects or sheds light on the issue of undue influence. The verdict of the jury was tantamount to a finding for proponent's contention that testatrix was not so weak mentally that she was a victim of undue influence on the part of the Howards.
The alleged mental weakness and senility vel non of testatrix before and at the time she executed the will were evidential factors on the issue of undue influence. This pronouncement comports with Coghill v. Kennedy, 119 Ala. 641, 24 So. 459 (11, 25), wherein we observed:
By the same token it was competent for the contestant to show that the testatrix was of a weak mind and unable to protect herself against the fraudulent designs of others.
It is again to be observed from the alleged statements against interest on the part of Alberta Howard at the trial of the equity proceeding to set aside the deed from Mattie Jones to the Howards, that the witness Alberta Howard testified that testatrix "talked to me first and told me what she wanted to do and she recommended that we see somebody that know more about it than we did, and we went and talked to Mr. Zimmerman." This statement along with other evidence of the witness Alberta Howard was introduced by contestant, who vouched for its truth.
From this testimony, it is apparent that testatrix approached the witness with the suggestion that they find someone who knew more about what was to be done than they did. The suggestion was made to see Mr. Zimmerman. This contact was made. Mr. Zimmerman recommended Mr. Esco as a suitable lawyer to consult. So we observe that Alberta Howard was rendering help that Mattie Jones solicited.
We have held that in a contest of a will on the ground of undue influence there must be evidence of active interference by the beneficiary in procuring the execution of the will. Coghill v. Kennedy, 119 Ala. 641, 666, 24 So. 459; Lockridge v. Brown, 184 Ala. 106, 63 So. 524(5); Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792(4). This activity must be in procuring the execution of the will and more than an activity and interest referable to a compliance with or obedience to the voluntary and untrammelled directions of the testator. Kahalley v. Kahalley, supra. The fact that Alberta Howard went with testatrix to seek a lawyer to draw the will, does not within itself establish such undue activity on the part of Alberta Howard.
It might be inferable from Alberta Howard's testimony at the trial in the equity proceedings, part of which contestant introduced in the case at bar, that she was actually present in the room when the will was executed. She testified that she was present "at the time these instruments were signed." Mr. Esco and Mr. Zimmerman testified in the case at bar that she was not *91 present in the room. Mr. Esco stated that she might have been on the outside in another room.
Be that as it may, the evidence is undisputed that testatrix of her own volition, after inquiry of Alberta Howard and Mr. Zimmerman, sought legal advice of Mr. Esco with respect to her will. Such advice was sought on two or three occasions before the will was actually signed. Final advice was sought when the will was executed. During these visits, she was neither senile nor weak-minded according to the tendency of proponent's evidence. The verdict of the jury indicates they were favorably impressed with this tendency.
When a will is contested on the grounds of undue influence, as here, the burden is on the contestant, in order to raise a presumption of undue influence, to prove dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Stanley v. Kelley, 267 Ala. 379, 102 So. 2d 16.
Further, this Court stated in Betz v. Lovell, 197 Ala. 239, 72 So. 500(3, 4):
In the case of Cox v. Hale, 217 Ala. 46, 114 So. 465(11), this Court also observed:
On the question of undue influence in the execution of the will, the evidence was conflicting and was properly submitted to the jury, and the jury decided this question in favor of proponent.
It is recognized by this Court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the verdict is strengthened. Smith v. Smith, 254 Ala. 404(7), 48 So. 2d 546. New trials cannot be granted merely because the court sitting as a jury would have rendered a verdict different from that returned by the jury. Winter & Loeb v. Judkins, 106 Ala. 259, 17 So. 627 (2); Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So.2d 298(7).
*92 It is neither within the province of this Court to indulge in its own speculations and inferences from disputed evidence, Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345(13, 14), nor to engage in speculations as to why testatrix deemed it proper to cut off her retarded adult child by leaving her only $1.00. We cannot speculate as to why Mattie Jones withdrew the money from the bankalso subject to the daughter's withdrawaland delivered the same to Alberta Howard. The jury was privileged to draw reasonable inferences from the whole of the evidence as to testatrix's motivations. Evidently, they found nothing adverse to the proponent on the issues created by the pleading.
Appellants' Assignment of Error No. 4 asserts error on the part of the trial court in sustaining proponent's objection to argument of counsel for contestant as follows:
The argument, accusing the Howards of a criminal offense, was not germane to the issues of the case. The trial court's ruling was free from prejudicial error. "Much must be left, in the matter of an attorney's argument, to the enlightened judgment of the trial court, with presumptions in favor of its ruling." Occidental Life Insurance Co. of Cal. v. Nichols, 266 Ala. 521, 97 So. 2d 879(15).
Assignment No. 7 charges error on the part of the trial court in giving for proponent the following written charge:
This charge was held in Batson v. Batson, 217 Ala. 450(23), 117 So. 10, to have been properly refused as confusing to the right of the jury to consider the issue of insane delusion which was specially alleged in the bill of complaint. There was no such special issue in the case at bar.
The charge is an exact copy of Charge No. 15, which was approved in Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, wherein there was an issue of testamentary incapacity as well as undue influence in the execution of the will. The eminent Justice McClellan, speaking for the Supreme Court, said:
Assignment of Error No. 8 predicates error to the trial court in giving at the request of proponent Charge No. 25, which is set out in the statement of the case.
The giving of this charge was free from error. This exposition of the law was approved by this Court in the case of West v. Arrington, 200 Ala. 420(7), 76 So. 352.
Assignment of Error No. 10 predicates reversal on giving for proponent a written charge, No. 29, which is set out in the reporter's statement of the case.
*93 A like exposition of law (Written Charge 2) was approved by this Court in Snider v. Burks, 84 Ala. 53, 4 So. 225, paragraph 5 of the opinion.
Assignment of Error No. 11 complains that the court committed prejudicial error in giving for proponent Written Charge No. 30, as follows:
We note that the trial court orally charged the jury as follows:
Written Charge No. 30, set out herein, when considered in connection with the trial court's above-quoted oral charge, was free from error. McLendon v. Stough, 218 Ala. 445, 118 So. 647(3); Dees v. Metts, 245 Ala. 370, 17 So. 2d 137. It was subject to an explanatory charge if contestants so desired.
The judgment of the trial court is due to be affirmed.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | December 9, 1965 |
2a3abce5-0ecb-4d72-af60-4c3ed1e16bbe | National Biscuit Co. v. Wilson | 54 So. 2d 492 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 492 (1951)
NATIONAL BISCUIT CO. et al.
v.
WILSON.
6 Div. 34.
Supreme Court of Alabama.
October 11, 1951.
*493 London & Yancey, Geo. W. Yancey and Jas. E. Clark, all of Birmingham, for appellants.
*494 Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
LAWSON, Justice.
This is an appeal from a judgment rendered in the circuit court of Jefferson County against National Biscuit Company, a corporation, and Raymond Carter Sellers, defendants below and appellants here, and in favor of Jessie Beatrice Wilson, as administratrix of the estate of Grady Smith Wilson, deceased. The suit was brought under the so-called homicide or wrongful death statute. § 123, Title 7, Code 1940.
The complaint as originally filed contained two counts, the first charging simple negligence, the second charging wantonness. The second count was stricken on motion of plaintiff and the cause went to the jury on the first count, which count alleged in substance that on January 17, 1948, while plaintiff's intestate was a pedestrian on Morgan Bridge, near Childersburg, on Highway 91, the defendants ran a motor vehicle against plaintiff's intestate, and as a proximate consequence thereof he was so injured that he died. It is alleged that intestate's death was caused as a proximate consequence of the negligent operation of a motor vehicle by defendants.
Demurrer was overruled, whereupon defendants filed a plea in short by consent in the usual form. Upon issue being joined, trial was had before a jury, resulting in a verdict and judgment for plaintiff in the amount of $10,000.
Defendant's motion for new trial having been overruled, they have appealed to this court.
The action of the trial court in overruling demurrer to the complaint is not assigned as error.
It is without dispute that on the afternoon of January 17, 1948, plaintiff's intestate was hit by an automobile driven by the defendant Sellers while he was acting within the line and scope of his authority as an employee of the corporate defendant. Plaintiff's intestate died within a short time after he was hit.
Appellants insist that the trial court erred to a reversal in refusing to give at their request the general affirmative charge with hypothesis. They contend that such charge should have been given on two theories: First, that there was no evidence to show that the defendants were guilty of any negligence which proximately caused intestate's injury; and, second, that the plaintiff's intestate was guilty of negligence which proximately contributed to his injury.
Where, as here, it is insisted that the affirmative charge should have been given for the defendant, we review the tendencies of the evidence in the light most favorable to the plaintiff, and this without any regard to the view which we may have as to its weight, and allow such reasonable inferences as the jury was free to draw, not those which we think to have been the more probable. Cornelison v. Logan, 253 Ala. 618, 46 So. 2d 215.
Plaintiff's intestate, an employee of the State Highway Department, was superintendent of a convict road camp located a short distance north of the town of Childersburg and about one-half mile south of Morgan Bridge, which spans the Coosa River as a part of Alabama Highway 91. The bridge is approximately 1,000 feet in length, is level, and the highway approaches at both ends of the bridge are straight and level for a distance of approximately a mile and a half or two miles. The floor of the bridge is made of concrete, the approaches thereto of asphalt.
The day of the accident was extremely cold. Snow had been falling and traffic had been held up due to the snow and the formation of ice on the roads. Between 5:00 and 5:15 p. m., a Highway Patrolman who had just driven across Morgan Bridge in a southerly direction notified Wilson, the deceased, that the bridge was covered with ice. Wilson, a highway foreman, and ten convicts proceeded to the bridge for the purpose of removing the ice by the use of shovels, brooms, and chemicals. Work was begun on the south end of the bridge and had progressed only a short distance when a car entered the north end of the bridge. Soon after it entered the bridge, this car began to skid and finally came to rest at a point near where the men were working. The car had its parking lights *495 on at the time, as it was "dusk dark," but visibility was such that one could see from one end of the bridge to the other. The car stopped parallel with the bridge, up against its west side.
Approximately two minutes after the car above referred to had stopped on the bridge, the car driven by the defendant Sellers came onto the north end of the bridge. It soon began to skid. After skidding a considerable distance, Sellers' car hit deceased and pinned him up against the rear of the other car and the west side of the bridge.
There is no direct evidence that Sellers knew the floor of the bridge was covered with ice, but it does appear that he knew the roads in the vicinity of the bridge were slippery due to ice formations. Sellers had been out in his car all day in the inclement weather. For a considerable distance north of the bridge, the road on which Sellers was travelling had ice formations on it. Sellers knew of this condition and admitted that the frozen places in the road were very slick. He testified that as he approached the bridge he was travelling at about twenty or twenty-five miles an hour and that he slowed down very little. According to Sellers, his car did not begin to skid until he had driven 200 or 300 feet on the bridge when, upon observing some object on the bridge, he put on his brakes.
But the evidence for the plaintiff is to a different effect. As to the speed of Sellers' car at the time it came on the bridge, the jury could have found from the evidence that it was travelling as fast as sixty miles an hour. Likewise, the jury could have found from the evidence that Sellers' car began to skid practically at the moment it came upon the bridge and skidded a distance of approximately 950 feet until it hit deceased, after weaving from side to side and striking the sides of the bridge from seven to ten times.
In 113 American Law Reports, on page 1002, is an extensive annotation on the subject of "liability for damages or injuries by skidding motor vehicle." It will be found by reading it that the courts generally hold that accidents produced exclusively by skidding on an ice-covered surface of a road, and which are not contributed to by nonobservance of some other precautionary requirement, will not support a cause of action based on negligence.
But it is also the general rule that one driving on a slippery highway must take that condition into consideration and if there is evidence tending to show that the skidding was superinduced or accelerated by him, then it is for the jury to determine whether on not the skidding resulted from the driver's negligence. Hewitt's Adm'r v. Central Truckaway System, 302 Ky. 459, 194 S.W.2d 999; Vunak v. Walters, 157 Pa.Super. 660, 43 A.2d 536; Hill v. Bardis, 96 N.H. 14, 69 A.2d 1; Brown v. Arnold, 303 Mich. 616, 6 N.W.2d 914; Humphries v. Complete Auto Transit, Inc., 305 Mich. 188, 9 N.W.2d 55; Zeinemann v. Gasser, 251 Wis. 238, 29 N.W.2d 49; Stanford v. Holloway, 25 Tenn.App. 379, 157 S.W.2d 864; De Antonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567; Sigmon v. Mundy, 125 W.Va. 591, 25 S.E.2d 636; Barret v. Caddo Transfer & Warehouse Co., 165 La. 1075, 116 So. 563, 58 A.L.R. 261; Tutewiler v. Shannon, 8 Wash. 2d 23, 111 P.2d 215; Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; 5 Am.Jur. 654, § 273; 1 Blashfield, Cyc. of Automobile Law and Procedure (Part 2), § 653, p. 518.
In Kaczmarek v. Murphy, 78 Ohio App. 449, 70 N.E.2d 784, 786, the rule is stated as follows:
"The mere skidding of an automobile on an icy street does not necessarily prove negligence of the driver of the car. See Kohn, Adm'x v. B. F. Goodrich Co., 139 Ohio St. 141, 38 N.E.2d 592; Satterthwaite v. Morgan, Jr., 141 Ohio St. 447, at page 453, 48 N.E.2d 653.
"Skidding, however, may so occur in connection with acts or omissions of the operator as to warrant a finding of negligence in the operation of a car. And if there is evidence showing or tending to show that an automobile skidded into a collision with another car, lawfully operated on a highway, because of a lack of ordinary care of the driver of the skidding car in the operation thereof, such circumstances make a case for the jury. For, while proof that the car skidded is not necessarily proof *496 of its negligent operation, proof of circumstances which so connect the skidding with such operation that reasonable minds could reach different conclusions as to whether the car was operated properly, makes a case for a jury. If the negligent operation of an automobile caused a car to skid, and damage to others from such skidding results, such negligence, if established, has the same consequences as to liability as negligence of any other character."
The rule is stated in 5 Am.Jur. 654: "The inquiry in cases of skidding is as to the driver's conduct previous to such skidding. The speed of the automobile prior to the skidding and the care in handling the automobile, particularly in the application of brakes, are factors to be considered in determining whether or not there was an exercise of due care * * *."
Without question, the jury could have readily concluded from the evidence that driving conditions at the time of this accident were hazardous. Sellers' own testimony supports such a finding. He was confronted with driving on a road which he knew had ice formations on it, although he may not have known that the floor of the bridge itself was covered with ice.
Whether Sellers met the conditions confronting him as he travelled on a slippery highway as an ordinarily prudent man would meet them was, we believe, properly left to the jury. We hold, therefore, that the defendants were not entitled to the general affirmative charge on the theory that there was no evidence to support a finding of negligence on their part.
We come now to consider the insistence of appellants here, defendants below, that they were entitled to the affirmative charge on the theory that the evidence showed as a matter of law that plaintiff's intestate was guilty of negligence which proximately contributed to his injury.
This insistence is predicated on the claim that Wilson, the deceased, was in charge of the men who were working on the bridge and that he failed to give proper warning of the fact that he and the men under him were working on the bridge.
The jury could have found from the evidence that immediately upon reaching the bridge, the deceased ordered that signs be placed on the approaches to the bridge. However, the evidence in this respect is extremely meager and some of plaintiff's own witnesses testified that such warning signs were not put out. However, the jury could unquestionably have found from the evidence that Wilson directed a convict to stand at the south end of the bridge and sent another convict toward the north end of the bridge with a red flag with which to warn motorists proceeding in a southerly direction. At the time of the accident a convict was flagging traffic toward the north end of the bridge, although he had not reached the approach to the bridge. But visibility was such that one approaching the bridge from the north, if keeping proper lookout, could have seen this warning signal before reaching the bridge. Sellers testified that he did not see the flagman but, as before indicated, there was ample evidence to support a finding by the jury that the flagman was at a position where, if Sellers had been keeping the proper lookout, he would have seen him.
We are of the opinion that the question of contributory negligence was properly left to the jury.
The appellants urge with great earnestness that the trial court was in error in overruling the motion for a new trial because the verdict of the jury was contrary to the great weight of the evidence. Where there is evidence, which if believed justified the verdict, the motion for new trial is properly overruled. Johnson v. Louisville & N. R. Co., 240 Ala. 219, 198 So. 350; Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725. Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799; Southern Ry. Co. v. Kirsch, 150 *497 Ala. 659, 43 So. 796; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546. After allowing all reasonable presumptions in favor of the correctness of the verdict, we cannot say that the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, supra.
We cannot say that under the evidence the amount of damages is excessive or that the jury was actuated by bias, passion or prejudice. The trial court heard the evidence and let the verdict stand. We shall not disturb it. City of Mobile v. Reeves, 249 Ala. 488, 31 So. 2d 688, and cases cited.
It is insisted that the trial court erred in failing to grant a new trial on the ground that the verdict of the jury was contrary to the law as given them in certain written charges and in the court's oral charge. The argument in support of this insistence is in effect nothing more than a repetition of the argument advanced in support of the contention that defendants were entitled to the general affirmative charge with hypothesis, which question we have heretofore treated.
In closing argument to the jury, counsel for plaintiff made the following statement: "This case is against the National Biscuit Company, a corporation, and Mr. Sellers. They are the ones who have written the little black death certificate of her husband." Counsel for defendants objected as follows: "Now, we object to that, may it please the Court, that they have written the little death certificate. That is the death certificate he holds before them. We object to that argument as improper." The objection was overruled and exception reserved. The death certificate had been introduced in evidence and the argument of counsel for the plaintiff was nothing more than a statement that the defendants had caused the death of plaintiff's intestate. This we think was legitimate argument under the evidence.
In brief filed here on behalf of appellants, complaint is made of other parts of the argument of counsel for plaintiff. In some instances no objection was interposed; in other instances, objections of counsel for defendants were sustained and the argument excluded. The contention of appellants that because of such argument this case should be reversed is answered in the following quotation from the opinion in the case of Pure Milk Co. v. Salter, 224 Ala. 417, 420, 140 So. 386, 388.
"Under point 2 in his brief the defendants group assignment of errors numbered 14, 15, 16, 17, and 18, all presenting the question of the correctness of the court's action in overruling motion of defendants for a new trial, predicated upon the improper remarks of plaintiff's attorneys in their arguments to the jury. That the attorneys for plaintiff, in the objected to portions of their argument, exceeded the bounds of legitimate or permissible argument there can be no doubt. The record shows that in each instance, where objection was made and ruled upon, the court sustained the objections. No further action was invoked, and no further repressive measures were asked for by defendants. It would appear that the defendants were content with the ruling of the court in sustaining their objections. No hint or suggestion was made that the case be taken from the jury and a mistrial entered. This undoubtedly placed the defendants, whether so intended or not, in the attitude of speculating on a favorable verdict; and they would be so held unless the argument was `so grossly improper and highly prejudicial, that its evil influence and effect could not be eradicated from the minds of the jury by any admonition from the trial judge.'
"In the case of American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507, many decisions of this court, touching the point under consideration, were reviewed. In that case, the trial court overruled the objection of the defendant, as last made, to certain portions of the argument of plaintiff's attorney, and an exception was duly reserved. In the instant case, the objections were sustained, where any ruling was made by the court and no further action on the part of the court was requested. The question then is, in this case, on consideration of the motion for a new trial: Were the remarks of counsel so improper and *498 prejudicial as to be ineradicable from the minds of the jury, and thus to require a new trial?
"After a careful consideration of the offending remarks, we cannot affirm error on the part of the court in overruling defendants' motion for new trial, in so far as the same is predicated upon those grounds."
We have considered all assignments of error properly presented for our consideration under the rules that obtain. We find no reversible error and the judgment appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER, STAKELY and GOODWYN, JJ., concur. | October 11, 1951 |
fd6c7dae-97c2-486a-8cde-84d672befc68 | Nason v. Jones | 179 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 281 (1965)
George NASON
v.
Kermit F. JONES.
6 Div. 37.
Supreme Court of Alabama.
March 4, 1965.
Rehearing Denied October 21, 1965.
*282 J. R. Forman, Jr., Robt. G. Tate and Moore, Thomas, Taliaferro & Burr, Birmingham, for appellant.
Tweedy & Beech, Jasper, for appellee.
LAWSON, Justice.
This is a workmen's compensation case.
On April 2, 1953, Kermit F. Jones instituted this suit by filing his complaint in the Circuit Court of Walker County against his employer.
In his complaint Jones sought benefits, claiming that on April 7, 1952, he had suffered an accident and injury which arose out of and in the course of his employment, in that he was overcome by carbon monoxide fumes and rendered unconscious.
*283 On April 8, 1955, Jones amended his complaint by correcting the name of his employer and by adding averments to the effect that prior to April 7, 1952, he had contracted occupational pneumonoconiosis while working in the defendant's mine and which disease, along with the inhalation of carbon monoxide fumes, rendered him totally and permanently disabled.
On January 15, 1963, the employer, George Nason, filed a plea wherein he averred that the complaint, as amended, was barred by the statute of limitations of one year.
On August 26, 1963, Jones again amended his complaint by adding an additional count wherein he averred that on, to wit, April 7, 1952, and for some years prior thereto the plaintiff was working in the mines of the defendant in Walker County, Alabama, and that at said time "both the plaintiff and the defendant were subject to the workmen's compensation laws of Alabama; that said mines were coal mines belonging to the defendant which was a hazardous occupation and accumulated a lot of dust; that on, to-wit, April 7, 1952, the plaintiff was overcome by carbon monoxide fumes and other fumes present in said mine and was rendered unconscious and was taken out of the mines and has never worked in the mines again; that his lungs were damaged; that at the time he had pneumoconiosis [sic] dust disease on his lungs, which was caused, aggravated or brought about or hastened his disabling condition to work in the mines; that his disabled condition was brought about or aggravated by these carbon monoxide fumes and other fumes present in said mine which damaged his lungs and he has not worked any coal mines since said date."
To the complaint as last amended, the defendant, on August 26, 1963, interposed a demurrer, which was overruled, a plea setting up the statute of limitations of one year and an answer wherein it was admitted plaintiff and defendant were subject to the workmen's compensation laws on April 7, 1952, and that the plaintiff had been employed by the defendant in underground mining for more than one year prior to April 7, 1952. The answer averred that plaintiff's average weekly earnings were $66.15 per week and that plaintiff "had last worked on April 7, 1952." The answer denied all other allegations of the complaint as last amended.
The case proceeded to trial and at the close of the testimony the trial court took the cause under advisement. On September 30, 1963, a final decree was rendered in favor of the plaintiff.
The defendant filed in this court a petition for writ of certiorari to review the decree of the trial court. The writ was duly issued.
The defendant insists that the trial court erred in holding that the amendments to the complaint were not subject to "the statute of limitations of one year."
The argument is that the amendments to the complaint added a new cause of action so that the amendments dated as of the time they were filed and did not relate back to the date of the filing of the original complaint, "insofar as the statute of limitations is concerned."
Where there is an amendment to a complaint which adds a new cause of action, it does not relate back to the commencement of the suit insofar as the statute of limitations is concerned.United States Steel Corp. v. McGehee, 262 Ala. 525, 80 So. 2d 256; Leslie v. Republic Steel Corp., 273 Ala. 586, 143 So. 2d 442.
The question of whether a particular amendment adds a new cause of action has been before this court many times. In the case of Isbell v. Bray, 256 Ala. 1, 53 So. 2d 577, we quoted with approval from the case of Alabama Consolidated Coal & Iron Co. v. Heald, 171 Ala. 263, 55 So. 181, as follows:
The Isbell case, from which we quoted above, did not deal with a statute of limitations question, but the rule of the Isbell case has been stated and followed in cases involving the statute of limitations.United States Steel Corp. v. McGehee, supra; Ex parte Godfrey, 275 Ala. 668, 158 So. 2d 107.
We are clear to the conclusion that in the instant case the amendments add a new cause of action insofar as they seek to recover benefits for occupational pneumonoconiosis.
The cause of the injury claimed in the original complaint was the inhalation of carbon monoxide fumes during a period of several hours and nothing more, while the cause of the disease of occupational pneumonoconiosis is, by definition and under the evidence in this case, the inhalation of minute particles of dust over a period of years.
As early as 1926, in the case of New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360, this court held that a plaintiff who was engaged in coal mining and was overcome by, and rendered unconscious, as a result of breathing carbon dioxide or carbon monoxide gas or both, suffered an accident within the meaning of the Workmen's Compensation Law. In the original complaint plaintiff sought to recover on this theory alone.
The claim of occupational pneumonoconiosis set forth in the amendments is governed by the provisions of Act 180, approved June 29, 1951, Acts of 1951, Vol. I, p. 426; Pocket Parts, 1940 Code of Alabama, Title 26, §§ 313(1)-313(16); 1958 Recompiled Code of Alabama, Title 26, §§ 313 (1)-313(16). This 1951 act, supra, made the disease of occupational pneumonoconiosis compensable as an injury by accident under the Workmen's Compensation Law only if (1) the disease arose out of and in the course of the employment; (2) the disease resulted from the nature of the employment in which the employee was engaged under such employment; (3) as to the industry in which the employee was engaged there was attached (a) a particular hazard of such disease, (b) the hazard attached to such employment was such as distinguished such employment from the usual run of occupations, and (c) the hazards of such disease in the employment in which the employee was engaged is in excess of the hazards of such disease attending employment in general. See United States Steel Corp. v. Danner, 263 Ala. 310, 82 So. 2d 404.
The injury relied upon in the original complaint is different from the disease of occupational pneumonoconiosis treated in the amendments. The medical testimony presented on the trial of this case was undisputed to the effect that although the inhalation of carbon monoxide fumes might cause death by suffocation, nevertheless if death did not ensue the patient would recover completely, whereas the testimony shows that occupational pneumonoconiosis not only is contracted over a long period of time but is permanent.
Also the defenses which might have been interposed by the defendant to the claim in the original complaint are different from those which could be interposed to the claim of occupational pneumonoconiosis *285 set up in the amendment. In defense of the claim set up in the original complaint the defendant could present in defense thereof that plaintiff did not breathe the carbon monoxide fumes in the mine and that he suffered no disability therefrom. In defense of the claim of the occupational disease, the defendant could assert, among other things, that plaintiff was not exposed, within a period of five years prior to the date of injury, to the hazards of such disease in each of at least twelve months; that as to the industry in which plaintiff was employed by defendant, there was not attached a particular hazard of such disease that distinguished it from the usual run of occupations and is in excess of the hazards of such disease attending employment in general; that plaintiff did not, in fact, have such disease.
In our opinion, as we have indicated above, the amendments added a cause of action which was inconsistent with and a departure from the original complaint.
Since the amendments asserted a new cause of action, they did not relate back to the commencement of the suit. They were not timely filed in that they were not filed within one year from the date of injury, the date on which plaintiff was last exposed to the hazards of the disease, which was on April 7, 1952. § 10, Act 180, supra.
The fact that plaintiff did not discover that he was suffering from occupational pneumonoconiosis until after the expiration of one year from the date of injury did not toll the running of the statute.Davis v. Standard Oil Co. of Ky., 261 Ala. 410, 74 So. 2d 625.
We hold, therefore, that the trial court was in error in awarding to plaintiff benefits based on his claim of having contracted occupational pneumonoconiosis while working in defendant's mine.
The defendant below asserts that the trial court erred in finding that the plaintiff suffered an accident within the purview of the Workmen's Compensation Law on April 7, 1952, by the inhalation of gases and fumes. We do not agree. In our opinion there was some legal evidence to support such a finding. Hence, that finding will not be disturbed here. The rule of review applicable in Workmen's Compensation cases is well established. This court will not look to the evidence to ascertain the weight or preponderance thereof as to any fact found by the trial court, but simply to see if there is any evidence, or reasonable inferences from evidence, to support the facts found by the trial court. If, on any reasonable view of the evidence, it will support the conclusion reached by the trial court, the finding and judgment will not be disturbed. Otherwise stated, the rule is that where there is any legal evidence, or reasonable inference from legal evidence, to support the finding of facts of the trial court, such findings are conclusive, and the judgment rendered thereon will not be disturbed.Lucas v. Black Diamond Coal Mining Co., 262 Ala. 368, 79 So. 2d 26, and cases cited; Horton v. DeLoach, 276 Ala. 357, 162 So. 2d 453.
