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bf84cdb0-e79a-4b15-937e-b9a5adf7fa52 | Ohio Cas. Ins. Co. v. Gantt | 54 So. 2d 595 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 595 (1951)
OHIO CAS. INS. CO.
v.
GANTT.
6 Div. 192.
Supreme Court of Alabama.
October 11, 1951.
*597 London & Yancey and Chas. W. Greer, Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
FOSTER, Justice.
The question on this appeal is whether or not a judgment will support an equity suit by the plaintiff against defendant's liability insurance carrier when the judgment was rendered in the trial court for a fixed sum against the insured in the policy, but an appeal had been taken without supersedeas when this suit in equity was filed by plaintiff in the judgment under authority of section 12, Title 28, Code.
That statute makes a statutory hypothecation of the claim of the defendant against his insurer to protect him against liability to the extent of the coverage. George v. Employers' Liability Assur. Corp., 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438; Employers' Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374.
Section 12, supra, confers upon the injured person a right to recover against defendant's liability insurance carrier "the insurance money provided for in the contract of insurance" "upon the recovery of a final judgment against any person" if he was insured against loss or damage at the time the right of action arose.
The policy bound insurer "To pay on behalf of insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, other than passengers, caused by accident and arising out of the ownership, maintenance or use of the aircraft."
And it further provided that: "No action shall lie against the company unless, as a condition precedent thereof, the insured shall have fully complied with all of the terms of this policy, nor until the amount of insured's obligation to pay shall have been finally determined either by judgment against insured after actual trial or by written agreement of the insured, the claimant and the company. Any person or his legal representative who has secured such judgment or written agreement shall thereafter be entitled to recover under the terms of this policy in the same manner and to the same extent as the insured. Nothing contained in this policy shall give any person or organization any right to join the company as codefendant in any action against insured to determine insured's liability." (Italics ours.)
Plaintiff in the judgment is not seeking to enforce the assignment provided for in this clause, but only the equitable remedy and right provided in section 12, Title 28, Code. So that according to the terms of the policy defendant insured can sue the insurer who has become obligated to pay insured by reason of the liability imposed by law for damages and death because of bodily injury sustained by plaintiff arising out of the ownership, maintenance or use of the aircraft, if plaintiff was not a passenger, to the limit of $25,000, and if insured had complied with the terms of the policy, and the amount of his obligation to pay shall have been finally determined by judgment against insured after actual trial.
The policy also provided that insurer shall defend any suit against insured for damages on account of such injury and pay all premiums on appeal bonds required in any such defended suit, but without obligation to apply for or furnish such bonds. So that whether insured, against whom a judgment is rendered, shall appeal is within his discretion. And if he appeals whether he will supersede the judgment is also in his discretion. It does not appear that the insurer offered to supersede the judgment on appeal or to pay the premium on *598 a supersedeas appeal bond. It cannot therefore complain that insured in taking the appeal did not give a supersedeas bond. If defendant, insured, had not appealed at all, there is no question but that the judgment finally fixed the obligation of insured and fastened the amount of it on insurer, if it was within the coverage.
The question now to be considered is whether there was a final judgment within the meaning of the statute, and whether the liability of the insurer to the insured had accrued.
Section 792, Title 7, Code, authorizes an appeal without supersedeas. When such an appeal is taken by defendant the right of plaintiff to collect the amount of the judgment is not suspended pending the appeal, and he has a right to have execution issued to force its payment. Montgomery Gaslight Co. v. Merrick, 61 Ala. 534; Garrett v. Mayfield Woolen Mills, 153 Ala. 602, 44 So. 1026. At common law security for costs had the effect of a supersedeas. Ex parte Cudd, 195 Ala. 80, 70 So. 721. But we have several statutes which change that rule. Sections 793, 794 and 795, Title 7, Code.
So that pending such an appeal, taken only by giving security for costs, "Whatever measures are necessary for the execution of the decree, it is the duty of the [trial] court, on the application of a party in interest, to pursue as if the appeal had not been taken." Ex parte Hood, 107 Ala. 520, 18 So. 176, 177; Garrett v. Mayfield Woolen Mills, supra.
By virtue of the statute plaintiff in the judgment had the right to condemn in equity to its satisfaction any matured claim which defendant as insured had by reason of his policy against the insurer, this appellant. So that the instant question is controlled by whether after such appeal without supersedeas, defendant in that suit could have immediately sued on a claim against appellant by reason of its liability under the policy. If defendant could have done so, plaintiff's right to subject that claim to the satisfaction of his judgment was not suspended by the appeal. But if the liability of the insurer to the insured did not mature by the terms of the policy until there was a decision on the appeal favorable to plaintiff in the judgment, it necessarily follows that plaintiff could not condemn it to satisfy his judgment pending the appeal. In that event, there would be no matured liability to condemn.
The appellate court of Illinois treated that question in a garnishment proceeding in Ancateau for Use of Trust Co. of Chicago v. Commercial Casualty Ins. Co., 318 Ill.App. 553, 48 N.E.2d 440, 445. It was held that the rights of the insurer not a party to the suit at law should not "be measured by the same yard-stick during the pendency of an appeal as the rights of the litigants against each other," and that during such appeal the insured could not have maintained a suit on the policy by reason of its terms and, therefore, plaintiff could not enforce such claim pending the appeal.
In Roberts v. Central Mutual Ins. Co., 285 Ill.App. 408, 2 N.E.2d 132, plaintiff had recovered a judgment against a taxicab operator for injuries. The defendant had made liability bond pursuant to law. Plaintiff sued on the bond pending an appeal by the tort defendant. The condition of the bond was that the defendant would pay all final judgments recovered against such owner for any injury to or death of any person resulting from negligence of such owner. An appeal was taken from the judgment before suit on the bond was begun. It does not appear whether there was a supersedeas. But the statute provided that an appeal "shall constitute a continuation of the proceeding in the court below."S.H.A.Ill. ch. 110, § 198. The court held that a final judgment in the meaning of the bond meant the judgment made final on appeal, and that the suit was prematurely begun, and reversed the judgment for that reason, although the appellate court had affirmed the judgment in the tort action.
It is apparent that much effect was given to the statute which made an appeal a continuation of the proceeding in the court below. Such is not the effect of an appeal in this State. But it is the institution of a new statutory proceeding whose object is to reverse the judgment below. Anders *599 Bros. v. Latimer, 198 Ala. 573, 73 So. 925; Ex parte Ide, 228 Ala. 452, 153 So. 887. It was said in the Ide case, supra, that there is a conflict of authority on that question. But this Court in the Anders Case, supra, took a distinct stand on it, so that the theory which supported the Roberts case, supra, has not been adopted but repudiated by our cases.
It is interesting to note the conflicting opinions on the subject and the variety of views expressed. Some of them relate to the inquiry of whether pending the appeal from a judgment in the tort action, when there is no supersedeas, the defendant in the tort judgment could sue the insurer on the policy and whether he was liable then and there for the immediate payment of the judgment which he had insured. That seems to us to be the appropriate inquiry. It depends upon the terms of the policy. If its effect is not to prohibit such suit it can be maintained pending an appeal without supersedeas. Montgomery Gaslight Co. v. Merrick, supra.
In the case of Consolidated Underwriters v. Richards, 276 Ky. 275, 124 S.W.2d 54, it was held that the defendant could sue pending the appeal by reason of the terms of the policy, which required the insurer not only to defend the suit against the insured but also to pay all necessary premiums on the appeal bond; and that the insolvency or bankruptcy of insured would not affect the liability of the insurer. Therefore, a suit by plaintiff in judgment against the insurer on a policy, in all material respects similar to that in the instant case, was not premature when it was begun pending appeal without superdeas.
The case of Tucker v. State Automobile Mutual Ins. Co., 280 Ky. 212, 132 S.W.2d 935, 125 A.L.R. 751, held that the insured could not sue pending such appeal, and distinguished its facts from the Richards case, supra, in that, in the latter insurer had agreed to "pay all premiums on the appeal bond required in any such defended suit." (Such is the language of the policy here involved.)
In Pape v. Red Cab Mutual Casualty Co., 128 Misc. 456, 219 N.Y.S. 135, the exact question was considered and determined. The policy provisions were practically the same as those controlling in this case. The suit by the plaintiff in judgment against the insurer was held not premature pending an appeal without supersedeas bond on such a policy of insurance. That case was cited with approval in Materazzi v. Commercial Casualty Ins. Co., 157 Misc. 365, 283 N.Y.S. 942. The principle is likewise supported by the case of Edwards v. Fidelity & Casualty Co., 11 La.App. 176, 123 So. 162.
We find there is much authority to support the theory that pending such appeal plaintiff in judgment may sue the insurer on such a policy because the insured could do so.
Some of the garnishment cases, to which we will refer, hold that a judgment against a garnishee on a tort claim, from which an appeal has been taken, does not, pending the appeal, relieve the claim of its character as one in tort and is not sufficient to subject the defendant in it to answer as garnishee. That is not our status.
Nor was that the status in Ancateau for use of Trust Co. of Chicago v. Commercial Casualty Ins. Co., 318 Ill.App. 553, 48 N.E.2d 440. A garnishment on a judgment was issued pending an appeal from it. The garnishee was an insurer in a liability policy. The policy provision as to the liability of insurer was the same as that in the instant case. The insurer would not be liable as garnishee unless the insured, defendant in the main case, could have sued the insurer on the policy. That was the question considered. The court referred to the Materazzi case, supra, and tried to distinguish it according to the difference in the language. In the latter case the clause, as interpreted in that case, made insurer liable when judgment was rendered after trial. We fail to see such difference between the two clauses as thus interpreted. The Ancateau case, supra, also referred to Pape v. Red Cab Mutual Casualty Co., supra, and admits that it supports a conclusion different from the one there expressed. The court then cites cases which hold that garnishment directed to the defendant in a tort judgment is premature pending an appeal from the judgment *600 against the garnishee. The cases cited are based on the idea that the appeal is a continuation of the original action, and that pending the appeal and before it is decided on appeal, it is a tort claim not subject to garnishment.
But we are not here concerned with the question of whether a defendant in a judgment based on a tort is subject to garnishment pending an appeal.
The controlling question, as we have shown, is not so much whether there was a "final judgment," as mentioned in section 12, Title 28, Code, but whether there was due to be paid to the insured by the insurer a sum fixed by the judgment from which an appeal was taken. That is, to inquire whether after such appeal defendant in the judgment, the insured, could maintain a suit on the policy against appellant, insurer, as declared by the policy. For if he could, plaintiff acquired the statutory power in equity to reach that claim notwithstanding an appeal which did not suspend the right of plaintiff to pursue any course available to collect the amount of the judgment.
There is no controversy that at the time this suit in equity was begun after the appeal, without supersedeas, there was an obligation of insured to pay plaintiff, which had been determined by judgment against him after trial.
The question immediately before us is whether such a judgment, pending such appeal, "finally determined" the obligation within the terms of the policy. We are not at the moment concerned with the term "final judgment," referred to in section 12, supra. But such judgment must be one presently collectible to be one finally determined by judgment. That can mean no more than a complete judgment which is then collectible by any and all means provided by law.
Of course that judgment stands on appeal to be reversed, but the result in this respect is no more troublesome than if the judgment had been collected on execution during the appeal which results in a reversal. When so, the plaintiff receiving the collection of the amount of the judgment is liable to restitution of it to defendant, or as the case may be. When defendant takes an appeal without supersedeas, and plaintiff proceeds to enforce a collection of his judgment he encounters the calculated risk of having to make restitution if the judgment is reversed. Defendant in taking such an appeal assumes the calculated risk of plaintiff collecting the amount of the judgment pending the appeal and of his ability to obtain restitution if the judgment is reversed after the amount of it is collected. But at a time when plaintiff has the right and authority to collect the amount of his judgment notwithstanding an appeal, his judgment is nevertheless final justifying such collection. When its collection is justified by a judgment complete in every respect, the amount of it as an obligation by defendant is finally determined by judgment after trial, fixing the duty on the part of the insurer to pay the obligation which insured is bound by judgment to pay then and there, although the insured has the possibility of later obtaining a restitution which would inure to the benefit of the insurer. The "final determination", provided for in the policy, means no more than the "final judgment" referred to in section 12, supra. We think they both refer to a complete judgment by a court having jurisdiction to render it, and at a time when plaintiff in that judgment has a legal right to force its payment by such procedure as is available as though no appeal had been taken.
The appeal without supersedeas suspends no right which the plaintiff in the judgment has to enforce its collection. Section 12, Title 28, Code provides a proceeding for the collection which is not suspended by appeal without supersedeas, because it does not suspend the final effect of the judgment and, therefore, the liability stands at that time finally determined, as contemplated by the policy.
The coverage hinges on whether plaintiff, the injured party, was a passenger in the aircraft at the time of his injury. The trial court must have held that plaintiff was not a passenger and that the limit of liability was $25,000 for his injury The coverage so provides as to one injured *601 who is not a passenger, and fixes a limit of $5,000 for each person injured who is a passenger. The policy provides the answer, as it defines a passenger as follows: "The term `passenger' or `passengers' wherever used in this policy shall mean any person or persons (other than a person operating the aircraft or a member of the crew of said aircraft while in the course of their employment by the insured) while in or on or while boarding the aircraft for the purpose of riding therein or while alighting from the aircraft following a flight or attempted flight therein."
We have no difficulty in agreeing with the trial court that plaintiff was not a passenger as therein defined. The complaint, sustained by the evidence, was that defendant insured, was conducting a flight school for student airplane pilots; that plaintiff was a student pilot, using an airplane furnished by defendant, and he was injured as the proximate result of the negligence of defendant in negligently furnishing him with a defective airplane in which to make a practice flight. Plaintiff was therefore not a passenger under the definition in the policy and the limit of liability was $25,000.
The decree of the court is not subject to the contentions made as to it by appellant. It is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 11, 1951 |
ab1a376e-89e9-4f63-98dc-6d6a92dc7757 | Singley v. State | 53 So. 2d 729 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 729 (1951)
SINGLEY
v.
STATE.
2 Div. 287.
Supreme Court of Alabama.
June 28, 1951.
Scott & Porter, Chatom, for appellant.
Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Appellant, Edgar Singley, alias Pete Sing ley, was tried in the circuit court of Choctaw County under an indictment charging that he unlawfully and with malice aforethought *730 killed Jesse Morgan, alias Sug Morgan, by striking him with a piece of "scantling" or a stick. The jury returned a verdict of murder in the first degree and fixed defendant's punishment at life imprisonment in the penitentiary. Judgment was in accord with the verdict. Defendant's motion for new trial having been denied and overruled, he has appealed to this court.
Clinton Stokley, a cousin of Pete Singley, was previously convicted of murder in the first degree for the killing of Jesse Morgan and on his appeal to this court, we reversed the case on a ground not presented on this appeal. Stokley v. State, 254 Ala. 534, 49 So. 2d 284.
Jesse Morgan died a few days after being injured in a fight in which both Clinton Stokley and Pete Singley participated. The facts disclosed by this record, as they bear on the difficulty and circumstances leading up to it, are so similar to the facts set out in the opinion in Stokley v. State, supra, that we see no necessity to detail such facts in this opinion. We will hereafter delineate only such facts as are necessary to an understanding of those questions presented on this appeal not decided against the contention of appellant in Stokley v. State, supra.
The evidence for the State was to the effect that Clinton Stokley hit deceased with a piece of "scantling" and that defendant Pete Singley twice hit deceased on his head with a heavy stick.
It is insisted the trial court erred in overruling defendant's motion to exclude the State's evidence on the ground that it failed to establish the fact that the blow or blows struck by defendant contributed to the death of deceased. The insistence is without merit.
Deceased appears to have been in good health prior to the difficulty. Shortly after the fight he became unconscious and was taken to a hospital in Butler, where it was discovered he was partially paralyzed. The attending physician, recognizing the seriousness of his injuries, recommended that he be taken to a brain specialist in Birmingham, which was done. Deceased remained unconscious until his death in a Birmingham hospital several days later. The attending physician at the hospital in Butler testified on behalf of the State and from his testimony it appears that when deceased arrived at the hospital he was bleeding, his skull was fractured and was crushed in at the "seat" of the blow; the wound on his scalp and the "crack" in his skull were about two and one-half inches long; the skull bone was pressed down about one-fourth of an inch; symptoms indicated an internal hemorrhage. The doctor stated that in his best judgment the injuries he observed on deceased's head were sufficient to produce death. Certainly under this evidence the jury would be warranted in finding the death of deceased resulted from injuries suffered during the difficulty with defendant Pete Singley and his cousin, Clinton Stokley.
The evidence for the State tends to show it was this defendant, Pete Singley, who delivered the hard blows to the head of deceased. Moreover, the evidence for the State tends to show that there was preconcert or community of purpose between defendant and Clinton Stokley. If this evidence was believed by the jury beyond a reasonable doubt, then the defendant Singley was responsible for the acts of Clinton Stokley, although they intended only a battery upon deceased, and a verdict of guilty would be warranted against defendant unless Stokley acted independently of the common purpose and struck deceased for malice and motives of his own and was not at the time previously incited thereto by defendant. Stokley v. State, supra, and cases cited.
Appellant complains of the action of the trial court in sustaining the State's objections to questions propounded several witnesses by counsel for appellant wherein appellant sought to prove "his reputation for jumping on people or whipping them or hitting them with a stick." Reliance is had on the following cases: Hussey v. State, 87 Ala. 121, 6 So. 420; Mitchell v. State, 14 Ala.App. 46, 70 So. 991; Wheat v. State, 18 Ala.App. 554, 93 So. 209; Griffin v. State, 26 Ala.App. 473, 162 So. 547. The only one of these cases tending to support *731 the position taken by appellant is Wheat v. State, supra, and it was expressly overruled in Young v. State, 20 Ala.App. 369, 102 So. 366. The other cases relied on by appellant merely hold, in effect, that evidence of the general good character of an accused is admissible as evidence tending to exculpate from the charge and that proof may be made of the particular traits of character involved in the nature of the charge, such as honesty, violence, chastity, etc. The questions to which objections were sustained sought to make proof of defendant's reputation or character as to particular acts or specified conduct which, as we hereafter show, cannot be shown on direct examination.
We quote from the decision in Ex parte State ex rel. Attorney General, 209 Ala. 3, 96 So. 450, because it points out the distinction between proof of specific traits of character, such as honesty, violence, chastity, etc., involved in the act charged, and reputation as to particular acts or specified conduct, such as defendant sought to prove in this case. It was there said:
"Upon the trial of the cause the witness for the defendant testified that the defendant's general character was good. The witness was then asked by the defendant if he knew defendant's general character in the community where he lived for possessing or having in his possession a still, and also if he knew his character in the community where he lived for possessing a still, an apparatus, appliance, or some device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages. The state's objection to each of these questions was sustained, and this ruling constitutes the ground upon which rests the reversal of the cause by the Court of Appeals. That court reached this conclusion upon a consideration of the authorities holding in effect that the accused may introduce evidence of his good character as to the particular trait of character involved in the nature of the charge, citing, among other authorities, Underhill on Criminal Evidence (2d Ed.) § 77; 1 Greenleaf on Evidence (16th Ed.) p. 39; 1 Wigmore on Evidence (2d Ed.) p. 150; 20 L.R.A. 612 (note); Weeden v. State, 17 Ala.App. 516, 86 So. 130.
"We do not question the general principle involved in these decisions, but we are of the opinion that principle is without application to the instant case. The particular trait of character referred to in these authorities is such as arises from the nature of the charge as illustrated in 1 Greenleaf on Evidence, supra, where the author says:
"The character offered must be as to the specific traite. g., honesty, violence, chastity, etc.involved in the act charged.'
"It is well understood that evidence of character goes to general repute, and not to particular acts or specified conduct. Hussey v. State, 87 Ala. [121] 132, 6 So. 420; Sexton v. State, 13 Ala.App. 84, 69 So. 341, reviewed by this court in 195 Ala. 697, 70 So. 670 [1014].
"It has also been held that a defendant may not prove his good character by his own testimony to the effect that he had never been arrested or prosecuted for any violation of law before the arrest on the charge for which he is being prosecuted. Patton v. State, 197 Ala. 180, 72 So. 401. See, also, Stout v. State, 15 Ala.App. 206, 72 So. 762, reviewed by this court in 198 Ala. 695, 73 So. 1002.
"The case of Commonwealth v. Nagle, 157 Mass. 554, 32 N.E. 861, bears close analogy to that here under consideration. The accused was charged with selling intoxicating liquors to a minor, and the court declined to permit the defendant to show his reputation in regard to observing the conditions of his license, and particularly as to selling or permitting the sale of intoxicating liquors to minors. The court held that the general rule in regard to permitting evidence as to character concerning the particular trait involved in the charge had little application to penal acts which were merely mala prohibita, and that the offered evidence was to show that under the license which he held his habit had been to avoid the commission of certain offenses mentioned in the license, not necessarily involving moral wrong, the court saying:
*732 "`For the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts.'
"In Stout v. State, supra, it was held that the specific trait of defendant's character involved was that with reference to the observation of prohibition laws of the state; but the question here involved is reduced to still more narrow margin, and the defendant seeks to establish his general character for the specific act in question that is, having in his possession a stilland we are of the opinion that this called for evidence of specified conduct, which is not permissible under our decisions. The case from the Supreme Court of Massachusetts of Commonwealth v. Nagle, supra, is, in our opinion, entirely sound, and, if followed, is decisive of the question here involved. We have therefore reached the conclusion that the trial court did not commit reversible error in refusing to permit the defendant to make this proof, and that the Court of Appeals erred in reversing the judgment of conviction upon this ground."
In Williams v. State, 250 Ala. 549, 550, 35 So. 2d 567, 568, we said: "One further comment is appropriate. The opinion of the Court of Appeals indicated approval of the second question marked (2) above, had the inquiry been thus limited, but we think under either aspect the question called for incompetent and illegal testimony. Its effect was an attempt to prove reputation by evidence of specific conduct, which is not permissible. Character or reputation, whether good or bad, cannot be proven by specific acts or conduct, but only by evidence of general repute. (Cases cited.)"