The defendant below also insists that the trial court erred in requiring defendant to pay interest to plaintiff on benefits awarded to him from the date on which those benefits were held to have accrued.
Under our holding in Baggett Transportation Co. v. Holderfield, 260 Ala. 56, 68 So. 2d 21, the court erred in so decreeing.
Because of the errors indicated, the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
*286 LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
LAWSON, Justice.
We have given careful consideration to the brief filed in support of appellee's application for rehearing. The record was carefully read and studied before the deliverance of the original opinion, but we have reread it at the insistence of counsel for appellee, who seems to entertain the view that our original opinion was written without our having read the record. We have again read the opinion in Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So. 2d 513.
In appellee's brief filed on rehearing it is pointed out that the trial court found from the evidence that on and prior to April 7, 1952, the plaintiff had occupational pneumonoconiosis, which disease arose out of and in the course of plaintiff's employment by defendant and further found that the inhaling by plaintiff of gases and fumes caused by the burning of coal, silica and other materials on April 7, 1952, aggravated and acting upon the pre-existing disease of pneumonoconiosis. The trial court did so find and the evidence fully supports such a finding. We do not believe that we indicated to the contrary in our original opinion.
Our disagreement with the trial court was in its holding that: "* * * the amendment thereafter filed to the complaint was within the lis pendens and was not subject to the statute of limitations. That it related to the same accident or cause of action and merely set up the result of the injury subsequent to filing the original complaint." The amendments do relate to the same accident as the original complaint but, in our opinion, insofar as they claim benefits because of the contraction of occupational pneumonoconiosis or because of the aggravation of that disease they inject an injury altogether different from that relied upon in the original complaint. The original complaint cannot, in our opinion, be said to claim benefits due to any kind of lung injury, infirmity or disease.
We are still of the opinion that under the case of Alabama Consolidated Coal & Iron Co. v. Heald, 171 Ala. 263, 55 So. 181, from which we quoted in the original opinion, the trial court erred in not holding that the amendments were subject to the plea of the statute of limitations.
Application for rehearing overruled.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | March 4, 1965 |
8119c3ab-6a67-49fc-a25d-8b8e7a88a22b | Walker v. Walker | 54 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 281 (1951)
WALKER
v.
WALKER.
6 Div. 249.
Supreme Court of Alabama.
October 4, 1951.
J. T. Johnson, Oneonta, for appellant.
L. P. Waid, guardian ad litem, Oneonta, for appellee.
STAKELY, Justice.
F. M. Walker (appellant) filed a bill in equity against his son Daniel L. Walker (appellee) to cancel a deed executed by him to his son. The basis of the bill is that the consideration for the deed or a material part thereof was the agreement on the part of the grantee Daniel L. Walker to support the grantor, F. M. Walker, during his lifetime. The court entered a final decree denying relief to the complainant. The appeal is from that decree.
A copy of the deed is attached to the bill as an exhibit and made a part thereof. It is dated March 11, 1944. It recites a consideration of $450. No mention in the deed is made of support of the grantor. F. M. Walker was a widower at the time the deed was executed. The grantee, the son of the grantor, is now an inmate of Bryce Hospital for the insane. On the affidavit of F. M. Walker that his son "is a person of unsound mind" the court appointed a guardian ad litem to represent the defendant on the trial of the cause.
The case was submitted for decree on testimony taken before the register acting as commissioner. So the case comes to this court without presumption in favor of the finding of the lower court. Bailey v. McQueen, 253 Ala. 464, 45 So. 2d 295.
When the consideration of a deed to real estate or a material part of the consideration of such deed is the promise on the part of the grantee to support the grantor during life, the deed may be avoided by the grantor at his election if proper proceedings are taken during the life of the grantor to annul the conveyance. § 15, Title 20, Code of 1940; Bush et al. v. Greer, 235 Ala. 56, 177 So. 341. Furthermore parol evidence is admissible to show that the true consideration for the execution of the deed to the real estate is the promise on the part of the grantee to support the grantor during life. Massey v. Massey, 246 Ala. 396, 20 So. 2d 790. The complainant in this case is the father of the respondent Daniel L. Walker. He is about 67 years of age but is not helpless. The testimony shows that the grantor is a Justice of the Peace and that he has "had a good bit of experience preparing deeds." The deed was written by Ida Clotus his daughter under his direction.
Daniel L. Walker, the grantee, while not so adjudicated, is a non compos mentis *282 and has been confined in Bryce Hospital at Tuscaloosa for more than a year. He was not available to testify in his own behalf or to defend the suit because of his mental condition.
The evidence has been carefully considered. There is testimony tending to support the allegations of the bill, but there is also testimony tending to show that Daniel L. Walker paid to his father $300 in cash and turned over to him a mule valued at $150 as part of the consideration for the deed. The grantee's wife and the minor children, who live on the place, deny any promise on the part of Daniel L. Walker with reference to support of the complainant. He is welcome, however, to come and live with them. The deed contains a reservation of a life estate by the grantor, but this is not necessarily inconsistent with an agreement of the grantee to support the grantor.
The deed is an absolute conveyance on its face. The appellant seeks to vary by parol evidence the clauses of this solemn instrument by showing that the effect was to vest the title in Daniel L. Walker, subject to divestiture by condition subsequent. Hannah et al. v. Culpepper, 213 Ala. 319, 104 So. 751. It is our conclusion, like the trial court, that there is no such convincing proof of an agreement to support during life as to carry the burden of proof in a case of this kind. Griffin v. Hovey, 179 Mich. 104, 146 N.W. 210. We agree with the court that the complainant is not entitled to cancellation.
We note that the bill was dismissed without prejudice. There is no cross assignment of error. So we find it unnecessary to discuss this feature of the decree. Obviously appellant has no complaint in this regard.
In its final decree the court allowed the guardian ad litem a fee of $100 for his services as such. It is argued that the allowance should not stand because there is no evidence to support the allowance. Under § 180, Title 7, Code of 1940 the court is authorized to ascertain a reasonable fee to be allowed to the guardian ad litem. The statute sets up no method by which the ascertainment is to be made. The court has the right to determine the fee by the exercise of its independent judgment upon a consideration of the case as developed by the record without being bound to accept the opinion of witnesses. Willett & Willett v. First National Bank of Anniston, 234 Ala. 577, 176 So. 344; Citizens' Light, Heat & Power Co. v. Central Trust Co. of Illinois, 200 Ala. 18, 75 So. 330. We are not willing to disturb the decree in this respect.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | October 4, 1951 |
2adc8009-d389-42e6-aad5-6e91b0727a2e | Blalock v. Johnson | 54 So. 2d 611 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 611 (1951)
BLALOCK et al.
v.
JOHNSON.
5 Div. 518.
Supreme Court of Alabama.
October 18, 1951.
*612 J.B. Atkinson, Clanton, for appellants.
Omar L. Reynolds and Reynolds & Reynolds, all of Clanton, for appellee.
SIMPSON, Justice.
Bill to settle a disputed boundary line between coterminous landowners, pursuant to Chapter 2, Article 1, Title 47, Code 1940. The defendants appeal from a decree overruling demurrer to the bill as amended.
The requisites of such a bill are well understood. The bill must show a dispute between the adjoining proprietors as to the correct line and ordinarily the true line should be described or it should be alleged that the true line is unknown. Mobile County v. Taylor, 234 Ala. 167, 174 So. 301; Baldwin v. Harrelson, 225 *613 Ala. 386, 143 So. 558; Smith v. Cook, 220 Ala. 338, 124 So. 898.
The bill as amended satisfies these requisites. It shows that the complainant is the owner of certain described lands in Chilton County, describing the same by metes and bounds, courses and distances, and that the defendants own lands adjoining, describing these lands in the same manner. It is then shown that the defendants' land lies on the west side of the complainant's land and that the true boundary line is the west and southwest line of the complainant's land as thus described, and that the said line is in dispute. Paragraph 4 of the bill then specifically describes this disputed boundary line by course and distance, giving the terminal point. These allegations, in our view, suffice to make the bill good against the asserted grounds of demurrer. Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898; Wise v. Massee, 239 Ala. 559, 196 So. 275.
It is the contention of appellants that there is a patent ambiguity in the description of the appellants' land, making it necessary that the court should have determined this fact on demurrer; in effect, as we understand the argument, should have determined on that hearing exactly where the true boundary was. In this we cannot agree. There must be a hearing on the facts. The complainant's land, as regards the disputed line, is described in the bill as beginning at a point 1069 feet east of the northwest corner, and going east 251 feet to the northeast corner of the quarter section; thence south 3 degrees thirty minutes east 231 feet to the shore line of the lake; thence south 20 degrees thirty minutes west along the shore line 107 feet, thence north 80° west along the shore line of the lake 411 feet, thence north 267 feet to the point of beginning. Then the east line of defendants' land, the main line in dispute, is described in substance as being the west line of the plaintiff's land. It would be impossible to determine the true line on a hearing on demurrer. It cannot be said with any certainty that the exact measurements of these respective lines are accurate. The matters of description designate well-defined terminal points and in such a case the descriptive courses and distances must yield. The defined terminal points and the fixed boundaries will dominate. Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243; Page v. Whatley, 162 Ala. 473, 50 So. 116.
For a better understanding of the opinion and to illustrate our conclusion, the report will reproduce a map of the lands and the respective descriptions.
It is our view that the demurrer was properly overruled.
Affirmed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | October 18, 1951 |
9e232d28-1778-428d-b487-e0d81e671f0e | Rowe v. Rowe | 55 So. 2d 749 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 749 (1951)
ROWE
v.
ROWE.
4 Div. 671.
Supreme Court of Alabama.
December 21, 1951.
*750 C. L. Rowe, pro se.
Walter J. Knabe, Montgomery, for appellee.
SIMPSON, Justice.
The appeal is from an interlocutory decree overruling a demurrer to a bill in equity. Appellee, wife of appellant, filed the bill, which is in two aspects. The first aspect sues appellant for separate maintenance and the second aspect relates to property and a division thereof. The first aspect is good, the second bad.
Demurrer was addressed to the bill as a whole and also specially to the two aspects. Without ruling on the demurrers to the separate aspects, the trial court rendered a general decree overruling the demurrer to the bill. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole and if either aspect were good, the decree is due to be affirmed. Badham v. Johnston, 239 Ala. 48, 193 So. 420. Cf. Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239. See The Alabama Lawyer, Vol. 12 (1951), pp. 344, 353, The Demurrer in Equity, by Judge E. N. Creel. This is merely a corollary to the principle long established in our decisions that on appeal from a decree "sustaining a demurrer to the bill" and no reference is made in the decree to the grounds of demurrer going to a part or aspect of the bill, only grounds going to the sufficiency of the bill as a whole will be considered, Penton v. Brown-Crummer Investment Co., 222 Ala. 155, 131 So. 14, and where a bill sets up several distinct equities, if complainant is entitled to relief on one or more, a decree sustaining the demurrer generally is to be referred to the grounds of demurrer addressed to the bill as a whole. Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417; Steele v. Freeman, 250 Ala. 336, 34 So. 2d 139; Wood v. Estes, 224 Ala. 140, 139 So. 331; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413.
The first aspect of the bill relative to complainant's right to separate maintenance shows that the defendant, without cause, ceased to live with her and ordered her to leave their home, which they had erected in the city of Elba; that since said time defendant has refused to support her, although he is a professional man with substantial income. This is a sufficient averment on which to rest a decree for separate maintenance. The contention of appellant that the bill should make some showing as regards the wife's financial status is untenable. The duty of supporting the wife devolves upon the husband, though she may be able to support herself or have a separate estate or other means of support. Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1; Neil v. Johnson, 11 Ala. 615; 101 A.L.R. 442, note.
The matter of the allowance and the amount, however, are within the sound discretion of the court, depending on the circumstances, one of which would be whether the wife is without means. Murray v. Murray, 238 Ala. 158, 189 So. 877; Higgins v. Higgins, 222 Ala. 44, 130 So. 677.
Since the first aspect of the bill was good and the decree overruling the demurrer *751 generally is referred to the bill as a whole and is interpreted as a failure on the part of the trial court to rule with reference to the several aspects of the bill, it results that the decree is due to be affirmed.
We regard it, however, as appropriate to refer to some well established legal principles for future guidance of the trial court with reference to the second aspect of the bill. The allegations as regard that aspect are to the effect that the home was erected in the city of Elba during the time complainant and respondent were living together, was furnished in large part with furniture which belonged to complainant at the time of the marriage, and during their married life the parties together, by their joint efforts, have accumulated a reasonable estate, presumably title to which is in appellant. Terrell v. Marion County, 250 Ala. 235(7), 34 So. 2d 160. We approve of brevity and perspicuity in pleading, but this aspect of the bill is entirely too brief and indefinite in its allegations. If the complainant seeks to reinvest herself of her own separate estate, then the bill should so allege and the property should be specifically described. On the other hand, if the complainant seeks to have herself invested with title to or have a division of property accumulated by the parties in their lifetime, title to which was taken in the husband, without any definite agreement or contract that she should have an interest or title therein, then that relief is beyond the scope and purview of a bill seeking separate maintenance. The rule is generally stated in 42 C.J.S., Husband and Wife, § 625(1), P. 263, as follows: "In the absence of statute, the court in a separate maintenance proceeding generally is without power to adjudicate the respective property rights of the parties or award specific property of the husband to the wife; * * *"
Alabama has no statute on the subject. In this jurisdiction separate maintenance allowed to the wife is based upon the husband's earnings or income or earning capacity, not upon the corpus of his estate, and in such proceeding the court cannot divide property between the parties. Wallis v. Wallis, 240 Ala. 439, 199 So. 844. Of such import is the holding in the Wallis Case, where the court made the following pertinent observation:
"The rule also is that such allowance is based upon his earnings or income and earning capacity, not on the corpus of his estate. Waldrop v. Waldrop, supra; Drew v. Drew, 226 Ala. 43, 145 So. 495; Rogers v. Rogers, 215 Ala. 259, 110 So. 140; Brady v. Brady, 144 Ala. 414, 39 So. 237; Donaldson v. Donaldson, 216 Ala. 259, 112 So. 836. But if not paid as directed, collection may be enforced as of other decrees out of any property subject to the payment of debts. Rogers v. Rogers, supra; Donaldson v. Donaldson, supra.
"The evidence shows that both of them worked hard and long to accumulate this estate. That she had much to do with it. But in such a proceeding, not involving permanent alimony and divorce, the court cannot divide the property between them. Her dower right is not affected, but she cannot get its equivalent without a divorce until his death * * *". 240 Ala. 440, 199 So. 844.
It is our view, however, that equity would under its general powers have authority in a separate maintenance proceeding to take jurisdiction over the equitable rights of a wife as regards her separate estate, which the husband may have appropriated or borrowed, and deal with it, since her equity therein arose otherwise than from the marriage relation. 42 C.J.S., supra; Spaulding v. Spaulding, 361 Ill. 387, 198 N.E. 136, 631, 101 A.L.R. 433, 442. But to the extent the bill seeks such relief, it should be specific in its allegations to that end, and with respect to which this bill is now signally lacking.
Affirmed.
All the Justices concur. | December 21, 1951 |
5d625f1f-01fb-4085-9a88-8e25f6506071 | Smith v. State | 55 So. 2d 208 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 208 (1951)
SMITH
v.
STATE.
5 Div. 525.
Supreme Court of Alabama.
November 23, 1951.
*209 J. A. Walker, Jacob Walker, Jr., and Walker & Walker, Opelika, for petitioner.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., opposed.
STAKELY, Justice.
It is argued on petition for certiorari that the opinion of the Court of Appeals is contrary to the decision of this court in this same case. Referring to Smith v. State, 34 Ala.App. 45, 38 So. 2d 341, the holding was to the effect that the plea in abatement taken to be true on demurrer, shows that the indictment was subject to the grounds of demurrer raising the point that the grand jury which found the indictment was not drawn in the presence of the officers, as required by law, thereby subjecting the indictment to be invalidated. In Smith v. State, 253 Ala. 277, 44 So. 2d 250, on the authority of Ex parte Spivey, 175 Ala. 43, 57 So. 491, it was held by this court that the defendant could not again be put in jeopardy on an indictment for carnal knowledge. Under the Spivey case, supra, if an indictment is returned by a grand jury not drawn in accordance with law, the judgment on that indictment is not avoided but remains in full force until avoided in a proper manner either on motion in arrest of judgment or reversal on appeal. Berry v. State, 65 Ala. 117.
In Smith v. State, 253 Ala. 277, 44 So. 2d 250, 252, it was held by this court that the verdict and judgment after trial on the indictment, which might be held invalid, is not referable to defects in the organization of the grand jury, since the indictment was not quashed, but that defendant was put on trial on the facts "and the jury acquitted [him] * * *, not on account of the defect in the indictment, but on the merits of the case." It was concluded that former jeopardy as regards to trial on the indictment would be good.
We consider that the real question now before the court is whether or not the defendant who is tried on a valid indictment for carnal knowledge and the jury convicts him under the charge of the court of assault with intent to rape, can later be put on trial for assault with intent to rape? We do not think that the case at bar presents a situation where former jeopardy is presented.
The test to ascertain former jeopardy is whether the facts alleged in the indictment for the latter offense, if proved to be true, would warrant a conviction on the first indictment. Foster v. State, 39 Ala. 229, 233; Gordon v. State, 71 Ala. 315. In order to prove the defendant guilty of carnal knowledge or abuse in the attempt to have carnal knowledge of a girl under twelve years of agethe offense for which defendant was first indictedit is necessary for the state to prove, among other things, the age of the child and physical abuse to the genital organs. Hutto v. State, 169 Ala. 19, 53 So. 809; Dawkins v. State, 58 Ala. 376. In the case of Montgomery v. State, 28 Ala.App. 442, 186 So. 589, 591, it was said: "To sustain a conviction in this case, there must be an attempt to carnally know the child and an injury to its private parts, and these things must be proven beyond a reasonable doubt."
Under an indictment for assault with intent to ravish (the indictment in the *210 present case), there is no requirement of proof of physical abuse to the genital organs and the age of the female is immaterial.
In the case of Hall v. State, 134 Ala. 90, 32 So. 750, the defendant was first tried for rape and acquitted, and then for seduction. The court held that former jeopardy was not available as a proper plea of defendant under the general rule of former jeopardy. The principle here under consideration was illustrated in Hanson v. State, 27 Ala.App. 147, 168 So. 698, certiorari denied 232 Ala. 585, 168 So. 700, 701. In that case it was said:
"It is also claimed that this defendant cannot be convicted on account of any conspiracy to manufacture whiskey, which the evidence may show in this record, since his guilt of murder was also dependent upon the same conspiracy, and his acquittal of murder was an acquittal of a charge of conspiracy to manufacture whiskey.
"But the contention, even if we should agree that the record presented it in the Court of Appeals, and here on review, loses sight of the principle that the judgment of acquittal is of a different offense as a whole, and not of each element of it, which may be also an element of some other offense. Neither offense includes the other, though they have some common element. They also have some which are not in common. A judgment of acquittal on a trial for an offense is only conclusive that the offense was not committed, but not that each of its elements did not exist."
A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. Blevins v. State, 20 Ala.App. 229, 101 So. 478, certiorari denied Ex parte Blevins, 211 Ala. 615, 101 So. 482; Smith v. State, 34 Ala.App. 45, 38 So. 2d 341, certiorari denied 251 Ala. 559, 38 So. 2d 347.
There are analogies in relation to other offenses which throw light on the question here presented. For example, a defendant is not put twice in jeopardy by being first tried for embezzlement and subsequently for larceny based on the same set of facts, since the law is different. Brown v. State, 30 Ala.App. 27, 200 So. 630, 631. Where a defendant is indicted for burglary and found guilty of grand larceny, he is not only acquitted of burglary but the conviction of grand larceny is subject to reversal because he was not indicted for said offense and also he is not put twice in jeopardy when he is subsequently indicted for grand larceny. Bowen v. State, 106 Ala. 178, 17 So. 335. In the Bowen case, supra, the defendant was indicted for burglary and found guilty of grand larceny on said indictment. In the former proceeding against the defendant in the case at bar, he was indicted for carnal knowledge and found guilty of assault with intent to ravish. In the Bowen case, supra, the defendant was convicted of grand larceny and the court held that he was acquitted of burglary and though found guilty of grand larceny, this did not preclude a subsequent trial for grand larceny on a valid indictment. The court in the Bowen case held that the defendant was acquitted of burglary and in the instant case the defendant was acquitted of carnal knowledge. The court in the Bowen case held however that larceny and burglary are not the same in law even though both indictments are founded on the same facts and that former jeopardy was no defense to being indicted subsequently and tried for grand larceny. The present case falls within the category of Bowen v. State, supra, because it does not involve two offenses which are the same in law.
We accordingly do not think that there is any merit in the contention of former jeopardy.
Writ denied.
LIVINGSTON, C. J., and BROWN, LAWSON and SIMPSON, JJ., concur. | November 23, 1951 |
8dea0562-7e7f-49d5-8698-768d7d31f0f0 | Pacific Fire Ins. Co. v. Overton | 55 So. 2d 123 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 123 (1951)
PACIFIC FIRE INS. CO.
v.
OVERTON.
8 Div. 600.
Supreme Court of Alabama.
November 15, 1951.
Jos. S. Mead, Birmingham, for appellant.
Guin & Guin, Russellville, for appellee.
SIMPSON, Justice.
Appeal from a verdict and judgment in a suit on a policy of fire insurance.
Appellant first seeks to predicate error to reverse on the action of the trial court in limiting its counsel's opening statement to the jury. The record relative thereto shows and only shows the following:
*124 "Objection by Mr. Guin to Mr. Mead's Opening Address to the Jury:
"Mr. Guin: I object to any statement of the evidence in advance.
"By the Court: I sustain the objection.
"By Mr. Mead: I expect to show your Honor what I expect the evidence to show.
"By Mr. Guin: I understand we haven't gone in detail to the jury and I object to counsel doing it.
"By Mr. Mead: It is my purpose to state to the jury what I expect the evidence to show and make such a statement to the jury as will enable them to understand the evidence as it comes.
"By the Court: The attorney can state to the jury the allegations of his pleas and what his defense is but he can't go in detail about what his evidence is.
"By Mr. Mead: Your Honor, I understand, the ruling is that I cannot state to the jury what I expect to show by the evidence.
"By the Court: You can state to the jury the allegations of your pleas but you can't go in detail about what the evidence will show.
"By Mr. Mead: I don't want to violate the Court's orders here but I just want to be sure about the ruling. I just want to state to the jury what I expect the evidence to show, as I understand Mr. Guin, I cannot state to the jury what I expect the evidence to show.
"By Mr. Guin: It never has been a rule in this court that an attorney can state the evidence in advance. He has a right to state the complaint but he can't state the evidence in detail. The reason for that is obvious.
"By the Court: The attorney has the right to read his pleas to the jury, he has a right to state to the jury the allegation of his pleas, he has a right to state just what defense he has in the case but he doesn't have a right to take time of court and go in detail about what he thinks his evidence will show.
"By Mr. Mead: We except to the Court's ruling." (Emphasis supplied)
We have variously expressed the rule in this jurisdiction with reference to the opening statement of counsel to the jury to the general effect that in cases involving issues of fact, counsel may outline what he expects the evidence to show, but its function is merely to indicate the issues of fact to the jury and this right of counsel is not unlimited, but is subject to control by the wise discretion of the trial judge. Wilkey v. State ex rel. Smith, 238 Ala. 595, 598, 192 So. 588, 129 A.L.R. 549, and cases there cited.
Our cases seem not to have considered the extent to which this discretion of the court may possibly be abused to operate to reverse the cause, but we pause now to say that where the party is given full opportunity to introduce his evidence and argue the facts before the jury, our Court Rule 45 would to a considerable extent govern our determination of the question of a reversal.
With reference to the rule, we approve the following statement in 53 American Jurisprudence 357-358, § 455: "* * * Considering that the office of the opening statement is to afford preliminary explanation, it is not its purpose to embody or convey proof by means of unsworn facts, to argue the facts, or to discuss the law of the case. The authorities therefore deny the right of counsel to make use of the opening statement to get before the jury details of the testimony expected to be offered * * *." (Emphasis supplied.)
Looking to the record in the light of these principles, we find ourselves unable to say to what extent, if any, the defendant was prejudiced by the foregoing ruling of the court or whether the court in any way abused its discretion. Just what statement counsel was purporting to make or its extent is not shown, nor does it appear whether the court by its final ruling unduly abridged counsel's right. While the record does disclose that defendant's counsel interpreted the ruling as inhibiting him from stating what he expected the evidence to show, the court did not so interpret the status or so limit him, but by his ruling only forbade him "to take time of court and go *125 in detail about what he thinks his evidence will show." (Emphasis ours) In order to invoke revision here of nisi prius action the record, of course, must reflect the error and that it resulted in substantial prejudice to the appellant. Error is not presumed, the appellant having the burden of establishing it. Roubicek v. Roubicek, 246 Ala. 442(5), 21 So. 2d 244; Kabase v. State, 244 Ala. 182, 12 So. 2d 766; Supreme Court Rule 45, Code 1960, Tit. 7 Appendix. We therefore are unable to pronounce error to reverse in the stated ruling.
It is next contended that the trial court erred in refusing to grant defendant's motion for a new trial on the grounds, first, that the verdict was excessive; second, that the preponderance and great weight of the evidence showed (a) that appellee had burned or procured the burning of his property; (b) that the policy of insurance was voided by insured by his violation of the provision requiring him to protect and conserve the property after the fire; and (c) that the policy was voided by false swearing by plaintiff in reporting under oath in his proof of loss a greater damage than was actually sustained.
In addressing our remarks to these several propositions we might observe at the outset that counsel for appellant have argued with great cogency in sustention of them, but a studious consideration of the record has convinced us that we would not be justified in overturning the ruling below, refusing the new trial. As regards these respective issues, the evidence was in sharp conflict. And while concededly there was evidence from which the jury might have concluded the several defenses were well taken, there was also substantial evidence which authorized the verdict and in this circumstance, for us to disturb it would be unwarranted.
The governing rules are well understood. It is not our function in reviewing the action of the trial court in passing on such a motion to decide what we might have done in the first instance had we been sitting as a jury hearing the facts. To authorize our reversing the trial court in that ruling, we must be convinced that the weight of the evidence was so decidedly against the verdict as to convince the impartial mind that it was manifestly wrong and unjust. Indeed, we have said: "* * When such a motion is denied by the trial court, and the verdict is largely dependent upon the credibility of the witnesses, to reverse the judgment on that motion the weight of the evidence must be so strong that there can be no reasonable doubt but that the verdict was the result of passion, prejudice, bias, favor, or some other motive which should not be controlling. Wolf v. Doe ex dem. Delage, 150 Ala. 445, 43 So. 856; Alabama Great Southern R. R. Co. v. Randle, 215 Ala. 535(4), 112 So. 112. The same is true in respect to matters in the discretion of the jury. Veitch v. Southern Railway, 220 Ala. 436, 126 So. 845." American Life Ins. Co. v. Williams, 234 Ala. 469, 472, 175 So. 554, 556, 112 A.L.R. 1215.
And the refusal of the trial court to grant the motion adds verity to the propriety of the verdict and thereby strengthens the presumption in its favor. Smith v. Smith, 254 Ala. 404(7), 48 So. 2d 546.
First, on the question of the excessiveness of the verdict. True, there was some evidence that the value placed on the insured property was excessive, but there was likewise ample evidence to sustain the verdict returned. Before the verdict can be declared to be excessive, it must clearly appear that it was the result of inadvertence or intentional or capricious disregard of the evidence, or was infected with bias, passion or other improper motive, consequently resulting in such excessive verdict. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447. Such does not appear.
What we have said about the evidence regarding the excessiveness of the amount of recovery applies with equal effect to the other grounds argued. There is plausible argument, as so ably presented by counsel for appellant, that the fire may have been of incendiary origin, but there is also countervailing evidence to fairly rebut this theory. Likewise, there may have been suspicious circumstances that would tend to incriminate the plaintiff, had the fire *126 been of incendiary origin, by reason of the plaintiff's having received burns on the night of the fire. Yet there is also evidence tending to explain these burns which would induce the conclusion, if credited by the jury, that this was merely an innocent coincidence, which unluckily transpired on that night. The jury who heard the evidence and saw the witnesses testify believed the plaintiff's explanation, the trial court likewise evidently accepted it and justified this belief by refusing a new trial, and under well-recognized presumptions, we must affirm. As regards the alleged violation of the policy provision to protect the property, there was evidence on the part of plaintiff that the property was a total loss, thereby averting the necessity of complying with such provision. And as regards the presentation of false values in the proof of loss, this also was met by countervailing evidence and can avail the defendant nothing.
Finally, we must hold that there was no reversible error with reference to the admission in evidence of the proofs of loss. It was the defendant which introduced these proofs, although they were sought to be limited so as to eliminate them as evidence of the amount of damage, whereupon plaintiff offered them generally. Laying aside the question of the right of the defendant to limit the evidentiary value of these proofs, after they had thus been offered the court will not be put in error for permitting the plaintiff to introduce them generally. These proofs would have been properly admitted on the part of plaintiff to show compliance with the policy provisions. Sovereign Camp, W. O. W. v. Pritchett, 203 Ala. 33(5), 81 So. 823; 46 C.J.S., Insurance § 1318(b), P. 418. The evidentiary effect of such proofs and their proper use might have been pointed out to the jury by appropriate instructions had the defendant considered it necessary and requested it. Sovereign Camp, W. O. W. v. Pritchett, supra.
The record has had our careful study. The case was well tried and the parties were represented by able and diligent counsel. The jury has spoken on the several contested issues of fact peculiarly within their province to determine and its decision has been approved by the trial judge of much learning and experience. That judgment is a solemn thing and we should and will not capriciously disturb it. Girardino v. Birmingham Southern Ry. Co., 179 Ala. 420, 423, 60 So. 871. We find no error.
Affirmed.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur. | November 15, 1951 |
b9ddd0b5-5932-4230-8fce-de36ec03df45 | St. Paul Fire & Marine Ins. Co. v. Johnson | 57 So. 2d 80 | N/A | Alabama | Alabama Supreme Court | 57 So. 2d 80 (1951)
ST. PAUL FIRE & MARINE INS. CO.
v.
JOHNSON et al.
6 Div. 997.
Supreme Court of Alabama.
November 23, 1951.
Rehearing Denied March 6, 1952.
*81 Davies & Williams and Marvin Williams, Jr., all of Birmingham, for appellant.
Jos. S. Mead, Birmingham, for appellee Louisville F. & M. Ins. Co.
LAWSON, Justice.
This is a declaratory judgment proceeding filed on June 14, 1948, in the circuit court of Winston County, in equity, by St. Paul Fire & Marine Insurance Company, hereinafter referred to as the St. Paul Company, against W. O. Johnson and the Louisville Fire & Marine Insurance Company, hereinafter referred to as the Louisville Company.
The household effects of W. O. Johnson, located in a residence in Haleyville, Alabama, were destroyed by fire on January 24, 1948. The amount of his loss was $2,500.
The purpose of this proceeding is to procure a declaratory judgment or decree as to whether the St. Paul Company or the Louisville Company, or both, is liable to pay the loss sustained by Johnson.
The respondent Johnson answered the bill on June 17, 1948.
The other respondent, the Louisville Company, filed its demurrer on July 14, 1948. It was overruled on September 20, 1948. From the decree overruling its demurrer, the Louisville Company appealed to this court. We affirmed. Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So. 2d 585. In our original opinion in that case, we held that the appellee's motion to dismiss the appeal was not well taken and held on the merits that a justiciable controversy was shown by the averments of the bill and that the decree overruling the demurrer was free from error. On application for rehearing we responded in part as follows: "If as alleged in the bill the policies of the two insurance companies were in force at the date of the destruction of Johnson's property, the status of the complainant and defendant was that of insurers of the same property of the same insured against the same hazard and they are each proportionately and severally liable for the loss at the ratio which the amount of their respective policies bears to the whole insurance covering the property against the perils involved." (Emphasis supplied.) 252 Ala. 535, 41 So. 2d 587.
As we will hereafter show, we were incorrect in saying on rehearing that the bill alleged that policies of both insurance companies were in force at the date of the destruction of Johnson's property. But that inadvertent statement did not affect the correctness of the conclusion reached.
After we overruled the application for rehearing filed by the Louisville Company, that company filed its answer in the circuit court of Winston County, in equity.
Testimony was taken partly by deposition and partly ore tenus. At the conclusion of the hearing, the trial court rendered a decree wherein it was held that both insurance companies had policies in force at the time of the fire covering Johnson's household effects to the extent of his loss; that under the pro rata liability clauses in all of the policies, each of the insurance companies was liable to Johnson in the sum of $1,250 with interest.
The complainant, the St. Paul Company, has appealed from that decree and here asserts that the decree of the lower court should be reversed because of certain rulings in regard to the admission of evidence and because the evidence is insufficient to support the finding that its policy of fire insurance was in force and effect at the time of the fire.
The respondent, the Louisville Company, has not appealed and has not made cross-assignments of error.
W. O. Johnson, one of the respondents, was not a mere bystander in this litigation. While the two insurance companies agreed with Johnson that he had suffered a loss to the extent of $2,500, there was no agreement between them that Johnson's property was covered by insurance policies issued by one or both of the companies.
The position of the St. Paul Company, as shown by its bill of complaint, is that it did issue its policy of insurance covering Johnson's household effects, but that such policy was cancelled by mutual consent prior to the fire and that it was not liable for any part of the loss suffered by Johnson, *82 although the respondent, the Louisville Company, claims that the St. Paul Company is liable for one-half of the loss.
The Louisville Company, in its answer, takes the position that while it had issued two policies of insurance covering Johnson's household effects to the extent of $2,500, that both of said policies were cancelled by mutual consent prior to the fire and that it was not liable for any part of the loss, but that the St. Paul Company's policy was in force and effect at the time of the fire and, consequently, that company should bear the entire loss.
The effect of the answer filed by the respondent Johnson is that the policies of both insurance companies were in force and effect at the time of the fire.
As going to show that its policy had not been reinstated, the St. Paul Company introduced in evidence written statements signed and sworn to by the respondent Johnson to the effect that to his knowledge the only policies of fire insurance which he had covering his household effects at the time of the fire were those issued by the Louisville Company. These statements, which were signed shortly after the fire and prior to the time Johnson filed his answer, are in direct contradiction of the position taken by Johnson in his answer and were admissible in evidence as declarations against interest. Waller v. Simpson, 208 Ala. 333, 94 So. 343.
Johnson was present when the testimony was taken ore tenus. He did not testify. The respondents were permitted to introduce in evidence over complainant's objection a copy of an affidavit which Johnson made before a justice of the peace on April 15, 1948. The effect of this affidavit is to contradict and explain the prior statements signed by Johnson which, as before shown, tended to show that Johnson did not have a policy with the St. Paul Company.
We think the evidence sufficiently shows that Johnson signed the original affidavit, which had been lost. But we think the trial court erred in admitting this affidavit in evidence. It is a self-serving declaration by which it was sought to qualify or control the declarations against interest proven by complainant. In First Nat. Bank of Mobile v. Lartigue, 233 Ala. 670, 675, 173 So. 21, 25, it was said: "For `no rule is better settled than that admissions, made at one time, cannot be qualified or controlled by counter declarations made at another.' Pearsall v. McCartney, 28 Ala. 110, 126; Woodruff v. Winston, 68 Ala. 412; Lee v. Hamilton, 3 Ala. 529; 22 Corpus Juris, 421, § 504." See State v. Guardian Realty Co., 237 Ala. 201, 186 So. 168.
Reversible error is sought to be avoided by the invocation of the principle that incompetent or illegal evidence may be admitted without error to rebut evidence of like character. The principle sought to be invoked is well established. Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264, and cases cited; Lightsey v. Stone, 255 Ala. 541, 52 So. 2d 376. But that principle has no application here because, as we have heretofore shown, the statements of Johnson introduced by the St. Paul Company were properly admitted in evidence.
By overruling the complainant's objection to the affidavit introduced by respondents, we must assume on appeal that such evidence was considered by the trial court. Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12.
We have adopted for equity the prevailing rule at law that the admission of illegal evidence over objection requires a reversal unless the remaining evidence is without conflict and sufficient to support the judgment. Pfingstl v. Solomon, supra. As to this rule, we think it sufficient to say that it cannot save this case from reversal, for the remaining evidence, as it relates to the question of whether the policy of the St. Paul Company was reinstated after it was cancelled, is in decided conflict and we are also of the opinion that the remaining evidence is not sufficient to support the decree in so far as it declares that the St. Paul policy was in effect at the time of the fire.
We also apply Rules of Practice in Supreme Court, rule 45, Code 1940, Tit. 7 Appendix, to equity cases and will not reverse a decree unless in our opinion, after an examination of the entire cause, it should appear that the error complained of *83 has probably injuriously affected a substantial right. Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244. But we think it appears from this record that the admission in evidence of this affidavit has probably affected a substantial right. The decree in so far as it fixes liability on the St. Paul Company could be sustained only on the theory that the evidence showed that both the St. Paul Company and Johnson understood that the policy of that company covering Johnson's household effects had been reinstated at the time of the fire. We are unwilling to say that the evidence is sufficient to support such a finding without consideration being given to the affidavit which was erroneously admitted in evidence.
The error in admitting the affidavit in evidence affected the rights of all parties to this litigation, and we are of the opinion the ends of justice will be best subserved by the reversal and vacation of the decree in its entirety so that the cause may be retried. Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So. 2d 259.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN, FOSTER, SIMPSON, STAKELY, and GOODWYN, JJ., concur. | November 23, 1951 |
388b1cc2-3b65-4311-bcbe-44b964ba43a7 | Alabama Public Service Commission v. Higginbotham | 56 So. 2d 401 | ed | Alabama | Alabama Supreme Court | 56 So. 2d 401 (1951)
ALABAMA PUBLIC SERVICE COMMISSION
v.
HIGGINBOTHAM.
6 Div. 141.
Supreme Court of Alabama.
October 18, 1951.
Rehearing Denied January 31, 1952.
*402 A. A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., and Albert Boutwell, Birmingham, for appellant.
Gibson & Hewitt, Birmingham, for appellee.
LAWSON, Justice.
The New Deal Riding Club filed its application with the Alabama Public Service Commission for a certificate of public convenience and necessity to operate as a common carrier of passengers between Dixiana and Bradford Mine, a distance of approximately six miles, over an unnumbered county road in Jefferson County. Notice of the hearing to be held on the application was given to Alton C. Higginbotham, among others. Higginbotham already held a certificate of public convenience and necessity to operate as a common carrier of passengers over the same route.
The application came on for hearing before the Commission on evidence taken before examiners. Higginbotham appeared at the hearing and opposed the granting of the certificate. Thereafter the Commission made the following order:
"New Deal Riding Club, Applicant.
"Upon consideration of the record in the above docket numbered case, and the law applicable thereto, and the rules established under said law, the Commission finds and decides that this Order should be issued; now, therefore, it is
"Ordered: That Motor Carrier Certificate of Public Convenience and Necessity No. 2164, be and it is hereby issued to New Deal Riding Club, authorizing operation as a common carrier by motor vehicle of passengers and their baggage over regular route. Between Dixiana, Alabama, and Bradford Mine, over unnumbered county road.
"Restriction: Only `Club Members' To Be Transported.
"This certificate is issued under and subject to the provisions of Alabama Motor Carrier Act of 1939 and the requirements, rules, and regulations of this Commission thereunder; and the authority herein contained shall be held and exercised subject to the requirements and provisions of said Act and other laws, now or hereafter enacted, *403 applicable to such authority or operations thereunder.
"This certificate is effective as of the date of this order, and shall remain in force and effect until amended, suspended or revoked by order of this Commission.
"Done at Montgomery, Alabama, this the 16th day of March, 1950."
From this order Higginbotham appealed to the circuit court of Jefferson County, in equity. The appeal was considered in the circuit court on the certified transcript of the proceedings before the Commission. Upon consideration of the cause upon appeal, the circuit court by decree rendered, set aside the order of the Commission, and annulled and set aside the certificate of public convenience and necessity theretofore issued by the Commission to the New Deal Riding Club.
From the decree of the circuit court of Jefferson County, in equity, the Commission has prosecuted an appeal to this court.
The Commission's authority to issue certificates of public convenience and necessity to operate as a common carrier is provided by § 301(9), Title 48, Code 1940, Cum. Pocket Part, which provides in pertinent part as follows: "A. Subject to the provisions * * * of paragraph B of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent thereby authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied; * * * B. Before granting a certificate to a common carrier by motor vehicle the commission shall, among other things, consider the following: (1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) Financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year around. (3) The advantages to the public of the proposed service. * * *"
In North Alabama Motor Express, Inc., v. Rookis, 244 Ala. 137, 12 So. 2d 183, wherein was involved the action of the Alabama Public Service Commission in granting a certificate of convenience and necessity to engage in the business of a common carrier, after a hearing, we observed, among other things, as follows: (1) The granting of a franchise as here involved is both quasi legislative and quasi judicial; (2) the present and future public need in the matter of transportation is the major inquiry which calls for conclusions of fact upon evidence heard by special tribunal set up as a permanent body to deal with the problems involved; (3) the Commission may receive and consider evidence shedding some light on the issue, although not admissible under general rules of evidence; (4) but there must be some evidence which is competent and legal, as treated by the usual rules for the producing of evidence in any legal proceeding to sustain the finding.
In Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721, we said in part as follows: (1) The word "necessity" is not used in § 301(9), Title 48, Code 1940, Cum. Pocket Part, in the sense of being essential or absolutely indispensable, but merely that the certificate is reasonably necessary for the public good; (2) in considering the question of public need, the Commission must, of course, take into consideration the fact that the territory is served by other carriers and the adequacy of such service to meet the public need.
Appeals from final action or orders of the Commission on applications of the character here involved are provided for by § 301(27), Title 48, Code 1940, Cum. Pocket Part, which section reads as follows: "From any final action or order of the commission in the exercise of the jurisdiction, power, authority, conferred upon the commission by this article, an appeal shall lie to the circuit court of the county of the carrier's residence, or in which he has his principal place of business *404 or to the circuit court of Montgomery County, Alabama, sitting in equity, and thence to the supreme court of Alabama. Such appeals must be taken within thirty days after the date of such final action or order, and such appeals and the supersedeas and stay of action or order appealed from in other respects shall be governed by the provisions of the law now in force, or hereafter enacted, respecting appeals in other cases from the final order and actions of the commission." (Emphasis supplied.)
It appears that the appeal in this case was properly taken to the circuit court of Jefferson County, in equity. It is not contended to the contrary.
The contention is made that the appeal was not properly taken in that there was no application for reconsideration or rehearing of the order granting the certificate, as may be made under subdiv. 9 of § 301(5), Title 48, Code 1940, Cum. Pocket Part. The contention is without merit, aside from any consideration of the question as to whether the point is properly presented here. The case of Alabama Public Service Commission v. Alabama Power Co., 213 Ala. 374, 104 So. 814, holds in effect that if the appeal is duly filed it may be taken from either the original action or order of the Commission or from its action or order on reconsideration or rehearing.
The italicized portion of § 301(27), Title 48, supra, makes applicable § 82, Title 48, Code 1940. North Alabama Motor Express, Inc., v. Rookis, supra; Alabama Public Service Commission et al. v. Crow, supra; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409.
Section 82, Title 48, Code 1940, provides in pertinent part: "The commission's order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that: the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. * * *"
In regard to the review by the circuit court of an order of the Commission under § 82, Title 48, supra, we said in North Alabama Motor Express, Inc., v. Rookis, supra [244 Ala. 137, 12 So. 2d 185], as follows: (1) "Section 82, construed as a whole and in the light of well-established principles, means the finding of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force"; (2) "capable, understanding men, free from all interest save the performance of public duty, weighing evidence in the light of experience, is the set-up contemplated by law. Courts should not and do not overturn their findings save upon a clear conviction that their orders are wrong and unjust"; (3) "the order of the Commission is not to be vacated on appeal because of the admission of evidence not legally admissible under technical rules upon the trial of causes before juries"; (4) "`substantial evidence,' as used in Section 82, supra, means legal evidence."
In Alabama Public Service Commission v. Nunis, supra, we held in effect that in order for the courts to set aside the order of the Commission on the ground that it was based upon a finding of facts contrary to the substantial weight of the evidence, a sufficient finding of facts must be made by the Commission.
The right of appeal to this court from the judgment or decree of the circuit court, in equity, is given by § 90, Title 48, Code 1940. Alabama Public Service Commission v. Avery Freight Lines, Inc., 254 Ala. 672, 49 So. 2d 170; Alabama Public Service Commission v. Nunis, supra. In regard to the review by this court, we said in Alabama Public Service Commission v. Nunis, supra, 252 Ala. 34, 39 So.2d 412: "On appeal to this Court, we must review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of the Commission than we are. *405 Title 13, section 17, par. 1, Code 1940. The evidence was not taken before the trial judge in the circuit court. Green v. Green, 249 Ala. 150, 30 So. 2d 905. We are governed by the same rules in our review as was the circuit court. So that we will review the order of the commission as though the appeal from the commission's order had been directly and primarily to this Court. * * *"
As above shown, the review of the order of the Commission is on the record or transcript of the proceedings before the Commission, certified in accordance with the requirements of § 83, Title 48, Code 1940. No question of fraud or misconduct being involved, the order of the Commission in this case could be set aside only on a finding that (1) "the Commission erred to the prejudice of appellant's [Higginbotham's] substantial rights in its application of the law," or (2), that the order of the Commission "was based upon a finding of facts contrary to the substantial weight of the evidence."
There was no finding of facts made by the Commission. The order appealed from does contain the following language: "Upon consideration of the record in the above docket numbered case, and the law applicable thereto, and the rules established under said law, the Commission finds and decides that this order should be issued * * *." That is a finding that the order should be issued, an application of the law to the facts as presented before the examiners, but it is not a finding from conflicting evidence that certain specified factual situations were shown to exist. It is not a sufficient finding of facts to justify a review on appeal as to whether the order was based on a finding of facts contrary to the substantial weight of the evidence. Hence that question was not before the trial court, nor is it before this court. Alabama Public Service Commission v. Nunis, supra.
It follows, therefore, that the only ground left upon which the order of the Commission might be set aside is on the finding that "the Commission erred to the prejudice of appellant's substantial rights in its application of the law." The question arises as to what is meant by the words "application of the law." We think they mean application of the law to the facts. But such construction poses the further inquiry as to whether the courts can review the question of whether the Commission erred to the prejudice of appellant's substantial rights in its application of the law to the facts under our holding in Alabama Public Service Commission v. Nunis, supra, since the Commission made no finding of facts.
In the Nunis case, supra, after holding that a finding of facts was necessary to judicial review as to the weight of the evidence, we said:
"* * * The commission expressed the opinion upon a consideration of all the evidence, and found that there were sufficient carriers qualified with it to transport the petroleum products as outlined in the application, `and that the issuance of another permit would not be consistent with the public interest and that said application should be denied.'
"We think that is such a finding of facts as to show the basis on which the order by the commission was made so as to determine whether the commission erred in its application of the law, or whether its order was contrary to the substantial weight of the evidence, meaning whether it is supported by legal evidence of substantial weight and probative force. We think the finding of the commission in this respect complied with its statutory duty in regard to such finding. We are then remitted to the question of whether there was a misapplication of the law, or its finding was not properly supported by the evidence."
It is possible that the language just above quoted is susceptible of the construction that we were of the opinion that a finding of facts was necessary to judicial review of the question of whether or not there was a misapplication of the law by the Commission. We did not intend to so hold. Nor is the Nunis case, supra, to be construed as holding that where there is no finding of facts, the court on appeal may not determine from the evidence whether *406 the order was just and reasonable and, therefore, whether it was confiscatory as taking property without due process. But upon such consideration, the presumption is prima facie that the order was just and reasonable.
The finding of facts is a different concept from the judicial function of applying the law to those facts. Alabama Public Service Commission v. Nunis, supra.
Since there was no finding of facts by the Commission, in considering the question of whether the Commission erred in applying the law to the facts, we must consider the evidence in the light most favorable to the upholding of the order of the Commission, and without weighing the conflicting evidence. In other words, we do not weigh the conflicts in the evidence, but accept as true those tendencies of the evidence and the reasonable inferences to be drawn therefrom which tend to support the action taken by the Commission.
Before treating the facts, we refer again to certain aspects of the law. The application should have been denied by the Commission unless the evidence showed that the proposed service is or will be required by the present or future convenience and necessity. § 301(9), Title 48, Code 1940, Cum. Pocket Part. As before pointed out, "necessity," as that word is used in § 301(9), Title 48, supra, means that the certificate is reasonably necessary for the public good. And, in arriving at its decision, the Commission should have considered, among other things, whether existing transportation service of all kinds is adequate to meet the reasonable public needs and the advantages to the public of the proposed service. § 301(9), Title 48, supra.
With these rules in mind, we come to consider the evidence in the light most favorable to the action taken by the Commission.
The Alabama By-Products Company is engaged in the coal mining business in Jefferson County near Dixiana, where it operates the Bradford mine. For a number of years the portal to the mine was located very near Dixiana, where the Company maintained separate camps for white and colored miners. As mining operations progressed, it was necessary for the miners to walk a long distance underground from the portal at Dixiana to reach the place where mining operations were performed. Consequently, the Company made a new opening or portal to the mine at a point approximately six miles distant from Dixiana. The Company did not furnish transportation for the miners from the camps to the portal. Therefore, it was incumbent upon the miners to make some arrangement for their transportation. A club of approximately eighty-six colored miners formed what is called the New Deal Riding Club. This club purchased two rather old busses, which were used in transporting the members of the club to and from the camp to the portal of the mine. Each member was charged the sum of thirty-five cents per day for such transportation, which money was deducted from his compensation by the company and turned over by the company to the union, which in turn delivered it to the club. Alton C. Higginbotham also secured equipment for the purpose of transporting miners from the camp to the portal of the mine. He was paid in the same manner as was the so-called New Deal Riding Club. When these operations first began, neither the New Deal Riding Club nor Higginbotham obtained a certificate of public convenience and necessity from the Alabama Public Service Commission.
However, within a comparatively short time Higginbotham applied for and was granted a certificate of public convenience and necessity to operate as a common carrier of passengers between the camp and the mine, being limited by his permit to the transportation of miners. It is without dispute in the evidence that Higginbotham secured two new busses which are entirely adequate in every respect for the purpose of transporting all white and colored miners. One bus carries the white miners, the other transports such colored miners as will ride in Higginbotham's bus. The evidence shows that the majority of the miners *407 are colored and that Higginbotham had been transporting approximately twenty white miners in one bus, and at the time of the hearing of this application made by the New Deal Riding Club, he was transporting twenty colored miners.
It is also without dispute in the evidence that the cost to Higginbotham of the busses, together with the expenses incident to their operation, and the cost of insurance, permits and licenses are such that if there is to be a competing transportation system between the camp and the mine, Higginbotham will have to discontinue operation.
After Higginbotham had secured his certificate of public convenience and necessity, the New Deal Riding Club filed its application for such a certificate. A large number of the members of the club appeared at the hearing before the Commission's examiners. A number of them stated they would not ride with Higginbotham, without being called upon to specifically state the reason why they would not ride with him. Viewing the evidence, as we have indicated we must, it shows that the relationship between Higginbotham, a white man, and the colored miners has not been good. He has had some personal encounters with some of them and bears the reputation of being "mean" to members of the colored race.
In view of the fact that the evidence is without dispute to the effect that Higginbotham's equipment is entirely adequate to furnish all transportation service needed by both the white and colored miners between Dixiana, where the camps are located, and the portal of the mine, the Commission's action in granting such a permit to the New Deal Riding Club must have been based on the evidence showing that the colored miners, or a large portion of them, would not ride with Higginbotham, either because they were afraid of him or because of their dislike for him.
We are clear to the conclusion that the Commission was not warranted in issuing the certificate of public convenience and necessity to the New Deal Riding Club on the ground that its members refused to ride with Higginbotham because of their fear of him or their dislike for him.
Without question, the evidence shows that because of financial reasons Higginbotham cannot and will not continue to operate as a common carrier of passengers between the camps and the portal of the mine if the New Deal Riding Club is permitted to compete with him as a common carrier of passengers. This would naturally result in depriving the white miners of any means of transportation, inasmuch as they are not eligible for membership in the New Deal Riding Club.
It is beyond any dispute in the evidence that the traffic is not sufficient to justify more than one operation. We do not mean to say that these colored miners should be compelled to ride in public conveyances, operating under the sanction and approval of the Alabama Public Service Commission, with a man whose conduct is such as may cause them to fear for their safety or which might precipitate racial discord. However, it seems to us that if Higginbotham is not qualified by reason of his personal traits of character to operate as a common carrier so as to properly serve all members of the public covered by his certificate of convenience and necessity, it is incumbent upon the Commission to take such steps as within its power to revoke the permit heretofore issued to Higginbotham and to grant the permit to someone who is in a position to give adequate service to all alike.
As we view the decree of the trial court and the opinion made a part thereof, its action in vacating and setting aside the order of the Commission and annulling the certificate theretofore issued to the New Deal Riding Club is predicated on the ground that there was no legal evidence before the Commission which justified the granting of the permit. In other words, the trial court found, and we think correctly so, that the Commission erred in its application of the law to the facts.
The decree appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur. | October 18, 1951 |
a3432ae8-70c0-4713-85d9-76f20a00e3a9 | Jersey Ins. Co. v. Roddam | 56 So. 2d 631 | N/A | Alabama | Alabama Supreme Court | 56 So. 2d 631 (1951)
JERSEY INS. CO.
v.
RODDAM.
6 Div. 199.
Supreme Court of Alabama.
October 11, 1951.
Rehearing Denied January 31, 1952.
*632 F. W. Davies and Davies & Williams, all of Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
*633 SIMPSON, Justice.
This is an action on a policy of fire insurance wherein plaintiff, Roddam, obtained a judgment against the defendant, The Jersey Insurance Company, for damage by fire to his building. The defendant appeals from that judgment.
The policy in suit described the insured property as a "church edifice" and the endorsement on the back of the policy described it as a "church and dwelling." In fact, however, the building sought by plaintiff to be covered by the insurance served a multiple use. Two parts of it were devoted to an automobile garage and body shop, another smaller part was used as living quarters, and still another part, about one-fourth of the total square footage, was rented and used by a religious association or society for the holding of worship services.
The first and controlling proposition argued for error is that the trial court erred in refusing to give for the defendant the affirmative charge on the theory that the property damaged by fire was not within the coverage of the policy and that the coverage could not be extended to the building in question. It is contended that to do so would amount to the creation of a new and different liability by waiver or estoppel, arising out of the alleged act of the defendant's agent in so describing the property.
Concededly, coverage in an insurance policy cannot be enlarged or extended by waiver or estoppel, but in our view of the case this is not the question. The real question is whether the insured can be held bound by the acts of the general agent in so describing the property in the insurance contract. The situation here presented, as we see it, is merely misdescription of or failure to exactly describe the usage to which the property was subjected by the insurance company, through its general agent, either through mistake or for the purpose of meeting competition by writing the insurance for a lower rate than would have been required had the property been described as a garage.