The distinction is well established between the right to cross-examine a witness, who had testified concerning the good reputation of the defendant, as to whether he had heard of specific acts of misconduct on the part of defendant, and proof of particular acts on direct examination. Helms v. State, 254 Ala. 14, 47 So. 2d 276; Andrews v. State, 159 Ala. 14, 48 So. 858; Vinson v. State, 247 Ala. 22, 22 So. 2d 344; Snead v. State, 243 Ala. 23, 8 So. 2d 269.
However, the action of the trial court in refusing to permit the defendant to introduce negative testimony as to good character was erroneous and requires a reversal of this cause. Hussey v. State, supra; Glover v. State, 200 Ala. 384, 76 So. 300; Stone v. State, 208 Ala. 50, 93 So. 706; Riley v. State, 216 Ala. 536, 114 So. 12; Dyess v. State, 224 Ala. 610, 141 So. 662; Everage v. State, 33 Ala.App. 291, 33 So. 2d 23; Williams v. State, 32 Ala.App. 597, 28 So. 2d 731; Puckett v. State, 24 Ala.App. 217, 133 So. 63.
The trial court did not err in refusing to permit the defendant to prove his reputation for jumping on people or whipping them or hitting them with sticks or other weapons.
The trial court correctly permitted the State to show the conversation between Alvin Stokley and deceased. At the time this evidence was admitted, there was ample evidence in the case tending to show the existence of a conspiracy between defendant and his cousins, including Alvin Stokley, to do bodily injury to deceased. Hence, all that was said and done in furtherance of the common design was admissible in evidence against the other conspirators. Stokley v. State, supra.
For the error noted above, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | June 28, 1951 |
87e6ce4e-9815-4641-ba97-dbfd00f9d903 | Ingalls v. Ingalls | 54 So. 2d 296 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 296 (1951)
INGALLS et al.
v.
INGALLS et al.
6 Div. 113.
Supreme Court of Alabama.
June 28, 1951.
Rehearing Denied October 18, 1951.
*297 Earl McBee, Birmingham, guardian ad litem for appellants.
*298 Lange, Simpson, Robinson & Somerville, Birmingham, for appellees-cross-appellants Robt. I. Ingalls, Sr., and Ellen Gregg Ingalls.
Waites & Tucker, Birmingham, for appellee-cross-appellant Pixton.
Francis H. Hare and Chas. W. Greer, Birmingham, for other appellees.
STAKELY, Justice.
This is an appeal from a decree of the equity court construing six trusts between living persons and ordering a reference to the register to ascertain and report with respect to a claim made by Robert I. Ingalls, Jr. in the amount of $51,747.56 for reimbursement for expenditures for the support and maintenance of the two minor appellants for a period beginning May 13, 1948 and ending December 31, 1949. The decree ordered Robert I. Ingalls, Jr. to file an itemized statement of his claim prior to the date of holding the reference. The trusts are six in number and for identification have been designated as trusts "B", "C", "D", "E", "F" and "G". The names of the several trustees serving respectively at the time of the filing of the bill of complaint are listed in paragraph two thereof as follows:
"Trust B: Robert I. Ingalls, Jr.
"Trust C: Robert I. Ingalls, Sr., Robert I. Ingalls, Jr.
"Trust D: Robert I. Ingalls, Sr. and the First National Bank of Birmingham
"Trust E: Ellen Gregg Ingalls, Robert I. Ingalls, Jr. and the First National Bank of Birmingham
"Trust F: Ellen Gregg Ingalls, Robert I. Ingalls, Jr. and M. F. Pixton
"Trust G: Robert I. Ingalls, Sr., Robert I. Ingalls, Jr., and M. F. Pixton."
The bill of complaint was filed by all of the trustees of the several trusts except Robert I. Ingalls, Jr. He was made a party respondent both individually and as trustee and his two minor daughters Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls were also made parties respondent. These minor children as representatives of all of the descendants of Robert I. Ingalls, Jr. are the primary beneficiaries of all the trusts. They were well represented in these proceedings by a guardian ad litem.
The major questions involved on this appeal grow out of the following rulings made by the court, (1) the declaration of the court that Trusts F and G mandatorily require the distribution of income without respect to the discretion of the trustees and (2) the declaration of the court that Robert I. Ingalls, Jr. should be reimbursed for proper expenditures for maintenance, support, comfort and education made in behalf of his two daughters Elesabeth and Barbara for the period May 13, 1948 to and including December 31, 1949.
This litigation arose out of the failure of the trustees of the trusts to furnish the beneficiaries any support after Robert I. Ingalls, Jr. was discharged as President of the Ingalls Iron Works Company on May 15, 1948 and his salary of $45,000 per year terminated. Prior to that time he as their father had been furnished funds for their support without question when he requested it. Robert I. Ingalls, Jr. took the position that it was the duty of the trustees to provide for the comfort, education, support and expenses of travel of the beneficiaries and also that he should be reimbursed for what he had been forced to spend for that purpose when the trustees refused to furnish it.
The position taken by the trustees contrary to that of Robert I. Ingalls, Jr. was that none of the trusts contemplated disbursements from the trust estate for and to the extent that necessary funds are available from another source, that is, from the father. In other words the position was taken that the trustees should not make reimbursement on the theory that it was the father's legal duty to support his children.
There were ample trust funds available at all times for the support of the beneficiaries. The stock of the Ingalls Iron Works Company owned by them had for years paid an annual dividend of $28,750. The trust estates owned numerous other valuable securities. The Ingalls Iron Works Company made after taxes $2,677,773.53 *299 in 1948 and $1,955,545.19 in 1949. That concern had on deposit $11,000,000 in cash and bonds when this case was tried. There was $116,015.55 cash in the trust estates in 1948 and $129,347.56 cash in 1949.
Trusts B, C and D were each created on December 31, 1938. R. I. Ingalls, Sr. was the donor of Trust B. Ellen Gregg Ingalls, the wife of R. I. Ingalls, Sr., was the donor of Trust C. Robert I. Ingalls, Jr. was the donor of Trust D. The original corpus of each of these trust estates consisted of 500 shares of Ingalls Iron Works Company stock. Each of these indentures contained the recital that the donor had "carefully considered all of the provisions of the within trust indenture." These trust instruments are almost identical in language and each expressed it to be the "sole purpose" of the settlor to assure the beneficiaries "of some degree of financial independence." The beneficiaries of Trust B are Elesabeth Ingalls and any other such grandchildren or descendant of the grantor who may thereafter be born. The beneficiaries of Trust C are Elesabeth and Barbara Ingalls and Robert I. Ingalls' descendants "hereafter born." The beneficiaries of Trust D are Eleanor Flick Ingalls so long as she is the wife of Robert I. Ingalls, Jr. and his descendants "heretofore or hereafter born." There is no contention that Eleanor Flick Ingalls has now any interest in Trust D as beneficiary and no denial that her interest merged with that of Elesabeth and Barbara Ingalls after her divorce from Robert I. Ingalls, Jr. Trust E was executed December 27, 1941. Robert I. Ingalls, Sr. was the settlor. In a preamble to the indenture the settlor expressed a desire "to see his descendants safely and adequately provided for" against the catastrophe of postwar depression as well as a desire to establish a "back-log against the hazards of time and of their youth and inexperience." Trust E beneficiaries are Elesabeth and Barbara Ingalls and "such other descendants of Robert I. Ingalls, Jr. as may from time to time during the continuance of this trust be living." The original corpus of Trust E was 1,000 shares of Ingalls Iron Works Company stock.
Trusts F and G were each created on March 15, 1943. Robert I. Ingalls, Sr. was the settlor of Trust F and Ellen Gregg Ingalls the settlor of Trust G. The corpus of Trust F was 2,000 shares of Ingalls Iron Works Company stock and the corpus of Trust G was originally 500 shares of Ingalls Iron Works Company stock. The beneficiaries of Trusts F and G are Elesabeth and Barbara Ingalls and such other descendants of Robert I. Ingalls, Jr. "as may from time to time be living" during the existence of each trust. The provisions of Trust F and Trust G are substantially the same except that there is some variation in their respective preambles, both preambles, however, being designed to convey the same general idea. We set out the parts of Trust F which are regarded as material, as follows:
"Whereas, having gone through the period since the first World War and having witnessed many accumulations of years of effort swept away, and desiring to see his descendants safely and adequately provided for against the possibility of such a catastrophe, and desiring to establish a backlog for the protection of his descendants against the hazards of the time and their own youth and inexperience, the Grantor has long followed a policy of making liberal gifts in trust to his descendants heretofore or hereafter born;
"Whereas, commencing in the year 1925, the Grantor has been gradually relinquishing control of the business of The Ingalls Iron Works Company and its subsidiaries by making gifts of his stock interests therein to his son, Robert I. Ingalls, Jr., and to the children and descendants of said son;
"Whereas, the said policy of the Grantor has been further motivated by (a) a desire and determination to provide such descendants with an income, so that they may be assured of some degree of financial independence, irrespective of any adverse effect which changing conditions may hereafter have on the Grantor's remaining and independent estate, (b) the excessive rates of income taxes imposed by the Federal Government and the State of Alabama and *300 (c) the ultimate desire of the Grantor to retire from business; and
"Whereas, the Grantor is desirous of further effectuating and carrying out said policy by providing such children and descendants of said Robert I. Ingalls, Jr., heretofore or hereafter born, with further income so that they may be assured of an added degree of financial independence, irrespective of any adverse effect which changing conditions may hereafter have on the Grantor's remaining and independent estate, by the execution and delivery of these presents.
* * * * * *
"The Trustees shall have the power to set up from time to time out of income such reserves for depreciation, taxes, or other possible expenditures or contingencies as they deem necessary or desirable.
* * * * * *
"(b) The Trustees shall hold said trust estate in trust for the use and benefit of Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, both children of the Grantor's son, Robert I. Ingalls, Jr., and of such of any other descendants of said Robert I. Ingalls, Jr., as may from time to time during the continuance of the trust be living. So long as any such descendant shall be under the age of twenty-one years, the Trustees shall use and apply for his or her support, comfort and education his or her pro rata share of the net income from said estate.
"From and after the time when such descendant of the said Robert I. Ingalls, Jr. shall attain the age of twenty-one years, and during the continuance of this trust, the Trustees shall thereafter pay over to such descendant his or her pro rata share of the income from the trust estate as the Trustees deem such descendant from time to time capable of wisely expending or managing. Any portion of any such descendant's pro rata share of income from the trust estate not distributed to such descendant under the foregoing provisions shall be added to the principal of the trust estate but may be distributed to such descendant by the Trustees subsequently if and when they deem such descendant capable of wisely expending and managing the same. Any such portion so added to the principal shall be segregated on the books of the Trustee so as to be clearly available for such distribution.
* * * * * *
"It is intended that the Trustees shall so far as is practicable exercise their discretion in making distributions hereunder so as to provide approximately equal treatment per stirpes for each child of the Grantor's son Robert I. Ingalls, Jr., and for the descendants of any deceased child of said son. It is recognized, however, that because of the different ages of descendants, of the probable fluctuations in the values of property, of the possible birth of other beneficiaries after distributions have been begun hereunder, and of the varying needs, sources of other income, and conduct, of the various beneficiaries hereunder, differences as to distributions to the several beneficiaries hereof may result. The Trustees are not required to equalize such differences in distributions but there is vested in the Trustees hereunder full power and authority in the absolute exercise of their discretion to equalize or adjust as between beneficiaries differences which may grow out of distributions made hereunder, so as to provide to the extent deemed practicable, just and consistent with the purposes of this trust, substantially equal benefits throughout the duration of the trust to all descendants of the Grantor's son, Robert I. Ingalls, Jr., per stirpes.
* * * * * *
"Upon the termination of the trust, the Trustees shall transfer and pay over the property then constituting said trust estate to such of the descendants of the Grantor's said son, Robert I. Ingalls, Jr., as may then be living, in equal shares per stirpes; Provided, However, that in the event any such descendant shall not at said time have attained the age of twenty-one years, then though the share of such descendant in said trust estate shall be deemed then to have vested in him or her the Trustees shall continue to hold the same in trust for him or her until he or she shall attain said age, using and applying for his or her support, education and comfort such part of *301 the net income of his or her said share of said trust estate and of the principal thereof as the Trustees deem necessary or desirable for said purposes."
It thus appears that Trusts B, C and D were executed on the same day and Trusts F and G were executed on the same day. The settlors are members of one family. The beneficiaries of all six trusts are identical except that Eleanor Flick Ingalls was a beneficiary of Trust D so long as she was the wife of Robert I. Ingalls, Jr. It appears that each trust indenture was prepared with the advice of legal counsel. When Trust B was created Robert I. Ingalls, Jr. was earning a salary of $45,000 a year and was receiving $22,500 in dividends on Ingalls Iron Works Company stock owned by him. In addition he was receiving income as one of the beneficiaries of Trust A. He owned various other valuable securities. His salary continued until May 15, 1948 when he was discharged as President of Ingalls Iron Works Company. When this case was tried he was living in the same elaborate home in which he resided when the trust instruments were executed. His parents were fully familiar with their son's financial condition when each trust was created. His father and mother owned all of the outstanding stock of Ingalls Iron Works Company not owned by their son or by these trust estates and Trust A. Together they owned 3,694 shares of outstanding 15,000 shares of stock of that company.
I. One of the two main contentions made by Robert I. Ingalls, Sr. and his wife and the guardian ad litem is that Trusts F and G do not direct the trustees to use and apply for the support and education of the beneficiaries during their minority the net income of these trust estates, but that they confer upon the trustees discretion to say whether or not any such income should be so used or to determine the amount of such income to be so used.
The trustees in their bill of complaint ask the court for instructions as to whether Robert I. Ingalls, Jr. should be reimbursed from one or more of the trust estates made for the support, education, maintenance and comfort of the minor respondents and if so, from what trust estates should the same be gathered and in what proportions. In reaching its conclusions the court, among other things, made the declarations which have been heretofore referred to. This brings us to a consideration of the construction which should be accorded the following provision which appears in the first paragraph of paragraph (b) of Trust F and the first paragraph of paragraph (b) of Trust G as follows: "So long as any such descendant shall be under the age of 21 years, the trustees shall use and apply for his or her support, comfort and education his or her pro rata share of the net income from said estate."
The court took the view that the foregoing language is clear and unambiguous and means that payment of income, while the beneficiaries are minors, is mandatory and further that, if considered, the provisions of the other trusts, emphasize this view. The appellants insist that this provision should not be lifted from its context, but should be construed with the other provisions of the trust instrument in which it appears, with the result, as they contend, that payment of income during the minority of the beneficiaries is discretionary with the trustees. The problem here raised means that the intention and purpose of the settlor must be ascertained, since the intent and purpose of the settlor is the law of the trust. Thurlow v. Berry, 249 Ala. 597, 32 So. 2d 526; Lovelace v. Marion Institute, 215 Ala. 271, 110 So. 381. And it is a primary rule of construction that the settlor's intent and purpose must be gathered from the whole instrument, conflicting clauses being reconciled if possible. Blackwell v. Burketts, 251 Ala. 233, 36 So. 2d 326; Watters v. First National Bank, 233 Ala. 227, 171 So. 280. With these principles in mind, we consider that the direction contained in the first sentence of paragraph (b) of Trusts F and G, which has been hereinabove set forth, is unambiguous and explicit. The direction to apply the income of the trust to the comfort, support and education of the beneficiary during the minority means that expenditure of the income for the comfort, support and education of the beneficiaries is mandatory. *302 This provision is not obscured or modified by the other provisions in the instrument. The right to set up reserves out of income for taxes, depreciation and other possible expenditures and contingencies is not inconsistent with the direction to use and apply the income, but on the contrary is designed to further and keep in continued well being the condition of the trust, so as to make expenditures of income reasonably possible. In fact the quoted provision shows that only disbursement of net income to the beneficiaries is contemplated. The general purpose of setting up a backlog for the security and independence of the beneficiary is not inconsistent with the foregoing mandatory direction. In these matters it should be kept in mind that the trust does not end with the minority of the beneficiaries, but continues into the period after the minor becomes an adult when, under the provisions of the trusts, the discretion of the trustee may prevail as provided in the trust. Then further owing to the difference in age of the two living beneficiaries (one was 7½ years old and the other 4½ years old when the trusts were established) and the possibility of such difference in age of other beneficiaries that might be born, a situation could develop where there must be an expenditure for one beneficiary when a minor and not for one who has reached majority. Finally if the desire for a backlog to establish security evidences a purpose to give discretion to the trustees as to the expenditures to or for the beneficiaries, why was it thought necessary to confer expressly such discretion to be exercised during the time after the beneficiary reaches majority? The fact that such discretion was then conferred but not given during minority is of obvious significance.
As we understand the matter it is not contended by Robert I. Ingalls, Jr. that all of the income of Trusts F and G must be expended for the support, education, maintenance and comfort of the minor beneficiaries as soon as it is earned. There is no requirement in either of the trust instruments to that effect. What may be required for their support and maintenance for one period may differ from that required for another period, but the net income of Trusts F and G not expended is intended to remain in the trust as such income to meet the future needs of the beneficiaries which may arise. The trustees have no right to withhold any part of it so long as it is needed for the comfort, support and education of the beneficiaries, nor do they have a right to treat it as a portion of the corpus of the estate or to use only so much of the net income as they, in the exercise of their discretion, consider necessary or desirable for that purpose. It is the command of the settlors in each of Trusts F and G that the net income of these trusts is to be used and applied for the support, education, maintenance and comfort of each minor beneficiary so long as such beneficiary is under 21 years of age. The wisdom of these instructions is not for the trustees to question. If they desire for themselves to make expenditure of the income for these purposes they are given the privilege of so doing. If they prefer to turn over this income to a third person of their selection to so use and apply the same there is nothing to prevent such action. In both Trusts F and G (as well as in each of the other trust instruments), appears the following: "Where it is herein directed that funds shall be used and applied by the trustees for the benefit of any beneficiaries, the trustees may, in their discretion pay over such sums to the person having custody of such beneficiary, or to such other person as they may select, including the beneficiary, to be used and applied for the purposes herein directed, and the receipt of such person shall be full discharge to the trustees as to any sums so paid."
The settlors knew the probably income which would be derived from the stock put in trust. They evidently wanted to have a generous part in the support, comfort and education of those designated as beneficiaries. Overabundance of funds available to the minor beneficiaries should not result because while the trustees have no right arbitrarily to withhold from use income from the trusts needed for the comfort, support and education of the beneficiaries during minority, still the mandatory duty *303 resting on the trustees does not require them to use or expend amounts in excess of what is reasonable and proper for the support, comfort and education of the minors according to their station in life. If there is any question as to what is reasonable and proper to be used or expended for the benefit of the minor beneficiaries, this is a legal question to be determined by judicial decree, if necessary, but is not a matter which can be determined within the discretion of the trustees.
The trust agreement expresses a desire that the trustees in the "exercise of their discretion in making distributions" will provide approximately equal treatment for each of the children of Robert I. Ingalls, Jr. and their descendants. It is recognized that because of the different ages of the descendants, of the probable fluctuations in the values of property, of the possible birth of other beneficiaries after distributions have begun and the varying needs, sources of other income and conduct of various beneficiaries hereunder, differences as to distributions to the several beneficiaries may result. It is contended that the discretion here mentioned applies to the use and application of the net income for the support and maintenance of the minors under 21 years of age. It seems to us, however, that the settlors were referring to the discretion they had previously given the trustees in making certain distributions. For example, the trustees were vested with discretion after each beneficiary attained the age of 21 years to pay over to him such income as they deemed him capable of wisely expending or managing. The trustees were also given the discretion of subsequently paying over to each adult beneficiary so much of the income as they had previously withheld if and when they later deemed him capable of wisely managing and supervising it. The trustees had also been given the absolute discretion to use and apply the principal for the support and welfare of any beneficiary, adult or minor, affected by an emergency. We think that these were the discretionary rights to make distributions to which the settlors referred when they expressed a desire to have the trustees "provide approximately equal treatment" in making distributions to beneficiaries.
The second sentence, second paragraph of paragraph (b) of Trust F reads as follows:
"Any portion of any such descendant's pro rata share of income from the trust estate not distributed to such descendant under the foregoing provisions shall be added to the principal of the trust estate but may be distributed to such descendant by the Trustees subsequently if and when they deem such descendant capable of wisely expending and managing the same."
It is argued that the use of the plural "provisions" results in making the sentence last above quoted qualify not only the last sentence of the first paragraph of paragraph (b), but also the first sentence of the second paragraph of paragraph (b). This does not appear to us to be a correct construction. On the contrary we think that the settlors of each trust intended to provide (1) for the use and application of the net income for the support of the minor beneficiaries and (2) to provide for the discretionary payment of some income directly to adult beneficiaries so long as the trusts existed. The words "foregoing provisions" refer naturally and normally to the provisions governing the distribution of income to adult beneficiaries mentioned in the preceding sentence.
II. But if it be assumed that the provision of Trusts F and G, "* * * So long as any such descendant shall be under the age of twenty-one years, the Trustees shall use and apply for his or her support, comfort and education his or her pro rata share of the net income from said estate", is rendered ambiguous or of doubtful import by a consideration of all the provisions in the instrument, we still are of the view that this provision should be considered mandatory, as we shall undertake to show. If the provision is ambiguous and of doubtful import we can look to the circumstances attending the execution of the instrument, the relationship of the parties and what was within their mutual knowledge. McGhee *304 v. Alexander, 104 Ala. 116, 16 So. 148; Scheuer v. Britt, 218 Ala. 270, 118 So. 658; 32 C.J.S., Evidence, § 960, p. 907.
As we have pointed out all of the trusts on which instructions are asked have a relationship to each other. Both settlors and the beneficiaries belong to one family. All trusts were prepared with the advice of legal counsel. Trusts B, C and D were executed the same day and Trusts F and G were executed the same day. All of the trusts are part of a general scheme or plan to provide for the same beneficiaries, except as to Eleanor Flick Ingalls, as has been pointed out. In the preamble of Trusts F and G there is a reference to other gifts of stock in the Ingalls Iron Works Company to the children and descendants of Robert I. Ingalls, Jr. In considering the circumstances surrounding the execution of Trusts F and G we can look to the provisions of the other trusts for the purpose of ascertaining the purpose and intention of the settlors in Trusts F and G. McGhee v. Alexander, supra; Scheuer v. Britt, supra; 32 C.J.S., Evidence, § 960, p. 907.
In order to consider the provisions of the several trust instruments which deal with the distribution of the income for the support and maintenance of the beneficiaries, we set out the following provisions in this respect which appear in each of the other trust instruments.
Par. (b) of Trust B provides in part as follows: "Until each such descendant shall attain the age of twenty-one years the trustees shall use and apply for his or her support, education, expenses of travel and comfort, such part of his or her share of the net income from said estate and of the principal thereof as the Trustees deem necessary or desirable for that purpose."
Note: Par. (c) of Trust C and Par. (d) of Trust D contain the provisions above quoted except the words "twenty-five years" appear instead of "twenty-one" years.
Par. (b) of Trust E provides in part as follows: "During the continuance of the trust all income from said trust shall be added to and become principal. From the principal so augmented the Trustees shall from time to time pay to or for the use of each of said descendants of Robert I. Ingalls, Jr., such sum or sums as the Trustees may deem necessary for her or his proper support, education and comfort * * * Until each such beneficiary shall attain the age of twenty-five years the Trustees shall use and apply such sums as they in the exercise of their discretion deem necessary or desirable for the support, education and comfort of such beneficiary."
In Trusts B, C and D it is clearly provided that each beneficiary should share in the net income and principal for the purposes indicated, the amount to be distributed to them to be determined by the trustees in the exercise of their discretion. In Trust E there is the equally clear provision that it was left to the discretion of the trustees to determine what sums should be used and applied for the benefit of the beneficiaries until they were 25 years of age and to use and apply to such beneficiaries such sums as they deemed necessary or desirable for their support, education and comfort.
In Trusts F and G no discretion is conferred so long as any beneficiary is under the age of 21 years. The trustees are explicitly directed to use and apply for the support of each beneficiary their pro rata share of the net income from both estates.
The provision above quoted from the first paragraph of paragraph (b) of Trust F and also of Trust G provides for the support and maintenance of the beneficiaries during their minority. As evidencing the mandatory character of this provision of Trusts F and G pertaining to the maintenance of minor beneficiaries we note that in paragraph (b) of Trust B, paragraph (c) of Trust C and Paragraph (c) of Trust D the following provision: "Any portion of the share of such descendant in such net income not distributed currently by the trustees for said purpose may be accumulated by the trustees for such descendant and invested under the powers of investment herein given to the trustees."
Trust E requires the trustees to add income to the principal and empowers them to invest and reinvest the same. Provisions *305 of this character are appropriate to trust instruments, giving the trustees discretion as to the amount of trust funds to be used for the support of beneficiaries. Such provisions would be out of place in Trusts F and G if the purpose of the settlors was to require the net income to be distributed for the support of the beneficiaries. It is important to note that such provisions are not found in Trusts F and G. We also note that in Trusts F and G the trustees are given discretion in case of an emergency "to use and apply such part of the principal of the trust" as the trustees deem reasonable for such purpose. The trustees are not given power to use and apply income for emergency purposes. This is evidently for the reason that so long as any beneficiary is under the age of 21, the net income must be held for support of the beneficiary and after each beneficiary reaches 21, his share of the income is added to and becomes a part of the principal. No such emergency provisions permitting the expenditure of principal is to be found in any of the other trust instruments, because the trustees may properly use income for emergencies.
We further note that in Trusts B, C, D and E with reference to applying such part of each beneficiary's share of net income for his support as the trustees deem necessary or desirable the following provision: "In exercising said discretion the trustees shall have the right to rely upon the statement of the parent or parents of such beneficiary as to the desirability or necessity of such distribution."
In the decree of the lower court construing Trusts F and G the significance of the absence of this discretionary provision from Trusts F and G was noted by the court when it said: "Aside from the positive directions in these Trusts F and G to use the income for the support, education and comfort of the beneficiaries, there is no provision permitting the trustees to rely upon the statement of the parent or parents as to the desirability or necessity for any such distribution. The omission of this provision common to the other trusts is most persuasive that the settlors of Trusts F and G did not wish to leave it to the discretion of the trustees whether they paid the net income therefrom to the beneficiaries."
The first sentence of the second paragraph of paragraph (b) of Trusts F and G reads as follows: "From and after the time when any such descendant of the said Robert I. Ingalls, Jr. shall attain the age of twenty-one years, and during the continuance of this trust, the Trustees shall thereafter pay over to such descendant his or her pro rata share of the income from the trust estate as the Trustees deem such descendant from time to time capable of wisely expending or managing." It is obvious that the foregoing sentence does not mean to provide for the support of minor beneficiaries. It has reference to the distribution of income to such beneficiaries after they reach the age of 21 years and it instructs the trustees to pay over to each such beneficiary so much of his pro rata share of the trust income as the trustees may from time to time deem him to be capable of wisely expending or managing. There seems to be no doubt but what the trustees are given a discretion in distributing trust income to adult beneficiaries or that they may pay such distributions directly to such beneficiary.
Trusts F and G each contain a provision that if there are in being any minor beneficiaries when the trust terminates, his share of the trust estate shall be deemed to vest in him, but that the trustees shall continue to hold the same until he attains his majority and use and apply for his support such part of the income or principal as the trustees deem necessary or desirable. It is contended that this discretionary provision shall be read into the provisions of each of these two trust instruments, which directs the trustees to use and apply for each minor beneficiary his pro rata share of the net income while the trust is in existence. However the fact that the settlors expressly conferred discretion upon the trustees in making distribution for minors after the trust terminates and refrained from conferring upon them discretion in that regard during the existence of the trust, indicates that had they intended to give the trustees discretion in using the *306 net income for the support of minor beneficiaries, they would have said so. But they did not so provide.
It is further insisted that the settlors themselves individually or as trustees have by their conduct placed a construction upon Trusts F and G other than that appearing in the language of the trusts and that such construction must now govern.
The trial court who heard and saw the witnesses was not impressed with this position. Nor do we under the circumstances in the case think that the conduct of the parties should be of controlling importance. Income was never paid at periodic intervals from any of the trusts. Up until about two years ago it seems to have been the practice when Robert I. Ingalls, Jr. wished money for the children from the trusts, it was forthcoming at his request. It is true that his requests were always relatively small, but being a matter entirely within the family there was an informality in handling the trusts which should hardly be regarded as indicating a crystalized interpretation of the meaning of the trusts. The whole situation changed apparently because of a personal difficulty arising between Robert I. Ingalls, Sr. and Robert I. Ingalls, Jr. about two years ago and since that time no income from any of the trusts has been paid to or for the use of the beneficiaries. Looking at the events in their entirety, we do not feel that in this case there has been such a practical construction put on the trusts as would warrant us to interpret the trusts in accordance therewith. Of course if the trusts are not ambiguous or of doubtful import, then the practical construction of the parties is of no importance whatsoever. 32 C.J.S., Evidence, § 960, pp. 908-909.
III. It is very earnestly contended that since it is the common law duty of a father to support his minor children, there is no room for complaint if trustees administering a trust estate set up for the purpose of furnishing such support neglect or decline to perform the trust. The argument is made that the father, who furnished support during the period in which the trustees declined to act, is not entitled to any reimbursement. There is no doubt that under the common law it is the duty of a father to support his minor children. But the question presented here is whether where estates are expressly created for the support, education, maintenance and comfort and expenses of travel of a child during minority, and the instrument creates a mandatory duty on the trustees to use and apply the net income of the estate for such purposes, the fact that the father of beneficiaries is financially able to furnish their support, relieves the trustees of their duty to undertake to perform the trust, when they accepted the administration of the trusts. In the case of Bethea v. McColl, 5 Ala. 308, this court said: "In general, a father is required to maintain his children, if of ability to do so, although they may be entitled to property in their own right. Butler v. Butler, 3 Atkins, 59; Darley v. Darley, ib. 399. Formerly, it appears, to have been considered, that even where the fund was expressly given for the maintenance of the child, the father, if of ability, must, notwithstanding, educate and support him. Andrews v. Partington, 3 Bro.C.C. 60. But that rigorous rule has since been, if not departed from, at least modified, and the court will, in general, direct the trust fund, to be employed as directed by the donor, without reference to the ability of the father. Hoste v. Pratt, 3 Vesey, 729; Sesson v. Shaw, 9 ib. 285; Fairman v. Green, 10 ib. 45."
In Clarke v. Clarke, 246 Ala. 170, 19 So. 2d 526, 527, the trust involved directed the trustee to pay to or for the benefit of his son during his life the net income of the trust property. There was the further instruction giving the trustee the right or power if "the trustee deems best" to use and apply such income "for the comfort, support, and maintenance of my said son and/or his [said] family, if he has a family," instead of paying the trust income to or for the support of the son. Subsequently a daughter was born to the son and his wife and his wife and daughter claimed to be entitled to share with her father in the net proceeds of the trust. The son took the position that he was entitled to all of the income by virtue of the first *307 provision of the trust and that the latter provision should be ignored. At the time the suit was tried the daughter, who was involved, was a minor. In this connection the court said: "If what the testator intended was simply to benefit her son exclusively, leaving the support and maintenance of his family entirely dependent upon his affection, or the performance of the duty exacted of him by law in that regard, then it is difficult to discern why the family should be named in connection with the disposition of the trust (Item 3) and nowhere else."
In 46 C.J. p. 1276, § 66, 67 C.J.S., Parent and Child, § 21, the general rule is stated: "A trust fund created or bequeathed for the purpose of supporting or educating a child may be applied for that purpose, notwithstanding the liability of the father and the fact that he is able to support or educate the child out of his own means."
It is obvious that the question is fundamentally a question of intent. Such is the reasoning underlying the general principle which is stated in 121 A.L.R. p. 197 as follows: "As a general rule, where a gift is given expressly for the support of a child the gift may be so applied without reference to the ability of the parent to furnish that support." (Among the cases cited to support the general doctrine is Bethea v. McColl, supra.)
There is a distinction made by the courts between trust instruments which vest a trustee with discretion to use and apply or not to use and apply trust funds for the support of the beneficiary and trust instruments which vest the trustee with a discretion as to the amount of such funds to be used for that purpose. In Scott on Trusts, Vol. 2, § 187, p. 197, it is stated: "If he (the trustee) is directed to pay so much of the income and principal as is necessary for the support of a beneficiary he can be compelled to pay at least the minimum amount which in the opinion of a reasonable man would be necessary. If, on the other hand he is to pay a part of the principal to the beneficiary entitled to the income, if in his discretion he deems it wise, the trustee's decision would normally be final, although as will be seen the court will control his discretion when he acts in bad faith. (Emphasis and parenthesis supplied.)"
See Hill, Appellant v. Clark, 74 Pa.Super. 181; National Valley Bank v. Hancock, as Trustee, 100 Va. 101, 40 S.E. 611, 57 L.R.A. 728, 611.
Since the beneficiaries of these trusts are under the authorities which have been cited entitled to receive the support for which the several trust estates were created, the furnishing of that support does not depend upon the father's financial ability. Since this is true the father or legal custodian or guardian of the children could come into court and require the trustees to furnish support, if they indicated an intention not to do so. The authorities agree that when such is the situation, the person furnishing support is entitled to what he expends towards the accomplishment of that purpose. In 121 A.L.R. 190, it is said: "In general, the criterion for determining whether the parent should be reimbursed for expenditures is whether the parent would have been given an allowance for such support upon an application therefor in advance, although it has also been held that, `to justify it (an allowance for past expenses) would require a stronger case than to procure an order for a future allowance, or, at least, all the facts requisite for a future allowance and a satisfactory showing why application of such allowance was not made in advance.'"
The lower court made no effort to determine what would be proper to be paid over to the father as reimbursement for furnishing the support which the trustees refused to furnish. On the contrary the court ordered a reference to be held to ascertain and make report in this connection. The hearing before the register was interrupted when this appeal was taken and this hearing will be completed when the case returns to the lower court.
We think the decree of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | June 28, 1951 |
98035570-2173-453b-8012-b34715321c3d | Stevens v. Deaton Truck Line | 54 So. 2d 464 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 464 (1951)
STEVENS
v.
DEATON TRUCK LINE, Inc.
7 Div. 991.
Supreme Court of Alabama.
October 11, 1951.
*465 Embry & Embry, Pell City, and D. G. Ewing, Birmingham, for appellant.
Francis H. Hare and R. Clifford Fulford, Birmingham, for appellee.
LAWSON, Justice.
This is a suit by Freeman Stevens, a minor, who sued by his next friend, Grady Stevens, Sr., against Deaton Truck Line, a corporation, and Walter Roberts to recover damages for personal injuries sustained by the said minor when an automobile in which he was riding as a passenger collided with a motor vehicle driven by Walter Roberts. Liability was sought to be fixed on Deaton Truck Line, a corporation, hereafter referred to as Deaton, under the doctrine of respondeat superior.
At the conclusion of the evidence offered by the plaintiff and both defendants, the trial court granted the motion of Deaton to exclude the evidence as to it. Upon request, the trial court gave the general affirmative charge without hypothesis for the *466 defendant Deaton. This charge amounted to a directed verdict for that defendant. A verdict in favor of Deaton was returned by the jury and judgment was in accord with the verdict. As to the defendant Walter Roberts, the jury was unable to agree and a mistrial was declared as to plaintiff's claim against that defendant.
From the judgment in favor of Deaton, plaintiff appealed to this court. Subsequent to appeal and prior to submission the minor, Freeman Stevens, was killed and this cause was revived in the name of his administrator, Grady Stevens, Sr.
Laying aside the question as to whether it was proper to grant the motion to exclude the evidence, Johnson v. Shook & Fletcher Supply Co., 245 Ala. 123, 16 So. 2d 406; Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710, we come to the question of whether the trial court erred in directing a verdict in favor of Deaton. It is settled that where by the undisputed evidence plaintiff had not shown that he is entitled to recover on his complaint, a court may direct a verdict for defendant, and it is immaterial whether the jury believe the evidence or not. In either event plaintiff has not proven his complaint. Cannon v. Louisville & N. R. Co. et al., 252 Ala. 571, 42 So. 2d 340; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580, and cases cited.
On and prior to May 20, 1947, the defendant Walter Roberts owned a truck-tractor and a trailer which, when operated together, were capable of hauling freight. Deaton was engaged in the business of hauling freight as a common carrier both intrastate and interstate. It had permits or certificates of convenience and necessity issued by the regulatory agency of this and other states and by the Interstate Commerce Commission. On May 20, 1947, Walter Roberts and Deaton executed the following instrument:
"This lease agreement is made this 20th day of May, 1947, between W. E. Roberts, hereinafter called the Owner, and Deaton Truck Line, Inc., hereinafter called Company, as follows:
"1. Owner hereby rents, leases and delivers to the Company the exclusive control of the following described motor vehicle: No. 30-1946 Model Chevrolet, Motor No. DEA-451291, Ala. Tag 1H2-5332 & 1946 Model Alabama Trailer, Serial No. L-46309, 28', Flat, Ala. Tag 1T2-921.
"Upon the terms and conditions set out below.
"2. The Company shall have the exclusive use and control of the said vehicle for the entire term of this lease, and the said vehicle shall be used for the transportation of freight, both intrastate and interstate, under the authority of the Company, and for no other person, Firm or Corporation.
"3. This lease may be terminated by either party after giving the other thirty days written notice of termination; and shall continue for one year from date hereof and from year to year thereafter until so terminated.
"4. The Company agrees to pay as rent to the Owner for the use of said vehicle, the following percentages of gross revenue derived by the Company from the operation of said vehicle, subject to the provisions of other Paragraphs hereof:
"82½ on all freight classified in the National Motor Freight Classification as 6th Class or higher. 87½on all freight Classified in the National Motor Freight Classification as 7th Class or lower.
"5. All identification plates, both State and Federal (but not including license tags) shall be bought in the name of the Company and paid for by the Company, and shall be displayed on this vehicle as long as this lease remains in effect. Upon the termination of this lease, the said plates shall remain the property of the Company and may be removed by it, together with all signs which may be painted on said vehicle. Owner has, or will, deposit $150.00 with the Company to guarantee performance of all provisions of this lease, and agree that any sums expended by the Company to carry out this paragraph hereof, and to reimburse the Company for any expenses caused by the Owner violating any paragraph hereof, shall be deducted from the said deposit; *467 the remainder thereof, if any, shall be refunded to the Owner not less than sixty days after termination of this lease.
"6. Owner agrees to keep the said vehicle in good mechanical condition and repair at his own expense for the duration of this lease, and further agrees to pay all costs of operating same, including without restricting the generality of the above, claims for cargo shortages, gasoline, oil, tires, parts repairs, greasing, tarpaulins, fines for any cause, driver's salary, and permit fees charged by any State for the transportation of property on the said vehicle in such State. For the payment of all his obligations set out in this lease, owner waives all rights of exemption under the Constitution and Laws of the State of Alabama or any other State, and agrees to pay a reasonable Attorney's Fee, if the employment of an Attorney is necessary to collect same.
"7.The Company will pay all mileage taxes imposed by any State for the operation of said vehicle, when operated in accordance with provisions of this lease; and will pay all cargo, property damage and public liability insurance premiums on the said vehicle when used in accordance with the provisions of this lease. The Owner, in addition to the expenses mentioned in Paragraph 6 above, will pay for State License Tags on said vehicle, and pay Collision, Fire, and Theft Insurance premiums on the said vehicle, if any such insurance is carried; and in the event that the Owner is indebted to the Company for any reason, it is agreed that the said Collision, Fire & Theft Insurance must be carried by the Owner in an amount not less than his indebtedness to the Company, payable to the Company and the Owner as their respective interests may appear. Insurance in excess of standard coverage, which may be required from time to time, if any, shall also be paid by the Owner. All Insurance Policies referred to above must be written by Insurance Companies acceptable to the Company.
"8. In the event the driver of the said vehicle violates any rule or regulation of the Interstate Commerce Commission, or any Federal, State or Municipal Law or Ordinance, and as the result of such violation the Company is fined in any Court, Owner will reimburse the Company for such fine and all expenses in connection therewith. Owner will also reimburse the Company for any and all freight charges which the Driver of the said vehicle may collect and fail to remit to the Company.
"9.Owner agrees to buy 300 shares of common stock of the Company at and for the total price of $3,000.00, from any source the Company can secure same for Owner. This purchase price is payable $50.00 per week; and to secure the payment thereof Owner hereby assigns to the Company as agent for the Seller of such stock 12½% of the gross revenue derived by the Company from the operation of the vehicle under this lease, to be deducted from rent payable by Company to Owner under the terms hereof.
"10. In the event Owner defaults in such payments, or terminates this lease agreement, then at the option of the Seller of said Stock, this purchase agreement shall be null and void and Owner forfeits all amounts previously paid on such purchase price. No share of said stock shall be considered paid for in full and delivered to Owner, until the entire number of shares hereby purchased is paid for in full.
"11. The Seller of said Stock has deposited same in escrow to guarantee delivery thereof to Owner when payment therefor has been completed; but all voting rights in such stock shall remain in present owner thereof until purchase price is paid in full as above provided. Interest at the rate of 6% per annum on unpaid balance shall be charged.
"Witness our hands and seals at Birmingham, Alabama, this, the 20th day of May, 1947.
It was the contention of the plaintiff below that by virtue of the provisions of the instrument set out above and the evidence as it related to the manner in which the parties operated under it, the relationship of master and servant existed between *468 Deaton and Roberts. It is clear from this record that the trial court agreed with plaintiff as to such relationship, but excluded the evidence as to Deaton and directed a verdict in its favor on the ground that the evidence was not sufficient to show that at the time of the accident Walter Roberts was acting within the line and scope of his employment.
Agreements more or less similar to the one entered into between Deaton and Roberts have been before the courts of other jurisdictions. In some of the cases the relationship between the parties was held to be that of master and servant and the lessee has been charged with the negligence of the lessor (owner of the vehicle) where the latter at the time of the negligent act was acting within the line and scope of his employment. Gas City Transfer Co., Inc., v. Miller, 107 Ind.App. 210, 21 N.E.2d 428; Universal Carloading & Distributing Co., Inc., v. McCall, 107 Ind.App. 479, 25 N.E.2d 253; Sanford v. Goodridge, 234 Iowa 1036, 13 N.W.2d 40; Rogers v. Silver Fleet System of Memphis, La.App., 180 So. 445; Gulf Coast Motor Express Co., Inc., v. Diggs, 174 Miss. 650, 165 So. 292; Bates Motor Transport Lines v. Mayer, 213 Ind. 664, 14 N.E.2d 91. In other cases it has been held that even though the lessor be said to be an independent contractor, nevertheless the lessee is chargeable with the negligence of the lessor in the carrying out of the undertaking for which he contracted. Kemp v. Creston Transfer Co., D.C., 70 F. Supp. 521; Venuto v. Robinson, 3 Cir., 118 F.2d 679; Hodges v. Johnson, D.C., 52 F. Supp. 488. As we understand the Federal decisions cited above, liability was fixed on the lessee under the rule that "an individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity." Restatement of the Law of Torts, § 428, p. 1149.
We are inclined to agree with the trial court that under the evidence in this case Roberts, when carrying out his duties under the terms of the contract, was a servant or employee of Deaton rather than an independent contractor.
But such status or relationship in and of itself was not sufficient to make Deaton liable for the negligence of Roberts under all circumstances. To recover against Deaton upon the theory of respondeat superior it was incumbent upon plaintiff to show that the act done was within the scope of Robert's employment and was committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer. Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So. 2d 490.
We come now to consider the evidence as it bears on the question of whether Roberts, at the time of the accident, was acting within the line and scope of his authority, and since the trial court directed a verdict in favor of Deaton on the ground that the evidence was insufficient to show that Roberts was acting within the line and scope of his authority, we must view the evidence in its most favorable aspect for the plaintiff. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224. If, when so viewed, a reasonable inference may be drawn from the evidence to substantiate the claimed culpability of Deaton, then the question was for the jury. Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So. 2d 598.