Following is the tendency of the plaintiff's evidence and the inferences reasonably arising:
A Mrs. Taylor was the general agent of the defendant company and was authorized to write the policy. Tutton v. Liverpool & London Globe Ins. Co., 237 Ala. 230(5), 186 So. 551. She had written previous policies on the building. During the preceding policy year the plaintiff had made extensive improvements, including the institution in the building of the large garage in front, which adjoined the church room also in front, and the smaller automobile body shop in the rear of the church. In the rear of the large garage were three rooms used as living quarters. When agent Taylor went to Tarrant City for the purpose of procuring a renewal of the insurance policy, she commented to the defendant about his having made extensive improvements and suggested he double the amount of his coverage, but this he declined to do. On this trip, before talking to the plaintiff, she had stopped in the automobile in front of the garage while a companion, who was also interested in plaintiff's renewing the insurance, went into the garage to search for him. There were two plate glass windows in the front of the garage room approximately six by eight feet in size, on which were the words "Tidwell Garage & General Repair" and on the corner was a board sign bearing the words "Auto Repairs Garage." Adjoining this large garage room was the smaller church room. This situation was quite visible to anyone and we think the jury could properly infer, and no doubt correctly, that the agent, whose purpose it was to write insurance on this particular building, could see the use to which the building was being subjected, knew its character and that in addition to its use as a church it was also being utilized as a garage; and as regards the portion used as a dwelling house, she made the endorsement herself on the back of the policy indicating such. Indeed, a competing agent, a friend of plaintiff, who was also trying to sell a policy on the building, prior to the issuance of the policy asked Mrs. Taylor where and how she was basing her rate, stating he was bidding on the same insurance and that his rate was much higher than hers, and she replied that she was getting her rate at *634 the same place he got his. He then queried, "Well, do you know there is a garage and a church and a dwelling in there?" and she replied, "Yes, I know my business." During the negotiations between plaintiff and this general agent of the insurer, she first quoted a much higher rate and plaintiff stated it was "outrageous and * * * wouldn't have it. It was in fact twice as much as I had been paying." Thereafter, however, she called him again urging him to take the insurance and advised him that there had been a mistake in the rate and quoted him a much lower rate, and when his friend told him that he could not compete with such a rate and advised him to take the policy from this agent, he did so. According to his testimony, he made no suggestions about the description of the property, had no knowledge that it was so described, and when he received the policy he never looked at it, but placed it among his other belongings. From these facts the jury could find that the description of the building was that which the insurer's general agent chose to select and that perhaps the first-quoted higher rate was to cover the property with respect to its multiple use and the reduction was to meet the competition by writing the policy as a church edifice.
Therefore, it is manifest that the principles relative to extending coverage of the policy by waiver or estoppel are not pertinent, the real issue being whether or not the company can be held bound by this conduct of its general agent.
In some jurisdictions it seems to be the rule that where the property, the subject of the insurance, is misdescribed, even though the description be written by the company's agent, there can be no liability. It is said the minds of the parties never met on the subject matter of insurance; or that anterior or contemporaneous agreements between the parties thereto cannot be admitted to vary the terms of the written contract. Thomas v. Commercial Union Assur. Co., 162 Mass. 29, 37 N.E. 672, 44 Am.St.Rep. 323; Bowditch v. Norwich Union Ins. Co., 193 Mass. 565, 79 N.E. 788; Goddard v. Monitor Mutual Fire Ins. Co., 108 Mass. 56, 11 Am.Rep. 307, 309; Grady v. Concordia Fire Ins. Co. of Milwaukee, 267 N.Y. 177, 196 N.E. 16; Miller v. American Eagle Fire Ins. Co., 253 N.Y. 64, 170 N.E. 495; Rice v. Norwich Union Ins. Co., 128 N.J.L. 314, 25 A.2d 907; United Pacific Ins. Co. v. Northwestern Nat. Ins. Co., 10 Cir., 185 F.2d 443. In some of these cases it is not clear whether the defendant's agent was a general agent, and in others it appears that such was not the case.
But be that as it may, in this jurisdiction we have long followed a contrary view. In Inter-Ocean Casualty Co. v. Ervin, 229 Ala. 312, 313, 156 So. 844, 845, this court, speaking through the late Mr. Justice Bouldin to a somewhat analogous question, declared: "It is fully settled in this jurisdiction that misrepresentations resulting solely from the act or oversight of the soliciting agent taking the application, without the knowledge of the insured or beneficiary, are not available to the insurer, although the issuing authority acts upon the application as presented, and without knowledge of the misfeasance of its agent. * * *"
Several of our prior decisions are cited in support of this principle, most of them dealing with life insurance, but one of them is Williamson v. New Orleans Ins. Ass'n, 84 Ala. 106, 108, 4 So. 36, 38. In speaking to the principle, it was there said: "The answers to the questions contained in the application for insurance are made a part of the contract, and express warranties of their truth. Notwithstanding this, if the agent of the insured made true statements of the condition of the title and ownership of the property to the agent of the defendant, at the time the application for insurance and the answers were made, and the agent of the defendant nevertheless wrote the answer as appears in the application, thus substituting an answer which was untrue, the answer is the statement of the agent, and not of the assured. In such case the defendant will not be permitted to take advantage of the wrongful act, or misconstruction, or mistake, of its own agent, and avoid the policy, the insured being without fault. [Alabama] Gold Life Ins. Co. v. Garner [77 Ala. 210]." See also Royal Exchange Assur. of London v. Almon, 202 Ala. 374, 80 So. 456; American Equitable Assur. *635 Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37; Dixie Fire Ins. Co. v. Flippo, 236 Ala. 116, 181 So. 117.
A case presenting a striking analogue and nearest in point is Alabama Mutual Fire Ins. Co. v. Minchener, 133 Ala. 632, 32 So. 225, where this court held in effect that when an insured, who has contracted for insurance, informs the agent of the insurance company, who is authorized to issue the policy (the general agent) of his desire to take out a policy of fire insurance upon a certain building and points the property out to such agent and the agent, in describing the house insured in the policy, misdescribes the property so as to make it uncertain what property is covered, it is competent in an action upon the policy for the insured to testify to the anterior or contemporaneous transaction and that he did in fact point out to the agent the house that was burned as the one which it was understood between the plaintiff and the agent was the property to be insured. This case is cited with approval in Exchange Underwriters' Agency v. Bates, 195 Ala. 161, 69 So. 956. We quote the following pertinent language from the opinion in Alabama Mutual Fire Ins. Co. v. Minchener, supra, 133 Ala. 635, 32 So. 226: "* * * `a party who deals with an agent, through whom he applies for and obtains a policy, has a right to presume that such material facts as are made known to him, are known to the principal, and when policies are issued with a full knowledge of such facts, the insured is to suffer no prejudice, nor are the insurers to gain any advantage by insisting upon conditions which it would be dishonest to enforce.'"
Sustentive from other jurisdictions are Storment v. Hartford Fire Ins. Co., 215 Ill.App. 287; American Ins. Co. v. Egyptian Lodge, 128 Ill.App. 161; Moliere v. Pennsylvania Fire Ins. Co., 5 Rawle, Pa. 342, 28 Am.Dec. 675; Hughes v. Mercantile Mut. Ins. Co., 55 N.Y. 265, 14 Am.Rep. 254; Pacific Mutual Life Ins. Co. v. Snowden, 8 Cir., 58 F. 342; New York Accident Ins. Co. v. Clayton, 8 Cir., 59 F. 559.
These last cited cases relate to the same general principle and following is an apt quotation from Storment v. Hartford Fire Ins. Co., supra, 215 Ill.App. 293: "* * * The evidence shows that the agent * * * prepared the description contained in the policy without any suggestion, so far as the record discloses, from the appellants or their agent, and this being true, we are of the opinion that appellee ought not be allowed to take advantage of its own mistake in the preparation and description contained in the policy * * *."
Also pertinent is this quotation from Pacific Mutual Life Ins. Co. v. Snowden, supra, 58 F. 345-346: "`By the interested or officious zeal of the agents employed by the insurance companies, in the wish to outbid each other and procure customers, they not unfrequently mislead the insured by a false or erroneous statement of what the application should contain, or, taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. The better opinion seems to be that when this course is pursued the description of the risk should, though nominally proceeding from the insured, be regarded as the act of the insurers.'"
Concluding the discussion relative to this question of the binding effect of the conduct of the general agent in such instances, we would like to thus summarize: It is a matter of common knowledge that such insurance companies have many varied forms for the classification of risks. These classifications are based upon such matters as the nature of the property insured, its size, location, type of business, occupancy, and uses. Many of these matters regarding the risks are within the peculiar knowledge of the insurer and where, as here, the insurer's general agent, with authority to prepare and countersign contracts and bind the company, knew or was informed as to all matters relative to the risk, and by that agent's own choice classified the risk as one less than the company might have wished its agent to choose, all being without any fraud, concealment, knowledge or participation of the insured, the company should be held bound by this act of its general agent.
*636 It is contended by defendant that to allow plaintiff to show what occurred between himself and the defendant's general agent prior to the issuance of the policy in suit would violate the rule forbidding the altering or varying of the terms of the written contract by parol, citing such cases as Tutton v. Liverpool & London Globe Ins. Co., supra, 237 Ala. 230, 186 So. 551. We do not regard these cases as having application to the situation here presented. The evidence sought to be introduced in such cases by the plaintiff would have had the effect of writing into the insurance contract terms which were clearly not incorporated therein. Here, however, we are dealing with the description of the property to be insured and which description, according to the evidence for the plaintiff, was made up and adopted by the insurer's agent, not by the insured, and without any suggestion on the part of the insured. What we have shown hereinabove clearly distinguishes the two theories. In Royal Exchange Assur. of London v. Almon, supra, dealing with a somewhat analogous situation as that here considered, we held that statements made by the plaintiff to the general agent of the insurer pending negotiations, intending to prove disclosures made by plaintiff to the general agent respecting plaintiff's interest in and relation to the property sought to be insured, were admissible to bind the insurer. See Moliere v. Pennsylvania Fire Ins. Co., supra.
It is also insisted by defendant that the policy was voided because of a provision in it that the "company shall not be liable for loss occurring * * * while the hazard is increased by any means within the control or knowledge of the insured"; that the use of the building as a garage and dwelling was an additional hazard; that during such use coverage was merely suspended and the fire having occurred by reason of such use, recovery would be precluded. What we have said hereinabove is complete answer to this contention. There was no increase in hazard in the use of the property insured. It was subject to the same use when the fire occurred as it was when the insurer issued the policy and chose to describe the building as it did.
The conclusion we have reached likewise suffices to illustrate that the court correctly refused Charges C, E and K predicating nonrecovery if the property was occupied as or subject to the multiple use stated, as were Charges D and F predicating nonrecovery on any increase in hazard by reason of the fire having started in the body shop of the building.
Charges 3, 4, and 10 were properly refused, one sufficient reason being that the charges might have had the effect of misleading the jury to construe them as charging that the testimony of the competing agent Snow as to his conversation with the insurer's agent or the act of insurer's agent in so describing the property should be disregarded.
As regards Charges 1 and 5 to the effect that the plaintiff was not entitled to recover on account of waiver or estoppel, it is sufficient to say that they were refused without prejudice, since the case was not tried on this theory and the court in its oral charge sufficiently charged the jury with respect thereto.
The oral charge of the court excepted to, made the basis of assignment of error 44, was advantageous to the defendant and therefore error cannot be predicated of its giving. This phase of the oral charge restricted recovery to the simple issue that if the jury determined from the evidence that the building was a church, recovery should be for the plaintiff, whereas if such was not the case, recovery should be denied. We regard the instruction as inept, but without prejudice to the defendant.
Nor can error be rested on the exception to that part of the court's oral charge instructing the jury as to the time the interest should start in event recovery be awarded. Without considering the correctness vel non of the entire statement, the exception is too indefinite to apprise the court as to the point taken. The objection might have been intended to go either to the part of the charge relating to the principal amount of recovery, as well *637 as to the date the interest thereon would begin. In order to place the primary court in error, the exception to the oral charge must be definite and specific. Kirby v. State, 151 Ala. 66, 44 So. 38; Birmingham Ry., Light & Power Co. v. Jackson, 198 Ala. 378, 382, 73 So. 627. The initial portion of the charge relating to the principal amount of recovery was concededly correct, so the exception must fail. McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 598, 35 So. 2d 332; United States Fire Ins. Co. v. Smith, 231 Ala. 169(17), 164 So. 70, 103 A.L.R. 1468.
Likewise untenable is the argument that the court erred in sustaining the demurrer to the defendant's plea in abatement rested on the alleged failure of the parties to arbitrate the loss. The policy provision as regards arbitration required as predicate a written demand for arbitration in case the parties should fail to agree and the plea fails to allege that there was any such demand. The cited cases, Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180; McCullough v. Mill Owners Mut. Fire Ins. Co., 243 Ala. 67, 8 So. 2d 404, are inapposite.
What we have said, we think, sufficiently disposes of the other assignments of error and results in an affirmance of the judgment.
Affirmed.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur.
SIMPSON, Justice.
With respect to the plea in abatement, counsel for appellant argues we have departed from the holding in McCullough v. Mill Owners Mutual Fire Ins. Co., 243 Ala. 67, 8 So. 2d 404, which in effect held that a good plea in abatement need not allege a demand was made for arbitration. We make this brief response to demonstrate the difference in the two cases.
The arbitration provision of the policy in McCullough's case was not the same as the one here concerned. McCullough's policy contained no provision requiring a written demand for arbitration after disagreement, its requisite for arbitration being that there should be a disagreement as to the amount of loss. So viewed, it was properly held that resort to arbitration after such disagreement was the precedent averment for a proper plea in abatement without alleging any demand.
The policy in the instant case as regards arbitration, however, required as predicate to invoke its provisions that there not only be a failure on the part of the parties to agree as to the actual cash value or the amount of the loss, but also in such event written demand for arbitration. The pertinent language of the policy is as follows: "In case the insured and this company shall fail to agree as to the actual cash value or the amount of the loss, then, on the written demand of either, * * *" arbitration to settle the disagreement should be had. Hence the difference in the two cases.
It quite clearly appears the plea lacks sufficient allegations within the general rule of the authorities; that is, the plea makes no showing that the conditions requiring arbitration ever transpiredviz., a failure to agree and a written demand thereafter to arbitrateso as to make available such plea in abatement. The pleader was content merely to aver that no agreement as to amount of loss was made and no arbitration was had. This does not suffice to meet the provisions of the policy. The arbitration clause was conditioned: (1) on a failure to agree, which of necessity presupposes that there had been an effort made to agree and a disagreement ensuing therefrom, since otherwise there would be no purpose to arbitrate; that provision presupposes an actual, bona fide disagreement as to the amount of loss, Insurance Co. of North America v. Baker, 84 Colo. 53, 268 P. 585, for, "under provisions thus conditioned, unless there has been such a disagreement, it is not necessary to resort to an appraisement or arbitration before suing on the policy", 45 C.J.S., Insurance, § 1112, page 1355; (2) a written demand in event of such failure to agree, in which case "it is generally held that [such] a provision of *638 a property insurance policy * * * does not require an appraisal as a condition precedent to a recovery on a policy unless a written request has been made by one of the parties", 29 Am.Jur. 929, § 1244.
We think the foregoing clearly demonstrates the demurrer to the plea was properly sustained.
As regards the other propositions argued on this rehearing, we are not in agreement, but are content to rest on our original decision.
Opinion extended and rehearing denied.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur. | October 11, 1951 |
6a744a4e-42dc-4657-bf55-9e6850b7a6be | Levy v. Levy | 56 So. 2d 344 | N/A | Alabama | Alabama Supreme Court | 56 So. 2d 344 (1951)
LEVY
v.
LEVY.
8 Div. 596.
Supreme Court of Alabama.
October 11, 1951.
Rehearing Denied January 31, 1952.
J. D. Carroll, Jr., Huntsville, for appellant.
No attorney marked for appellee.
SIMPSON, Justice.
This appeal is from a final decree dismissing complainant's bill in a suit for divorce. The suit is by the wife against the husband, the ground for divorce being cruelty. The decree denying relief is predicated upon a finding that "the evidence is not sufficient to satisfy the court of the truth in fact of complainant's domicile in this State," and the conclusion that "the court has no jurisdiction over the subject matter."
The bill alleges, inter alia, that complainant is a bona fide resident of Madison County, Alabama. The respondent filed an answer whereby he admitted all of the allegations of the bill except the charge of cruelty, which was catagorically denied. He made no further appearance, offered no testimony, and files no brief on appeal. The only testimony offered was that of the complainant, and that by way of deposition before a commissioner. So far as here material, her testimony was: "I am Joan DeGeer Levy, over the age of twenty-one years, of sound mind and a bona fide resident of Madison County, Alabama, and have been for over two weeks next preceding the filing of this bill of complaint. I live at 406 Eustis Street, Huntsville, Alabama, with Mrs. R. H. Canterberry. I formerly lived in Great Neck, New York but I came to Alabama with the full intention of making this State and County my permanent home. I have registered at the United States Employment Service on Gallatin Street in Huntsville, Alabama, for a job. I have also applied at numerous places in Huntsville for work being the Louise Shop, Southern Bell Telephone who were not taking application at the present but would at a later date, and have an appointment with the personnel Department at Redstone Arsenal on Saturday. I did not come to Alabama for the purpose *345 of obtaining a divorce but came here only for the purpose of changing my domicile and home to this State. My present intention is to live in the State of Alabama permanently and not temporarily."
Since the amendment of § 29, Title 34, Code 1940, by the act approved July 6, 1945, General Acts 1945, p. 691, no particular or specific period of residence in this state is required of a complainant in a proceeding for divorce where the respondent is a nonresident when the court has jurisdiction of both parties to the cause of action, the only jurisdictional requirement being that the complainant be domiciled in the state so as to confer upon the court jurisdiction of the res. Gee v. Gee, 252 Ala. 103, 39 So. 2d 406; Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A.L.R. 2d 662.
Appellant contends that the testimony quoted above was sufficient to show bona fide residence or domicile of the appellant (complainant); that, since the testimony of complainant in a divorce action need not necessarily be corroborated, citing Piner v. Piner, 255 Ala. 104, 50 So. 2d 269, the trial court erroneously assumed to pass upon the credibility of testimony which had been taken by deposition out of court, and which was prima facie sufficient to prove the material allegations of the bill. Our attention is called to the established rule that, when a cause is tried in the court below in this manner, this court will not indulge any presumption that the trial court correctly found the facts, but will sit in judgment thereon. Harris v. Harris, 251 Ala. 687, 39 So. 2d 232.
But the appellant overlooks the statute requiring the courts in equity cases to consider only relevant, material, competent and legal testimony, notwithstanding no objection in the trial court has been taken thereto. Code 1940, Title 7, § 372(1), Cum. Pocket Part; Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115. The question before us is not whether or not the court below had the right to believe or not believe the testimony upon which the cause was submitted; the real question is whether or not there was before the court below, and before us, sufficient legal evidence to sustain the allegations of the bill upon the jurisdictional question hereinabove noted.
It will be noticed that in the deposition are such expressions as "I came to Alabama with the full intention of making this State and County my permanent home. I did not come to Alabama for the purpose of obtaining a divorce but came here only for the purpose of changing my domicile and home to this State. My present intention is to live in the State of Alabama" etc. It has long been the established rule in this jurisdiction that the uncommunicated motive or intention of a party is a matter of inference to be drawn from the facts and circumstances of the case, and is not the subject of direct proof. It has been applied in both civil and criminal cases. Baldwin v. Walker, 91 Ala. 428, 8 So. 364; Pollard v. Rogers, 234 Ala. 92, 173 So. 881; McGuff v. State, 248 Ala. 259, 27 So. 2d 241; Thornton v. State, 253 Ala. 444, 45 So. 2d 298; Oxford Iron Co. v. Spradley, 51 Ala. 171. While it has been said that this rule of exclusion is peculiar to Alabama (e. g., Treatise by Judge J. Russell McElroy, 1 Alabama Lawyer 221), we have nevertheless adhered to it. For an extensive treatment of the subject see McGuff v. State, supra.
That the quoted expressions fall within the purview of the rule is not debatable. In view of the fact that the issue involved is one of jurisdiction; that a divorce proceeding is one in which the State is peculiarly interested; that the evidence was by way of ex parte deposition, and there being no contest, it is all the more necessary that we give effect to the statute obviating the necessity for an objection. Code, Title 7, § 372(1), supra.
With the mentioned items of evidence out of the way, but little is left to prove the fact of complainant's domicile nothing save the bald assertion that she is a resident of Madison County and that she has made applications for work in that county. So considered, we must conclude to an affirmance of the decree below to the effect that the evidence is insufficient *346 to sustain the jurisdictional allegation of domicile.
We may observe that there is a distinction between the foregoing rule of exclusion and that rule which permits a witness to testify to declarations made by one in setting out upon a journey, and to testify to other indicia of motive or intent. Thornton v. State, supra.
While we agree with the trial court in denying to complainant the relief prayed, we are of the opinion that the bill should have been dismissed without prejudice. The decree is to that extent modified, and as modified it is affirmed.
Modified and affirmed.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur. | October 11, 1951 |
766456c2-1721-4d06-b528-36a84901a99e | Walton v. Walton | 54 So. 2d 498 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 498 (1951)
WALTON et al.
v.
WALTON et al.
7 Div. 115.
Supreme Court of Alabama.
October 11, 1951.
Wales W. Wallace, Jr., Columbiana, for appellants.
Paul O. Luck, Columbiana, for appellees.
SIMPSON, Justice.
This proceeding was instituted by independent petition of Lula Walton, widow of Henry Walton, to have set aside to her in fee simple ten acres of land in Shelby County as her homestead, pursuant to the exemption laws of the state. Code 1940, Title 7, § 694. From a decree in her favor the heirs have appealed.
The petition sets forth that her husband died in Shelby County in 1934; that no administration was had on his estate; that he left no minor children; and "that at the time of the death of said decedent, he owned real estate in Shelby County, Alabama, not exceeding in value two thousand dollars, and in area one hundred sixty acres (160); *499 and that there has been no exemption of real or personal property set apart to your petitioner as said widow; at the time of the death of said decedent, he owned the following described real estate in Shelby County, Alabama, to-wit: ten (10) acres of land in the Southeast corner of the Southwest Quarter of the Southeast Quarter of Section 3, Township 19, Range 2 East, and the North Half of the Northeast Quarter of the Northeast Quarter of Section 10, Township 19, Range 2 East, all in Shelby County, Alabama." (Emphasis supplied.)
It is manifest that one jurisdictional prerequisite is omitted from the allegations, which makes the proceeding void. That is, the petition fails to negative the ownership of any other real estate by the decedent at his death. It could be that in addition to the land in Shelby County, which did not exceed the amount and value allowed the widow as exempt, there were other lands elsewhere in the state as well, thereby disentitling the widow to the exemption claimed and allowed. Alford v. Claborne, 229 Ala. 401, 157 So. 226; Brooks v. Johns, 119 Ala. 412, 24 So. 345; Chamblee v. Cole, 128 Ala. 649, 30 So. 630.
The allegations in the instant petition are distinguishable from that in Singo v. McGehee, 160 Ala. 245, 49 So. 290, and others cited by appellee, since in those cases the petition did negative the fact of ownership by decedent of any other lands except that sought to be set aside as exempt. The instant case is ruled by such cases as Alford v. Claborne, Brooks v. Johns, and Chamblee v. Cole, first hereinabove cited.
The jurisdiction of the probate court to act in the premises is statutory and limited, and it must appear from the face of the proceeding that it has acted within the scope of that jurisdiction. Nothing is presumed. The mere exercise of jurisdiction by the court or the existence of jurisdictional facts later appearing in the proceeding without the necessary jurisdictional averments in the petition will not aid the proceeding or give it validity. Carter v. Carter, 251 Ala. 598, 38 So. 2d 557; Chamblee v. Cole, supra.
It is perhaps also well to notice in passing that the court appears to have misapprehended the proper criterion of determining the value of the alleged homestead. The report of the commissioners fixed the value as of the time of their report and likewise the decree of the court adjudicated that the "lands do not exceed in area 160 acres or $2000.00 in value," indicating that fixation of value was rested on a misapprehension. The value of the real estate to be allotted to the widow and set apart to her must be ascertained as of the date of the decedent's death. Alford v. Claborne, supra; Matthews v. Matthews, 253 Ala. 116, 43 So. 2d 131.
The proceeding and decree of the court being void for want of jurisdiction requires that the appeal be dismissed. Simpson v. Simpson, 254 Ala. 648, 49 So. 2d 314; Craig v. Root, 247 Ala. 479, 25 So. 2d 147; Boozer v. Boozer, 245 Ala. 264, 16 So. 2d 863.
The probate court has inherent power, upon proper motion, to vacate the void decree. Chamblee v. Cole, supra.
Appeal dismissed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | October 11, 1951 |
5904cb17-c7c9-4c95-8660-5a17e62df656 | Jefferson County v. City of Birmingham | 55 So. 2d 196 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 196 (1951)
JEFFERSON COUNTY
v.
CITY OF BIRMINGHAM.
6 Div. 276.
Supreme Court of Alabama.
October 4, 1951.
Rehearing Denied November 23, 1951.
John S. Foster and Maurice F. Bishop, Birmingham, for appellant.
Mayer U. Newfield, Birmingham, for appellee.
BROWN, Justice.
This is an appeal from a final decree of the circuit court in equity denying the contentions of Jefferson County, a body corporate, that it had a right to construct a 40 million gallon per day activated sludge type sewage treatment plant within a B Residence District established by a comprehensive *197 zoning ordinance adopted prior to 1944 and embodied in the Code of the City of Birmingham adopted and promulgated in 1944 of which the courts take judicial notice.
Section 1602 of the General City Code provides:
"In a `B' residence district, land may be used and buildings or structures may be erected, altered or used, only for the following uses:
"(1) Any use permitted in an `A' residence district.
"(2) Two-family dwelling.
"(3) Multiple dwelling.
"(4) Hotel or apartment hotel.
"(5) Hospital, other than a hospital for persons suffering from insanity or from diseases such as are commonly isolated in a separate building.
"(6) Public or semi-public institution, educational or charitable (not including a jail, reformatory or other correctional institution).
"(7) Fraternity house, sorority house or dormitory.
"(8) Clubhouse, (not including a club, the chief activity of which is a service customarily carried on as a business).
"(9) Lodging house or boarding house.
"(10) Electric substation without rotary machinery or gas regulating station.
"(11) Accessory uses, incident to any of the principal uses above listed and not involving the conduct of a business."
Accessory uses within the meaning of subsection (11) of § 1602 of the General City Code of the City of Birmingham above set forth as defined by § 1603 of the General City Code of the City of Birmingham are as follows:
"In either an `A' or `B' residence district, accessory uses shall be:
"(1) Uses customarily incident to the principal uses listed as permitted. They shall be understood to include, among other things, an office such as that of a physician, dentist, musician, artist or other professional person, when located within or directly attached to his dwelling, which is used primarily as a dwelling, and home occupations such as dressmaking or millinery, engaged in by persons of the immediate family within their own dwellings.
"(2) Quarters for servants employed on the premises. Such quarters may be located either within the principal dwelling or in a separate building on the same lot and not less than sixty feet from the front lot line.
"(3) Private garage, located not less than sixty feet from the front lot line, if a separate building, or in a suitable room within or attached to the dwelling.
"(4) Private stable, located not less than eighty feet from the front lot line.
"(5) A sign or signboard not exceeding eight square feet in area, appertaining to the lease or sale of the premises.
"(6) A name plate not exceeding two square feet in area.
"(7) A sign or bulletin board, not exceeding twelve square feet in area, so placed as not to interfere with front yard requirements nor obstruct the view across the corner of intersection streets, and erected upon the premises of a church or similar institution for the purpose of displaying the name and activities thereof or the services therein provided.
"(8) A fence, hedge or enclosure wall; provided, that:
"(a) a solid fence or wall shall not exceed a height of six and one-half feet; and a hedge, solid fence or wall in the front yard, of a corner lot shall not exceed a height of three feet.
"(b) an ornamental fence exceeding six and one-half feet in height shall have a ratio or solid portion to open portion not in excess of one to four.
"(c) no fence, fence wall or fence hedge situated upon any portion of any lot or lot line between any front building line established by this chapter and the line of the street to the front thereof, shall exceed a height of four feet."
The proceedings were instituted by Jefferson County in the circuit court in equity by petition which alleges:
*198 "The complainant claims and contends that said Section 1602 of the General City Code of the City of Birmingham does not prohibit, or apply to, or would not prohibit or apply to, the proposed sewage disposal plant. The complainant so contends for the separate and several reasons as follows:
"(1) The construction and operation of the proposed sewage disposal plant, being for the purpose of disposing of sewage from dwellings, is an accessory use, permitted and authorized by and under Subsection (11) of said Section 1602 and by and under Subsection (1) of Section 1603 of the General City Code of the City of Birmingham (herein above set out) * *."