Deaton's place of business, its terminal, was located in the city of Birmingham. Deaton operated almost entirely under lease agreements similar, if not identical, with that which it had with Roberts, although there is some evidence that it owned a few trucks which were operated by drivers employed by it. Deaton operated approximately sixty-five trucks under the lease agreements. Most of the lessors lived in Birmingham. Those living outside Birmingham used their automotive equipment in going to and from their homes. Deaton's officials were aware of such practice, but had never expressly consented to it. Such practice was not forbidden. Most of the equipment owned by residents of Birmingham was stored on the lot at the terminal.
*469 The practice usually followed by the owners, lessors, to determine whether they were to haul freight at a given time was to go to the terminal in Birmingham to see if their name or number was posted on a call board designed and used for that purpose. But the equipment under lease to Deaton was at all times subject to Deaton's orders and the owners were occasionally called at their homes when needed. Sometimes when such calls were made the owner would proceed to the point where the freight was to be picked up without going by the terminal in Birmingham. On occasion the owner would return to his home after making delivery, without returning to the terminal. Roberts had no arrangement with Deaton to call him at his home and he never left his home and went direct to the place where he was to pick up the cargo, but on a few occasions he did return to his home after delivery was completed without going by the terminal.
Roberts lived at Ashville, a town approximately forty-five miles northeast of Birmingham. Roberts usually went through Springville in going to the terminal and returning to his home. That is the shortest and most direct route.
The accident out of which this lawsuit arises occurred at approximately 8 o'clock on the night of Tuesday, September 9, 1947, in Pell City, Alabama, at the intersection of Railroad Avenue and Highway 25. The automobile in which plaintiff below was riding was moving in a northeasterly direction along Railroad Avenue and the vehicle driven by Roberts was travelling in a northerly direction on Highway 25.
Roberts had hauled no freight for Deaton on the day of the accident nor for a week prior thereto. But he was at the terminal on the day of the accident and, while the evidence does not show affirmatively the purpose of his visit, we think the evidence supports the inference that he was there to see if it was his time to haul freight. While at the terminal on the day of the accident, Roberts came in contact with one Walker, who operated his automotive equipment under an agreement with Deaton similar to that under which Roberts operated. Walker told Roberts that one Harper, who lived at Easonville, a small town a few miles south of Pell City, was interested in buying his equipment. Roberts decided to contact Harper.
At about 4:00 p.m. on the day of the accident, Roberts and Walker left Deaton's terminal in Birmingham enroute to Harper's home in Easonville. Roberts was riding in his truck-tractor. The trailer was not attached, but was left in the yard at the terminal. Walker followed in his truck. They proceeded in an easterly direction until they reached Leeds, where Roberts had some repairs made on the engine of his truck-tractor, which repairs were necessary to correct a defect occurring subsequent to leaving Birmingham. The cost of the repairs was paid by Roberts. After such repairs were made, Roberts and Walker continued to drive their respective motor vehicles in an easterly direction until they reached Pell City, approximately thirtyfive miles from Birmingham, and almost due east of Birmingham. Upon reaching Pell City, they turned south and proceeded to Cropwell, a small town two or three miles south of Pell City. Walker lived at Cropwell, and upon reaching his home, he left his truck and entered the truck-tractor of Roberts. Roberts and Walker then rode in the former's vehicle to Easonville, a short distance south of Cropwell. Upon arriving at Easonville they contacted Harper. The only matter discussed with Harper was the sale of Roberts' equipment. Negotiations were not completed at that time. However, a few days after the accident, Roberts sold his equipment to Harper and at the time of the trial Deaton's name still appeared on the cab of the truck-tractor. On the day of the accident, Roberts and Walker, after concluding the conversation with Harper, drove in a northerly direction in Roberts' truck-tractor until they reached Cropwell, where Walker got out. Roberts then continued on toward Pell City enroute to his home in Ashville, eighteen or nineteen miles north of Pell City. As before indicated, at the time of the accident Roberts was travelling in a northerly direction, on Highway 25, which highway led to his home.
*470 At the time of the accident Roberts' truck-tractor bore an Alabama license, which had been paid for by him and which was issued in his name. On the cab of the truck-tractor was painted "Deaton Truck Line" and the numbers of the permits issued by the various regulatory bodies to Deaton. This painting had been placed on the cab by some one selected by Deaton, but whose services were paid for by Roberts.
Deaton had no knowledge of the fact that Roberts was going to see Harper or that he would be in the vicinity of the place where the accident occurred.
Any evidential value from the fact that Deaton's name was on the vehicle was removed by the concession that the vehicle was at the time of the accident owned by Roberts. In Venuto v. Robinson, supra, 3 Cir., 118 F.2d 681, wherein the liability of a lessee under an agreement similar to the one between Deaton and Roberts was involved, it was said: "* * * Although the trailer bore the name of the Ross company thereon, it was conceded by the plaintiffs that Robinson was the owner of the tractor and trailer. Since a finding of agency arising out of the name on the vehicle depends upon the inference that the vehicle is owned by the person whose name appears thereon, Wigmore on Evidence, 3d Ed., § 2510a, the concession of ownership in Robinson removes any evidential value from the fact that Ross' name was on the vehicle." There is nothing in this record to show that Deaton ever sought to control the use of Roberts' automotive equipment except as to its use in hauling freight. The fact that Deaton had the power to prevent the lessor from using such equipment as a means of transporting himself does not, in our opinion, in and of itself make Deaton responsible for the negligence of the owner, lessor, when so used.
It is clear to us that the view of the evidence most favorable to the plaintiff is that Roberts had completed his mission with Harper, which was purely personal, and at the time of the accident had resumed his journey from the terminal to his home. In other words, at the time of the accident, Roberts, an employee of Deaton, was returning to his home at Ashville from Deaton's terminal, where he had been to see if there was any work for him, in the trucktractor which he owned, but which was leased to Deaton and which, under the terms of the lease agreement, Deaton had the right to control. However, he was not travelling the shortest route and that usually travelled by him in going to and returning from the terminal.
Deaton's right to control under the provisions of the agreement was certainly no greater than if he had owned the vehicle. In Smith v. Brown-Service Ins. Co., supra [250 Ala. 613, 35 So. 2d 493] we said: "The general rule is that an employee using an automobile, whether belonging to his master or to himself, in going to and from his place of work, is not at such times regarded as engaged in work for his master but is acting solely for his own purposes. [Authorities cited]."
We can see no possible benefit which Deaton could have derived from the trip which resulted in the accident. No freight was being hauled and none could be hauled until the trailer was attached. As before shown, it was in Birmingham at Deaton's terminal.
We are clear to the conclusion that the evidence in this case, when viewed in the light most favorable to the plaintiff, fails to show that at the time of the accident Roberts was engaged in the accomplishment of objects within the line of his duties or in or about the business or duties assigned to him by his employer, but does show that at such time Roberts was driving the truck-tractor on a mission of his own for his sole benefit. It was, as far as this record discloses, entirely immaterial with Deaton as to how Roberts got from his home to the terminal and back to his home. Such being the nature of the testimony, we think the trial court's action in directing a verdict for Deaton was correct. Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338; Smith v. Brown-Service Ins. Co., supra; Ware v. Roadway Express, Inc., D.C., 81 F. Supp. 893; Kirtland v. Interstate Motor Freight System, 53 Ohio App. 459, 5 N.E.2d 707.
*471 The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER, SIMPSON and GOODWYN, JJ., concur. | October 11, 1951 |
9d6813fd-8359-4615-8625-f844197bd582 | Frost v. Johnson | 54 So. 2d 897 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 897 (1951)
FROST
v.
JOHNSON.
2 Div. 297.
Supreme Court of Alabama.
November 1, 1951.
*898 Harry W. Gamble, Selma, for appellant.
Thos. G. Gayle, and John W. Lapsley, Selma, for appellee.
STAKELY, Justice.
This appeal is taken by appellant (plaintiff below) to review the action of the trial court in granting the defendant's motion to set aside the verdict of the jury and the judgment entered thereon and to grant a new trial in the cause. The only error assigned on this appeal is based on this ruling.
The verdict of the jury in favor of the plaintiff against the defendant was rendered on count 1 of the complaint in the amount of $800. Count 1 is an action of trespass quare clausum fregit. This count substantially follows form No. 28, § 223, Code of 1940, Tit. 7, and is as follows: "The plaintiff claims of the defendant Three Thousand ($3,000.00) Dollars damages for trespass by the defendants on the following tract of land, namely; West half of Northwest quarter Section 34, Township 17, Range 11, lying west of Beech Creek, in Dallas County, Alabama, belonging to the plaintiff and for cutting timber upon said land, on various dates from to-wit: March 1, 1948, to August 21, 1948."
Norma Ward Frost (appellant) instituted the action. She is the daughter of William C. Ward and Sarah Ward, both deceased. The will of her father was introduced in evidence. He died in 1926. Under Item Fourth of the will the lands described in the complaint (a part of the "Ward Place"), were devised "to my said wife, Sarah Marley Ward and to my daughter Norma Ward Frost for and during the natural life of my said wife and daughter and at the death of the survivor to be and become the property of my grand children, and should any one of my grand children be dead leaving child, children or descendants of children surviving, then the children or descendants of such dead grandchild shall take the interest of such dead parent."
The following provision, among other provisions, is contained in Item Ninth of the will: "In the event my Grand Children die without leaving children or the descendants of children and their being no direct descendant of my blood, then in that event, whether such deaths occur before the death of my said wife and daughter or after, then, the property herein disposed of shall become the property of the next of kin, of my blood."
Appellant's mother died in December, 1935.
D. L. Johnson (appellee) in 1948 shortly before the alleged trespass purchased the Smith Place, which adjoins the Ward Place and lies immediately east of the Ward Place. There is testimony tending to show that for many years a wire fence in the middle of Beech Creek was used as a boundary fence between the Smith Place and the Ward Place and that Beech Creek was the boundary line at this point. Tendencies of the evidence further show that in 1939 J. C. Petty, the son-in-law of appellant, who was looking after the Ward Place for the appellant, in order to avoid repair and replacement of the wire fence which was located in the middle of Beech Creek constructed a new fence along the west margin of Beech Creek on higher ground. This new fence has since been maintained and was so located at the time of the alleged trespass in 1948.
The alleged trespass in the present case arose out of the cutting of trees west of Beech Creek which grew along the margin of the creek but east of the fence as located in 1939. The testimony shows that 77 trees were so cut by employees of the appellee at appellee's direction in 1948 soon after the purchased the Smith Place.
There is testimony tending to show that the land described in the complaint was worth approximately $3,000 before the cutting of the trees and worth approximately *899 $1500 thereafter. There was no injury to the land except for the cutting of such trees.
The evidence is in conflict with reference to the possession of the strip of land along the west side of Beech Creek on which the trees grew which were cut. This evidence has been considered with due care but since as, we shall undertake to show, the ruling of the lower court in setting aside the verdict and judgment must be affirmed, we forego discussion here for fear its consideration in further litigation might be prejudiced thereby. German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 170 So. 211.
The motion for a new trial assigned various grounds, including (1) that the verdict was contrary to the evidence, (2) contrary to the law, (3) the court erred in refusing to give certain written charges requested by the appellee and (4) that the verdict was excessive. Among the written charges requested by the appellee and refused by the court are Charges No. 8-A and 9-A to the effect that the owner of a life estate in lands is not entitled to recover damages for the cutting of timber therefrom.
On appeal from a judgment of the trial court granting a new trial this court will not reverse unless the evidence plainly or palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738; German-American Wholesale Optical Co. v. Rosen, supra; Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504.
As we have indicated possession of the land upon which the trees grew which were cut presents an issue of fact and we cannot say that on this issue the evidence plainly or palpably supports the verdict for the plaintiff. The gist of an action of trespass is injury to plaintiff's possession. Lacey v. Morris, 215 Ala. 302, 110 So. 379. And to recover for trespass on land the plaintiff must have been in possession, actual or constructive, at the time of the commission of the trespass. Kay v. Adams, 223 Ala. 33, 134 So. 628. Furthermore it is settled that constructive possession of land resulting from legal title is sufficient to support an action of trespass to the land, where the person committing the trespass is not in adverse possession at the time of the trespass. Landrum v. Davidson, 252 Ala. 125, 30 So. 2d 662; Green v. Marlin, 219 Ala. 27, 121 So. 19.
Under the terms of the will of William C. Ward a life estate was devised to the testator's wife and his daughter (appellant) in the land and on the death of the survivor the remainder interest is devised to the grandchildren of the testator, as hereinabove set forth. The proof shows that the wife of testator was dead and therefore the appellant as survivor owned a life estate in the lands with provisions for vesting the remainder interest on her death. The contingent remainder provided in Item Ninth of the will under which the remainder interest might revert to appellant (daughter of testator) in the event of the death of testator's grandchildren without leaving children or descendants of children, cannot be considered in this case for the reason that such contingency was not shown by the proof to have happened. The burden was certainly on the plaintiff to show that such contingency had happened in order to show that she owned the entire interest in the property. Under the proof neither the court nor the jury were warranted in concluding or assuming that appellant owned anything other than a life estate.
It is the settled law in this state that a life tenant in an action of trespass to land may recover nominal damages or actual damages done to the soil or to his possession but is not entitled to recover for the value of timber cut from the lands. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A.,N.S., 663; Daffin v. C. W. Zimmerman Mfg. Co., 158 Ala. 637, 48 So. 109; First Nat. Bank of Mobile v. Wefel, 252 Ala. 212, 40 So. 2d 434; Guest v. Guest, 234 Ala. 581, 176 So. 289; Jones v. Sandlin, 205 Ala. 67, 87 So. 850.
To sum up the situation assuming that the evidence showed that the defendant was in the actual possession of the land at the time the timber was cut, it was necessary for the plaintiff to introduce evidence *900 showing title in her under which she may be construed as in the constructive possession of the land, if the defendant is not shown to be in adverse possession. Since the only title shown in the plaintiff was a life interest in the lands and the life tenant under the evidence could not recover for more than nominal damages, it is obvious that the court was justified in setting aside the verdict and the judgment thereon. We say that the plaintiff could not recover more than nominal damages because there is no proof which shows the difference in value of plaintiff's possessory rights before and after the cutting. Garnett Smelting & Development Co. v. Watts, 140 Ala. 449, 37 So. 201; Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A.,N.S., 663; Zimmerman v. Shreeve, 59 Md. 357; 31 C. J.S., Estates, § 67, page 88.
It is sought however to justify the verdict on the theory that the plaintiff was entitled to nominal damages and the balance of the recovery can be attributed to a finding for punitive damages. The court in its oral charge instructed the jury to the effect that punitive damages were not recoverable under counts 1, 2 or 3 but only under count 4, which alleged that the timber was willfully and maliciously cut. There were no exceptions to the oral charge. In fact it was announced by counsel that the charge was satisfactory. The charge of the court under the circumstances became the law of the case. Penticost v. Massey, 202 Ala. 681, 81 So. 637.
Furthermore there is no proof of a trespass intentionally and purposely committed in a known violation of the owner's rights and without lawful excuse or justification. Foust v. Kinney, 202 Ala. 392, 80 So. 474; Stockburger v. Aderholt, 204 Ala. 557, 86 So. 464. The appellee made inquiry of various tenants on his place as to the location of the western boundary line of the Smith Place before he ordered the timber cut and was informed that the fence on the west side of Beech Creek marked the boundary between these two places. This strip of land was used for a pasture for the tenants of the Smith Place and had been so used since 1939. There was no testimony of any warning, protest or objection given to appellee with reference to cutting the timber. Nor was there any proof of actual knowledge on the part of the appellee that the fence on the west side of Beech Creek was not located along the boundary line between the Smith and Ward Places.
William C. Ward died in 1926. Accordingly the statute which was enacted in 1939 and which now appears as § 75 et seq., Title 58, Code of 1940, can have no application. We make this statement to show that there has been no consideration of this statute in respect to the present case but not to imply that, if considered, the statute would in any way affect the result.
It follows from what we have said that the judgment of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and FOSTER, JJ., concur. | November 1, 1951 |
183b4e4b-6527-4d05-b7c7-7ec3adac848a | Foreman v. Dorsey Trailers | 54 So. 2d 499 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 499 (1951)
FOREMAN
v.
DORSEY TRAILERS, Inc.
4 Div. 622.
Supreme Court of Alabama.
October 11, 1951.
Rehearing Denied December 21, 1951.
*501 C. L. Rowe, Elba, for appellant.
Dryer & Dryer, Birmingham, for appellee.
FOSTER, Justice.
This suit comes here on a nonsuit taken by appellant, plaintiff below, on account of the adverse rulings of the court on the pleading.
Appellant has assigned as error, first, the ruling sustaining the demurrer to counts 1 and 2 as originally filed. Both of those counts were amended and count 1 was later withdrawn before the ruling which precipitated the nonsuit. Count 2 as finally amended was held to be free from the demurrer. Under those circumstances the statute, section 819, Title 7, Code, does not support a review of those rulings. Engle v. Patterson, 167 Ala. 117, 52 So. 397; Alabama Great Southern R. Co. v. H. Altman & Co., 191 Ala. 429, 67 So. 589; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Cauble v. Boy Scouts of Am., 250 Ala. 152, 33 So. 2d 461.
The other assignments of error go to the ruling of the court holding that pleas IX and XI, respectively, are free from the demurrer interposed to them. That ruling precipitated the nonsuit. At the time the ruling was made, there was only one count retained, and that was count 2. Before that ruling was made, plaintiff amended both counts by striking out certain words, and then struck count 1 and again amended count 2 by striking out certain words. So that before ruling on pleas IX and XI, count 2 undertook to claim for a wanton injury to plaintiff, alleging that defendant wantonly injured plaintiff, and struck out that part of count 2 which had alleged that plaintiff "was ignorant of the qualities of said paint and of the fumes or small particles thereof which were caused to be suspended in the air of said room in the operation of said spray guns which were furnished to him by the defendant for the performance of the duties of his employment, and he was ignorant of the effect of the same on the human body and in the human system." The effect of count 2 as last amended is to state facts thought to show the breach of a duty to plaintiff in respect to his place of employment; that his employment was painting truck trailers produced by defendant, in which a spray gun was used which saturated the air with paint fumes and particles which caused lead poison, by reason of insufficient ventilation known by defendant, to have that effect upon the human body and in the human system. The count then alleges that defendant wantonly injured plaintiff by causing him to perform his duties in said room which was not safely ventilated.
We also call attention to the allegation in the count that plaintiff sues under the Employers' Liability Act, Code 1940, Tit. 26, § 326 et seq., for his damages. We observe here, as stated above, that such duty as defendant owes plaintiff as an employee in the respect here indicated is to exercise due care to provide a reasonably safe place in which to perform his duties. His negligent failure to do so gives rise to a simple negligence count when it proximately causes the injuries, and his wanton failure to do so gives rise to a wanton count when it proximately causes the injuries. This is a common law duty enacted *502 by statute, section 12, Title 26, Code, and not dependent upon the Employers' Liability Act. But the designation in a complaint of the law sought to be applied is not fatal though the law so designated does not apply, but there is a law which does apply and it is controlling. It is not in the province of the litigant to designate the law which fixes his cause of action. That would be in effect legislating. Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681; Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894.
Except as modified by statute, a servant assumes the risk of injury caused by a fellow servant. This is the common law doctrine. Boggs v. Alabama Consol. Coal & Iron Co., 167 Ala. 251, 52 So. 878.
The State Employers' Liability Act, section 326, Title 26, Code, modifies this principle in so far as the negligence of a fellow servant is concerned. So that if the complaint counts on the negligence of a fellow servant, the complaint should allege the existence of matter made necessary to that end by the statute, and a general averment of negligence by a fellow servant is not sufficient. Southern Ry. Co. v. Cooper, 172 Ala. 505(8), 55 So. 211; Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62(8), 51 So. 345; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143(1), 10 So. 87; Mobile & O. R. Co. v. George, 94 Ala. 199(4), 10 So. 145.
While this statute refers in terms to negligence, it also includes wantonness. Southern Ry. Co. v. Moore, 128 Ala. 434, 29 So. 659; Louisville & Nashville R. R. Co. v. York, 128 Ala. 305, 30 So. 676; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74. The statute refers to the negligence of defendant also as being within its influence. But if the negligence or wantonness is not that of a fellow servant, a common law duty of defendant is involved. Southern Sewer Pipe Co. v. Hawkins, 192 Ala. 380, 68 So. 271; Southern Iron & Steel Co. v. Boston, 190 Ala. 30, 66 So. 684. As to a safe place in which to work, this duty is also, as we have said, included in section 12, Title 26, Code. When that common law duty is shown by the complaint to exist, it is not necessary to make the allegations required by section 326, Title 26, supra, which are necessary when the complaint may be proven by showing the negligence of a fellow servant. The common law duty of a master to exercise due care to furnish a reasonably safe place to work is not delegable and, therefore, the fellow servant doctrine does not apply. Gentry v. Swann Chemical Co., 234 Ala. 313(3), 174 So. 530; Woodward Iron Co. v. Boswell, 199 Ala. 424, 75 So. 3; Woodward Iron Co. v. Nunn, 205 Ala. 543, 88 So. 659; Langhorne v. Simington, 188 Ala. 337, 66 So. 85; but to maintain its safety, if reasonably safe when the work began, may be delegated, Woodward Iron Co. cases, supra; Southern Brilliant Coal Co. v. McCollum, 200 Ala. 543, 76 So. 901, and as to it the fellow servant doctrine applies. Langhorne v. Simington, supra, 188 Ala. at page 344, 66 So. at page 85.
Therefore, if the place was not reasonably safe as a place in which to work because not properly ventilated, defendant can be made liable if plaintiff's injury was caused by the negligence of a fellow servant and without the aid of section 326, Title 26, Code. The instant count charges the injury of plaintiff to the wantonness of defendant in not providing a reasonably safe place in which to work, knowing the danger to plaintiff by not doing so. It therefore undertakes to charge to the defendant the breach of a common law duty to provide a reasonably safe place in which plaintiff must work. It is not controlled, therefore, by the Employers' Liability Act of Alabama. The complaint shows that the Workmen's Compensation Act, Code 1940, Tit. 26, § 253 et seq., does not apply.
We are remitted, therefore, to the principle of the common law to determine what defenses are available.
Pleas IX and XI, respectively, are as follows:
IX. "For further answer to each count of the complaint, separately and severally, the defendant says that the plaintiff ought not to recover in this case for that the injuries of the plaintiff resulted from an occupational *503 disease for which the plaintiff cannot recover."
XI. "For further answer to each of said counts of the complaint, as last amended separately and severally, the defendant says that the plaintiff ought not to recover in this case notwithstanding the alleged negligence of defendant for that, prior to the occasions complained of, the plaintiff suffered from attacks of paint or lead poisoning and consulted and was treated by Dr. O. N. Edge and was warned by said Dr. O. N. Edge of his susceptibility to illness upon being exposed to the dust or fumes of paint, and was warned not to go back to work as a painter after said illness and, because of said illness and said warning, the plaintiff was aware of the danger to his health from working as a painter and knew and appreciated the danger to himself, because of his said susceptibility to illness from proximity to paint, of working in or around any painting operation, but, nevertheless, in reckless disregard for his own safety, the plaintiff voluntarily again exposed himself to said paint, proximately causing his said disability or damage."
So far as plea IX is concerned, it is no more than the general issue. An occupational disease is one not caused by the wrongful failure of defendant to provide a reasonably safe place in which to work. If the disease thereby caused was occupational, the allegation that defendant wantonly injured plaintiff is not sustained. Woodward Iron Co. v. Craig, Ala.Sup., 53 So.2d 586(6); American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677; Gentry v. Swann Chemical Co., 234 Ala. 313(3), 174 So. 530.
The question as to plea XI is whether the defense commonly known as volenti non fit injuria, as set up in plea XI, is available to defendant to a count charging the wanton breach of a common law duty to exercise due care to furnish a reasonably safe place in which to work.
We have defined that principle as follows in our cases: "It is `founded on the consent, expressed or implied, of the employe, with full knowledge and appreciation of obvious danger and the taking of chances of injury or escape from such threatening situation or condition under which he contracts or voluntarily undertakes to discharge his services. The implication of consent does not arise or exist unless the defect and danger are obviousknown to and appreciated by such employe.' There must be not only a knowledge of the dangerous condition, but also an appreciation of the risk resulting or which may follow. Southern Ry. Co. v. McGowan, 149 Ala. 440(6), 43 So. 378." Johnson v. Louisville and Nashville R. R. Co., 255 Ala. 581, 52 So. 2d 196, 199; Robinson Mining Co. v. Swiney, 206 Ala. 617, 91 So. 476.
Plea XI refers to count 2 as charging a negligent act of defendant, and sets up a defense which may be good to such a count. But when the only wrongful act alleged in count 2 is that it was wanton, it must be treated as a wanton count. Wantonness and negligence are inconsistent claims. Louisville & Nashville R. R. Co. v. Orr, 121 Ala. 489, 498, 26 So. 35; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219; Central of Georgia Ry. Co. v. Chambers, 183 Ala. 155, 62 So. 724; Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406. The ruling must be treated, as we have said, in that light on this review. That count alleges that defendant had knowledge of the effect upon the human body of said fumes and particles of paint arising from the painting operation, and with such knowledge wantonly injured plaintiff by causing him to perform his duties in said room which was not sufficiently ventilated.
We have held that it is erroneous to give a charge to the jury that if plaintiff's negligence in the respect named was the sole proximate cause of his injuries, plaintiff cannot recover on a wanton count. Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So. 2d 200; Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148; Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139.
The same would be true if the charge was hypothesized on plaintiff's wanton conduct. *504 Authorities last above cited. We are here dealing with pleading, but we think the legal result is the same. Plea XI seeks to charge plaintiff with wantonness, which it alleges proximately caused his injuries, and the plea is set up as an answer to a count charging defendant with wantonness.
But volenti non fit injuria is assumption of risk in the nature of wantonness as the sole proximate cause or last clear chance. Johnson v. Louisville & Nashville R. R. Co., supra. As pointed out in A. B. C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So. 2d 511, and Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215, when each party is suing the other on a wanton count, where a collision occurred, neither suit should be defeated by plaintiff's wantonness. Under our decisions plaintiff's wantonness proximately contributing to his injuries, is not a good defense to a count charging defendant with the wanton injury of plaintiff. Alabama Power Co. v. Kendrick, supra, and other cases cited above. It is not so reasoned by all the authorities. 45 Corpus Juris 982. 65 C.J.S., Negligence, § 131. See, A. B. C. Truck Lines v. Kenemer, supra. But such is the settled law of Alabama.
In the case of Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74, there was a count charging a wanton breach of the duty enjoined by the Employers' Liability Act not to permit defective ways, works or plant to continue, containing the statutory allegations. Charge 26 was given for plaintiff, which was held to be without error. The Court held in effect that the principle of volenti non fit injuria was no defense to a wanton count. It is good to a count based on negligence, but not to one on wantonness. This principle is well supported. Louisville & Nashville R. R. Co. v. Orr, supra (6), page 499; Davis v. Smitherman, 209 Ala. 244(4), 96 So. 208, 211, (pleas 5 and 10, page 247). It is said in the Orr case, supra, 121 Ala. at page 499, 26 So. at page 42, that a plea which alleged "that the intestate's wantonness and deliberate exposure of herself to the danger which caused her death so contributed to that result as to bar this action," is not a good defense to a wanton count. And in the case of Davis v. Smitherman, supra, it said: "Wanton contributory negligence of the plaintiff would not justify the defendant in wantonly injuring him." In the case of Central of Georgia Railway Co. v. Partridge, 136 Ala. 587, 34 So. 927, the Court said that it was no defense to a wanton count that plaintiff was himself guilty of wanton and reckless conduct in going on said crossing in front of said train.
We think there was error in overruling plaintiff's demurrer to plea XI.
We think we should also give attention to the question argued of whether the complaint needs name the agent of defendant alleged to have been guilty of the wanton injury.
There are some cases which hold that in a suit framed under the State Employers' Liability Act, the guilty servant's name should be given. Louisville & Nashville R. R. Co. v. Bouldin, 110 Ala. 185, 20 So. 325; Southern Railway Co. v. Cunningham, 112 Ala. 496, 20 So. 639; Birmingham Railway & Electric Co. v. City Stable Co., 119 Ala. 615, 24 So. 558; Naugher v. Louisville & Nashville R. R. Co., 206 Ala. 515, 91 So. 254; Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370. But they have no application to such a suit as this one which is not framed to meet the requirements of the Employers' Liability Act, as we have shown. Louisville & Nashville R. R. Co. v. Sunday, 254 Ala. 299, 48 So. 2d 216; Shelby Iron Co. v. Morrow, supra; Western Railway Co. v. Turner, 170 Ala. 643, 54 So. 527.
For overruling the demurrer to plea XI the judgment is reversed and the nonsuit is set aside and the cause restored to the docket for further proceeding.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON and GOODWYN, JJ., concur. | October 11, 1951 |
a5ba7f4d-f7de-41cc-89d6-8c0a5d4d35a0 | In Re Opinion of the Justices | 53 So. 2d 840 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 840 (1951)
In re OPINION OF THE JUSTICES.
No. 127.
Supreme Court of Alabama.
August 20, 1951.
Whereas, there is now pending in the Legislature of Alabama Senate Bill No. 436, conferring upon municipalities in this state certain powers similar to those heretofore conferred by other Southern states upon the municipalities therein, to the end that the municipalities in this state may compete with municipalities in other states for the location of industries; and
Whereas, a number of municipalities in this state contemplate exercising the powers conferred in the said Senate Bill for the purpose of inducing various manufacturing and industrial enterprises to locate in this state, thereby contributing to the achievement of a sound and proper balance of agriculture and industry in this state; and
Whereas, important constitutional questions are presented by said Senate Bill:
Now therefore, Be It Resolved by the Senate of Alabama that the Justices of the Supreme Court of Alabama are hereby respectfully requested to render their written opinion, as provided by Title 13, Section 34 of the Code of Alabama of 1940, on the following important constitutional questions:
1. Will bonds issued by a municipality, pursuant to authorization in the said Senate Bill, constitute indebtedness of the municipality within the meaning of Section 225 of the Alabama Constitution?
2. Will the enactment of the said Senate Bill constitute an authorization of municipalities to lend their credit or to grant public money or thing of value in aid of or to individuals, associations, or corporations, in violation of Section 94 of the Constitution?
The Senate of Alabama
State Capitol
Montgomery, Alabama
Gentlemen:
We are in receipt of Senate Resolution No. 35, propounding to the Justices of this *841 court the following inquiries relative to Senate Bill No. 436, thereto attached:
"1. Will bonds issued by a municipality, pursuant to authorization in the said Senate Bill, constitute indebtedness of the municipality within the meaning of Section 225 of the Alabama Constitution?
"2. Will the enactment of the said Senate Bill constitute an authorization of municipalities to lend their credit or to grant public money or thing of value in aid of or to individuals, associations, or corporations, in violation of Section 94 of the Constitution?"
In answering question numbered 1, we beg to advise that in our opinion the bill attached to the inquiry does not constitute an indebtedness of the municipality within the meaning of Section 225 of the Alabama Constitution for the following reasons:
The purpose of the bill, as stated therein, is to authorize municipalities to acquire and lease self-liquidating projects for the purpose of promoting industry and trade by inducing manufacturing, industrial, and commercial enterprises to locate in the state, promoting the use of the agricultural products and natural resources of the state, and promoting a sound and proper balance in the state between agriculture and commerce and industry. The projects which municipalities are authorized to acquire and lease include properties suitable for use by any combination of two or more of the following: (a) any industry for the manufacturing, processing, or assembling of any agricultural or manufactured products, and (b) any commercial enterprise in storing, warehousing, distributing or selling products of agriculture, mining or industry. Each project is required by the terms of the bill to be self-liquidating; the municipality is prohibited from contributing property or funds to a project, and the entire cost of acquiring and equipping any project is required to be paid out of the proceeds from the sale of bonds issued under the act, except to such extent as any part of the project may be donated to the municipality.
A municipality is authorized to finance the acquisition of any project by the issuance of revenue bonds payable solely out of the revenues from the lease of the project. Before issuing any such bonds, the municipality is required to enter into a lease of that project for such rental and on such terms as shall assure sufficient revenues to pay the principal of and interest on the bonds, maintenance and insurance of the project, and the building up of any reserves deemed advisable in connection therewith. The bill expressly provides that the bonds, which must be made payable solely out of the revenues derived from such a lease, shall never constitute an indebtedness of the municipality within the meaning of any applicable constitutional provision and shall never constitute nor give rise to any pecuniary liability of the municipality or a charge against its general credit or taxing powers.
The bill specifically provides that a municipality shall not have the power to operate any project as a business or in any manner except as the lessor thereof.
This court has many times held that bonds of a municipality payable solely out of revenues from a new project to finance which the bonds are issued does not constitute an indebtedness of the municipality within the meaning of Section 225 of the Constitution. The pertinent rule is stated in Re Opinion of the Justices, 226 Ala. 570, 148 So. 111, 114: "when the city purchases or constructs a system, no part of which has been owned theretofore by it, and no revenue theretofore created from it, the pledge of it and the income from it, with no other obligation of the city to pay the price in any respect does not divert funds or property of the city which could have been used for other purposes nor does it otherwise create a debt. Under such circumstances it would not be affected by section 225 of the Constitution."
The rationale of the stated rule was given exhaustive analysis in the case of Oppenheim v. City of Florence, 229 Ala. 50, 155 So. 859, and in Bankhead v. Town of Sulligent, 229 Ala. 45, 155 So. 869, 96 A. L.R. 1381. The following subsequent cases have affirmed the rule above stated: State ex rel. Radcliff v. City of Mobile, 229 Ala. 93, 155 So. 872; Randall v. State *842 ex rel. City of Tuskegee, 233 Ala. 446, 172 So. 277; Smith v. Town of Guin, 229 Ala. 61, 155 So. 865, and In re Opinion of the Justices, 226 Ala. 18, 145 So. 481.
The foregoing cases involve the construction of statutes providing for the financing of facilities of various kinds by the issuance of revenues securities payable solely out of the revenue to be derived from the facilities to acquire which the securities were issued. And the bonds authorized by Senate Bill No. 436 falls within the scope of the foregoing adjudications by this court. The only substantial feature of Senate Bill No. 436 respecting the bonds and the remedy of the bond holders which differs from the bonds and securities provisions contained in the statutes considered in the above cited cases, is the provision permitting revenue bonds issued under Senate Bill No. 436 to be secured by a mortgage that is subject to foreclosure. But that provision of the presently considered bill was based on In re Opinion of the Justices, 252 Ala. 583, 42 So. 2d 348, 351, where it was said "under our cases and decisions we do not think it is controlling that the mortgage is subject to foreclosure when set up as we have indicated."
We therefore answer inquiry numbered 1 in the negative.
Your second inquiry is whether enactment of the bill will constitute an authorization of municipalities to lend credit or to grant public money or thing of value in aid of or to individuals, associations or corporations in violation of Section 94 of the Constitution of Alabama, 1901.
Section 94 of the Constitution provides: "The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise."
In Re Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175, 178, the Justices summed up their holdings respecting Section 94 as follows: "The constitutional provision now appearing as § 94 of the Constitution of 1901 was originally adopted in substantially its present form as Article IV, Section 55 of the Constitution of 1875. This court has many times considered this constitutional provision and has fully discussed its purpose, the evils it was designed to prevent and the meaning of its language. Garland v. Board of Revenue of Montgomery County, 87 Ala. 223, 6 So. 402, 403. It has been pointed out that the evil to be remedied is the expenditure of public funds in aid of private individuals or corporations, regardless of the form which such expenditure may take, and that Section 94 prohibits, in the words of the decision in Garland v. Board of Revenue, supra, `any aid * * * by which a pecuniary liability is incurred'". [Italics supplied.]
A review of all the cases in which the Courts of Alabama have held a statute or proposed action invalid because in violation of Section 94 of the 1901 Constitution (or its predecessor, Article IV, Section 55, of the 1875 Constitution) reveals that each of those cases has involved the incurring by a municipality or a county of a pecuniary liability. Those cases are the following: Garland v. Board of Revenue of Montgomery County, 87 Ala. 223, 6 So. 402; Southern Railway Co. v. Hartshorne, 162 Ala. 491, 50 So. 139; Rogers v. White, 14 Ala.App. 482, 70 So. 944; Swindle v. State ex rel. Pruitt, 225 Ala. 247, 143 So. 198; Griffin v. Jeffers, 221 Ala. 649, 130 So. 190; Stone v. State ex rel. Mobile Broadcasting Corporation, 223 Ala. 426, 136 So. 727.
An analysis of the bill reveals that although the municipality may acquire an industrial project and may finance its acquisition by the issuance of revenue bonds, yet the pecuniary relationship of the municipality to a project acquired under the bill involves no expenditure of public money and the incurring of no liability that must or can be taken care of by taxation. The bill does not authorize, and indeed prohibits any contribution by a municipality toward the acquisition of a project and the incurring of any pecuniary liability.
Similar legislation has been enacted in several southern states. A Kentucky statute, *843 in many respects similar to Senate Bill No. 436, was considered by the Court of Appeals of Kentucky in Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80. The Kentucky court held that the Act in question and the proposed issue of bonds thereunder did not violate the provisions of the Kentucky Constitution similar to Section 94 of the Constitution of Alabama. The holding of the Kentucky court is based upon the fact that the bonds to be issued by the city were revenue bonds merely and did not constitute general obligations of indebtedness.
None of the evils which Section 94 of the Constitution of Alabama, 1901, is designed to eliminate are involved in the actions of a municipality authorized by Senate Bill No. 436.
To the Senate of Alabama
State Capitol
Montgomery, Alabama
Dear Sirs:
In response to your inquiries embodied in Senate Resolution No. 35 offered by Mr. Andrews, you are advised that it is my opinion that both of the questions posed by the resolution should be answered in the affirmative. I repeat the inquiries.
"1. Will bonds issued by a municipality, pursuant to authorization in the said Senate Bill, constitute indebtedness of the municipality within the meaning of Section 225 of the Alabama Constitution?
"2. Will the enactment of said Senate Bill constitute an authorization of municipalities to lend their credit or to grant public money or thing of value in aid of or to individuals, associations, or corporations, in violation of Section 94 of the Constitution?"
The proposed law if it can be enacted without offending the constitution placing limitations upon the power of the legislature, will be a general law, authorizing all municipalities in Alabama to issue their respective bonds to run for a term of 30 years with the right to refund the same. On the face of the act it proposes to create a debt against the municipality of a limited character, payable out of revenues accruing in the form of rents from the projects mentioned in the bill, which the municipality is authorized to operate as lessor, requiring constant supervision and effort on the part of the governing board and officials of said municipality to procure leases, collect rents and apply proceeds to the amortization of the bonds.
Sections 2 and 3 of the proposed act provide as follows:
"Section 2. Legislative intent. It is the intent of the legislature by the passage of this act to authorize municipalities to acquire, own, and lease projects for the purpose of promoting industry and trade by inducing manufacturing, industrial and commercial enterprises to locate in this state, promoting the use of the agricultural products and natural resources of this state, and promoting a sound and proper balance in this state between agriculture, commerce and industry. It is intended that each project be self-liquidating. It is not intended hereby to authorize any municipality itself to operate any manufacturing, industrial or commercial enterprise. This act shall be liberally construed in conformity with the said intent.
"Section 3. Additional powers conferred on municipalities. In addition to any other powers which it may now have, each municipality shall have the following powers: (1) To acquire, whether by construction, purchase, gift or lease, and to equip one or more projects, which shall be located within this state and may be located within or without the municipality, or partially within or partially without the municipality, but which shall not be located more than fifteen miles outside of the corporate limits of the municipality; (2) To lease to others any or all of its projects for such rentals and upon such terms and conditions as the governing body may deem advisable and as shall not conflict with the provisions of this act; and (3) To issue revenue bonds for the purpose of defraying the cost of acquiring, *844 by construction and purchase, or either thereof, and of equipping any project, and to secure the payment of such bonds, all as hereinafter provided. No municipality shall have the power to operate any project as a business or in any manner except as lessor thereof."
Section 5 of said act provides inter alia:
"Section 5. Security for Bonds. The principal of and interest on any bonds issued under the authority of this act shall be secured by a pledge of the revenues out of which such bonds shall be made payable, may be secured by a mortgage covering all or any part of the project from which the revenues so pledged may be derived, and may be secured by a pledge of the lease of such project. * * * provided, however, that in making any such agreements or provisions a municipality shall not have the power to obligate itself except with respect to the project and the application of the revenues therefrom, and shall not have the power to incur a pecuniary liability or a charge upon its general credit or against its taxing powers. The proceedings authorizing any bonds hereunder and any mortgage securing such bonds may provide that, in the event of default in payment of the principal of or the interest on such bonds or in the performance of any agreement contained in such proceedings or mortgage, such payment and performance may be enforced by mandamus or by the appointment of a receiver in equity with power to charge and collect rents and to apply the revenues from the project in accordance with such proceedings or the provisions of such mortgage. * * * No breach of any such agreement shall impose any pecuniary liability upon a municipality or any charge upon its general credit or against its taxing powers." [Italics supplied.]
In Section 6 it is provided, among other things, that "prior to the issuance of such bonds, the municipality shall lease the project to a lessee under an agreement conditioned upon completion of the project and providing for payment to the municipality of such rentals as, upon the basis of such determinations and findings, will be sufficient (a) to pay the principal of and interest on the bonds issued to finance the project, (b) to build up and maintain any reserves deemed by the governing body to be advisable in connection therewith, and (c) unless the agreement of lease obligates the lessee to pay for the maintenance and insurance of the project, to pay the costs of maintaining the project in good repair and keeping it properly insured."
It is also provided in Section 8 that "The cost of acquiring and equipping any project shall be deemed to include the following: the actual cost of the construction of any part of a project which may be constructed, including architect's and engineer's fees; the purchase price of any part of a project that may be acquired by purchase; the purchase price of the equipment for any project; the actual cost of installing such equipment; all expenses in connection with the authorization, sale and issuance of the bonds to finance such acquisition and equipment; and the interest on such bonds for a reasonable time prior to construction, during construction, and for not exceeding six months after completion of construction."
Section 11 provides:
"Section 11. Exemption from Taxation. The bonds authorized by this act and the income therefrom, all mortgages executed as security therefor, all lease agreements made pursuant to the provisions hereof, and all projects and revenue derived from any lease thereof shall be exempt from all taxation in the State of Alabama."
Section 12 provides:
"Section 12. Construction of Act. Neither this act nor anything herein contained shall be construed as a restriction or limitation upon any powers which a municipality might otherwise have under any laws of this state, but shall be construed as cumulative; and this act shall not be construed as requiring an election by the voters of a municipality prior to the issuance of bonds hereunder by such municipality."