The petition further alleges:
"(2) In constructing and operating the proposed sewage disposal plant, the complainant would be engaged in a governmental function; and said Section 1602 of the General City Code does not apply to buildings or structures constructed or operated by the complainant County in its governmental capacity, or when it is engaged in a governmental function.
"(3) If said Section 1602 of the General City Code of the City of Birmingham be construed to apply to a sewage disposal plant constructed or operated by the complainant County pursuant to Amendment LXXIII of the Constitution of Alabama of 1901, then said Section 1602 is unconstitutional and void, as being in conflict with, and in violation of, said Amendment LXXIII."
The petitioner, appellant, also contends that if the zoning ordinance is construed to prohibit the location, construction and operation of said sewage disposal plant within said B Residential District, it violates the provisions of Act No. 619, Acts of 1949, p. 954 et seq., Code 1940, Tit. 62, § 303 (203a) et seq., and is, therefore, unconstitutional and void.
The petition alleges that the complainant does not now own the site and in order to construct and operate upon the site selected said proposed sewage disposal plant, it would be necessary that complainant acquire the site by purchase or condemnation (as to which no steps have been taken); that the acquisition of such a site will entail the expenditure of large sums of public funds and in the event the complainant should acquire the site and it should then be held that said Section 1602 of the General City Code of the City of Birmingham applies to and prohibits the construction and operation of a sewage disposal plant on the site, there would result an enormous loss to the public as a consequence of the complainant County not being permitted to use the site for that purpose.
The petition prays that upon final hearing the court will render a declaratory judgment holding, ordering, adjudging and decreeing that Section 1602 of the General City Code of the City of Birmingham does not apply to or prohibit, and would not apply to or prohibit, the construction and erection by the complainant of the proposed sewage disposal plant upon the land bounded on the West by Avenue F, Pratt City, on the East by Avenue I, Pratt City, on the South by Village Creek, and on the North by Eighth Street, Pratt City.
The petition also prays for an injunction enjoining the City of Birmingham, prohibiting, restraining and enjoining the said City of Birmingham, its officers, agents and employees, from applying, or attempting to apply, or enforcing or attempting to enforce, said Section 1602 of the General City Code of the City of Birmingham as against the complainant, Jefferson County, Alabama, or its officers, contractors, servants, agents or employees with respect to the construction or operation of the sewage disposal plant upon the land described above.
The defendant, City of Birmingham, filed an answer admitting certain averments of the petition, numbered 1, 2, 3 and part of 4 and avers that the "determination by the County Commission that the selected site is `the most practicable and economical site for the construction of said sewage disposal plant' was erroneous, wrong and based upon an inadequate consideration of, or a failure to consider, factors vital and relevant to such determination" and sets up the provisions of the ordinance embodied in Section 1643 creating a Board of Adjustment *199 empowered to hear and determine appeals from orders requiring determination made by the administrative officers in the enforcement of the City's Zoning Ordinance and sets up the provisions of the zoning ordinance in denial of complainant's contention that the City may select and construct such disposal plant in a B Residential District.
The only interest which the petition shows that the appellant has in said site is that its engineers have considered five (5) different sites upon which it has been suggested that such disposal plant be constructed, all of which were excluded, and the engineering department determined that the site embraced in the territory described was the most feasible and economical for the construction and maintenance of such plant.
The case was submitted for final decree on the allegations of the petition, the allegations of the answer and the report of the engineering department. The answer alleges that the area covered by said description consists of 35 acres of land on which approximately 98 families, whose homes would be taken to provide a site for said project, including other persons occupying property immediately contiguous to said site, and that the complainant has not given adequate consideration to these matters, nor does the petition make parties interested in said homes parties to the petition.
After due consideration of the provisions of Section LXXIII of the Constitution, Code of 1940, Tit. 1-6, Cum. Pocket Part, p. 78, and the provisions of Act No. 619, Acts 1949, p. 954, we find nothing that trenches on the power of the City of Birmingham or the ordinance of said city embodied in the comprehensive zoning law or the ordinance involved and embodied in §§ 1602 and 1603 of the General City Code, establishing B Residential Districts and prohibiting, in legal effect, the location of the project proposed by the County of Jefferson as a sewage disposal plant therein. Therefore we are of opinion and hold that the contentions of appellant that said zoning ordinance violates said constitutional provision and said act are without merit.
Section 654, Title 62, Code of 1940, confers on the City of Birmingham the full measure of the state's police power to provide for the safety, preserve the health, promote the prosperity, improve the morals, orders, comforts and convenience of the inhabitants of the city and prevent and punish injuries and offenses to the public therein. City of Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140.
We further observe that §§ 710, 711 and 712, Title 62, Code of 1940, make full provision for the enforcement of said zoning ordinance. Under the authority conferred by the statutes cited supra and § 772, Title 37, Code of 1940, the city is exercising a governmental powerthe police powerfor the protection of the public welfare. Therefore the contention that the County of Jefferson may ignore the zoning ordinance and construct and maintain said sewage disposal plant in a residential zone because it, too, is exercising a governmental power, is without merit. Walls v. City of Guntersville, 253 Ala. 480, 45 So. 2d 468. The only limitation placed upon the power of municipalities to pass zoning ordinances is that such ordinances must be comprehensive in scope and purpose and not in conflict with the laws of the state or the state and federal constitutions.
As pointed out above, all parties whose interest may be affected by the construction of the proposed disposal plant are not made parties. Code of 1940, Tit. 7, § 166. However, inasmuch as the decree only disposes of the contention made by the County of Jefferson and affirms the validity of the zoning ordinance, we feel that the best way to dispose of this appeal is to affirm the decree of the circuit court as it only affects the interest of the county (appellant here), who is clearly not entitled to the relief which it seeks. The following authorities support and sustain the conclusion stated in the court's final decree and in the foregoing opinion. Bryan v. Mayor, etc., of City of Birmingham, 154 Ala. 447, 45 So. 922, 129 Am.St.Rep. 63; Spear v. Ward, 199 Ala. 105, 74 So. 27; White v. Luquire Funeral *200 Home, 221 Ala. 440, 129 So. 84; Rose v. City of Andalusia, 249 Ala. 333, 31 So. 2d 66; Hickman v. City of Mobile, Ala.Sup., 53 So. 2d 752; State ex rel. Wilkinson et al. v. Lane, 181 Ala. 646, 653-654, 62 So. 31, 32; 62 C.J.S., Municipal Corporations, § 228 (2), page 565.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
PER CURIAM.
In Jones v. Jefferson County, 206 Ala. 13, 89 So. 174, and Hamilton v. Jefferson County, 209 Ala. 517, 96 So. 628, it was held that in operating a sewage disposal plant the county was engaged in a governmental function. We are taken to task because in the present case we did not give effect to the statement contained in Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593, that the prohibitions and restrictions of a zoning ordinance do not ordinarily apply where the operation is in a governmental capacity.
The statement that the prohibitions and restrictions of a zoning ordinance do not ordinarily apply by its own language recognizes that there can be valid exceptions to the rule. While in the foregoing Alabama cases it was held that operation of a sewage disposal plant is a governmental function, those cases were dealing with questions of tort liability and not zoning. Cases in other jurisdictions hold that where zoning is involved, the operation of a sewage disposal plant is proprietary and not governmental. O'Brien v. Town of Greenburgh, 239 App.Div. 555, 268 N.Y.S. 173. In Alabama Alcoholic Beverage Control Board v. City of Birmingham, supra, it was explained that the legislature could with reason provide that a liquor store might be included within a zoning ordinance because in such establishment beverages are placed on sale and sold to customers as in other stores and from the standpoint of zoning, such an operation could well be regarded as business within a statute which authorized a city to be divided into business, industrial and residential zones. We refer to this difference in the authorities because it well shows that the general rule referred to above can have valid exceptions. Under the circumstances in this case the exception clearly applies. The city under its zoning power conferred by statute can prohibit the construction and operation of a sewage disposal plant, with all that that operation implies, from being located in a "B" residential district. Davis v. City of Mobile, 245 Ala. 80, 16 So. 2d 1; Zoning Law and Practice by Dr. Yokley, Chap. II, §§ 15-25; 37 Am.Juris. §§ 276-279; Ex parte Byrd, 84 Ala. 17, 4 So. 397, 5 Am.Rep. 328.
Application for rehearing overruled.
LIVINGSTON, C. J., and BROWN, LAWSON and STAKELY, JJ., concur. | October 4, 1951 |
3b80eba6-c38c-4ba9-b789-e33948d6ecb7 | Bell v. Williams | 54 So. 2d 582 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 582 (1951)
BELL
v.
WILLIAMS et al.
5 Div. 511.
Supreme Court of Alabama.
June 14, 1951.
Rehearing Granted October 18, 1951.
*583 J. B. Atkinson, Clanton, for appellant.
Grady Reynolds and Reynolds & Reynolds, Clanton, for appellees.
FOSTER, Justice.
In this suit the question of the title to eighty acres of land, adversely asserted between the complainants and the respondent, is the matter of controversy. The complainants and the respondent, Susie Williams Bell, inherited the land in remainder from their mother, Patsy Williams, who died in 1920, leaving her husband, Tom Williams, and the parties to this suit, who are her children. Tom Williams resided on the land as long as he lived and after his death, in July 1931, the parties to this suit came into the right of enjoyment of their remainder. Title 16, section 12, Code.
The suit arose by the filing of a bill in equity for the sale of land between tenants in common. Susie Williams Bell, the respondent, set up title to it by virtue of her purchase from one John D. Martin who acquired it from the State Land Commissioner. Her claim of ownership is under the short statute of limitations.
There was a trial of the issues had before the judge and an examination of the witnesses in open court. Upon the hearing of the evidence the court rendered a decree adjudging that the parties to the suit are the tenants in common of the property and fixing their respective interests therein, denying to Susie Williams Bell her claim of ownership by adverse possession, but directing payment to her out of the proceeds of the sale the amount expended by her in acquisition of the lien of the State for taxes and the payment of the taxes subsequent to that time, and charged her with the sum of forty dollars for the sale of timber off the land. She is complaining of this decree and contends that her right to the entire interest in the land has been established by reason of such adverse possession under the short statute of limitations. The further facts are substantially as follows.
There was a decree of the Probate Court of Chilton County ordering certain land sold for taxes for the year 1932. The land is described as the SE¼ of SE¼ of section 10 and SW¼ of SW¼ of section 10, Township 21, Range 12. The latter is evidently a misdescription and it should be section 11.
In the record there is a certificate dated November 27, 1933, signed by the judge of probate of Chilton County and verified by J. T. Carlton, showing that a sale was made of two forties, giving a correct description of both of them as bought in by the State.
There also appears in the record a deed dated August 18, 1938, from the land commissioner to John D. Martin reciting that the land was bought in by the State for taxes. It is described as the SE¼ of SE¼ of section 10 and SW¼ of SW¼ of section 11, which is a correct description of the land in question. The record contains a deed from John D. Martin to Susie Bell dated September 5, 1940, which correctly describes both forties. Susie Williams Bell claims under that deed.
Walter Williams, the oldest child of Patsy and Tom Williams, deceased, and one of the complainants, was residing upon the forty acres in section 10, which is the west forty, at the time of Tom's death. He is still residing there and has been for more than twenty years.
Susie Williams Bell moved into the house which had been occupied by Tom and Patsy soon after the death of Tom, and resided there until the house burned in *584 recent years. Walter cultivated some patches of land around his house and so did Susie.
After Susie Williams Bell obtained her deed from John D. Martin she exhibited the same to Walter who made no response but merely laughed, and having told him she had bought the property he just sat there and looked at the deed and handed it back to her. When she "tried to tell him to get off, he said he wasn't going to get off. * * * He said he wasn't going nowhere." There was no other demand for possession made upon him by Susie Williams Bell or any notice to any of the heirs that she was holding the land adversely to them until July 8, 1948, at which time she gave Walter written notice that his possessory interest had terminated and that he was to vacate and surrender the land. Another notice also appears to have been given on July 23, 1948. This was after the present suit was begun on January 21, 1947.
There is no effort to show that the tax sale was based upon a compliance with the law which was necessary to make the sale legal so as to convey any title. The burden is upon one claiming under a tax sale to show a compliance with the law justifying such sale. The recitals of the deed made to a purchaser at a tax sale are by statute prima facie evidence of certain occurrences as stated. Title 51, section 277, Code. But that rule of law does not have application to a deed made by the state land commissioner where the State has become the purchaser of the property. Lathem v. Lee, 249 Ala. 532(10), 32 So. 2d 211. Moreover, the pleadings show, as above stated, that Tom died July 22, 1931, and the land was sold for the taxes due October 1, 1932. The taxes due and payable October 1, 1932 were based upon an assessment as of October 1, 1931, after Tom had died. The assessment and sale were therefore void. Hames v. Irwin, 253 Ala. 458, 45 So. 2d 281.
Moreover, Tom had only a life interest and a sale for taxes assessed to him would not affect the remaindermen. See, Title 51, section 276, Code; Gunter v. Townsend, 202 Ala. 160, 79 So. 644.
It also appears that the decree of the court ordering the land sold contains a description of only one of the forties here involved, which is the SE¼ of SE¼ of section 10; but the certificate of sale to the State and the deed from the land commissioner to John D. Martin contain the two forties by a correct description, and the deed from Martin to Susie Williams Bell also contains a correct description of both forties. We think it can be said, therefore, that Susie Williams Bell claims the land under her purchase from John D. Martin by virtue of said tax sale and, therefore, if she had the possession adversely thereafter to the other tenants in common for three years her right did ripen into a title under the short statute of limitations. Title 51, section 295, Code; Lathem v. Lee, 249 Ala. 532(13), 32 So. 2d 211; Williams v. Oates, 209 Ala. 683, 96 So. 880; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479.
In order for this to be done, it is necessary that her possession be adverse to the other heirs, as we have said. The possession of a tenant in common is not adverse to the other tenants in common unless notice has been given them of the adverse nature of the claim. Hames v. Irwin, 253 Ala. 458, 45 So. 2d 281; Swafford v. Brasher, 246 Ala. 636, 22 So. 2d 24. The presumption is that the mere possession of one of the tenants in common is not adverse to the others, and the hostility of such possession must be brought to their attention. It is not claimed that this occurred with respect to any of the tenants except Walter. It is claimed that he was notified of the hostile nature of Susie's possession after she received her deed from John D. Martin, by reason of the fact that she showed the deed to Walter and he read it and merely laughed, giving no answer. She did not otherwise advise him of any adverse claim, but he continued to remain in possession throughout the subsequent years until the filing of the bill, and he still resides upon the land. There is nothing in this procedure to indicate that Walter was giving his acquiescense in any such claim on Susie's part.
*585 Ordinarily when two persons are in possession of a tract of land or any part of it neither can claim against the other by adverse possession since to do so it is necessary that the possession be exclusive as well as hostile and continuous. Chastang v. Chastang, 141 Ala. 451, 37 So. 799; Scruggs v. Decatur Mineral & Land Co., 86 Ala. 173, 5 So. 440; Montgomery v. Spears, 218 Ala. 160, 117 So. 753; Singley v. Dempsey, 252 Ala. 677(3), 42 So. 2d 609.
So that Susie did not maintain her claim either as to Walter or the other heirs that she held the legal title by virtue of the three year statute applicable to tax sales.
The trial court decreed accordingly, and also held that out of the proceeds of the sale of the land there should be paid to Susie an amount sufficient to reimburse her for what she paid to John D. Martin holding under a deed from the State, together with the taxes which she had paid; but she was charged with an amount which she had received from the sale of timber on the land. Susie cannot complain with respect to that situation. Her purchase of the property was not of an outstanding title but she only acquired a lien for taxes under a void tax sale. Hames v. Irwin, supra (4); Title 51, section 283, Code; Harrell v. Veig, 246 Ala. 669, 22 So. 2d 94. That lien was enforceable by her. Her only right in that connection was to collect the amount secured by it. Salter v. Odom, 240 Ala. 462(3), 199 So. 687.
It is not necessary, therefore, in order to sustain the decree of the court, to rely upon the equitable right of a tenant in common to share in the purchase of an outstanding title by a cotenant because that did not occur in this instance. On a sale of property for division between tenants in common, as shown by this proceeding, it is entirely proper for the court to order the taxes which have been paid upon the property, or which were due and payable, to be paid out of the proceeds of sale.
Susie has no cause for complaint with respect to the decree of the court as to the payment to her for the purpose of reimbursing her for the amounts which she paid on that account. Not having had adverse possession as against the other cotenants after her purchase from John D. Martin for the period of three years within the terms of the statute, she has not shown that she has a title in contravention to the rights of the other cotenants.
The decree of the trial court is without error, and it is affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur.
On Rehearing.
FOSTER, Justice.
Since the application for rehearing was filed by appellant, appellant has made a motion, supported by affidavit and conceded by appellees, to reverse and remand the cause upon a showing that Isabelle Campbell, one of the complainants, died intestate during the month of February 1947. That was after the filing of the original bill, but before the rendition of the final decree. Also that Sol Hicks owns an undivided curtesy or life interest in the share originally owned by Mamie Hicks, deceased, Mamie having died prior to the institution of this suit; but Sol Hicks has not been made a party to it. Matthews v. Matthews, 247 Ala. 472, 25 So. 2d 259.
The decree of the circuit court, in equity, upon which the appeal was taken, rendered on December 28, 1950, found and decreed that said Isabelle Campbell was at that time the owner of an undivided onetenth interest in the land, subject to said rights there declared. Since at that time the said Isabelle Campbell was dead, and since her death had not been reported to the court and suit revived as to her interest, the decree of the circuit court cannot be sustained, and therefore should be annulled and vacated. 30 C.J.S., Equity, section 589, page 978; Martin v. Cothran, 240 Ala. 619, 200 So. 609; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Curry v. Holmes, 249 Ala. 545, 32 So. 2d 39.
Upon the basis of that status, we extend the opinion, grant the application for rehearing, set aside our decree of affirmance, *586 cancel and annul the decree of the trial court and remand the cause.
Application for rehearing granted.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur. | October 18, 1951 |
30e7b602-b64f-4797-9c3c-2fc66b637c9a | Wilson v. Cooper | 54 So. 2d 286 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 286 (1951)
WILSON
v.
COOPER.
4 Div. 612.
Supreme Court of Alabama.
October 4, 1951.
Douglas Brown and Val L. McGee, Ozark, and Grady Cleveland, Jr., Eufaula, for appellant.
Chauncey Sparks, Eufaula, and M. I. Jackson, Clayton, for appellee.
LIVINGSTON, Chief Justice.
The appeal is from a decree in equity fixing the boundary line between coterminous land owners. Title 47, § 3, Code of 1940.
Complainant in the court below, appellant here, claims title, by deed, to the southeast quarter of the southwest quarter of section 4, and the northeast quarter of the northwest quarter of section 9, Range 27, in Barbour County, Alabama. Respondent in the court below claims title, by deed, to the south half of the southeast quarter of section 4, and the north half of the northeast quarter of section 9, Range 27, in Barbour County, Alabama, less and except certain portions thereof not here pertinent. The deeds of both appellant and appellee describe their respective lands by government survey.
The real controversy appears to be whether an old fence or hedgerow coincides with the government survey line dividing the lands of the parties, and if the fence or hedgerow does not coincide with the government survey line, did appellee acquire title, by adverse possession, to the lands between the true government line and the old hedgerow.
A map or plat of the property is on exhibit in the case showing the half section line between the parties, as located by the government survey, and the location of the fence or hedgerow. The area in dispute varies in width from 9 to 24 feet.
*287 The decree of the court below found that the map or plat exhibited, represents the true government survey line, and that the fence or hedgerow was fairly represented on said map or plat. The court then entered a decree establishing the boundary line between the parties; a line equidistant between the government survey line and the fence or hedgerow line.
We are unable to find any evidence in the record to support the decree. In fact, neither party claims that the line established by the trial court is the true boundary line dividing their lands, nor did either party offer evidence to prove that such a line was the true line.
The principles of law here involved are stated in the case of Alford v. Rodgers, 242 Ala. 370, 6 So. 2d 409, 410 as follows:
"It is of course well understood that as between respective claimants a boundary line may be established by adverse possession by which one party may thus acquire land extending to that line which would not otherwise have been his, and thereby may thus cause a strip of land to be attached to his holdings. Brantley v. Helton, 224 Ala. 93, 139 So. 283; Branyon v. Kirk, 238 Ala. 321, 191 So. 345. See Code of 1940, Title 7, section 828, page 713, where the cases are cited. This statute does not prescribe a limitation on the right acquired by the twenty year prescription period of adverse possession. Jones v. Rutledge, 202 Ala. 213, 80 So. 35; Smith v. Smith, 213 Ala. 670, 106 So. 194; Earnest v. Fite, 211 Ala. 363, 100 So. 637; Stearnes v. Woddall, 218 Ala. 128, 117 So. 643.
"And if a conveyance of his holding is sufficient to include the strip thus acquired, it will pass under it. But what is the result if the description in the conveyance is not sufficient to include this acquired strip? That is our question here.
"It is of course true that no act or even agreement of the parties can take the land out of section 11 and put it in section 14. And while the boundary line between adjacent land owners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the Government surveyors. So that if the land was in section 11 as thus surveyed, it has so remained and still is thus situated. And the parties both treat it so. It follows that a conveyance of land described as in section 14 does not on its face include land in section 11. But can it be treated as an appurtenant to the land in section 14, so as to pass with a conveyance of it?
"This question has been treated by the authorities which declare that as a rule a grantee can acquire by his deed only the land described in it, and does not acquire by way of appurtenant land outside such description. But that when a boundary line is mobile, such as a water coursethough it may shifta deed conveys the land up to such shifting line as it does up to a fixed line. Jones v. Johnston, 18 How. 150, 15 L. Ed. 320.
* * * * * *
"And so when the land is described by Government numbers, the deed does not purport to convey an area outside of such described land. For in Humphreys v. McKissock, 140 U.S. 304, 11 S. Ct. 779, 781, 35 L. Ed. 473, it was said, quoting from Woodhull v. Rosenthal, 61 N.Y. 382,390, that `land can never be appurtenant to other land, or pass with it as belonging to it. All that can be reasonably claimed is that the word "appurtenance" will carry with it easements and servitudes used and employed with the lands for whose benefit they were created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted.'
"This does not conflict with the principle that when shifting boundaries gradually change, the tract embraces land thereby added."
Appellee claims title by a deed describing the land conveyed by government sections or parts thereof. He could, therefore, under the principles above stated have acquired no title in the disputed area which his predecessors in title acquired by adverse possession. Appellee's rights depend upon his own possession of the disputed strip. Furthermore, if appellee acquired title to the disputed parcel of land, *288 on the record before us, he acquired title to all and not a part of it.
The decree of the lower court is reversed and the cause remanded for the reason that there is no evidence in the record to support the boundary line as fixed by that court.
Reversed and remanded.
BROWN, LAWSON and STAKELY, JJ., concur. | October 4, 1951 |
dcdee71c-c66c-4a24-a959-bb2aea4f77e1 | Sibley v. Odum | 58 So. 2d 896 | N/A | Alabama | Alabama Supreme Court | 58 So. 2d 896 (1951)
SIBLEY
v.
ODUM et al.
6 Div. 158.
Supreme Court of Alabama.
November 15, 1951.
Rehearing Denied January 3, 1952.
Further Rehearing Denied May 15, 1952.
Mayfield & Massa, Tuscaloosa, for appellant.
Davies & Williams, Birmingham, for appellee Odum.
SIMPSON, Justice.
This appeal presents the question of whether there was error in granting appellee's motion to set aside the verdict of the jury and order a new trial. The verdict was: "We the jury find the issues in favor of the plaintiff against the defendant James E. Odum and assess her damages at $10,000." The case is argued here on the theory that the verdict was a discharge of Sibley and against Odum for damages for personal injuries sustained in an automobile accident and we will review the case on that theory.
The motion for new trial contained eighty-eight grounds. In granting the motion, as appears from the judgment entry, the trial court assigned no ground, but we have held that the trial court's action in granting a new trial must be sustained on appeal if any good ground therefor is presented by the motion. A Templeton & Son v. David, 233 Ala. 616, 173 So. 231; Cox v. Martin, 250 Ala. 401, 34 So. 2d 463.
One ground of the motion was that the verdict was repugnant and inconsistent. *897 Appellant's brief is devoted to that ground. Appellees in brief assert that "the trial court held, and we submit correctly so, that such a verdict was contrary to the pleadings and the evidence in the case and could not be sustained." We have addressed ourselves, first, to that ground of the motion, and having concludedas we shall hereafter showthat ground to be a good one, we need not specifically notice any other grounds.
The only count of the complaint submitted to the jury was Count 3. It alleged that plaintiff, John Sibley and Odum were riding in Odum's car; that Sibley was driving as the agent of Odum and "under the immediate control and direction of the defendant, James E. Odum, and at said time and place, the said defendant, John Sibley acting within the line and scope of his said agency, with reckless disregard of the consequences, and being conscious at the time that his conduct in so doing would probably result in disaster, willfully or wantonly injured the plaintiff by driving said automobile at such a high rate of speed and in such a manner, that the same was caused to run off of said highway embankment, turn over and burn, and the plaintiff avers that as a proximate consequence of the willful and wanton conduct of the defendant as aforesaid, the plaintiff was grievously injured * * * and the plaintiff alleges that said willful and wanton misconduct was the proximate cause of all the injuries and damages aforesaid."
Does this charge Odum with direct participation in the willful or wanton conduct of Sibley because it alleges that Sibley was then and there driving said automobile as the agent and under the immediate control and direction of the defendant Odum? We think not. It is only the acts and conduct of Sibley that are characterized as willful or wanton; and following averment of Sibley's said acts and conduct it is averred that "as a proximate consequence of the willful and wanton conduct of the defendant as aforesaid, the plaintiff was injured." (Italics ours.) If the averment that Sibley was driving the car as the agent of Odum and under Odum's immediate control and direction be construed as charging that Odum gave direction for or ratified the act of Sibley in driving at a high rate of speed, it is not charged that this or any other act or conduct of Odum was wanton, willful or done with reckless disregard of the consequences. Odum's mere presence in the car did not change the relationship of principal and agent or master and servant. Thomas v. Carter, 218 Ala. 55, 117 So. 634. To be a direct participant and liable for the consequences of what the agent did on that theory, the principal is subject to the same rule which controls the liability of the agent; that is, that Odum's liability in trespass as a participant in the wanton act must be by reason of Odum's wanton act, not alone by reason of Sibley's wanton act. In the absence of allegations showing Odum's participation in the wanton act charged to Sibley, his liability is shown to be derivative, that is, upon the principle of respondeat superior. The result with respect to Count 3, therefore, is to charge trespass against Sibley and case against Odum. Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386; W. E. Belcher Lumber Co. v. York, 245 Ala. 286, 17 So. 2d 281.
In the case of Carter v. Franklin, 234 Ala. 116, 118, 173 So. 861, 863, we had this to say:
It results as our opinion and judgment, as it was on first consideration, that the verdict in this case was improper, that the trial court ruled correctly in granting the motion for a new trial and in setting aside the verdict and judgment and restoring the cause to the trial docket. On this premise alone the judgment appealed from is due to be affirmed.