While the proposed law limits the character of the indebtedness which the municipality will contract by the issuance of its bonds, it does not limit the amount thereof, nor does it limit the number of the projects to be promoted by each of said municipalities. Therefore the unrestricted authority *845 which it confers to issue bonds for the purposes specified, regardless of the assessed value of the property therein and the state of its existing indebtedness, clearly offend § 225 of the Constitution of 1901, which provides:
"Sec. 225. No city, town, or other municipal corporation having a population of less than six thousand, except as hereafter provided, shall become indebted in an amount including present indebtedness, exceeding five per centum of the assessed value of the property therein, except for the construction of or purchase of water works, gas, or electric lighting plants, or sewerage, or for the improvement of streets, for which purposes an additional indebtedness not exceeding three per centum may be created; provided, this limitation shall not affect any debt now authorized by law to be created, nor any temporary loans to be paid within one year, made in anticipation of the collection of taxes, not exceeding one-fourth of the annual revenues of such city or town. All towns and cities having a population of six thousand or more, also Gadsden, Ensley, Decatur, and New Decatur, are hereby authorized to become indebted in an amount including present indebtedness, not exceeding seven per centum of the assessed valuation of the property therein, provided that there shall not be included in the limitation of the indebtedness of such last described cities and towns the following classes of indebtedness, to wit: Temporary loans, to be paid within one year, made in anticipation of the collection of taxes, and not exceeding one-fourth of the general revenues, bonds, or other obligations already issued, or which may hereafter be issued for the purpose of acquiring, providing, or constructing school houses, water works, and sewers; and obligations incurred and bonds issued for street or sidewalk improvements, (a) where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvements; provided, that the proceeds of all obligations issued as herein provided, in excess of said seven per centum shall not be used for any purpose other than that for which said obligations were issued. Nothing contained in this article shall prevent the funding or refunding of existing indebtedness. This section shall not apply to the cities of Sheffield and Tuscumbia." See Baisden v. Greenville, 215 Ala. 512, 111 So. 2; Town of Valley Head v. Mishler, 236 Ala. 520, 183 So. 664; First Nat. Bank v. Town of Luverne, 235 Ala. 606, 180 So. 283.
The declared purpose of the scheme which the proposed law fosters, is to induce business interests to migrate to and settle in Alabama and become lessees of publicly owned and controlled tax-free projects established under the scheme and to operate the same in competition with the inhabitants of the cities and towns, contemplating the execution of leases evidencing the grant of a leasehold interest or estate in the lessees, a favored class, leaving the burdens of maintaining the municipal governments on the citizens and taxpayers thereof. Such grant would constitute a "thing of value", within the contemplation of § 94 of the Constitution.
The prohibitions of Section 94 of the Constitution of 1901 were first written into the Constitution of 1875 following the "tragic era", resulting from the War between the States and the profligacy of the "carpet bag" regime, inducing the local governmental bodies to incur liabilities rested on mere hope without well founded planning and economic supportsocialism in substance and effectleading to government ownership and bankruptcy, and these were the controlling reasons inducing the people to write into the constitution the limitations embodied in said Section 94. The present drift is leading to socialism. See address by Hon. Walter W. Kennedy, President of The First National Bank of Montgomery, entitled "The Diminishing Value of the Dollar", reproduced in The Alabama Lawyer of July, 1951, p. 285, 296. Section 94 provides: "The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any *846 such corporation, association, or company, by issuing bonds or otherwise."[Italics supplied.]
In Stone, County Treasurer, v. State ex rel. Mobile Broadcasting Corporation, 223 Ala. 426, 428, 136 So. 727, 729, wherein the County of Mobile gave to the broadcasting company to be established in Mobile a subscription of $500 per month to pay for advertising Mobile County over the broadcasting company, the county treasurer challenged the validity of said subscription. The Supreme Court in sustaining his challenge, observed:
"It is a question of serious doubt whether or not the making of the contract was a setting aside, an appropriation or use of county funds or revenue, but whether that is so or not, it was the granting to the Mobile Broadcasting Corporation, a contract to pay moneya thing of value to aid in the promotion of a broadcasting station, a private enterprise; and to construe this statute as granting such power would render it obnoxious to the provisions of section 94 of the Constitution, which provide: `The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise.' Garland v. Board of Revenue of Montgomery County, 87 Ala. [223] 227, 6 So. 402, 403; Southern Ry. Co. v. Hartshorne, 162 Ala. 491, 50 So. 139; Rogers, Treasurer, v. White, Secretary, 14 Ala.App. 482, 70 So. 994; Griffin v. Jeffers, 221 Ala. 649, 130 So. 190.
"In Garland v. Board of Revenue, supra, construing and applying this section of the Constitution, then section 55 of article 4 of the Constitution of 1875, it was said: `In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipalities named permitted to participate in such manner as to incur pecuniary liability.' (Italics supplied.)
"And in Southern Ry. Co. v. Hartshorne, supra, referring to that decision, it was observed: `This section (55) has, as stated, become section 94 of the Constitution of 1901, and hence is impressed in meaning and effect with the construction put upon it in Garland's Case. In the light of that decision we need hardly add that the very motive leading to the creation of the conditions to prevent the recurrence of which the provision was written was anticipated public benefits. If the public benefits were held to be sufficient to take the act without the prohibition, then its ordaining in two Constitutions in this state was wholly vain. In the Garland Case a pecuniary liability was attempted to be incurred. The same reason that forbade that course of procedure to aid private enterprises is present to condemn the diversion of public revenue in this instance. The provision is no more explicit against becoming a stockholder or affording credit by the issuance of bonds than it is that money shall not be granted. In all enterprises like railroads, canals, pikes, manufacturing establishments, etc., benefits naturally accrue to the community concerned, and it is common experience that this is true. Because it is true the trustees of government are and have always been amenable to it as an influence to induce the lending of the credit or granting the funds or property of the subordinate governments to the aid of such enterprises as foreshadow public benefits. This disposition, natural and inevitable of grantification if not restrained, cannot be gratified by those who have control. The very existence of this disposition has resulted in the creating of the prohibition. To permit it to yet prevail is to annul one of the wisest of the Constitution's provisions.' 162 Ala. 494 [495], 50 So. 139.
"Appellee insists that `if we place upon Section 94 of the Constitution, the very narrow and strained construction' so as to bring the contract involved in this litigation within its influence, to use the language of the brief, `then we can hardly conceive of any contract that the county can enter into that would not violate *847 this constitutional provision'; that if the county should enter into a contract with established mediums of advertising such as the big daily papers of the state, it would be giving financial aid to such papers, and therefore would come within the influence of such decisions.
"The answer to this argument is that the cause giving birth to this section of the Constitution was the recognized fact that `the trustees of government are and have always been amenable to' the subtle influence of anticipating that by establishing and promoting a new industry or institution in a community, though established for private gain, it brings to the community where established, some public benefits, and that such influence encourages the improvident expenditure of public money and the incurring of governmental liabilities that must be taken care of by taxation. No such influence could or would be present in negotiating a contract with an established medium of advertising, and the trustees of the government in negotiating and entering into such contract would be aided by competition, and deal at arm's length with only the benefit that would result from such advertising in view." 223 Ala. 426, 428-429, 136 So. 727, 729
The schemes proposed to be authorized and promoted through municipal corporations are fraught with all the blandishment and subtle influences tempting the promotion of such industries which are to be operated for private gain, free of taxation, and leave the burden of maintaining the government by taxation, as hereinbefore observed, on all other inhabitants of said municipalities. This is one of the evils which § 94 of the Constitution of 1901 intended to prevent.
While the inquiries do not cover the matters of which I now write the legislature is bound to be confronted in the process of legislation attempting to establish this as a general law of the state with the provisions of Section 222 of the Constitution of 1901, which provides:
"The legislature, after the ratification of this constitution, shall have authority to pass general laws authorizing the counties, cities, towns, villages, districts, or other political subdivisions of counties to issue bonds, (a) but no bonds shall be issued under authority of a general law unless such issue of bonds be first authorized by a majority vote by ballot of the qualified voters of such county, city, town, village, district, or other political subdivision of a county, voting upon such proposition. * * *" Code of 1940, Vol. 1, p. 229.
Section 12 of the proposed act and many others are manifestly an encroachment upon the power of the judiciary which is invested with authority to construe acts of the legislature and determine their constitutionality. The legislature by its interpretation cannot destroy this power vested in a separate body of magistracy under the constitution. Constitution of 1901, §§ 42 and 43.
I am, therefore, of opinion that said proposed law impinges the Constitution in the respects above noted. | August 20, 1951 |
3a097cd0-7265-4c62-b05f-5349492f310b | Hickman v. City of Mobile | 53 So. 2d 752 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 752 (1951)
HICKMAN et al.
v.
CITY OF MOBILE et al.
1 Div. 436.
Supreme Court of Alabama.
June 30, 1951.
*753 Vernol R. Jansen, Mobile and Rives & Godbold, Montgomery, for appellants.
Harry Seale and Robt. T. Cunningham, Mobile, for appellees.
BROWN, Justice.
The Board of Commissioners of the City of Mobile, a municipal corporation, chartered and existing under the laws of this state, acting through the city commission elected by the resident electors of said city, on July 11th, 1950, passed, adopted and promulgated an ordinance providing that, "on and after the 17th of July, 1950, it shall be unlawful for any member of the Police Department of the City of Mobile to be or to become a member of any labor union as that term is commonly used, whether the union be associated with the A.F.L. or the C.I.O. or any other national labor organization, *754 and it shall be unlawful for any member of such department to participate in the organization of such a union.
"Section Two: On and after the 17th day of July, 1950, it shall be unlawful for any member of the Fire Department of the City of Mobile to be or to become a member of any labor union as that term is commonly used, whether the union be associated with the A.F.L. or the C.I.O. or any other national labor organization, and it shall be unlawful for any member of such department to participate in the organization of such a union.
"Section Three: Each and every employee of the Police Department of the City of Mobile shall on or before the 17th day of July, 1950, sign and deliver to the Chief of Police of the City of Mobile the Following statement, and failing therein shall immediately have his services with the department terminated:
"I do not belong to any labor union as that term is commonly known, whether the union be affiliated with the A.F.L. or C.I.O. or any other national labor organization, and I bind myself not to join such a union or to participate in the organization of such a union as long as I remain a member of the department."
Section Four requires the same statement from members of the Fire Department of the City of Mobile.
As above indicated the ordinance requires all such employees on or before the date mentioned to disavow membership, participation and purpose to join such labor organization, such disavowel, as we construe the ordinance, to be in writing signed by the employee and delivered to the head of his department and "failing therein shall immediately have his services with the department terminated."
No provision is made in the ordinance for an employee who, before its adoption may have joined and become a member of or affiliated with such labor organization, to renounce his membership in such labor organization and preserve his right to retain his status as an employee of the City of Mobile.
The appellants as complainants in behalf of themselves and all other employees similarly situated, filed the bill seeking to enjoin the enforcement of said ordinance, alleging that they each by long and faithful service have a status of seniority entitling them to preference and credits in promotional examinations and certain retirement rights under the retirement laws and ordinances of the City of Mobile; that they are each able-bodied, physically and mentally qualified for the duties assigned to them at the time of filing the bill; that there are no pending charges of misfeasance or malfeasance and that their efficiency rating justifies their continuance in the employment in the capacity and positions which they are employed in at the time the bill was filed. The bill is filed against the City of Mobile, its commissioners and governing board, the chief of police and the chief of the fire department under whom they are respectively employed, who have given notice and threatened to enforce said ordinance as written and adopted and that under the terms of said ordinance their rights to continue their respective employment and their accumulated rights thereunder have been placed in jeopardy.
The bill further alleges as follows: "Complainants further show that the International Association of Fire Fighters, commonly known as a Labor Union, is affiliated with the American Federation of Labor, that complainants Thrasher and Wilkinson are members in good standing of said organization, and that the objects and purposes of said organization are set out in its Constitution, Article 3, Sections 1, 2 and 3 as follows:
"Section 1. The objects of the International Association of Fire Fighters shall be: To organize all Fire Fighters; to place the members of this Association on a higher plane of skill and efficiency; to encourage the formation of local unions; to encourage the formation of sick and death benefit funds; to encourage the establishment of schools of instruction for imparting *755 knowledge of modern and improved methods of fire fighting and prevention; and the cultivation of friendship and fellowship among its members.
"Section 2. We shall not strike or take active part in any sympathetic strike, since the work of fire fighters is different from that performed by any other workers, as we are employed to perform the duties of protecting the lives and property of communities in case of fire or other serious hazards.
"Section 3. The International Association of Fire Fighters shall be non-partisan and shall not be used for the dissemination of partisan principles, nor for the promotion of candidacy of any person seeking public office or preferment.
"Complainants Hickman and Prine are members in good standing of Local 1001 of the American Federation of State, County and Municipal Employees, an organization commonly called a Labor Union whose objects and purposes are set out in its Constitution and in its charter which provided among other things, `This Charter is issued with the understanding by both parties hereto that it will be revoked immediately if the members of Local 1001 call or participate in a strike or refuse to do their duties as police officers.'
"Complainants allege that neither of said organizations are subversive or affiliated in any way with disloyal policies or idealogies, and neither organization proposes nor supports the strike as a method of settling disputes as to compensation or working conditions, or any other purpose, arising between employer and employee, and neither organization fosters nor permits neglect of duty or other than primary loyalty to the City of Mobile by the Complainants or other police or fireman.
"Wherefore, pursuant to the terms of said ordinance the officials named as respondents declare that the employment of your complainants and others similarly situated, will be terminated for association, membership, or affiliation with Labor Organizations of any kind or nature without regard to the years of service, the accrued rights of retirement, the seniority, or the quality of service of the employees of the Police or Fire Departments of the City of Mobile and these complainants file this proceeding on behalf of themselves and any other members of the Police and Fire Department of the City of Mobile whose employment situation is affected by the terms of said ordinance."
The bill further alleges: "Complainants further show that the passage of said ordinance is ultra vires, unconstitutional and void, and the terms of same are unconstitutional, unlawful, and void; that said ordinance violates the terms of the employment under which your complainants are working, that it attaches to said employment, conditions which are unreasonable, and ultra vires and which deprive the complainants of rights guaranteed by the Constitution and Laws of the United States of America and the State of Alabama, that said ordinance seeks to regulate the social, political and private life of complainants and deprive them of a right to work and property without due process of law."
After prayer for process the bill further prays for the issuance of "a temporary injunction; enjoining, restraining, and forbidding the respondents and other officers, employees, agents, or servants of said respondents, (1) to enforce the terms of the ordinance as set out in Exhibit A hereto; (2) to enforce or threaten to enforce, the provisions of said ordinance requiring the filing of a statement or affidavit in the words and form set out in said ordinance; (3) from suspending or discharging your complainants and others in the Police and Fire Departments similarly situated for violation of the terms of said ordinance, (4) from the requirement that employees of the Police and Fire Department may not in the future affiliate with an organization known as a labor union, and (5) from depriving your complainants and others similarly situated from the enjoyments of the benefits accruing to complainants from years of service, retirement and other provisions of their present employment contract.
"Complainants further pray that on hearing of this cause, this Honorable Court *756 will enter a decree perpetually enjoining the respondents their officers, servants, and agents from the acts as above set out in each of the foregoing particulars. And if the complainants have not asked for the proper relief, and if said injunction, either temporary or permanent, may not properly be complainants pray that this complaint be taken for a bill for a Declaratory Judgment, and this Honorable Court will be pleased to determine the Constitutionality of the ordinance set out in Exhibit A, and the rights of your complainants and others similarly situated under said ordinance, and that such other and different relief be granted to your complainants as to your Honors may seem meet."
After the application for temporary injunction was set down for hearing and a hearing thereon had and the application refused, the defendants demurred to the bill for want of equity and on sundry grounds, in substance, asserting that the governing board of the City of Mobile in the adoption of said ordinance acted within the scope of its power and has not impinged the constitutional rights of complainants or others whose protection is sought. On submission on the demurrer the court entered a decretal order sustaining the demurrer and from that decree the complainants have appealed.
In a preamble to the ordinance adopted and here subject to legal attack the city commission embodied the resolution passed by the legislature at its regular session in 1939, reciting the fact that it had come to the knowledge of that body that the American Federation of Labor was seeking to organize employees of the state and its agencies and that it was the sense of the legislature (the house and senate concurring), that the effort to organize state employees supported by the taxpayers' money, Jew, Catholic and Protestant alike, was viewed with grave concern and disfavor by the legislature and in effect declaring that such organization was contrary to the public policy of the state. Also embodied in the preamble was the opinion of the then attorney general to the effect that such resolution established public policy of the state against employees of the state and its subordinate governments, cities and towns, joining such organization and that such membership would violate the public policy of the state. Said preamble also embodied pronouncements of the courts of last resort of several of the states of the Union to the same effect and the declaration of prominent officials, including the Mayor of the City of Los Angeles, California, declaring that such practices are repugnant to the "principles of Democracy." We note in passing that in a letter of President Roosevelt dated August 16, 1937, to the National Federation of Federal Employees, a document of which the court may take judicial notice, the late President said:
"All government employees should realize that the process of collective bargaining as usually understood, cannot be transplanted into public service. It has its distinct and unsurmountable limitations when applied to public personnel management. The very nature and purpose of government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly administrative officials and employees alike are governed and guided and in many instances restricted, by laws which establish policies, procedures, or rules in personal matters."
It is well settled that the basic concept underlying the formation of cities and townsmunicipal corporationsis local self government. In State ex rel. Wilkinson et al. v. Lane, 181 Ala. 646 (653-654), 62 So. 31, 32, this court observed: "Town law found its origin in, and owed its development to, the principle of local self-government, the basic principle upon which all Teutonic governments rest. An Englishman might be proud to acknowledge himself the vassal of an English king, but when he claimed shelter under his own roof, he demanded that he should there be the `king in his own house.' The dwellers in towns were perfectly willing to be the king's subjects, to obey his laws, and they were also willing that their towns should be the *757 king's towns, but they demanded and received the right to govern the towns in which they lived, in accordance with their own regulations not in contravention of the general laws of the realm. The towns were the king's towns. Their inhabitants were the king's subjects, and they paid obedience to those who held office under the king; but the officers of a town were town officers, and the laws adopted by its people for their government as citizens of the town were town laws.
"`No alien officer of any kind, save only the judges of the High Court, might cross the limits of their liberties; the sheriff of the shire, the bailiff of the hundred, the king's tax-gatherer or sergeant at arms, were alike shut out. The townsfolk themselves assessed their taxes, levied them in their own way, and paid them through their own officers. They claimed broad rights of justice, whether by ancient custom or royal grant; criminals were brought before the mayor's court, and the town prison with its irons and its cage, the gallows at the gate or on the town common, testified to an authority which ended only with death.
"`In all concerns of trade they exercised the widest powers, and bargained and negotiated and made laws as nations do on a grander scale to-day. They could covenant and confederate, buy and sell, deal and traffic after their own will; they could draw up formal treaties with other boroughs, and could admit them to or shut them out from all the privileges of their commerce; they might pass laws of protection or try experiments in free trade.' 1 McQuillin, Mun.Corps. 102, note 81."
Chapter 9, Title 37, Code of 1940, embracing § 455 through § 464, is part of the charters of cities and towns in this state. The first mentioned section provides:
"455. Power to adopt and enforce ordinances. Municipal corporations may, from time to time, adopt ordinances and resolutions not inconsistent with the laws of the state, to carry into effect or discharge the powers and duties conferred by this title, and provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of the inhabitants of the municipality, and enforce obedience to such ordinances by fine not exceeding one hundred dollars, and by imprisonment or hard labor not exceeding six months, one or both."
Under the charter powers embodied in §§ 50 and 455, Title 37, Code of 1940, the governing boards of municipalities are invested with plenary power in the selection of their employees, in prescribing their qualifications and the tenure of such employment. Under said charter provisions such governing boards may refuse employment and prohibit the service of any one or all of such employees who are members of labor organizations, which are not only national but international in scope and purpose and therefore their organization being opposed to and the direct antithesis of the basic purposes of local self government for which cities and towns in Alabama are established. This power is essential to the preservation of the character and life of such municipalities. Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626; King v. Priest, 357 Mo. 68, 206 S.W.2d 547, appeal dism., 333 U.S. 852, 68 S. Ct. 736, 92 L. Ed. 1133, rehearing den. 333 U.S. 878, 68 S. Ct. 901, 92 L. Ed. 1154; City of Jackson v. McLeod, 199 Miss. 676, 24 So. 2d 319, [certiorari denied 328 U.S. 863, 66 S. Ct. 1368, 90 L. Ed. 1, 633]; Fraternal Order of Police v. Lansing, 306 Mich. 68, 10 N.W.2d 310, [certiorari denied 321 U.S. 784, 64 S. Ct. 781, 88 L. Ed. 1076]; Miami Local Water Works v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967; Coane v. Geary, 298 Ill.App. 199, 18 N.E.2d 719; Hutchinson v. Magee, 278 A. 119, 122 A. 234; Carter v. Thompson, 164 S.E. 312, 180 S.E. 410; McNatt v. Lawther, Tex. Civ.App., 223 S.W. 503; San Antonio Fire Fighters Local v. Bell, Tex.Civ.App. 223 S.W. 506; C.I.O. v. Dallas, Tex.Civ.App. 198 S.W.2d 143.
The bill in this case alleges that the complainants before the adoption of this ordinance were employees of the City of Mobile in their respective capacities as alleged in the bill and that through long service they have acquired certain privileges *758 and rights respecting promotion and other benefits of which, as a matter of common honesty as well as constitutional law, they should not be deprived by mere legislative ipsi dixit. As pointed out in the statement of the case, no provision is made in said ordinance allowing such employees thus situated to renounce their allegiance to such labor organizations and retain their rights of employment under the government of the city of their residence. According to the terms of the ordinance, their affiliation with and membership in such labor organizations ipso facto terminates their employment without notice, trial or the right to be heard and appeal. In the respect last above mentioned the provisions of said ordinance and §§ 3 and 4 thereof run counter to and conflict with Act No. 470, creating for the County of Mobile and the municipalities therein situated a "countywide Civil Service System", Local Acts 1939, pp. 298-318, which provides inter alia:
"Section I. * * * `Classified Service' includes all offices, positions, and employment in Mobile County or any such city therein as these offices, positions and employment now exist or as they may hereafter exist, the holders of which are paid whether by salary, wages, or fees in whole or in part from funds of Mobile County or any such city, or the holders of which receive their compensation from any elected official and perform duties pertaining to the office of such elected official or officer, except those placed in the `Unclassified Service' by Section Two hereof. * *
"Section XXII. Dismissal: (a) An Appointing Authority may dismiss a Classified Employee whenever he considers the good of the service will be served thereby, for reasons stated in writing, served on the affected employee, and a copy furnished to the Director, which action shall become a Public Record; the dismissed employee may, within ten days after notice, appeal from the action of the Appointing Authority by filing a written answer to the charges. The Board may after investigating order a Public Hearing upon notice to, and opportunity to be heard by, the employee and if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the Board may determine. (b) In addition to removal by an Appointing Authority, persons in the Classified Service may be removed or disciplined in the following manner. Charges may be filed by any officer, citizen, or taxpayer of the County with the Director who may after investigation cause a copy to be served upon the person complained against and set a day for a Public Hearing of such charges. This hearing may be before the Director, a special agent appointed for the purpose by the Director, or the Board itself. If before the Director or a special agent, the Director or special agent shall take testimony offered in support and denial of such charges and from the same submit to the Board, within five days, a finding of facts (and law involved) and a recommended decision. The Board at its next regular or special meeting shall consider said report and modify, alter, set aside or affirm said recommendation and certify its findings to the Appointing Authority who shall forthwith put the same into effect. If the Board hears said Charges directly or requires the Transcribing and Submission of the testimony taken before the Director or special agent, it shall make up and file its own findings and decision. The findings of fact of the Board based upon its records and the testimony taken before it, or before the Director shall be conclusive if supported by any substantial evidence. (c) In proceedings under this section it shall be no defense or excuse for a forbidden act, or for an omission to observe the laws or rules, that such act or omission was directed by a superior, unless a direction or order from such superior to that effect is proved to the satisfaction of the Board."