On first consideration of this appeal, we were under the misapprehension that the motion for new trial, contained a ground raising the question of the sufficiency of Count 3 of the complaint (the only one submitted to the jury) as against the asserted demurrer. We therefore entered upon a decision of that question, concluding that the count was subject to such demurrer. Shortly after our decision was announced, the court, ex mero, took notice of Act No. 670, General Acts 1947, p. 513, codified as Title 7, § 138(1), Appendix of the Code, bearing directly upon the sufficiency of Count 3. The case was accordingly placed upon the rehearing docket and the act was thereupon given interpretation and on opinion on rehearing we concluded to the invalidity of that act. After formal application for rehearing and consideration of this later opinion, we have discovered after additional scrutiny of the record that the motion for new trial did not embrace such a ground and no question was there presented with reference to the ruling on any pleading. It results, therefore, that we mistakenly considered the sufficiency of Count 3 as against demurrer and, this being so, we unnecessarily treated of the validity of the said legislative act. So considered, on this final deliverance consideration of the act will be laid entirely out of view. This for several reasons. In the first place, the act had not been brought into notice on the trial and was not relied upon or mentioned on the appeal by either party. In the second place, as the record so stands, we are mindful of our consistent practice to enter upon the consideration of the constitutional validity of statutes only when such questions are pressed upon our attention on appealwith rare exceptions. Klein v. Jefferson County Building & Loan Ass'n, 239 Ala. 460, 464, 195 So. 593; In re Opinion of the Justices, 252 Ala. 465, 41 So. 2d 761; James v. State, 21 Ala.App. 295, 107 So. 727, among others. Further, as appears from the cases, ubi supra, we have refrained from treating such constitutional questions unless necessary to a proper adjudication of the case in hand. Whatever of logic and propriety lies behind these principles, there is the manifest one that consideration of such grave questions as the validity of a statute should be undertaken only in the light of thoughtful, cogent argument on the part of the respective litigants. In the circumstances, therefore, we have receded from any suggestions made with respect to said statute, preferring to leave the question open until such time as it may be presented to us in a proceeding appropriate to its determination. The rehearing opinion is therefore withdrawn and this opinion substituted.
The judgment appealed from is affirmed, the application for rehearing overruled.
All the Justices concur except BROWN, J., not sitting. | November 15, 1951 |
0660a1b3-906b-4860-b49a-c7087d93df9a | Ingalls Iron Works Co. v. Ingalls | 53 So. 2d 847 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 847 (1951)
INGALLS IRON WORKS CO.
v.
INGALLS.
6 Div. 195.
Supreme Court of Alabama.
June 30, 1951.
*848 D. W. Strickland and Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Chas. W. Greer and Francis H. Hare, Birmingham, for appellee.
BROWN, Justice.
The bill filed by appellant the Ingalls Iron Works Company, a corporation organized and existing under the laws of the State of Delaware with its principal office in the City of Birmingham, Alabama, is against appellee Robert I. Ingalls, Jr., one of its three stockholders. The bill seeks specific performance of an option contract executed by Robert I. Ingalls, Jr. to complainant on April 15, 1943, conferring the right on complainant to purchase and obligating the respondent to sell all of his stock then owned and subsequently acquired at a fixed price, and further seeks the advice and instruction of the court as to what if any right complainant has to use the stock delivered to it under the provisions of the option contract by the defendant "as trustee only for the purpose of this option" and so endorsed, which now has and holds as such trustee.
The respondent demurred to the bill on sundry grounds, among others, that the bill was without equity. On submission on the demurrer to the bill as last amended the court sustained the demurrer and further ruled that from anything appearing on the face of the bill, it could not be amended so as to give it equity, and entered a final decree dismissing the bill. From that decree the complainant has appealed.
This ruling can be upheld, if at all, only on the theory that the bill on its face shows that the event fixed by the option for maturing the right of the complainant to exercise the option has not occurred.
The appellant's contention reduced to its final analysis is that for and in consideration of $1,000 paid to the stockholder and his wife by the complainant, said option conferred on it the absolute right, on its election, at all times during the life of the stockholder and for thirteen months after his death, for any cause satisfactory to it, on notice to him during his life, or in *849 case of his death to his personal representative, to have said option specifically performed, without regard to the declaration of the facts and the declarations of the circumstances surrounding the parties and attending the execution of the contract stated in the preamble immediately preceding paragraph (1), embodying the operative provisions, and without the stockholder's consent and without voluntary action on his part.
The contention of the appellee, on the other hand, is that the intention of the parties must be gathered from the four corners of the contract interpreted in the light of the occasion which gave rise to the contract, the relation of the parties and the objects to be accomplished.
These contentions call for an interpretation of said option contract in the light of the applicable law which looks to the situation of the parties at the time it was executed and for that purpose the court will place itself as nearly as possible in the position of the parties when the instrument was executed to ascertain the intention of the parties, the rights to be protected and the objects to be accomplished. Reference may be had to the state of facts as they existed when the instrument was made and to which the parties may be presumed to have had reference. Nettles v. Lichtman, 228 Ala. 57, 152 So. 450, 91 A.L.R. 1455. The rule of the cited case was applied in Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278 which cited with approval McGhee v. Alexander, 104 Ala. 116, 16 So. 148, 149, from which we reproduce the following: "Contracts must be interpreted in the light of the facts surrounding the parties when they were made. There cannot be a departure from the words of a written contract they must have their full import and force. But to arrive at the true sense in which the parties employed them, courts of necessity consider the occasion which gave rise to the contract, the relation of the parties, and the object to be accomplished. Pollard v. Maddox, 28 Ala. 321. As is said by Bishop: `The parties speak in their contract from the fountain of their mutual knowledge, and if we would properly interpret their words, we must put ourselves exactly in their position, and know just what they mutually know, with neither addition nor abatement.' Bish. Cont. § 370. * * *"
This doctrine has been repeatedly reaffirmed. Olsson v. Nelson, 248 Ala. 441, 28 So. 2d 186; Coley v. W. P. Brown & Sons Lmbr. Co., Inc., 251 Ala. 235, 240, 37 So. 2d 125. And in Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278, it was observed: "* * * the rule of law is well settled and familiar, that different writings, executed at the same time and relating to the same subject-matter, will be construed as one instrument. The intention of the parties controls, and is to be gathered from the writings to which their stipulations and agreements may be referred.",citing Kelly v. Life Insurance Clearing Co., 113 Ala. 453, 21 So. 361, 364.
The appellant's contention is based, in part at least, on the ruling that "Words of recital in an agreement do not have the force of contractual stipulations. Generally if the recitals in a contract are clear and the operative part is ambiguous, the recitals govern the interpretation; but if the recitals are ambiguous and the operative part is clear, the operative part must prevail." 12 Am.Jur. 776, § 241. And the further contention is made that the recitals in the preamble are ambiguous and self contradicting, hence the court should only look to the operative provisions from the body of the instrument found in paragraph (1).See 17 C.J.S., Contracts, p. 733. § 314, that "As a general rule, recitals in a contract will not control the operative clauses thereof unless the latter are ambiguous; but they may be looked to in determining the proper construction of the contract and the parties' intention."
"Recitals in a contract should be reconciled with the operative clauses, and given effect, so far as possible; but where the recital is so inconsistent with the covenant or promise that they cannot be harmonized, the latter, if unambiguous, prevails. (Citing Wilson v. Towers, 4 Cir., 55 F.2d 199; Bellisfield v. Holcombe, 102 N.J.Eq. 20, 139 A. 817; Williams v. Barkley, 58 N.E. 765, 165 N.Y. 48; First Nat. Bank & Trust *850 Co. of Minneapolis v. U. S. Trust Co., 184 Wash. 212, 50 P.2d 904; Scott v. Albermarle Horse Show Ass'n, 128 Va. 517, 104 S.E. 842). In other words, recitals, especially when ambiguous, cannot control the clearly expressed stipulations of the parties; (Citing Chicago Daily News v. Kohler, 360 Ill. 351, 196 N.E. 445; Irwin's Bank v. Fletcher Savings & Trust Co., 195 Ind. 669, 145 N.E. 869; Hansbarger v. Hansbarger, 206 Mich. 281, 172 N.W. 577; Martin v. Rothwell, 81 W.Va. 681, 95 S.E. 189) and where the recitals are broader than the contract stipulations, the former will not extend the latter (Citing Las Alnimas [Animas] Consol. Canal Co. v. Hinderlider, 100 Colo. 508, 68 P.2d 564, 566; Great Western Oil Co. v. Lewistown Oil and Refining Co., 91 Mont. 146, 6 P.2d 863, 866). * * * Where the language of the covenants or promises in a contract is more comprehensive than that of the recitals, the intent is to be ascertained from a consideration of the entire instrument (13 C.J. 538, Note 4)." 17 C. J.S., Contracts, p. 733, § 314.
The bill alleges in substance that said corporation is a closed corporation with three principal stockholders, Robert I. Ingalls, Sr. and his wife Mrs. E. G. Ingalls. the mother and father of the respondent, and the respondent, members of the same family.
The bill further alleges that the respondent owns 4,501 shares of stock and has been such owner since April 15, 1943, by previous unconditional gift from his father, Robert I. Ingalls, Sr., and that the total outstanding shares of stock amount to 15,000 shares, some of which have been set up as the corpus of a trust for the protection and benefit of the respondent and his minor children.
Neither the stocks in said trusts nor the trustees named therein are involved in this litigation and have no interest herein.
The three principal stockholders above named on April 15, 1943, each for like consideration in said option contract and the mutual understanding of the parties and $1,000 paid by complainant, entered into three separate but substantially identical option contracts, granting to the corporation the right to buy the stock of such stockholder at a fixed price on the occurrence of the stockholder's retirement or death.
The contract signed by each of said stockholders is substantially in the following language.
"This Option, made this 15 day of April, 1943, by Robert I. Ingalls, Jr. and his wife, Eleanor Flick Ingalls (hereinafter called Stockholder and wife, respectively), with and in favor of The Ingalls Iron Works Company, a corporation organized and existing under the laws of the State of Delaware, (hereinafter called the Corporation).
"Witnesseth:
"Whereas, of the total of 15,000 shares of the issued and outstanding capital stock of the Corporation, Stockholder is the owner and holder of 4,501 shares representing a forty-five hundred and one fifteenth thousandths (4,501/15,000) interest in the Corporation as now evidenced by certificate as follows:
"Whereas, the present successful status of the Corporation is entirely attributable to the painstaking efforts and splendid cooperation of the stockholders and it is the desire of the Stockholder that the splendid harmony and the continuity of management be not disturbed in the event of the retirement or death of the Stockholder, by the interest of the Stockholder in the Corporation passing to outside and disinterested persons; and
"Whereas, it is the desire of the Stockholder upon his retirement or death not only to protect the remaining or surviving stockholders of the Corporation by insuring the return of all of his stock to the Corporation, at its election, but also to assure the remaining or surviving stockholders that upon his retirement or death his interest in the Corporation, as herein described, may be retired at the price and under the terms as hereinafter provided. [Italics supplied].
"Now, Therefore, in consideration of the premises and the sum of One Thousand *851 ($1,000.00) Dollars cash in hand paid to Stockholder and his wife by the Corporation, the receipt whereof is hereby acknowledged, and in further consideration of the mutual undertakings and covenants of the parties hereto as hereinafter set forth, it is agreed:
"1. That at any and all times during the life of the Stockholder and for thirteen (13) months after his death, the Corporation shall have a right, exercisable by written notice to the Stockholder prior to his death or by written notice to the executors, administrators or other legal representatives of the Stockholder subsequent to his death, to purchase all or any part of the forty-five hundred and one fifteen thousandths (4,501/15,000) interest which the Stockholder now holds in the Corporation, as represented by 4,501 shares of stock and evidenced by Certificate No. 17, as aforesaid, and any renewals or reissues thereof and said stock's pro rata proportion of any dividends declared on the issued and outstanding stock of the Corporation in the form of additional stock in the Corporation. In the event the Corporation shall elect to purchase all of the interest and stockholdings of the Stockholder in the Corporation, as evidenced by said Certificate No. 17 and any certificates evidencing any renewals or reissues thereof and dividends declared thereon in the form of additional stock in the Corporation, then the Corporation shall pay therefor (a) the aggregate sum of Two Million One Hundred Twenty thousand and no/100____($2,120,000.00)_____ Dollars, plus (b) the amount of cash dividends which have then been declared thereon but be unpaid. In the event, however, that the Corporation shall elect to purchase only part of the interest of the Stockholder in the Corporation, as hereinabove described, then the Corporation shall pay for the part so purchased (a) an amount which bears the same ratio to the said aggregate sum of $2,120,000.00_____as the part so purchased bears to the entire interest of the Stockholder in the Corporation as described and referred to in this paragraph 1, plus (b) the amount of any cash dividends which shall then have been declared on the part so purchased but be unpaid. Any such purchase, if made, shall be upon the terms and conditions herein contained.
"2. That the stock certificate described in paragraph 1 hereof and all certificates evidencing any renewals of reissues thereof and all certificates evidencing any additional stock issued as dividends on the said interest of the Stockholder in the Corporation, shall be endorsed as follows:
"`This stock certificate is subject to an option to purchase dated April 15, 1943, in favor of The Ingalls Iron Works Company.'
"That the Stockholder agrees to assign and deliver, concurrently with the execution and delivery of this Option said stock Certificate No. 17, properly endorsed, to the Corporation, as Trustee only, for the purpose of this Option. Stockholder will and shall likewise assign and deliver to the Corporation, as Trustee only, promptly as and when issued, all stock certificates evidencing any renewals or reissues of said stock Certificate No. 17 and all certificates evidencing any additional stock issued by the Corporation as dividends on the said interest of the Stockholder in the Corporation, for the purpose of this Option and endorsed as above prescribed.
"3. That the stock owned by Stockholder and subject to this Option shall be voted by him and he shall receive all dividends declared and paid thereon and other rights accruing thereunder during his natural life, and, after his death, said stock shall be voted by his legal representatives, who shall receive all dividends declared and paid thereon and other rights accruing thereunder until such time as the option granted herein shall have been exercised, if the same be exercised, and the purchase pursuant thereto shall have been completed; provided, however, that all dividends paid in the form of additional stock in the Corporation shall, promptly as and when received, be assigned, endorsed and delivered to the Corporation, as Trustee, for the purposes of this Option as provided in paragraphs 1 and 2 hereof and the full consideration therefor is included within the consideration as provided in said Paragraph 1.
*852 "4. That in addition to the option granted to the Corporation as provided in paragraph 1 hereof, the Corporation shall have the right, exercisable by written notice at any time within the time provided in paragraph 1 hereof, to repurchase from the Stockholder or his executors, administrators or other legal representatives all or any part of any new stock (but such renewals or reissues of the present stock owned by the Stockholder or any additional stock issued as dividends thereon as are included within the option granted to the Corporation under paragraph 1 hereof, shall not be construed as new stock) which may be hereafter issued by the Corporation and purchased by the Stockholder, whether purchased by him pursuant to any rights accruing to him as a stockholder of record of the Corporation or otherwise; such purchase, if made, to be at and for the same price per share paid therefor by the Stockholder, plus the amount of any cash dividends which shall have then been declared thereon but be unpaid, and such purchase, if made, shall, except as provided in this paragraph 4, be subject to all other terms and provisions of this Option. The certificates evidencing any stock which may be acquired by the Stockholder as provided in this paragraph 4 shall promptly, when and as received by the Stockholder or his executors, administrators or other legal representatives, be assigned, delivered, endorsed and held as provided in Paragraph 2 hereof and shall, except as provided in this paragraph 4, be subject to all other provisions of this Option.
"5. That in the event the Corporation shall pursuant to the terms hereof, elect to purchase all or any part of the interest of the Stockholder in the Corporation, as aforesaid, it shall pay over the purchase price therefor, as provided in paragraph 1 hereof or paragraph 4 hereof, as the case may be, to the Stockholder or the executors, administrators or other legal representatives of the Stockholder, as the case may be, and the Corporation, as Trustee, shall thereupon transfer and deliver the certificates evidencing the interest of the Stockholder in the Corporation so purchased to the Corporation, free and clear of all liens and claims of any persons whomsoever.
"6. That to assure the Stockholder that the Corporation will be able to carry out the terms hereof, should the option herein granted be exercised by the Corporation as herein provided, the Corporation has caused the life of the Stockholder to be insured in the amounts set forth in Schedule `A' attached hereto and made a part hereof, each of which policies has been made payable to the Corporation. The Corporation may obtain further and additional insurance on the life of the Stockholder for the purposes herein expressed and, in such event, the policies shall be added to and made a part of said Schedule `A' with the same force and effect as if originally included therein.
"7. That the Corporation shall pay all the premium deposits on the insurance policies referred to in paragraph 6 hereof promptly as they become due, and shall, so long as any interest of the Stockholder in the Corporation is subject to the terms of this Option, continue all of said insurance policies in full force and effect.
"8. That all rights under the said policies, such as, but not limited to, the right to dividends, loans, surrender, and change of beneficiary, shall be reserved to the Corporation.
"9. That upon the death of the Stockholder the Corporation shall immediately make claim for and collect the net proceeds of the policies of insurance, of which it is then the Owner, covering the life of the Stockholder and hold the proceeds in a separate fund as Trustee (except as to an amount of such proceeds as shall be equal in value, as herein fixed or determinable, of any part of said interest of the Stockholder in the Corporation which shall have been theretofore purchased and paid for or released and freed from the terms of this Option, as herein provided) subject to the following conditions:
"(a) In the event the Corporation shall elect to purchase all or any part of said interest of the Stockholder as herein provided, then the Corporation shall apply the net proceeds of said policies or such amount thereof as shall be required, against the purchase of such of the said interest as the Corporation shall elect to purchase at the price fixed or determinable as provided in *853 paragraph 1 hereof or paragraph 4 hereof, as the case may be.
"(b) At such time prior to the expiration of the time allowed in paragraph 1 hereof for the purchase of said interest of the Stockholder in the Corporation as the Corporation shall give notice of its decision to release and free from the terms of this Option any of said interest, then such amount of the said insurance proceeds as shall be equal to the value as fixed or determinable, as herein provided, of the interest so released and freed shall become the property, absolutely of the Corporation free of any trust.
"(c) At the expiration of the time allowed in paragraph 1 hereof for the purchase of said interest of the Stockholder in the Corporation, all the said insurance proceeds, or such amount thereof as shall not have been applied to the purchase of any of said interest within such time, shall become the property absolutely of the Corporation free of any trust.
"(10) That in the event the Corporation shall, at any time prior to the death of the Stockholder, give written notice to the Stockholder of its decision to release and free from the terms of this Option all or any part of said interest of the Stockholder, then, and in such event, the Stockholder shall have a right, exercisable by written notice to the Corporation to take over not to exceed an amount of said insurance policies on his life, as described in Schedule `A' hereto attached and such further and additional insurance policies as may hereafter be added to said Schedule `A', as shall be equal in value, as herein fixed or determinable, to the interest so released and freed from the terms of this Option, by and upon paying to the Corporation the full cash value of such policies so taken over as of the date of such payment and the full amount of all unpaid dividends thereon as shall have accrued to such date: provided however that the right to give to the Stockholder as contained in this Paragraph 10 shall in any and all events terminate at the death of the Stockholder, irrespective of whether or not the Stockholder shall have, prior to his death, given notice of his election to exercise such right, unless prior to his death he shall have actually and physically paid over to the Corporation the full cash value of such policies and the full amount of all accrued and unpaid dividends thereon, as aforesaid.
"11. That this Option shall terminate upon the bankruptcy, insolvency or dissolution of the Corporation.
"12. That this Option shall be binding and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns and shall be irrevocable by the Stockholder.
"Any option or options heretofore given by the Stockholder and his wife to the Corporation (other than such repurchase rights as the Corporation may have pursuant to law or the provisions of its constitution and by-laws or certificates evidencing the stock herein described or referred to) to purchase any interest of the Stockholder in the Corporation are hereby, by mutual consent, rescinded and withdrawn and shall be of no force and effect whatsoever.
"In Witness Whereof, the said Robert I. Ingalls, Jr. and his wife, Eleanor Flick Ingalls, have hereunto set their hands and seals and The Ingalls Iron Works Company, a corporation, has caused this instrument to be executed and its corporate seal hereunto affixed, this the day and year first above written.
The bill avers that the respondent was joined in the execution of said contract by Eleanor Flick Ingalls as his wife; that Robert I. Ingalls, Jr. and Eleanor Flick Ingalls were heretofore legally divorced on the 26th day of June, 1947, and that said Eleanor Flick Ingalls now has no interest in the subject matter of this litigation.
"Complainant avers that in and by said contract of April 15, 1943, the parties thereto made The Ingalls Iron Works Company a bailee of and a Trustee for that certain Certificate, mentioned in said contract, *854 numbered 17 for four thousand five hundred and one (4,501) shares of the capital stock of The Ingalls Iron Works Company, a true and correct copy of which Certificate showing the face and reverse sides thereof is hereto attached, marked Exhibit B and made a part hereof for all purposes. Complainant avers that said Certificate Numbered 17 was by the respondent delivered to The Ingalls Iron Works Company as Trustee on the date of the execution of said contract, viz.: the 15th day of April, 1943, and Complainant, as Trustee as aforesaid, has held said certificate continuously since that date and is now in possession thereof, in the exact form and condition in which it was delivered to Complainant, as Trustee, upon the execution of said contract." [Italics supplied.]
The bill avers that Robert I. Ingalls, Sr. is the founder of the business conducted by the Ingalls Iron Works Company and, by whatever corporate title designated, has been the chief executive officer of complainant from its organization up to the present time. He is now its President and the Chairman of its Board of Directors.
The bill avers that "on and for a while prior to April 15, 1943, the Respondent held the office of President and also that of Vice Chairman of the Board of Directors and Director of the Complainant Corporation and continued in said several capacities until, towit, the 15th day of May, 1948. On said date the chief executive officer of Complainant, for valid and proper reasons, relieved the Respondent of all duties and responsibilities as an officer and employee of Complainant, and on said date the Respondent ceased and since has continuously failed to render any service to the Complainant corporation either as President, Vice Chairman of the Board of Directors or Director, or as an employee or in any other capacity whatsoever. The severance of Respondent's connection as officer and employee of Complainant corporation as aforesaid was ratified, adopted and confirmed by action of the Board of Directors of the Complainant corporation on, to-wit: the 9th day of November, 1948, in a formal resolution of said Board duly and legally adopted, a true and correct copy of which is attached hereto, marked Exhibit C, and made a part hereof for all purposes. Complainant further avers that the Respondent's term as a Director of Complainant corporation, which he was serving when his other connections with Complainant corporation were terminated, expired normally on, to-wit: the 11th day of January, 1949, but a regular meeting of the stockholders of the corporation not being held on said date, the Respondent held over as such director until, towit: the 26th day of February, 1949, when the regular annual meeting of the stockholders of the corporation failed to reelect Respondent to the office of Director. He has not been since said date, was not on July 5th, 1950, and is not now an officer, agent, servant or employee of Complainant corporation, renders no service to it and draws no compensation from it and in his individual and personal capacity has no official or other connection therewith except that arising under and by virtue of his interest in the Certificate of Stock attached hereto and identified as Exhibit B.
"Respondent has received all dividends that have been declared on the stock evidenced by said Certificate No. 17 which were declared and payable prior to the date of the filing of this bill. Dividends have, however, heretofore been declared on said stock payable hereafter in the additional sum of towit, Eleven Thousand Two Hundred Fifty-two and 50/100 ($11,252.20). There have been no stock dividends paid by Complainant since the execution of said contract of April 15, 1943, and there have been no renewals or reissues of said Certificate Number 17, nor has Respondent purchased or acquired any new or additional stock in Complainant corporation since the execution of said contract.
"Complainant avers that heretofore, by appropriate corporate action, to secure to itself the harmony of management and the other benefits sought to be secured to Complainant by the Contract of April 15, 1943, it duly and legally elected to exercise its right to purchase and acquire the stock interest of Respondent in Complainant corporation covered by and subject to the terms of said contract, said interest being *855 that evidenced by Certificate No. 17 aforesaid. It gave written notice of such election to Respondent on July 5th, 1950. On the date and occasion of giving such notice Complainant, pursuant to Paragraph 5 of said contract of April 15, 1943, offered and made diligent effort to pay over to Respondent the price of his said stock interest as fixed and determined by said contract, viz., $2,131,252.50. The Respondent refused to accept said payment. Complainant then and there made legal tender to Respondent of said price in lawful money of the United States and Respondent declined to accept such tender. Complainant now holds said money so tendered for the account of Respondent and is ready, able and willing to make payment thereof to Respondent at any time required by him or directed by this Court.
"Complainant avers that it now holds said Certificate of Stock Number 17 as Trustee by reason of the voluntary act of Respondent and at the request of Respondent and pursuant to an act done by Respondent in performance of his obligations under the contract of April 15, 1943. Respondent now refuses further to abide by the terms of said contract and repudiates the same. Respondent's refusal to accept payment of the purchase price of the said stock creates a situation in which Complainant, as such Trustee, is uncertain of its duties and responsibilities and in which Complainant in its private and non-fiduciary capacity and as a claimant to said stock seeks the determination by this Court of its rights under said contract of April 15, 1943, and a construction and declaration of the meaning of said instrument now in controversy between the parties hereto. Complainant holds possession of said Certificate of Stock solely by reason of its duty as Trustee as aforesaid and now submits the same to the direction, orders and instructions of this Court.
"Complainant in its capacity as Trustee as aforesaid invokes the general equity powers of this Court and its specific powers under Section 159, Title 7, Code of 1940, to direct and instruct Complainant in the further discharge of its duties as Trustee under said instrument of April 15, 1943, under the circumstances brought into existence by the offer to purchase made by Complainant on July 5, 1950, and now prevailing. It specifically needs and requests the instructions and directions of the Court as to whether Complainant in its private and non-fiduciary capacity is entitled to take possession of said certificate of stock and use and enjoy the rights, privileges and powers flowing from ownership thereof or whether same should continue to be held in physical custody of Complainant as Trustee or should be surrendered to Respondent or any other, on order or direction of the Court. Complainant, in each capacity in which it brings this suit, submits itself fully to the orders and directions of the Court.
"In its capacity as a contracting party to the contract of April 15, 1943, and in its private and non-fiduciary capacity Complainant shows the Court that a present justicable controversy exists between itself and the other party to said contract in that Complainant is ready, able and willing and desires to abide by said contract and has tendered performance thereof and stands ready to accept the benefits thereof. The Respondent, however, contends that he is under no legal obligation to accept said tender and to permit the purchase by the Complainant of said stock under said contract. And Respondent repudiates said contract and contends that the same is not binding on him and is void.
"And Complainant offers to do equity."
The complainant prays that the court take jurisdiction and determine the rights and obligations of the parties under the contract of April 15, 1943; determine and declare whether and upon what conditions the said stock should be transferred to the complainant as the purchaser thereof; determine and declare what rights and obligations the respondent has with respect to said stock; direct and instruct complainant as to what are its duties and obligations as Trustee under said contract of April 15, 1943; Determine and declare the duties and responsibilities of complainant as to the transfer or other disposition of said certificate of stock No. 17; determine and declare whether or not complainant is entitled to the specific performance of said contract of April 15, 1943, *856 and if so order, adjudge and decree that upon the payment of the purchase price of said stock the title and ownership thereof shall vest in complainant, and for general relief.
Attached to the bill of complaint as Exhibit C is a copy of the minutes of the meeting of the Board of Directors of the Ingalls Iron Works Company held on November 9, 1948, at which the following resolution was adopted:
"Be it Resolved that it is the opinion of this Board that the filing of the suit by Robert I. Ingalls, Jr., et al as complainants vs. Robert I. Ingalls, Sr., respondent, in the Circuit Court of Jefferson County, Alabama, in Equity No. 76919, is harmful to the best interests of this corporation;
"That this corporation has heretofore employed as its General Counsel on a full-time basis Donald W. Strickland, and said Donald W. Strickland was functioning as such General Counsel at the time of the filing of the aforesaid suit and for a long time prior thereto, and had general charge of all litigation on the part of the corporation and no officer, agent, or employee of the corporation has or had authority to institute litigation on behalf of the corporation without consultation with the said General Counsel;
"That the corporation furthermore retained on an annual retainer basis counsel at Birmingham, Alabama, viz, Messrs. Lange, Simpson, Robinson & Somerville, to aid, assist, and cooperate with the General Counsel of the corporation in and about all litigation to which the corporation is a party;
"That the chief executive authority of the corporation is and since the creation of the office has in fact been vested in the Chairman of the Board and not in Robert I. Ingalls, Jr. as President of the corporation;
"That the institution of the aforesaid suit was without the knowledge, approval or authorization of the Chairman of the Board, the corporation, or this Board of Directors or of the Corporation's General Counsel or of any other person authorized to act in the premises for the corporation;
"That it seeks to accomplish objectives contrary to the best interests of this corporation and its Board of Directors, and the bringing thereof by the Honorable Francis H. Hare, purporting to act as attorney for this corporation, is wholly without authorization, authority or approval of the corporation;
"Therefore, Be It Further Resolved that the General Counsel of the corporation and such associate counsel as he may deem wise to engage in the premises be and they now are instructed and directed as follows:
"1. That they take such steps as are necessary to secure the dismissal of the aforesaid suit which purports to have been instituted by this corporation;
"2. That they take such steps as are necessary to relieve this corporation from the unauthorized acts of the said attorney purporting to appear for it;
"3. That they take such steps as they deem necessary and proper to redress this corporation from all injuries and damages which it has suffered from said unauthorized act of said attorney;
"4. That they take such steps as they deem proper and expedient to redress all injuries and damages which this corporation may sustain or may have sustained by reason of any acts done or purported to have been done by Robert I. Ingalls, Jr. in and about instituting or causing to be instituted said unauthorized suit; and
"5. That said General Counsel be and he now is authorized and instructed on behalf of this corporation to take such steps as he deems expedient and proper to oppose in all lawful ways the litigation aforesaid.
"The motion to adopt said resolution having been duly seconded by W. R. Guest, the Chairman called the roll and the following voted in favor of said resolution, viz: E. G. Ingalls, W. R. Guest, M. F. Pixton and the following voted against said resolution, viz: None. The Chairman thereupon declared the resolution duly and legally adopted.
"Thereupon the Chairman stated that the next matter to come before the meeting was the action of the Chairman of the Board in dispensing with the services of *857 Robert I. Ingalls, Jr., as of May 15, 1948. The Chairman stated that he dispensed with the services of said Robert I. Ingalls, Jr. because said Robert I. Ingalls, Jr. failed to perform his duties as President and Vice Chairman and as an employee of this corporation in a proper and satisfactory manner and on various occasions prior to and immediately preceding said discharge, Robert I. Ingalls, Jr. acted in an insubordinate manner toward the Chairman of the Board in matters concerning the corporation's business and the duties of Robert I. Ingalls, Jr. Whereupon all facts and circumstances concerning the matter were fully discussed and considered, following which E. G. Ingalls moved the adoption of the following resolution, viz:
"Be It Resolved that, because of the failure of Robert I. Ingalls, Jr. to perform his duties as an employee of the corporation and the duties of the respective offices of President of the corporation and Vice Chairman of the Board of the corporation in a proper and satisfactory manner, the action of the Chairman of the Board in dispensing with the services of Robert I. Ingalls, Jr., as President and as Vice Chairman of the Board and as an employee or agent of the corporation as of the 15th day of May 1948, is hereby adopted, ratified and confirmed; and that the hostile and damnifying acts and conduct of the said Robert I. Ingalls, Jr. subsequent to May 15, 1948, now known to the Board render it in the interests of the corporation that the titles of President and Vice Chairman of the Board, respectively, of the corporation be withdrawn from said Robert I. Ingalls, Jr. and that his tenure of said respective offices cease and determine.
"Be It Further Resolved that it is the intended purpose of this Board that the said Robert I. Ingalls, Jr. be paid his salary whether payable to him as President or as Vice Chairman of the Board or as an employee of the corporation, up to and not subsequent to May 15, 1948; that the act of the Chairman of the Board in terminating his connection with the corporation as of that date be entered as now fully adopted, ratified and confirmed, and that said Robert I. Ingalls, Jr. is and shall no longer be after this time President or Vice Chairman of the Board of this corporation or its agent or employee in any capacity whatsoever and is without authority to act for or on its behalf either as officer or in any other capacity except in his capacity as a member of the Board of Directors and that the corporation do now call upon the said Robert I. Ingalls, Jr. to settle and adjust his accounts with this corporation.
"The motion to adopt said resolution having been seconded by W. R. Guest, the Chairman called the roll and the following voted in favor of said resolution, viz: E. G. Ingalls, W. R. Guest, M. F. Pixton and the following voted against said resolution, viz: None. The Chairman thereupon declared the resolution duly and legally adopted.
"Thereupon W. R. Guest nominated R. I. Ingalls, Sr. to the office of President of the corporation to serve in said office until his successor is elected and qualified. The nomination having been duly seconded by M. F. Pixton and there being no further nominations, ballot having been duly had and all the directors present having voted, the Chairman announced that said R. I. Ingalls, Sr. had been elected to the office of President of this corporation to serve until his successor is elected and qualified.
"There being no further business to come before the meeting, the same was duly adjourned. (Signed) R. I. Ingalls, Chairman; (Signed) M. F. Pixton, Secretary."
The bill was amended by setting out the relation of the other stockholders, Robert I. Ingalls, Sr. and Mrs. E. G. Ingalls and the fact that they had entered into the same option contract or substantially the same option contract as is set forth in the bill signed by the respondent, and alleges, among other things, "that payment to respondent of said sum of $2,131,252.50 would not cause any impairment of the capital of complainant" and adds to paragraph 10 of the bill the following averment:,
"10A. And complainant further shows the Court that it is advised by its counsel and complainant is otherwise informed and believes *858 that it is its right forthwith and immediately to cause its appropriate officers to cancel the certificate of stock numbered 17 for 4501 shares of stock now in its possession and to hold said stock as the property of complainant, as provided by law. Complainant in its capacity as trustee, however, is informed and believes and therefore avers that respondent denies that complainant has the right to cancel and annul said certificate No. 17 and to treat said stock as the stock of complainant and denies that complainant as trustee in possession of said stock can do any act or take any steps further to divest respondent either of his legal or equitable title, if any respondent has, to said stock. And Complainant in its capacity as trustee as aforesaid desires to perform its duty as trustee in a true and lawful manner and is unable to determine its duty in the premises and specifically as such trustee needs and seeks the instructions of the Court as to its rights, duties and obligations as such trustee in the premises."
After due consideration of all the provisions of the contract, subject matter of this litigation, in connection with the recitals in the preamble, the circumstances in which the parties were dealing and the purposes to be accomplished, as evidenced by such recitals, and in connection with the other options executed by Robert I. Ingalls, Sr. and Mrs. E. G. Ingalls, the father and mother of the respondent contemporaneously with the contract under consideration, we are forced to the conclusion, looking through form to substance, as courts of equity must do, that the three active stockholders were dealing inter sese and for their mutual benefit. We are further of the opinion that the purpose of this dealing was to prevent their respective holdings from passing out of the family and the corporation was stake-holder and depository and a mere bailee to and in the accomplishment of their purpose by holding the stock in that capacity to prevent the delivery of the stock to anyone other than the other stockholders.
We are further of opinion when the option contract is considered from its four corners, the recitals therein that, "in the event of retirement" and "It is the desire of the stockholder upon his retirement or death not only to protect the remaining or surviving stockholders of the Corporation by insuring the return of all of his stock to the Corporation, at its election, but also to assure the remaining or surviving stockholders that upon his retirement or death his interetst in the Corporation, as herein described, may be retired at the price and under the terms as hereinafter provided," import voluntary activity in accomplishment of his retirement. Therefore the event contemplated to mature the option and warrant its specific performance has not come to pass.
We are also clear to the conclusion that said contract did not contemplate that the corporation through its controlling board or is executive officers by removing respondent from the corporate offices which he held at the time said options were executed, would mature the option by forced specific performance in a court of equity, nor authorize the corporation as stakeholder and trustee to convert the stock to the uses and purposes of the corporation or any one else.
The interruption of the corporate entente cordiale resulting from subsequent events and circumstances was without legal consequence in respect to maturing the option contract for specific performance, and the only right or duty resting on the bailee trustee was and is to hold the stock for the purposes and subject to the maturity of the option.
Therefore we concur with the conclusions expressed in the decree of the trial court that the bill is without equity in both of its aspects and that nothing appears on the face of the bill which suggests it could be given equity by amendment. Therefore the decree is due to be affirmed. It is so ordered by the Court.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON and STAKELY, JJ., concur. | June 30, 1951 |
937782a5-5971-4ba0-b665-9ef20316f01e | Sanford v. Alabama Power Co. | 54 So. 2d 562 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 562 (1951)
SANFORD
v.
ALABAMA POWER CO.
6 Div. 993.
Supreme Court of Alabama.
October 18, 1951.
*563 McEniry, McEniry & McEniry, Bessemer, for appellant.
Fite & Fite, Jasper, and Martin, Turner & McWhorter and J. C. Blakey, all of Birmingham, for appellee.
LAWSON, Justice.
The bill in this cause was filed by the Alabama Power Company against I. N. Sanford under § 1109, Title 7, Code 1940, to quiet the title to the iron, coal and other minerals in, under and upon the W½ of the NE¼ and NW¼ of the SE¼ of Section 34, Township 15 South, Range 17 West, in Walker County, Alabama. The bill was amended so as to delete therefrom the NW¼ of the NE¼ of said Section 34. In other words, as finally amended the bill sought to quiet the title to the iron, coal and other minerals in, under and upon the SE¼ of the NE¼ and the NW¼ of the SE¼ of said Section 34, a total of eighty acres. From a decree for complainant, the respondent has appealed to this court. Since the appeal was taken, I. N. Sanford, the appellant, has died and the cause has been revived in the name of his heirs or personal representatives.
A bill in equity may be properly filed and maintained under § 1109, Title 7, to quiet title to the mineral interest in land by the owner of such interest. Gulf Coal & Coke Co. v. Alabama Coal & Coke Co., 145 Ala. 228, 40 So. 397.
It is well settled by the decisions of this court that under the statute authorizing a bill in equity to quiet title, the complainant must have the quiet and peaceable possession, actual or constructive, as distinguished from a scrambling or disputed possession. Ladd v. Powell, 144 Ala. 408, *564 39 So. 46; Randle v. Daughdrill, 142 Ala. 490, 39 So. 162; Vandegrift v. Southern Mineral Land Co., 166 Ala. 312, 51 So. 983; Dawsey v. Walden, 243 Ala. 93, 8 So. 2d 417; Price v. Robinson, 242 Ala. 626, 7 So. 2d 568.
The complainant did not aver or seek to prove an actual possession of the minerals in question, but relies upon constructive possession, which the law attaches to legal title in the absence of an actual possession by anyone else. Vandegrift v. Southern Mineral Land Co., supra.
The answer of the respondent denied that complainant was the owner of the legal title to the minerals and denied that complainant was in peaceable possession thereof. The answer further avers that respondent is in possession of the minerals, claiming title to an undivided interest therein.
Complainant could not recover merely upon proof of title if the evidence showed that respondent was in possession of the minerals. Ordinarily, we would first consider the evidence as it relates to the possession of the minerals involved, because if the evidence showed that respondent was in possession or that there was a scrambling or disputed possession, it would be unnecessary to pass on the question of complainant's title. However, in view of the nature of this case, we think it advisable to first treat the question of title.
Complainant and respondent both trace their claim of title to the minerals back to a common source, one H. A. Key, it being conceded that the said Key was, as of January 16, 1874, the owner of both the surface and the minerals in the land here involved.
On January 16, 1874, H. A. Key and wife executed a deed to J. M. Garner covering 360 acres of land, including that here involved. This deed was recorded on February 20, 1882. It is the contention of complainant that this deed only conveyed to J. M. Garner the surface rights in the 360 acres of land, the mineral rights being retained by the grantor, H. A. Key.
On November 14, 1884, after the deed to J. M. Garner had been placed on record, H. A. Key and wife by warranty deed, for a recited consideration of $700, conveyed to Musgrove Brothers all the minerals in, under and upon 280 acres of land which had been included in the deed of January 16, 1874, including the minerals in, under and upon the land involved in this proceeding. Upon the trial of this cause, complainant introduced in evidence numerous deeds executed from 1885 to 1941 showing a full, direct, and complete chain of title to the minerals involved in this suit from H. A. Key through Musgrove Brothers and others into complainant. Complainant's deed to the minerals involved in this suit, which deed included other property, was under date of September 22, 1941. All the conveyances under which complainant claims were duly recorded.
While the respondent, appellant here, does not expressly concede that the deed of January 16, 1874, from H. A. Key and wife to J. M. Garner conveyed only the surface rights to the land covered by the deed, it is not argued here, nor was it argued below, that the construction contended for by complainant, appellee here, is not correct.
The respondent relies, in the main, on a written instrument termed an "agreement," under date of September 27, 1874, which the respondent contends conveyed to J. M. Garner the mineral rights which had been excepted or reserved in the conveyance of January 16, 1874. This so-called agreement was not placed on record until April 5, 1948, long after complainant secured its deed purporting to convey to it the minerals here involved.
In regard to this "agreement," the complainant takes the position that it is not sufficient to operate as a conveyance, but that if it should be so construed, complainant was an innocent purchaser for value, without notice as to any interest which the agreement purports to convey, since it was not placed on record until April 5, 1948. The respondent contends that irrespective of the fact that the "agreement" was not placed on record, J. M. Garner and his successors in interest have been in possession of the surface of the land covered by the conveyance of January 16, *565 1874, from that date until the date of trial, and have performed acts showing possession of the minerals; hence complainant had constructive notice of the "agreement" under date of September 27, 1874. The respondent also seems to claim ownership of the minerals in, under and upon the lands involved in this suit by adverse possession.
The respondent's mother was the daughter of J. M. Garner, the grantee in the deed of January 16, 1874. Respondent claims to own a substantial undivided interest in both the surface and mineral rights of the land covered by the deed under date of January 16, 1874, through inheritance and by purchase from other heirs of the said J. M. Garner.
The first question for our determination is whether or not the deed of January 16, 1874, conveyed only the surface interest to the grantee therein, J. M. Garner. If that deed also conveyed the mineral interest, then it is admitted by the complainant, appellee here, that it is not entitled to recover and that the decree of the trial court is erroneous. The deed of January 16, 1874, reads as follows:
"This indenture made the 16th day of January in the year of our Lord 1874, between H. A. Key & wife C C Key of the first part J M Garner of the second part Witnesseth that the said party of the first part for & in consideration of the sum of three hundred dollars them in hand paid at & before the sealing & delivery of these presents by the party of the second part the receipt whereof is hereby acknowledged hath granted bargained sold and conveyed & by these presents grant bargain sell and convey unto the said party of the second part & to his heirs and assigns forever, the following described Lands, viz: the SW quarter & the SW¼ of the NW¼ & the W½ of the SE¼ & the W ½ of the NE ¼ Section 34 T 15 R 7 W together with all & singular the tenements & appurtenances thereunto belonging or in any wise appertaining & all the estate rite title interest claim or demand whatever with the exception of the F Montgomery mineral agreement, to wit all the mineral access to all timber neded & together with on tenth of the surface, wright of way whatsoever of H A Key & his heirs & assigns free from claim or claims of all & every person or persons whomsoever as also the claim of the General Government
"In testimony whereof the aforesaid party of the first part has hereunto set there hands & affixed there seal the day & year above written
"The State of Alabama, Walker County
"I John Brake Justice of the Peace for said county certify that H A Key and C C Key whose manes are signed to the foregoing conveyance and who is known to me acknowledged before me on this day that being informed of the contents of the conveyance executed the same voluntarily on the day the same bears date "Given under my hand the 16 day of January A D 1874
(Emphasis supplied.)
Unless that part of the deed of January 16, 1874, which we have italicized above operates to except the mineral interests and to reserve such interests to the grantor, then, of course, it follows that the grantee, J. M. Garner, received the entire interest in the land described in the deed. It is evident that the deed was drafted by an unskilled person. The excepting clause is poorly punctuated and is not altogether clear. The "F Montgomery mineral agreement" referred to in the deed was not produced in the trial of this cause. No one seems to know anything about its contents. Because of the admission of the parties that on January 16, 1874, H. A. Key was the owner of both the surface and mineral interests in the land covered by the deed of that date, for the purposes of this case it is to be assumed that F. Montgomery, if there was such a person, had no interest whatsoever in the minerals at the time the deed was executed. The phrase, "with the exception of the F Montgomery mineral agreement," if considered alone, might be said to be so vague and uncertain as to render such phrase inoperative *566 in the absence of proof of its contents. However, such phrase must be considered with the words immediately following, viz., "to wit, all the mineral." When thus considered, it appears that the grantor, Key, intended to and did except the mineral interests from the conveyance and reserved in himself the title to the minerals in the land conveyed. Spears v. Wise, 187 Ala. 346, 65 So. 786; Sarratt v. Arthur, 200 Ala. 53, 75 So. 365; Jamison Coal Co. v. Carnegie Natural Gas Co., 77 W.Va. 30, 87 S.E. 451.
The deed of January 16, 1874, effected a severance of the minerals in situ from the surface. The title to the surface was conveyed to J. M. Garner. The title to the minerals remained in the grantor, H. A. Key.
The so-called agreement under date of September 27, 1874, which the respondent contends was a conveyance by Key and wife to Garner of the mineral interests which had been excepted and reserved by the deed of January 16, 1874, reads as follows:
"To Whom it may consern. This Agreement entered in to by James N Garner and H A Key and wife C C Key, The receipt where of is hereby acnolidged, for and in consideration of the some of one hundred and fifty dollars and one iron gray Stalion horse the debt of three hundred dolars for said land is hereby settled and in further settlement H A Key and wife C C Key said the F. Montgomery agreement in James. M Garner deed is nul and void and they do not claime the tenth of timber surface and mineral as described in deed made to James M Garner and dated January. 16th 1874
We do not think this so-called agreement is sufficient to operate as a conveyance of the mineral interests in the land. There can be no valid and operative conveyance of land without some words of grant or alienation. We can find no such words in the agreement. The declaration that "the F. Montgomery agreement in James. M Garner deed is nul and void" is meaningless. As before indicated, the contents of that agreement are not even shown. Nor should it be said that the mere fact that Key and wife, by virtue of the so-called agreement, no longer claimed "the tenth of timber surface and mineral as described in deed made to James M Garner and dated January. 16th 1874" shows an intention to convey such interests to Garner.
Respondent relies on the provisions of § 23, Title 47, Code 1940, which section reads: "A seal is not necessary to convey the legal title to land to enable the grantee to sue at law. Any instrument in writing, signed by the grantor, or his agent, having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument."
We have construed § 23, Title 47, supra, and its progenitors as dispensing with the requirement of the use of formal and technical words of grant or alienation. Cloud v. Dean, 212 Ala. 305, 102 So. 437, and cases cited.
However, in Webb v. Mullins, 78 Ala. 111, 114, after quoting § 2948 of the Code of 1876, the provisions of which are now codified as § 23, Title 47, Code 1940, Mr. Justice Clopton, writing for the court, said:
"* * * The manifest purpose of the statute is to dispense with the necessity of a seal to a valid conveyance, and of formal, technical words of grant, release, or transfer. The statute is remedial, and should be liberally construed, so far as may be necessary to suppress the mischief, and effectuate the purpose and intent of the law-makers; but, being also in modification of the common law, it will not be presumed to modify it farther than is expressly declared; and construction, or intendment, will not be resorted to, for the purpose of extending its operation. Cook v. Meyer, 73 Ala. 580.
"At common law, a deed must contain words of grant, release, or transfer, in order to pass the legal title to the land designed *567 to be conveyed. The title to land can be transferred from one person to another, only by apposite and appropriate language. It was not the intention of the statute to dispense with the use of any words whatever, operative to convey. By the statute, the duty is imposed upon the courts to liberally construe the words employed in the conveyance as words of transfer, and give them effect and operation according to the intention of the grantor, to be collected from the entire instrument. There must, however, be some words intended as words of conveyance. They cannot be supplied by judicial interpolation. When the entire instrument shows the intent to pass the title, it will be so construed, if practicable, to have that operation. Brewton v. Watson, 67 Ala. 121; Johnson v. Bantock, 38 Ill. 111. The instrument to James Bennifield contains no words which can be construed to transfer the legal title, and was properly excluded. If the defendant is entitled to any relief in respect to this instrument, it must seek it in another forum."
In Long v. Holden, 216 Ala. 81, 83, 112 So. 444, 446, 52 A.L.R. 536, we said:
"Innumerable cases may be cited to the proposition that the cardinal rule for the construction of written instrument is to ascertain, if possible, from the language employed, the intention of the parties, and then to give effect to such intention, if it can be done without violation of law. As often stated, the intention must be gathered from a fair consideration of the whole instrument (Hamner v. Smith, 22 Ala. 433; McWilliams v. Ramsay, 23 Ala. 813, 817), or from its `four corners.' Slaughter v. Hall, 201 Ala. 212, 77 So. 738.
"In most of the cases the qualification is properly stated that the intention, as gathered from the language of the whole deed, will be effectuated if consistent with law. Hammer v. Smith, 22 Ala. 433, 438; Jenkins v. McConico, 26 Ala. 213, 237; Campbell v. Gilbert, 57 Ala. 569; Dinkins v. Latham, 154 Ala. 90, 99, 45 So. 60; Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 128, 75 So. 574; 18 Corpus Juris, 254, § 198. This means, of course, where deeds and devises to real estate are concerned, that even a clearly stated intention will be ineffectual if the instrument does not, as to the mode of its execution, and the use of language apt for the purpose stated, meet the requirements of the law. 8 R.C.L. 1035, § 91. In Culver v. Carroll, 175 Ala. 469, 479, 57 So. 767, 771 (Ann. Cas.1914D, 103), we quoted with approval this statement from Brown v. Brown, 66 Me. [316], 320:
"`The intention of an owner of property in his attempted act of transferring it is not necessarily and always supreme. The law has prescribed certain plain rules to be observed in the execution of such important instruments as those by which the title to real property is transferred; and, whatever courts may sometimes have done in their zeal to carry into effect the intention of parties, the law itself does not permit its salutary rules to be broken or bent to meet the exigencies of ignorance or negligence; deeming it better, on the whole, that the intention of a party in disposing of his property should occasionally fail, than that its important and firmly established rules made and applied for the benefit of all be overridden.'"
The "agreement," not containing any words of transfer of the mineral interests, cannot operate as color of title to the minerals. In writing to this question for the court in Matthews v. Tennessee Coal, Iron & R. Co., 157 Ala. 23, 24, 47 So. 78, Mr. Chief Justice Tyson said: "The receipt upon which complainant relies as color of title does not purport to convey the lands described in it. It possesses no semblance of title, not containing any words of transfer of the lands. As said by the Supreme Court of the United States in Deffeback v. Hawke, 115 U.S. [392], 407, 6 S. Ct. 95, 29 L.Ed. 423: `There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law purporting to transfer to him the title or to give to him the right of possession.' See, also, Webb v. Mullins, 78 Ala. 110 [111]; 1 Am. & Eng. Ency. Law (2d Ed.) pp. 846, 857, and notes. It therefore cannot be looked to for the purpose of extending complainant's possession to the boundaries of the lands described in it."
*568 But even if it could be said that the so-called agreement under date of September 27, 1874, operated as a conveyance of the mineral interests to J. M. Garner, it could not affect the complainant's status as an innocent purchaser for value without notice, since that agreement was not recorded until April 5, 1948, several years after the complainant secured its deed to the minerals involved.
It was agreed upon the trial of this cause that J. M. Garner and his successors in interest had been in possession of the surface of the land covered by the deed of January 16, 1874, from the date of its execution until the day of trial. But we cannot agree with the contention of respondent, appellant here, that the open and notorious possession of the surface was notice to complainant, appellee here, of such interest as the respondent might have, regardless of the record, and that complainant seeking to acquire an interest in the property, was bound to go further than a mere examination of the record and to ascertain whether those in possession of the surface also claimed the minerals. Respondent cites authorities to sustain the contention that a purchaser is charged with notice of the nature of the title of one in possession of the premises. Those authorities need not be cited here, for that general rule has been often stated by this court and is well known. However, that rule has no application here, for the only instrument on record tending to show any interest in J. M. Garner or his successors in interest was the deed of January 16, 1874, wherein Garner only secured title to the surface and the possession of the surface by Garner's successors in interest was consistent with the record title. While possession by a person having a record title is notice, the purchaser may ascribe the possession to the recorded deed and is not affected with notice of any other undisclosed title or interest which the occupant may have. Otherwise expressed, where the record shows a conveyance under which a person is entitled to possession, his possession will be referred to the record title, and a subsequent purchaser will not be charged by it with notice of any other undisclosed title or equity which the occupant may have. The possession is a matter tending to excite inquiry, but the fact that the occupant has placed upon the public records written evidence of his right, with the terms of which his possession is consistent, arrests inquiry at that point, and reasonably informs the purchaser that he may rest upon the knowledge thus obtained. 66 Corpus Juris, Vendor and Purchaser, § 1018, p. 1172; 55 American Jurisprudence, Vendor and Purchaser, § 731, p. 1099; Adkins v. Arsht, D. C., 50 F.Supp. p. 761; Rose v. Roberts, 195 Okl. 687, 161 P.2d 851; Schlegel v. Kinzie, 158 Okl. 93, 12 P.2d 223.
The case of Sloss-Sheffield Steel & Iron Co. v. Taff, 178 Ala. 382, 59 So. 658, does not hold to the contrary. In that case there was no deed on record showing the conveyance of any interest in the land to the person in possession at the time the Sloss-Sheffield Steel & Iron Company secured its deed purporting to convey the mineral interests. Under such circumstances, the majority of the court were of the opinion that the duty of inquiry was upon that company at the time it made its purchase; that proper inquiry would have discovered the existence of an unrecorded deed to the deceased husband of the woman in possession, which deed covered the entire interest in the land, although the wife also had an unrecorded deed purporting to convey the surface interest only; that the widow's, or her agent's, possession, even under the deed conveying only the surface interest, was not inconsistent with a possession under the deed to the husband covering the entire interest. That is not this case. As before shown, the deed conveying surface interest only was on record at the time the complainant secured its deed to the mineral interests in the land.
In so far as the evidence discloses, mining operations have never been conducted on the eighty acres of land to which title was quieted by the decree appealed from. It does appear from the evidence that sometime between 1902 and 1907 respondent's father permitted mining operations to be conducted on a part of the land which was covered in the deed of January 16, 1874, wherein Key was the grantor and Garner was the grantee. Respondent's father had purchased a part of the land from Garner. *569 That is the extent of the evidence as it relates to acts tending to show possession by any one of the minerals as distinct from possession of the surface prior to the time complainant secured its deed. Such acts committed more than thirty-four years prior to the time complainant secured its deed could not operate to put complainant upon inquiry as to whether those in possession of the surface claimed any interest in the minerals. To put a purchaser upon inquiry and operate as constructive notice, possession must exist at the time of the transaction by which his rights and interests are created. A possession that has ended before, or commenced after, the sale does not affect the purchaser with notice. Holly v. Dinkins, 202 Ala. 477, 80 So. 861; Wood v. Bowden, 182 Ga. 329, 185 S.E. 516; Webster v. Black, 142 Ga. 806, 83 S.E. 941; 66 Corpus Juris, Vendor and Purchaser, § 1017, p. 1171; 55 American Jurisprudence, § 714, p. 1089.
There was no evidence to support respondent's claim of title to the minerals by adverse possession. After severance of the minerals, in situ, from the surface the possession of the latter is not possession of the former. The effect of the severance is to create two closes, adjoining but separate. The mineral, after severance, is a corporeal hereditament, and mere nonuser will not affect the owner's title; and to lose his right by adverse possession, the owner must be disseised. Hooper et al. v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549, and cases cited. To acquire by adverse possession the title to the mineral interests so severed, there must be an actual taking or use under claim of right of the minerals from the land for the period necessary to affect the bar. Under the authorities, it is essential, to effect adverse possession of the minerals, after severance in title from the surface, that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory or temporary acts suitable to the enjoyment and appropriation of the minerals so claimed, and hostile to the rights of the owner. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403, and cases cited; Hooper v. Bankhead & Bankhead, supra.
We are of the opinion that the evidence fully warrants a finding that the legal title to the minerals is in complainant.
We come now to consider the contention of respondent below, appellant here, that the trial court erred in rendering the decree appealed from for the reason the evidence showed that complainant was not in the peaceable possession of the minerals, inasmuch as respondent was conducting mining operations in, under and upon a part of the land.
As before shown, the original complaint sought to quiet title to the minerals in, under and upon 120 acres of land, including the NW¼ of the NE¼ of said Section 34. The evidence for the respondent tended to show that for a period of two years prior to the time the bill was filed and up until the date of trial, he was conducting mining operations in the northeast corner of the NW ¼ of the NE¼ of said Section 34.
It was this tendency of the evidence which caused the complainant to amend its bill so as to delete that quarter section.