Said sections 3 and 4 of the ordinance under consideration, therefore, ipso facto are "inconsistent with the laws of the State" and are ultra vires the power of the board of commissioners. Code of 1940, Title 37, § 455; Lisenba et al. v. Griffin et al., 242 Ala. 679, 8 So. 2d 175.
In an attempt to answer the challenge that the ordinance in question is inconsistent *759 with the provisions of Act No. 470 (the Civil Service Act), the brief of appellees asserts that, "Section 22 of the local Civil Service Act provides that the City may dismiss any classified employee whenever it considers the good of the service will be served thereby. Undoubtedly the Board of Commissioners of the City of Mobile determined that the good of the service would be served by dismissing any employee of the two departments belonging to a labor union affiliated with a national organization, and it had the express authority under the local merit system act to dismiss the men for that reason."
The statement exposes the fallacy of the contention that the ordinance and the act of the legislature are not in conflict. The civil service act contains no such provision and preserves no such power in the commission. The section of the act referred to provides:
"(a) An Appointing Authority may dismiss a Classified Employee whenever he considers the good of the service will be served thereby, for reasons stated in writing, served on the affected employee, and a copy furnished to the Director, which action shall become a Public Record; the dismissed employee may, within ten days after notice, appeal from the action of the Appointing Authority by filing a written answer to the charges. The Board may after investigating order a Public Hearing upon notice to, and opportunity to be heard by, the employee and if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the Board may determine. * *" (Italics supplied.) The board referred to is the civil service board set up under the civil service act.
These provisions of the act clearly contemplate administrative or ministerial action in dismissing an employee, not legislative ouster, and there is nothing in the civil service act nor in the general law of the state that conferred authority on the city commission to ignore or repeal the civil service act or § 455, Title 37, Code of 1940, which restricts the legislative power of the city commission and prohibits said commission from enacting or adopting an ordinance inconsistent with the state law.
The statement in brief above quoted recognizes the fact that unless the city commission possessed legislative power to enact said ordinance couched in the language in which it was written and by which its validity must be determined, the ordinance violates the restriction placed on the commission by § 455 of the code and the civil service act passed by the legislature for the government of the commission's actions in dealing with the subject of dismissing employees. The contention that said ordinance is not in conflict with the state law, so far as it undertakes to dismiss employees for past acts which when performed were not violative of law, ignores the express provisions of both the section of the code and the civil service act. The validity of the ordinance must be determined by its expressed provisions. Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626. Therefore, whether the bill be treated as one seeking an injunction against the enforcement of such ordinance or a bill for a declaratory judgment, it presents but a single justiciable question,the validity of said ordinance as written and passed. Barton v. City of Bessemer, supra; Lisenba et al. v. Griffin et al., 242 Ala. 679, 8 So. 2d 175; Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 34 S. Ct. 856, 58 L. Ed. 1288.
Said sections 3 and 4 of said ordinance being retroactive and inconsistent with the laws of the state, are also violative of the constitutional provisions against ex post facto laws. Ex parte Diggs, 52 Ala. 381. Therefore said sections must be pronounced void and hence the bill was well filed and defendants' demurrer thereto was erroneously sustained.
The decree of the circuit court is, therefore, reversed and one here rendered overruling the same and the cause is remanded.
Reversed, rendered and remanded.
All the Justices concur in the result.
CRENSHAW, Special Justice, concurs in part as stated in the following opinion.
*760 FOSTER and SIMPSON, JJ., concur in the opinion of CRENSHAW, Special Justice.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., state their views in the following opinion of LAWSON, J.
CRENSHAW, Special Justice (concurring).
I concur in the conclusion that the court below erred in sustaining the demurrer to the bill of complaint and that the cause must be reversed.
The bill of complaint seeks an injunction restraining the enforcement of an ordinance of the City of Mobile, and in the alternative a declaratory judgment determining the constitutionality of the ordinance "and the rights of your complainants and others similarly situated under said ordinance."
The ordinance of July 11, 1950, in question is in five sections. Sections 1 and 2 make it unlawful for any member of the Police Department (section 1) or Fire Department (section 2) to be or to become a member of any labor union as that term is commonly used. Sections 3 and 4 require every employee of the Police Department (section 3) and Fire Department (section 4) to sign and deliver, on or before July 17, 1950, a statement in writing that he does not belong to a labor union and will not join or participate in the organization of such a union as long as he remains a member of such department. Any employee "failing therein shall immediately have his services with the department terminated."
Section 5 of the ordinance provides "Section Five. If any section or provision of this ordinance shall be held invalid by a court of competent jurisdiction such holding shall not affect or void any other section or provision which is not of itself invalid."
The cases of other jurisdictions uniformly uphold the authority of the municipality to prohibit membership in a labor union by members of the Police and Fire Departments, and to require the dismissal of employees who refuse to relinquish membership in a labor union. King v. Priest, 357 Mo. 68, 206 S.W.2d 547; City of Jackson v. McLeod, 199 Miss. 676, 24 So. 2d 319; Fraternal Order of Police v. Lansing, 306 Mich. 68, 10 N.W.2d. 310, certiorari denied, 321 U.S. 784, 64 S. Ct. 781, 88 L. Ed. 1076; Miami Water Works Local v. Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967; Coane v. Geary, 298 Ill.App. 199, 18 N.E.2d 719; Hutchinson v. Magee, 278 Pa. 119, 122 A. 234; Carter v. Thompson, 164 Va. 312, 180 S.E. 410; McNatt v. Lawther, Tex.Civ.App., 223 S.W. 503; San Antonio Fire Fighters Local v. Bell, Tex.Civ.App., 223 S.W. 506; C. I. O. v. Dallas, Tex.Civ. App., 198 S.W.2d 143. The case relied upon by appellants, Mugford v. Mayor & City Council, 185 Md. 266, 44 A.2d 745, 162 A.L.R. 1101, did not involve policemen or firemen.
Appellants argue that such rule is not applicable in Alabama and that the effect of the Bradford Act, Title 26, § 376, et seq., Code 1940 is to protect the right of policemen and firemen to join a labor union. A careful reading of the title and body of the Bradford Act discloses no language evidencing a legislative intent to make such act applicable to municipalities. The reference in the Bradford Act to strikes, walkouts and boycotts, §§ 377, 380, 381, to the "business of an employer," § 387, and to "business, plant or any unit thereof" are particularly inapplicable to municipalities. Had the legislature intended to change the existing powers of the City of Mobile there is no reason to believe that it would not have said so in that many words, instead of leaving the matter to speculation and conjecture. The ordinance in question is therefore not invalid as being in conflict with the Bradford Act. Miami Water Works Local v. City of Miami, supra; King v. Priest supra; C. I. O. v. Dallas, supra; McNatt v. Lawther, supra.
Appellants also contend that the ordinance is unconstitutional as depriving them of freedom of speech or their right peaceably to assemble and to petition the government for redress or grievances. We find nothing in the ordinance which violates these constitutional guarantees. This same argument was advanced in King v. Priest, supra, and C. I. O. v. Dallas, supra. The *761 Supreme Court of Missouri disposed of this contention with the following quotation, 206 S.W.2d 556: "In the case of McAuliffe v. Mayor, etc., of the City of New Bedford, 155 Mass. 216, 29 N.E. 517, decided January 6, 1892, Justice Holmes in upholding a rule excluding police from political activity stated: `The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control.'"
It is further contended that the ordinance in question conflicts with the county-wide Civil Service Act applicable to Mobile County and the City of Mobile, Act. No. 470, Local Acts, 1939, p. 298, et seq. In so far as Sections 1 and 2 of the ordinance are concerned I find no such conflict. This Act provides for the establishment of a Personnel Board and the appointment of a Personnel Director; for the Classification of Positions, section X, and the Establishment of a Pay Plan. The Personnel Director is required to conduct tests to establish Employment Registers for the various classes of positions in the qualified service, section XII. Section XV providing for the filling of vacancies by appointment specifically recognizes the right of the Appointing Authority to state the "desired qualifications of the person to be appointed," and contains the provision "provided that where residence qualifications are prescribed by the Appointing Authority" only those having such residence qualifications may be selected. This language plainly recognizes the right of the city to establish reasonable qualifications for positions of policemen and firemen. The Act is designed to secure to every employee fair and impartial treatment without political favoritism. But the Board of Commissioners of the City of Mobile remains the governing body of that municipality. Upon it rest the right and the burden of establishing and declaring the public policy of the city. Upon it rests the burden of furnishing public police and fire protection to its citizens by the establishment and maintenance of an impartial and efficient police and fire department. This burden necessarily carries with it the right to establish reasonable qualifications in order to secure the undivided loyalty of the members of the police and fire departments. Sections 1 and 2 of the ordinance, declaring the public policy of the city and establishing such reasonable qualifications are not in conflict with the Civil Service Act. Cf. Gen. Acts, 1939, p. 1004.
Whether the ordinance was wisely conceived we are not called upon to determine. Sections 1 and 2 of the ordinance making it unlawful for policemen and firemen to be or to become members of a labor union are not in conflict with any statute of the state and their enactment is a valid exercise of the power to adopt ordinances conferred by Section 455, Title 37, Code 1940.
A different question arises as to the validity of Sections 3 and 4 of the ordinance of July 11, 1950, which provide a means of enforcing the qualifications so established by Sections 1 and 2 of the ordinance.
Section 3 provides: "Section Three Each and every employee of the Police Department of the City of Mobile shall on or before the 17th day of July, 1950, sign and deliver to the Chief of Police of the City of Mobile the following statement, and failing therein shall immediately have his services with the department terminated: `I do not belong to any labor union as that term is commonly known, whether the union be affiliated with the A. F. L., or C. I. O., or any other national labor organization, and I bind myself not to join such a union or to participate in the organization of such a union as long as I remain a member of the department.'"
Section 4 sets out the same requirement as to members of the Fire Department.
I cannot agree that these sections deprived the appellants of an opportunity to renounce or resign membership in a labor organization, place themselves in compliance with Sections 1 and 2 of the ordinance *762 and retain their employment. The ordinance was passed July 11, 1950. The statement in question need only be filed "on or before July 17, 1950." In such statement the employee is not required to certify that he has not belonged to a labor union, but that "I do not belong to any labor union," etc. The use of the present tense "I do" shows that this certification was intended to reflect the status as of the time the statement was signed and filed, which could be at any time prior to and including July 17, 1950. The appellants therefore had the period between the passage of the ordinance on July 11, 1950, and the end of July 17, 1950, within which, if they so desired, they could renounce membership in the labor union and place themselves in compliance with the ordinance.
In the case of City of Jackson v. McLeod, supra, the Mayor and Commissioners of the City of Jackson on June 17, 1944, ordered the Chief of Police to notify all policemen that no Policeman should be a member of a labor union, and that any policeman who did not resign by Noon on June 19, 1944, would be dismissed. The interim period was much shorter than the period here allowed, but the dismissal was upheld by the Supreme Court of Mississippi. In the case of King v. Priest, supra, the resolution was adopted November 29, 1945, requiring such statement to be filed not later than midnight December 5, 1945 the same period as here allowed. The Supreme Court of Missouri upheld the regulation and the Supreme Court of the United States dismissed appeal to that court. 333 U.S. 852, 68 S. Ct. 736, 92 L. Ed. 1133, rehearing denied, 333 U.S. 878, 68 S. Ct. 901, 92 L. Ed. 1154. It would therefore seem that the period from July 11, 1950 to July 17, 1950 was a reasonable time within which the appellants could resign or renounce their membership and retain their employment with all accrued privileges of seniority.
The determination of whether Sections 3 and 4 conflict with the county-wide Civil Service Act, Act. No. 470, Local Acts, 1939, p. 298-318, depends upon construction of the provisions of the ordinance requiring the filing of the specified statement by every policeman and fireman "and failing therein shall immediately have his services with the department terminated." Ordinarily this court will not construe a statute or ordinance on appeal from a ruling on demurrer. Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So. 2d 198; McCall et al. v. Nettles et al., 251 Ala. 349, 37 So. 2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658, 660; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11.
Under these decisions where the bill for declaratory judgment shows a bona fide justiciable controversy the demurrer thereto should be overruled and a declaration of rights made and entered after answer and on such evidence as the parties may deem proper to introduce. However the equity of the bill is not dependent upon the Declaratory Judgment Act, Title 7, § 156. That relief is sought only in the alternative.
The bill seeks to enjoin the enforcement of the ordinance alleged to be void and whose enforcement would limit the personal rights of the appellants. Such alleged invalidity is based in part on its alleged conflict with state laws and if Sections 3 and 4 of the ordinance are invalid, the bill has equity to enjoin the enforcement of such without regard to the Declaratory Judgment Act.
I concur in the conclusion of the opinion of Justice Brown that the provisions of Sections 3 and 4 of the ordinance are in conflict with the Civil Service Act and are therefore ultra vires and invalid.
It is undisputed that the appellants are "classified employees" as defined in that Act and their dismissal must be in compliance with Section XXII, which provides: "Section XXII. Dismissal: (a) An appointing authority may dismiss a Classified Employee whenever he considers the good of the service will be served thereby, for reasons stated in writing, served on the affected employee, and a copy furnished to the Director, which action shall become a Public Record; the dismissed employee may, within ten days after notice, appeal from the action of the Appointing Authority by filing a written answer to the *763 charges. The Board may after investigating order a Public Hearing upon notice to, and opportunity to be heard by, the employee and if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the Board may determine."
Under this section a dismissal of an employee must be for the good of the service and the employee is entitled to service upon him of a copy of formal written charges. The City of Mobile, through its Board of Commissioners, having established the public policy of the city as to union membership by policemen and firemen a charge of retaining membership in a union in violation of Sections 1 and 2 of the ordinance would be ground for dismissal "for the good of the service," but such dismissal could only be effected in the manner prescribed by the Civil Service Act and not by legislative edict of the Board of Commissioners. Sections 3 and 4 of the ordinance providing for the filing of the required statement by every policeman and fireman and "failing therein shall immediately have his services with the department terminated," in my judgment do not contemplate the filing of charges as required by Section XXII of the Civil Service Act. In addition thereto these facts make the dismissal dependent, not upon a violation of Sections 1 and 2 of the ordinance but merely upon the failure to file the prescribed statement whether the policeman or fireman so failing is or is not a member of a union in violation of Sections 1 and 2. It is entirely conceivable that within the six day period allowed there were policemen and firemen who were not members of the union, who, by reason of vacations or other absences, failed to file the prescribed statement. In my opinion peremptory dismissal for such failure alone would not be justified under the Civil Service Act. For these reasons I am of the opinion that Sections 3 and 4 of the ordinance are invalid and the appellants are entitled to a decree enjoining their enforcement and enjoining any dismissal except by proceedings in accordance with the Civil Service Act.
FOSTER and SIMPSON, JJ., concur.
LAWSON, Justice (concurring specially).
I am of the opinion the decree appealed from must be reversed for the reason that the bill states a case for the rendering of a declaratory judgment defining the rights of the parties under the ordinance assailed. City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658.
I am in accord with the conclusion reached that a municipality may legally adopt an ordinance prohibiting its policemen and firemen from being members of a labor union.
In my opinion, the ordinance under consideration does not deprive the affected city employees from severing any connection which they might have had with labor organizations. Such action could have been taken subsequent to the date of enactment of the ordinance and the date prescribed for the filing of the statement required by the ordinance. City of Jackson v. McLeod, 199 Miss. 676, 24 So. 2d 319.
I cannot agree that §§ 3 and 4 of the the ordinance conflict with the terms and provisions of the act creating the merit system of the City of Mobile and Mobile County. True, those sections of the ordinance provide that employees who do not file the required affidavit shall immediately have their services terminated. But, in my opinion, this provision does not conflict with the terms of the aforementioned merit act. The merit act does not purport to deny to the governing authorities of the political subdivisions involved the power to dismiss employees. The act does not confer upon those charged with administering its provisions the power to dismiss employees. In this connection the merit act only sets up a procedure whereby the action of the governing authority in dismissing an employee is subject to review when the employee duly requests such a review. Sections 3 and 4 of the ordinance here under consideration contain to language which, in my opinion, is subject to be construed as purporting to deny to any employee dismissed because of his failure to file the required affidavit the right to have the action of dismissal reviewed *764 by the merit system authorities. An employee so dismissed stands in the same position as any other employee who had been dismissed by the governing authorities. For his dismissal to be lawful, the city governing authorities must give him the notice required by the terms of the merit act and, upon such notice being given, he has the right to have the action of the city authorities reviewed. The inquiry on appeal would be whether the employee had failed to comply with the terms of the ordinance, for it cannot be said to be the power of the merit system authorities to pass on the propriety of the action of the governing authorities in adopting the ordinance.
The construction placed on §§ 3 and 4 of the ordinance by the majority is, as I understand it, that an ordinance such as this, which is merely a declaration of policy, must contain express language showing that dismissals for failure to comply with the policy prescribed will be taken in accordance with the terms of the merit act. In my opinion this is entirely unnecessary. As before indicated, there is nothing in the act to support a conclusion that the city authorities, in enforcing the provisions of the ordinance, do not intend to comply with the provisions of the merit act relating to the dismissal of city employees.
LIVINGSTON, C. J., and STAKELY, J., concur in these views. | June 30, 1951 |
f5fc2a90-8219-4ff4-aa08-f622d87e5f31 | Ex Parte Williams | 53 So. 2d 334 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 334 (1951)
Ex parte WILLIAMS.
3 Div. 601.
Supreme Court of Alabama.
June 14, 1951.
*335 M. Ashley Dickerson, Montgomery, for petitioner.
Si Garrett, Atty. Gen., and A. A. Carmichael, Asst. Atty. Gen., for the State.
BROWN, Justice.
This is an original application to this court by Essie Q. Williams for leave to apply to the Circuit Court of Montgomery County for a writ of error coram nobis to review the action of that court in adjudging the petitioner guilty of grand larceny and sentencing him to the penitentiary for a term of ten years. If the facts alleged in the petition are true, there has been a gross abuse of judicial processes superinduced by fraud practiced on the court to the hurt of petitioner in depriving him of his liberty without due process of law.
The circuit court is a court of unlimited, original jurisdiction in respect to the enforcement of the criminal laws of the state and petitioner has a right to seek relief in that court under the constitution by proper pleadings and proof showing with reasonable certitude that the facts alleged are true. Ex parte Taylor (Taylor v. State), 249 Ala. 667, 32 So. 2d 659; Constitution of 1901, §§ 6 and 13.
Application to this court for leave to proceed in the circuit court is necessary only in cases where this court has assumed and exercised its appellate jurisdiction to review the judgments of nisi prius courts on appeal or writ of error and through such review the judgment of the trial court has become merged in the judgment of the Supreme Court. It is not made to appear that the judgment of the circuit court was reviewed on appeal to this court or otherwise, hence the application for leave to proceed is without merit. Smith v. State, 245 Ala. 161, 16 So. 2d 315; Wheeler v. Wheeler, 254 Ala. 611, 49 So. 2d 219.
The motion of the Attorney General to dismiss the petition is therefore due to be granted. Johnson v. Williams as Warden, 244 Ala. 391, 13 So. 2d 683.
Motion to dismiss the petition granted.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur. | June 14, 1951 |
82735725-c2a9-4a11-a5ac-726d03b32d94 | Meador v. Meador | 53 So. 2d 546 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 546 (1951)
MEADOR et al.
v.
MEADOR.
6 Div. 246.
Supreme Court of Alabama.
June 28, 1951.
*547 Moore & Alford, Winfield, for appellants.
Fite and Fite, Hamilton, for appellee.
SIMPSON, Justice.
The defendants have appealed from a decree of the circuit court, in equity, ordering a sale for division of the subject lands on a bill of complaint of appellee alleging that the lands cannot be equitably divided between the parties, tenants in common.
The decree is well supported by the evidence and there is no merit in the appeal. The rule is well understood. Partition of land between tenants in common is a matter of right, but the alternative right to have the land sold for division is statutory, and as basis for the latter relief it must be proven that a fair and equitable partition in kind of the lands cannot be made. Hall v. Hall, 250 Ala. 702, 35 So. 2d 681; Keaton v. Terry, 93 Ala. 85, 9 So. 524. The proof, fairly interpreted, substantially sustained this allegation.
The property comprises the Bull Mountain tract of 160 acres and the Rideout Falls tract of 320 acres. The tracts are of most irregular terrain, some mountainous, some lowland, some with a little timber and most without, some rocky and "clifty" and other parts swampy. The two parcels are separated some distance from each other, the smaller tract containing no land in cultivation and the larger tract containing only about sixty acres of land susceptable of cultivation. A fair interpretation of the testimony of the witnesses who appeared in open court and testified leads to the conclusion which the trial court arrived at that the lands are not susceptible of equitable partition in kind and that a sale among the parties for division of proceeds is proper.