Under Equity Rule 28, Code 1940, Tit. 7 Appendix, generally speaking, a complainant is entitled to amend this complaint any time prior to final decree to meet any state of evidence which will authorize relief.
Although it is conceded that there was no proof of any actual possession by the respondent, or anyone else, of the minerals in, under or upon the land included in the complaint after amendment, the respondent contends that the mining operations conducted in the quarter section deleted by amendment gave the respondent possession of the minerals in, under or upon the entire tract of land and that, therefore, the complainant did not have peaceable constructive possession of any of the minerals and, hence, regardless of the amendment the decree quieting title to the minerals in, under or upon the land included in the complaint after amendment is erroneous.
Some of the deeds from the heirs of J. M. Garner to the respondent purport to convey the grantor's undivided interest *570 to the minerals in, under or upon the land described in the original bill of complaint, including that to which title was quieted in complainant by the decree from which this appeal is taken. Irrespective of the fact that the grantors in such deeds had no title to the minerals, the deeds would give color of title. Ryan v. Kilpatrick, 66 Ala. 332; Hoyle v. Mann, 144 Ala. 516, 41 So. 835. A deed may be color of title, though the purported grantor was not in possession. McBride v. Lowe, 175 Ala. 408, 57 So. 832.
On the theory that he has color of title to the minerals, respondent invokes the principle often declared in cases where surface rights were involved, to the effect that actual possession of part of the tract of land, with claim of title to the whole, under a written instrument, is sufficient to constitute possession of the whole tract defined in the conveyance, to the extent that the same is not in the actual possession of another. Black v. Tennessee Coal, Iron & R. Co., 93 Ala. 109, 9 So. 537; Buck v. Louisville & N. R. Co., 159 Ala. 305, 48 So. 699; Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174; Marsh v. Gragg, 228 Ala. 269, 153 So. 219.
Our research discloses no case where this court has been called upon to pass on the question as to whether the principle above stated has application to mining operations. However, that question has arisen in other jurisdictions, where it was held that the principle does not apply to mining operations. French v. Lansing, 73 Misc. 80, 132 N.Y.S. 523; Piney Oil & Gas Co. v. Scott, 258 Ky. 51, 79 S.W.2d 394; Davis v. Federal Land Bank of Columbia, 219 N.C. 248, 13 S.E.2d 417.
We quote from the case of French v. Lansing, supra, 132 N.Y.S. 526, as follows:
"These rules apply to adverse possession of the surface, and form no guide, even by analogy, to such a case as the present. They all contemplate some sort of notice to the true owner and possession and dominion of one kind or another over the whole of the premises claimed adversely. Where there is such known farm or lot with defined boundaries, the partial improvement may fairly be said to give warning of a claim to the whole, and to constitute possession of the whole.
"The same thing cannot be said to result from the opening of a quarry for gypsum or limestone or the driving of a gallery into a vein of coal. In either case, what claim is made or what possession is there of the minerals beyond the face of the quarry or the end of the vein? If a coal mine, is there possession and claim of the entire vein no matter how far the same may extend? In the case at bar, if there is adverse possession, it covers at least the 200 acres deeded to Otis; for it is to be observed that the act of Otis and his grantees in subsequently dividing the surface is not notice of any kind to Wickham and his heirs. One of the tests of adverse possession under a claim of title is whether or not it is such as enables the possessor to maintain trespass against a stranger. If A. opened a quarry on the south end of these 200 acres, could he maintain an action in trespass against B. who, subsequently, opened a quarry at the north end thereof? Or, suppose B. opened a coal mine. Without, however, deciding definitely just how, if at all, adverse possession of minerals separated from the surface can be obtained, it is probably enough to hold here that the mere opening of a quarry, with or without a written claim of title, did not constitute adverse possession as against Wickham and his heirs of the gypsum situated beyond the quarry." (Emphasis supplied).
In Piney Oil & Gas Co. v. Scott, supra, 79 S.W.2d 400-401, it was said:
"A would-be disseisor who enters under a bare color of title is no better off than one who enters without color and marks off a distinct line around what he intends to occupy. Each, if he acquires any rights, must do so because of his occupation, claim, and use of the premises for the statutory period.
"A disseisor upon the surface may actually build upon, occupy, and use but a portion of the territory embraced within his marked line or color, but he has an immediately potential use and occupancy of the remainder of his claim, and the law by construction extends his actual occupation over it, but, *571 when he gets below the surface and attempts to take possession of minerals, he can have no immediately potential use or occupation of the whole of the minerals over which the law can by construction extend his actual possession; therefore he can have no possession of the unmined portion. Their possession was never in advance of their operations, unless they surrounded a block; then they had possession of that block, but no more. They got no more than they loosened or around which they had established a confine. By their operations they may have pushed the mineral owner back, but they have never pushed him off. To disseise the title holder, they must push him off and keep him off. See Plinn v. Blakeman, 254 Ky. 416, 71 S.W.2d 961. They could have no actual possession until they had a potential possession, and they have never had any potential possession of the coal that has not been disturbed. The same is true of all of the defendants."
We recognize the fact that we are not here dealing with a question of adverse possession and that we have said that, touching a possession which will defeat a bill filed under the statute to quiet title, it is not necessary to show such character of adverse possession as would ripen into title, but such possession as would amount to a disputed title. Crabtree v. Alabama State Land Co., 155 Ala. 513, 46 So. 450; Holland v. Coleman, 162 Ala. 462, 50 So. 128. But we are not concerned here with this character of possession, that is, the nature of the possessory acts, but with the territorial limit to which isolated mining operations should be extended.
We are of the opinion that the reasoning underlying the holdings in the cases from other jurisdictions, from which we have quoted above, impels us to the conclusion that the mining operations conducted by the respondent in the NW ¼ of the NE ¼ of Section 34 cannot be said to have put him in possession of the minerals in, under or upon the lands included in the bill of complaint as amended.
We hold that the evidence shows the complainant has the legal title to the minerals and it was in the peaceable constructive possession thereof. It follows that the decree of the trial court should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | October 18, 1951 |
d108fef2-17fb-4f46-a1ba-54cb1249c196 | Harris v. Harris | 54 So. 2d 291 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 291 (1951)
HARRIS
v.
HARRIS.
3 Div. 584.
Supreme Court of Alabama.
October 4, 1951.
*292 McMillan, Caffey & McMillan, Brewton, for appellant.
Allen Cook and A. R. Powell, Jr., Andalusia, for appellee.
LIVINGSTON, Chief Justice.
The bill of complaint in this cause, as originally filed, sought a divorce a vinculo matrimonii on the ground of cruelty, and the custody of the two minor children of the marriage. `The bill was amended, and as amended, sought a divorce a mensa et thoro.
The original bill alleged the cruelty complained of in the following language: "That since the said marriage and recently, the defendant has made threats to commit serious physical violence on the person of complainant, of such nature as to endanger her life or health; that in addition to other abusive treatment, he has threatened to break her neck and that from his conduct towards her, she has reasonable apprehension of physical violence on her person at his hands, attended with danger to her life or health. She therefore charges him with Statutory Cruelty."
The amended bill added to the charge of cruelty the following: "That the respondent, James William Harris, on two occasions prior to the separation of said James William Harris and this complainant did assault and beat this complainant with his fists, striking her on several parts of the head, severely bruising and injuring this complainant, and on the said occasions did threaten the life of this complainant, cursed her, told her he would kill her, and would shoot her with a pistol which the respondent continuously carried at that time."
Title 34, § 36, Code 1940, provides: "Cases of divorce from bed and board. The judge may decree a divorce from bed and board for cruelty in either of the parties, or for any cause which would justify a decree from the bonds of matrimony, if the party applying therefor desires only a divorce from bed and board."
Demurrers were interposed to the original bill, and to the bill as amended, and in each instance overruled. Thereupon respondent filed an answer and the evidence in the case was taken ore tenus before the judge of the trial court.
The court below entered a decree granting complainant a divorce a mensa et thoro, custody of the infants and ordered the register to hold a reference to determine the amount due complainant for the support of herself and minor children, and solicitor's fees. From this decree the appeal is prosecuted by respondent husband.
Assignments of error 1, 2 and 3 are based upon the overruling of appellant's demurrers to the original bill and the bill as amended.
Our cases are clear to the effect that a bill of complaint predicated upon *293 cruelty of the husband need not go into the details with particularity, but it should at least, give the nature and character of the acts or conduct relied upon to establish the charge. McMahon v. McMahon, 170 Ala. 338, 54 So. 165; Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852; Hillhouse v. Hillhouse, 222 Ala. 146, 131 So. 441; Holt v. Holt, 249 Ala. 215, 30 So. 2d 664.
But in the case of Hillhouse v. Hillhouse, supra, it was said: "The case of Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422, is not opposed to this ruling. It recognized the necessity for such an averment, but applied the doctrine of error without injury, as the bill was answered and all the facts and circumstances were gone into at the trial. The court did not hold that the case would not be reversed had the appeal been upon the ruling on demurrer before answer and proof taken, as was done in this case."
Conceding, without deciding, that the original bill, and the bill as amended, did not meet the requirements of good pleading we would be unwilling under the decision of Ratcliff v. Ratcliff, supra, to reverse the decree of the trial court overruling the demurrers.
The evidence discloses that the two acts of violence alleged in the original bill occurred respectively ten years and six years prior to the time of trial. It is not necessary for us to consider the questions of condonation and revival of past acts of cruelty, because it is our opinion that respondent's conduct which brought about the separation was such as to make complainant reasonably apprehensive of violence to her person, attended with danger to life or health. It is not necessary to prove that actual violence has been committed. Bailey v. Bailey, 237 Ala. 525, 187 So. 453. However mere empty threats are not sufficient to authorize the granting of a divorce. Campbell v. Campbell, 252 Ala. 487, 41 So. 2d 185; Bailey v. Bailey, supra.
Bearing in mind that the evidence was heard ore tenus before the trial judge and the usual presumption in favor of his finding is indulged in by this court, we find that respondent's conduct was such as to justify the decree of divorce. Without detailing the evidence it is sufficient to point out that respondent threatened the life of complainant, carried a pistol during the last two weeks of the parties cohabitation and continued his threats, and on the morning of the separation threatened complainant with bodily harm. This is not the case of a single isolated threat with no apparent intention or indication that it would be carried out as was the case in Campbell v. Campbell, supra, and Bailey v. Bailey, supra. The past acts of cruelty were evidence enough that respondent had carried out his threats in the past. Where the evidence shows that a husband has constantly threatened bodily harm to his wife and has shown that he has carried out his threats in the past and is capable of carrying them out in the present, this court will not put a trial court in error for awarding a divorce on such evidence heardore tenus.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | October 4, 1951 |
23cef052-6c61-4a57-8f7e-643d83f9e65e | Lewis v. Railroad Retirement Board | 54 So. 2d 777 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 777 (1951)
LEWIS et al.
v.
RAILROAD RETIREMENT BOARD.
6 Div. 234.
Supreme Court of Alabama.
October 4, 1951.
Rehearing Denied November 23, 1951.
*778 Jackson, Rives & Pettus, Birmingham, for appellants.
John D. Hill, U. S. Atty., and L. Drew Redden, Asst. U. S. Atty., Birmingham, for appellee.
STAKELY, Justice.
This is an interpleader suit in equity in which the lower court entered a final decree awarding the fund in controversy of $1,213.25, which had been paid into the registry of the court, to the claimant, respondent Railroad Retirement Board, and denying in whole or in part to the claimant, complainant David D. Lewis and the intervening law firm of Jackson, Rives & Pettus, any right to such fund. The claimant, complainant David D. Lewis, and the intervenors Jackson, Rives & Pettus have appealed to this court from the decree. The Railroad Retirement Board is an independent agency in the executive branch of the Government of the United States. 45 U.S. C.A. § 228j.
The complainant was injured on or about February 25, 1948. Complainant filed his application for sickness benefits under the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 351 et seq., with the Regional Office of the Railroad Retirement Board on March 3, 1948. The Railroad Retirement Board began payments under the provisions of the act to the complainant on account of this injury on February 25, 1948, the day following the injury. These payments continued with a brief interruption provided by the act through September, 1949. On August 13, 1948 the Railroad Retirement Board sent notice, as provided by the act, to the Comptroller of the Louisville & Nashville Railroad Company. This notice was received on or about the 17th of August, 1948.
The firm of Jackson, Rives & Pettus, intervenors, was first contacted by the complainant with reference to employment as his attorneys in his civil action against the Louisville & Nashville Railroad Company on January 20, 1949. Intervenors filed suit in behalf of complainant against the Louisville & Nashville Railroad Company on January 21, 1949, and the summons and complaint in the suit were served on January *779 27, 1949. This suit was for personal injuries and was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. On October 3, 1949 a consent judgment in the aforesaid suitCase Number 18,372-Xin the sum of $37,500.00 was entered in favor of the complainant and against the Louisville & Nashville Railroad Company in the Circuit Court for the 10th Judicial Circuit of Alabama. On October 8, 1949 the Louisville & Nashville Railroad Company requested information from the Railroad Retirement Board concerning the amount of benefits paid by the Board to the complainant, referring to the Board's letter of August 13, 1948. On October 13, 1949 the Board advised the Louisville & Nashville Railroad Company that the correct amount paid was $1,213.25. It is without dispute that this is the correct amount which was paid.
The Louisville & Nashville Railroad Company paid to the Clerk of the Circuit Court for the 10th Judicial Circuit of Alabama the sum of $36,286.75 subsequent to the entry of the aforesaid judgment. The sum of $1,213.25, was withheld because of the claim of the Railroad Retirement Board.
Subsequent thereto the intervenors distributed the amount received by them from the clerk of the court by deducting and paying to the firm $611.67 for expenses, by withholding as a fee the sum of $8,918.77 and paying over the balance of the proceeds to the complainant. This was done with knowledge that the Board claimed $1,213.25 of the $37,500.00 judgment.
I. It is without dispute that the complainant employed intervenors on January 20, 1949 as his attorneys to represent him in prosecuting his claim for personal injuries under the Federal Employers' Liability Act against the L. & N. Railroad Company with the agreement that the attorneys' fee of intervenors would be a contingent fee in an amount equal to 25% of the amount of recovery after deduction of expenses of prosecuting the claim. This suit was filed as aforesaid and without dispute the intervenors prepared the case for trial and tried the case. While the case was in progress and shortly before submission of the case to the jury, the consent judgment in the amount of $37,500.00 was entered by the court, as aforesaid. Without dispute the fee as agreed upon was conceded to be a reasonable fee and the services of the attorneys in bringing and prosecuting the suit were well and properly performed.
No attorneys' fee has been paid to the intervenors on the $1,213.25, which was withheld from payment by the L. & N. R. R. Co. and which was later paid into the registry of the court in this interpleader suit. In addition to the claim of the intervenors for a fee from the fund of $1,213.25, the intervenors also claim an additional fee for filing the bill of interpleader on behalf of complainant in the amount of $100.00.
In the letter of August 13, 1948 from the respondent, the Railroad Retirement Board, to the Louisville & Nashville Railroad Company the statute under which the respondent claimed its lien is set out in a form attached to the letter. This statute is Section 12(o) of the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 362(o) and reads as follows: "Benefits payable to an employee with respect to days of sickness shall be payable regardless of the liability of any person to pay damages for such infirmity. The Board shall be entitled to reimbursement from any sum or damages paid or payable to such employee or other person through suit, compromise, settlement, judgment, or otherwise on account of any liability (other than a liability under a health, sickness, accident, or similar insurance policy) based upon such infirmity, to the extent that it will have paid or will pay benefits for days of sickness resulting from such infirmity. Upon notice to the person against whom such right or claim exists or is asserted, the Board shall have a lien upon such right or claim, any judgment obtained thereunder, and any sum or damages paid under such right or claim, to the extent of the amount to which the Board is entitled by way of reimbursement."
It is the position of the appellants that the lien of the respondent, the Railroad Retirement Board, if any, is subordinate to *780 the lien of the intervenors for attorneys' fees for services performed in obtaining judgment in the suit brought by the complainant against the Louisville & Nashville Railroad Company. The lien of intervenors as attorneys arises pursuant to § 64, subd. 2, Title 46, Code of 1940, which reads as follows: "2. Upon suits, judgments, and decrees for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment or decree, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them."
Subsection 4 of the aforesaid section of the code is as follows: "4. The lien in the event of suit, provided in paragraphs two and three of this section, shall not attach until the service upon the defendant or respondent of summons, writ or other process * * *."
It clearly appears from the statute that the lien of the intervenors as attorneys could not arise until summons and complaint were served. This service was made on January 27, 1949. The notice of the respondent Railroad Retirement Board to the Louisville & Nashville Railroad Company was given on August 13, 1948 and was received not later than August 17, 1948. These respective dates determine which lien antedates the other. It is apparent that the lien of the Railroad Retirement Board antedates that of the intervenors by several months because the lien of the Railroad Retirement Board under the statute arises "Upon notice to the person against whom such right or claim exists * * *." 45 U.S.C.A. § 362(o). Since the lien of the Railroad Retirement Board antedates the lien of the intervenors, it is superior to it.
In Adams v. Alabama Lime & Stone Corp., 221 Ala. 10, 127 So. 544, 550, this court said:
"* * * it has been consistently and often declared that the attorney's lien is subordinate to all set-offs held by the judgment debtor at the time of its rendition. * * *
"We do not think this settled rule, declaring in effect that the attorney's lien on a judgment rises no higher than the judgment itself at the time of its rendition, has been changed by our statute, * * *. It could hardly be supposed the attorney's lien on property is made to displace existing liens or equities therein. * * *
"It is often said with force this view destroys, wipes out the judgment, the subjectmatter on which the lien is declared; that it is sound policy to protect the attorney whose professional labors have brought the judgment into being. Obviously our statutes aim to protect attorneys as to the effects of their clients involved in the litigation. There is likewise strong reason for saying the rights of the attorney should be limited to those of his client."
In the case of Grace v. Solomon, 241 Ala. 452, 3 So. 2d 3, this court said: "The lien here provided (attorney's lien) cannot be extended beyond the fair intendment of the statute, the effect of which, in agreement with the common law, is to place the attorney in the position of an equitable assignee of the judgment obtained for his client."
From the foregoing authorities it is clear that the lien of the intervenors as attorneys is limited to the equity of their client in the judgment. It cannot under the statute extend to an equity in the judgment which is owned by another and which is superior to that of the complainant. Under the federal statute the Railroad Retirement Board clearly had a lien to the extent of the payments made by it superior to the rights of the complainant in the judgment recovered by him and this being true, the lien of the intervenors, attorneys, must be considered as subordinate to the lien of the respondent Railroad Retirement Board.
It is contended that the notice relied upon by the respondent Railroad Retirement Board in its letter of August 13, 1948 to the Louisville & Nashville Railroad Company fails to meet the requirements in claiming a lien because it fails to state any amount for which a lien is claimed and for which reimbursement should be made. There is no merit in this contention. The statute provides that the Board's right to *781 reimbursement is determined by the "extent that it will have paid or will pay benefits for days of sickness resulting from such infirmity." The statute provides for notice to the persons against whom the claim of the injured person exists and does not require any notice of the amount. Benefits paid under this statute are not lump sum benefits but are paid every two weeks upon application of the person entitled thereto. In the present case complainant upon his application received benefits beginning February 26, 1948 and continued with a brief interruption until September 1949. A total of $1,213.25 was paid. It would have been impossible at any time prior to the last payment for the respondent to have advised the Louisville & Nashville Railroad Company of the amount of its lien. To require it to wait would cause it to fail to assert its lien and would be to impose a condition not required by the act. We think the notice was in all respects sufficient to create a lien provided for in the statute and as pointed out, it contains in an attachment to the letter the provisions of the act relating to the Board's lien in verbatim. We think the notice served to advise the Louisville & Nashville Railroad Company that the Board claimed a lien on any amount that the Louisville & Nashville Railroad Company might later owe to the complainant. The notice put the Louisville & Nashville Railroad Company on notice of the right of the Board and provided the railroad with the means of ascertaining the amount claimed by the Board at any time that the railroad might be called upon to settle complainant's claim against it. The railroad was placed in the position where it had the duty to make inquiry and was charged with all that inquiry would reveal. Figh v. Taber, 203 Ala. 253, 82 So. 495; Morgan Plan Co. v. Accounts Supervision Co., 34 Ala.App. 457, 41 So. 2d 424, certiorari denied 252 Ala. 473, 41 So. 2d 428.
II. Citing Kimbrough v. Dickinson, 251 Ala. 677, 39 So. 2d 241, 245, the position is taken by the appellant that the intervenors are entitled to be allowed a fee out of the fund paid into the registry of the court on the principle that the complainant has maintained a successful suit for the creation, preservation and protection of a common fund and has brought into court a fund in which another may share. The principle set forth in the foregoing authority is not applicable here. That case involved a trust fund of an estate. The interest of the person who had borne the burden and expense of litigation was not antagonistic to those who benefited by the litigation, all being heirs and next of kin of a decedent. In the foregoing authority it was said: "It will be observed that the co-complainants, in suits of this nature, all have a similar interest in the subject matter of litigation a common, and not an antagonistic interest in the trust fund, which has been brought under the control of the court. The necessary expenses of the original complainant incurred in litigation may very well, under these circumstances, be made payable out of the common fund, * * *."
In the case of Lewis v. Wilkinson, 237 Ala. 197, 186 So. 150, the court said: "Attorneys' fees will be charged to the interest in truth and in fact represented. The fact that the representation incidentally resulted in benefit to the other cestuis que trustent did not authorize charging them with attorneys' fees."
In Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577, 580, this court said: "Services for the common benefit of the parties mean services that are of benefit to the common estate, or in other words services rendered in a matter in which the trust as a trust is interested and not services in behalf of the individual interests of the parties to the cause." See Bidwell v. Johnson, 191 Ala. 195, 67 So. 985; Coker v. Coker, 208 Ala. 239, 94 So. 308.
In the foregoing authorities the court was considering the right of the attorney in the administration of a trust and in most of those cases such right in the light of § 63, Title 46, Code of 1940. See Penney v. Pritchard & McCall, 255 Ala. 13, 49 So. 2d 782. But even though no trust be involved, the right to charge a fund with costs and expenses depends upon whether the costs and expenses were incurred in the promotion of the interest of those eventually found to be entitled to the fund. 14 Am.Jur. 48.
*782 The suit brought by complainant against the Louisville & Nashville Railroad Company was not in any sense a class suit or brought for the benefit of others. The complainant sought only to establish his own rights. The incidental benefit resulting to the Railroad Retirement Board is not a basis for charging the Railroad Retirement Board with the creation of a fund for its benefit.
Furthermore the action in which the judgment was procured was an action in a law court and not in equity. It was not filed in aid of or in connection with an equity proceeding as for example a receivership. In an action at law attorney's fees are not ordinarily taxable as costs. 20 C.J. S., Costs, § 218, page 457. The interpleader suit was instituted by complainant to protect himself against conflicting claims, 48 C.J.S., Interpleader, § 2, page 38 and not to create or protect a common fund from waste or destruction. Strong v. Taylor, 82 Ala. 213, 2 So. 706; Penney v. Pritchard & McCall, supra.
The services rendered by the attorneys in the suit in which the judgment against the railroad company was procured were services rendered in behalf of a client, the complainant in the cause, and his individual interest under a contract made only between complainant and intervenors. It was not a service rendered in behalf of the Railroad Retirement Board, although it resulted incidentally in benefit to the Railroad Retirement Board. As a result of the views which we have here expressed, the allowance of a fee cannot be sustained on a theory of services rendered for the common benefit of all the parties.
III. As to the allowance of an attorney's fee to be paid to the attorneys for instituting the interpleader proceedings out of the fund deposited, this was a matter which rested in the discretion of the court. There is nothing to show that this discretion was abused in failing to make the allowance, especially since the complainant and the intervenor were adjudged to have no interest in the fund. Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251.
There was no error in directing payment of the fund deposited in court to the Railroad Retirement Board. The decree of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | October 4, 1951 |
813236b9-686f-43c6-ba95-178969e446d6 | Vinson v. Vinson | 54 So. 2d 509 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 509 (1951)
VINSON
v.
VINSON.
5 Div. 501.
Supreme Court of Alabama.
October 11, 1951.
Ellis & Fowler, Columbiana, and J. B. Atkinson, Clanton, for appellant.
Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellee.
LAWSON, Justice.
Elmina Vinson filed her bill in equity for a declaratory judgment against Annie Mae *510 Vinson, individually, and in her capacity as executrix of the last will and testament of Hollis B. Vinson. The respondent, Annie Mae Vinson, has appealed to this court from a decree overruling her demurrer.
The case made by the bill is hereafter summarized.
The complainant is the mother of Hollis B. Vinson, who died testate on or about November 20, 1949, and the respondent is the widow of the said Hollis B. Vinson. Hollis B. Vinson was not survived by any children and under the terms of his will all his property, both real and personal, was left to his wife, Annie Mae Vinson. In accordance with the provisions of the will the said Annie Mae Vinson was appointed executrix of the will of her deceased husband by the probate court of Chilton County.
Prior to the death of her son, the complainant purchased postal savings certificates at the United States Post Office at Clanton in the name of her son, H. B. Vinson, who was the same person as Hollis B. Vinson. These certificates were purchased by complainant out of her own personal funds, in which her son had no interest. The complainant or her agent signed all the papers and performed all the duties and functions incident to the purchases. The certificates when purchased were delivered by the postal authorities to the complainant, who continued in possession down to the time this suit was instituted. The bill averred that "no gift of said certificates to Hollis B. Vinson was ever made or completed, in that the complainant never delivered said certificates to the said Hollis B. Vinson."
After the appointment of respondent as executrix, she made demand upon the postmaster at Clanton for payment of the funds evidenced by the certificates and presented to him a certified copy of the will and a certified copy of her appointment as executrix and claimed the full right, title and interest in and to the certificates and funds evidenced thereby.
The prayer of the bill in pertinent part is as follows: "The complainant further prays that upon a final hearing of this matter, that Your Honor will render a declaratory judgment and decree, stating and determining that the complainant has the full and exclusive right, title and interest in and to said certificates or said postal savings accounts, and that the respondent, Annie Mae Vinson, as executrix of the Last Will and Testament of Hollis B. Vinson, and Annie Mae Vinson, individually, has no right, title or interest in or to the proceeds thereof * * *."
The demurrer to the bill raises the points that the averments of the bill are insufficient to state a case for declaratory judgment; that for aught appearing from the averments of the bill, the money deposited in the post office was a gift by complainant to her son and that the necessary acts to complete the gift were fully performed.
The only assignment of error is: "The trial court erred in overruling appellant's demurrer to the bill of complaint as amended." Such an assignment is sufficient. It is not necessary to make a separate assignment of error as to each ground of demurrer relied on. Copeland v. Swiss Cleaners, Inc., 255 Ala. 519, 52 So. 2d 223.
However, we treat only those grounds of demurrer argued in brief. Cook v. Whitehead, 255 Ala. 401, 51 So. 2d 886.
As we view this case, the sole question for decision on this appeal is whether or not the averments of the bill are sufficient to state a case for declaratory relief. In Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11, we pointed out that ordinarily the test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. It was further pointed out that if the complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated and the demurrer should be overruled. See McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635; City *511 of Bessemer v. Bessemer Theaters, 252 Ala. 117, 39 So. 2d 658; White v. Manassa, 252 Ala. 396,41 So. 2d 395.
We are clear to the conclusion that the bill shows such an actual controversy as to support the jurisdiction of the court for a declaratory judgment. § 159, Title 7, Code 1940.
By an amendment to § 167, Title 7, Code 1940, the legislature has provided that the remedy by declaratory judgment shall not be construed by any court as an unusual or extraordinary one, but shall be construed to be an alternative or cumulative remedy. § 167, Title 7, Code 1940, as amended. See § 167, Title 7, 1949 Cum.Pocket Part, Vol. 2, Code 1940.
Since the bill does, in our opinion, show such an actual controversy as to support the jurisdiction of the trial court for a declaratory judgment, we think the trial court was correct in overruling the demurrer.
Affirmed.
LIVINGSTON, C. J., and FOSTER, and SIMPSON, JJ., concur. | October 11, 1951 |
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