Indulging the usual presumption of correctness as to this finding on evidence taken ore tenus before the court, the decree below will not be disturbed. Ala. Digest, Appeal and Error.
Affirmed.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | June 28, 1951 |
721e754a-f901-4f6f-a156-b199b4515cc5 | Harris v. State | 60 So. 2d 266 | N/A | Alabama | Alabama Supreme Court | 60 So. 2d 266 (1951)
HARRIS
v.
STATE.
5 Div. 515.
Supreme Court of Alabama.
November 23, 1951.
Rehearing Denied January 10, 1952.
Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the petition.
Geo. P. Howard, Wetumpka, opposed.
SIMPSON, Justice.
Certiorari to the Court of Appeals. The writ was granted in view of a claimed conflict in the Alabama decisions relative to whether or not on habeas corpus, when the rendition warrant in extradition fails to show affirmatively the several statutory prerequisites for its issuance, the same may be aided by proof (documents before the Governor) which would show that all of *267 the requisite jurisdictional matters did obtain when the warrant was issued by the executive department of the sanctuary state.
Section 54, Title 15, Code of Alabama, 1940, reads as follows. "If the governor shall decide that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner, or other person whom he may think fit to entrust with the execution thereof; and the warrant must substantially recite the facts necessary to the validity of its issue." (Emphasis ours.)
It is the emphasized part of this section which is here to be considered.
The portion of the rendition warrant pertinent to this appeal is as follows: "Whereas, His Excellency, Herman E. Talmadge, Governor of the State of Georgia, by requisition dated the 11th day of May, 1950 has demanded of me, as Governor of the State of Alabama, the surrender of Velt Harris who, it appears, is charged by Accusation, in the County of Fulton in said State, with the crime of Abandonment of his Minor Children (a duly certified copy of which Accusation accompanies said requisition) and it appearing that said Velt Harris has fled from justice in said State and taken refuge in the State of Alabama." (Emphasis ours.)
The Court of Appeals held that the warrant was void in containing the word "accusation" rather than reciting that the accused was "lawfully charged by indictment or by an information" etc., "or by affidavit" etc., § 52, Title 15, with having committed the crime. And, interpreting our opinion in Russell v. State, 251 Ala. 268, 37 So. 2d 233, as holding that if the rendition warrant was deficient it could not be aided by reference to the allied papers accompanying the requisition warrant, that court ordered the petitioner discharged. We take it from the opinion of the Court of Appeals that the "allied papers" referred to would show that all the jurisdictional requirements did obtain by being made to appear from the documents accompanying the requisition warrant from the demanding state to justify the chief executive of this state to issue the warrant, but that that court thought that under the ruling of the Russell Case such evidence could not be tendered either on the return of the sheriff or on the hearing in habeas corpus as justification for the prisoner's detention. We regard the theory as unsound. It is against the weight of authority. And as we will later show, the broad language in Russell's Case is not to be so construed, although concededly it might have been susceptible to that interpretation.
Laying aside for the moment the strict legal question, we will observe that here the warrant contains the word "accusation." It also states that the "accusation" is properly certified. Are we to construe our statute so strictly as to presume that the "accusation" is not in the form of an indictment or an affidavit sworn to before a magistrate or an information filed by a prosecuting officer and supported by affidavit as to the facts. To so hold, where allied papers are included in the return to the writ of habeas corpus or introduced on the trial, which do so show, would be to presume that the governor had not per formed his duties in regard to the matter Public officials are presumed to perform their duties. This rule is so well founded, has been a part of our jurisprudence for so long, and is so universally recognized as to need no citation of authority.
Prior to Russell v. State, supra, the Court of Appeals in Watson v. State, 30 Ala.App. 184, 2 So. 2d 470, 472 (authored by the writer here while a judge of that court), stated that "unless it is made to appear either in the warrant of the Governor or elsewhere in the proceedings that he [petitioner] is so lawfully charged, the State fails to prove its case and the prisoner is entitled to the writ." The recitals in the Governor's warrant in that case were obviously deficient, alone and of themselves, to show prima facie the legality of petitioner's detention. But the clear intent of that holding was to allow the court in habeas corpus proceedings to look to the allied papers in aid of the warrant to show the validity of the detention. *268 We think the principle to be sound.
The issue in this proceeding of habeas corpus is whether or not the prisoner is illegally restrained of his liberty. As an initial inquiry, the question of the sufficiency of the rendition warrant, prima facie, to justify the detention is brought under consideration and if no more be shown, the prisoner is subject to be discharged unless the warrant does substantially comply with the provisions of the statute. But that is not to say that evidence may not be introduced to show that all the necessary documents were before the Governor as predicate for the issuance of the rendition warrant. An enlightening annotation on the question appears in 89 A.L.R. 595 et seq., and on page 599 the majority rule is thus stated: "* * * the failure of the rendition warrant to show affirmatively that the Governor, in issuing it, had before him a copy of an indictment or an affidavit made before a magistrate of the demanding state charging the alleged fugitive with crime, may be cured, when such recitals are required, upon habeas corpus proceedings for the discharge of the fugitive, by including with the return of the sheriff, or producing on the hearing, the papers on which the warrant was issued which show on their face that they are in due and legal form, and that the warrant was justified * * *."
This rule is well supported by the authorities. In re Romaine, 23 Cal. 585; Ex parte Dawson, 8 Cir., 83 F. 306, certiorari denied, 170 U.S. 705, 18 S. Ct. 941, 42 L. Ed. 1218; Lacondra v. Hermann, 343 Ill. 608, 175 N.E. 820; State ex rel. Stundahl v. Richardson, 34 Minn. 115, 24 N.W. 354; State ex rel. Grande v. Bates, 101 Minn. 303, 112 N.W. 260; People ex rel. Jourdan v. Donohue, 84 N.Y. 438; State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422. Cf. United States ex rel. Silver v. O'Brien, 7 Cir., 138 F.2d 217, certiorari denied, 321 U.S. 766, 64 S. Ct. 522, 88 L. Ed. 1062; Collins v. Traeger, 9 Cir. 27 F.2d 842; Schriver v. Tucker, Fla., 42 So. 2d 707.
One of the earliest cases sustaining the majority view is the case of In re Romaine, 23 Cal. 585, where the warrant stated that petitioners were "charged with crime of murder and highway robbery." The return of the officer having custody set forth, however, certified copies of the original affidavit. The California court held that these allied papers supplied the facts omitted in the warrant and "substantially" showed that the warrant was issued in a case within the provisions of the law of the rendering state.
In Lacondra v. Hermann, 343 Ill. 608, 175 N.E. 820, 823, the rendition warrant recited the production of a "complaint and warrant" certified as authentic, and it appeared upon the officer's return that the "complaint" was in the form of an affidavit properly sworn to before a magistrate of the demanding state, and the holding was that the warrant together with the return to the writ, when considered together, were sufficient.
To like effect is State ex rel. Stundahl v. Richardson, 34 Minn. 115, 24 N.W. 354, 355, where the rendition warrant recited that the alleged fugitive stands charged "by complaint." The court observed that "It ought to have appeared in this case by the return to the writ of habeas corpus that the executive was furnished with the required copy of the indictment or affidavit duly certified as authentic." (Emphasis ours.) Failing in this respect, the writ was held to be insufficient to hold the prisoner and he was ordered discharged.
We quote from State ex rel. Grande v. Bates, 101 Minn. 303, 112 N.W. 260, 262: "But, if it be conceded that by the use of the word `complaint' in the warrant, instead of the word `affidavit,' this case falls within the rule of the case of State ex rel. v. Richardson, 34 Minn. 115, 24 N.W. 354, yet it appears, from the sheriff's return in this case and the papers before the court, that the warrant is sufficient within the rule of that case, and that the relator is not unlawfully restrained of his liberty by the sheriff, the respondent herein. It appears, from the return to the writ and *269 the papers accompanying and made a part of the return, which papers constitute the record upon which the Governor acted in issuing his warrant and which are a part of the record in this court in this case, that the Governor of California duly demanded the surrender of the relator as a fugitive from the justice of that state; that such demand was made in strict accordance with the Constitution and laws of the United States; that the complaint referred to in the Governor's warrant was a verified complaint in form and legal effect an affidavit charging the relator with the crime of forgery with sufficient definiteness to show that the crime had been committed, and, further, that it was the duty of the Governor of this state to surrender the relator to the agent of the Governor of the state of California, and that he was authorized and required to issue his warrant to effect such surrender. We accordingly hold that the warrant and proceedings by virtue of which the relator was arrested and is detained are valid, and that he is not unlawfully restrained of his liberty."
See also State ex rel. Denton v. Curtis, 111 Minn. 240, 126 N.W. 719, of similar import.
As to finality of the chief executive's warrant, we find the following observation by the New York court in the case of People ex rel. Jourdan v. Donohue, 84 N.Y. 438, 441: "* * * And hence we have held that where the preliminary papers upon which a warrant of extradition has been granted are produced, and are before us, it is our right and our duty to examine them, and judge and determine, when our process is invoked, whether they are sufficient, under the law, to justify the warrant of extradition. People ex rel. Lawrence v. Brady, 56 N.Y. 182. Our ruling in this respect has not escaped criticism Leary's Case, [Fed.Cas. No. 8,162], 6 Abb.N.C. [43], 44; but an opposite conclusion, which would make the determination of the Executive final, even though the papers produced clearly showed that the essential preliminaries of the law were unfulfilled, does not yet commend itself to our judgment."
Should we hold that the recitals in the rendition warrant are conclusive, then it should logically follow that, should the chief executive on all occasions employ the magic words "indictment" or "affidavit" or "information," the prisoner, in habeas corpus proceedings, would be forever barred to test the sufficiency of the extradition papers as basis for issuance of the executive warrant. Such, of course, is not the law and the prisoner is allowed to traverse such recitals. So viewed, we think as a corollary, as a matter of law and as a matter of common sense, the State should also be permitted to show such matters in aid of the warrant.
In State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422, that court said: "We would not be disposed to hold the warrant fatally defective or void if in the return to the writ of habeas corpus, or at the hearing, the defendants had shown that as a matter of fact the requisition of the Governor of Georgia was accompanied by an indictment found, or an affidavit made before a magistrate properly charging the offense, and that these documents were before the Governor of Tennessee when he issued the warrant here. * * *" 33 S.W.2d 423.
It is obvious that the Tennessee court would also permit in evidence such matters as were before the Governor of the sanctuary state to cure a defect on the face of the warrant and to show that the detention was valid.
What the Governor must have before him to authorize the issuance of the rendition warrant is a matter which properly addresses itself to the wisdom and discretion of the chief executive, subject, of course, to our statute, Title 15, §§ 50 and 52, Code 1940, which prescribes the matters which must be before him prior to its issuance. As to the sufficiency of the warrant, however, these sections do not apply; this is controlled entirely by § 54, Title 15, which states that "the warrant must substantially recite the facts necessary to the validity of its issue."
*270 We think, then, the rule in Alabama should be consonant with the weight of authority to the effect that if the rendition warrant is defective but is accompanied by allied papers, either on the return to the writ of habeas corpus or introduced on the trial, which when taken together with the warrant, show that the executive of the asylum state did in fact have before him the necessary jurisdictional matters, viz., the documents required for the issuance of the warrant, then the prisoner is not illegally restrained. 89 A.L.R., supra. This annotation reveals that many jurisdictions have adopted an even more liberal rule than is here urged. See Ross v. Crofutt, 84 Conn. 370, 80 A. 90; Kingsbury's Case, 106 Mass. 223; State ex rel. Burnett v. Flournoy, 136 La. 852, 67 So. 929; Ex parte Devine, 74 Miss. 715, 22 So. 3.
Now with reference to Russell's Case: That was a review by certiorari of a case from the Court of Appeals, which limited its opinion to a denial of the right of the state to extradite the prisoner because of a finding by that court that the extradition proceedings were instituted for the purpose of the collection of a debt in contravention of § 68, Title 15, Code 1940, of consequence of which the prisoner was ordered discharged. That was the matter under review by this court and the other language of the opinion was thrown in in response to argument of counsel. A resort to the record discloses that oral testimony of a witness and other documents not before the Governor of Alabama were sought to be introduced at the hearing, and what this court had in mind in declaring that any vital deficiency in an extradition warrant may not be cured by extrinsic evidence was that that character of evidence was inadmissible.
We have been much aided by excellent briefs and oral argument of counsel for the parties, and while concededly there is some authority to support the contrary view, Ex parte Schillings, 124 Tex. Cr.R. 482, 63 S.W.2d 853; In re Hagan, 295 Mo. 435, 245 S.W. 336, we think the majority rule comports more consistently with reason, logic and settled jurisprudence. The judgment of the Court of Appeals is, therefore, reversed and the cause remanded to that court for further proceedings consonant with this opinion.
Reversed and remanded.
All the Justices concur. | November 23, 1951 |
2ba6b6ab-202b-4627-8cb9-2793e7372c83 | Taylor v. Shaw | 55 So. 2d 502 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 502 (1951)
TAYLOR et al.
v.
SHAW.
2 Div. 293.
Supreme Court of Alabama.
November 29, 1951.
*503 Lindsey & Christopher, Butler, for appellants Taylor.
Rogers & Evans, Butler, for appellant Doggett.
Scott & Porter, Chatom, for appellee.
*504 Richard P. Conerly, Jackson, on the brief, amicus curiae.
STAKELY, Justice.
R. W. Shaw filed his bill of complaint in the equity court against Clark Taylor, Mrs. Avie Giles Taylor, his wife, and Mrs. Connie Doggett. Clark Taylor and his wife filed their separate demurrer to the bill and Mrs. Connie Doggett filed her separate demurrer to the bill. The court entered decrees overruling the demurrer of Clark Taylor and his wife and also overruling the demurrer of Mrs. Connie Doggett. Clark Taylor and his wife have appealed from the decree overruling their demurrer and Mrs. Connie Doggett has appealed from the decree overruling her demurrer.
The allegations of the bill show that beginning with the year 1947 the complainant began to extend credit to Clark Taylor and his wife and as evidence of the indebtedness owing by these two respondents to the complainant, these two respondents executed and delivered to the complainant three notes secured by mortgages which are attached respectively as exhibits to the bill and made a part thereof. One of the notes is for $750. It is dated October 27, 1947 and is payable on October 1, 1948. The second note is for $1500.00, is dated March 6, 1948 and is payable October 1, 1948. And the third note is for $1500 and is dated January 25, 1949 and is payable October 1, 1949. The land embraced in the mortgages lies in Choctaw County, Alabama, and is described by government survey.
It is further alleged that the indebtedness evidenced by the notes and mortgages now amounts to towit $3600.00, that the indebtedness is past due and that the complainant is entitled to foreclose each of the mortgages. It is further alleged upon information and belief that the mortgagors Clark Taylor and his wife, Avie Giles Taylor, dispute the correctness of the amount of the indebtedness claimed by the complainant under and by virtue of the aforesaid notes and mortgages.
It is further alleged upon information and belief that the respondent Mrs. Connie Doggett reputedly claims some right, title or interest in and to a part or parcel of the land covered by the aforesaid mortgages; that the land described in said mortgages has for many years been commonly known and understood as being the land of the respondent Clark Taylor; that Clark Taylor and his predecessors in title have been in actual possession of the land claiming to own the same in fee simple for more than 20 years. It is further alleged that complainant "relying on the apparent ownership of Clark Taylor extended credit under the aforesaid notes and mortgages with which to erect on the land a dwelling house; that the dwelling house was erected with full knowledge on the part of Mrs. Connie Doggett and she made no objection thereto to the complainant." It is further alleged that "the materials and labor for the erection of said house and for the making of a well for the dwelling house were furnished by the complainant in good faith and that he is entitled to a materialman's lien for the materials and labor that went into the house and into the digging and equipping of the well, even if the said dwelling is not located on the land owned by the respondent Clark Taylor."
It is further alleged that complainant has been denied the privilege of surveying the land covered by the aforesaid mortgages and does not know except by general reputation and hearsay whether or not the dwelling is located on the land owned by the respondent Clark Taylor.
Among other things prayed for, it is prayed (1) that the amount of the indebtedness owing by the respondents Clark Taylor and his wife to the complainant under and by virtue of the aforesaid notes and mortgages by duly ascertained by reference directed and to be held under the supervision of the court; (2) that a decree be entered giving to the complainant a right to survey the land covered by the aforesaid mortgages, and (3) that should it develop that the dwelling house owned by Clark Taylor be on land which is in fact owned by Connie Doggett, that a materialman's lien be placed on the dwelling house to the extent of the indebtedness of Clark Taylor and his wife which went into the building *505 of the house and well. There is a prayer for general relief.
Demurrer of Clark Taylor and his wife Mrs. Avie Giles Taylor.
There is no doubt that so far as Clark Taylor and his wife are concerned, the bill has equity. The foreclosure of mortgages is an original ground of equitable jurisdiction. Carpenter v. First National Bank of Birmingham, 236 Ala. 213, 181 So. 239. Furthermore we consider that the bill is sufficiently certain with reference to the allegations as to the amount of the indebtedness secured by the mortgages. The allegations of the bill show that the notes which evidence the indebtedness and the mortgages given to secure the payment thereof are each in a certain amount and aggregate the sum of towit $3600.00. The bill also alleges that the notes are now past due and unpaid and there is a prayer that the indebtedness owing by the respondents to the complainant under and by virtue of the aforesaid notes and mortgages be duly ascertained by a reference. The allegations of the bill taken with the prayer are sufficient as to the amount of the indebtedness. Garontakis v. Sparks, 222 Ala. 421, 132 So. 896.
These respondents seek to raise by their demurrer questions related to the rights of the respondent Connie Doggett. We cannot uphold this contention. Defects if any in the bill which affect Mrs. Connie Doggett but do not affect the rights or interest of the demurrants, cannot be considered. In other words Clark Taylor and his wife must be prejudiced by the defect and if they are not, they are unharmed and unconcerned. There is accordingly no merit in such contentions here made. Ellis v. Vandergrift, 173 Ala. 142, 55 So. 781. Furthermore only a party who is prejudiced thereby can avail himself of the objection of multifariousness. Ellis v. Vandergrift, supra; Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107. We do not see how Clark Taylor and his wife can be hurt by the effort to bring in additional security from another for their debt.
It results that the court acted correctly in overruling the demurrer of Clark Taylor and his wife.
Demurrer of Mrs. Connie Doggett.
Mrs. Connie Doggett is alleged to reputedly claim some right, title or interest in and to the land covered by the mortgages. For aught that appears from the allegations of the bill, her claim may be an independent and distinct title adverse to the mortgagors and the mortgagee. Mrs. Connie Doggett insisted by way of demurrer, among other things, that she is not a proper party to the suit. It is true that a suit for foreclosure of a mortgage cannot be properly instituted for the purpose of litigating titles which are adverse to the mortgagor and mortgagee. Wells v. American Mortgage Company of Scotland, Limited, 109 Ala. 430, 440, 20 So. 136, 139. When a bill shows that a defendant asserts title paramount to the mortgage, it is demurrable. Boiling & Son v. Pace, 99 Ala. 607, 12 So. 796. "The estate or interest in the lands which is drawn within the operation of the suit, which will be affected and bound by the decree, is the estate created and passing by the mortgage, or estates or interests subsequently acquired by the mortgagor, inuring by way of estoppel to the benefit of the mortgagee." Wells v. American Mortgage Company of Scotland, Limited, supra. [109 Ala. 430, 20 So. 2d 140.] When one files a bill to foreclose a mortgage or to enforce a lien the only proper parties are the mortgagor or the obligor and those who acquire an interest subsequent to complainant's mortgage or lien. Rogers v. Gonzalez, 252 Ala. 313, 40 So. 2d 858.
There are three theories on which the appellee seeks to maintain his bill against Mrs. Connie Doggett. (1) The bill prays specifically for the establishment of a materialman's lien. It is sufficient to say that the complainant is not entitled to such a lien because there is nothing to show compliance with the statutory requirements to establish such a lien. First Ave. Coal & Lumber Co. v. McWilson, 182 Ala. 276, 62 So. 531; Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So. 2d 151. The appellee now concedes that he is not entitled to a materialman's lien. We refer however to the proposition because "a bill is not subject to demurrer because it prays *506 for certain specific relief to which complainant may not be entitled on the facts alleged when they show that other equitable relief is available, and there is a general prayer for relief." Rogers v. Gonzalez, supra. [252 Ala. 313, 40 So. 2d 861.] In the case at bar the demurrer was overruled, but we will not put the court in error in this respect if on the facts alleged, the complainant is entitled to equitable relief other than the establishment of a materialman's lien.
(2) The appellee seeks to make capital of § 10, Title 56, Code of 1940, which is as follows: "When a survey of land is made by a county surveyor for the purpose of straightening or locating section or other lines, the owners of the fences or buildings erected on or near the original or supposed lines shall not lose their right to the same, when the survey places the fences or buildings upon the lands of others."
In order to come within the statute the bill seeks a survey of the land but there are no allegations sufficient to bring the case within the purview of the statute. It is obvious that the statute has reference only to buildings erected on or near the original or supposed lines. The line is the line as fixed by original government survey. First Ave. C. & L. Co. v. McWilson, supra. The statute affords relief only where the building is erected on or near the original or supposed government line and by a subsequent survey it is made to appear that the original or supposed government line was erroneously fixed and as a result of that error one has constructed a building on the land of another. For aught therefore that appears from the present bill the building could have been erected not on or near the original or supposed government line between the property of Clark Taylor and Mrs. Connie Doggett, but at a substantial distance from such line. If the lands of Clark Taylor and Mrs. Connie Doggett are adjoining lands and if the building was erected on or near the original or supposed boundary line between the two owners, then the bill should so allege.
The description of the land contained in the mortgage makes no reference to the building which is the subject of discussion in the present case. If the survey should show that the building is on the land of Clark Taylor, then obviously this improvement would be embraced within the mortgage. If, however, the building was constructed on or near the original or supposed government line, which line has been considered the boundary line between Clark Taylor and Mrs. Connie Doggett, and the subsequent survey should show that the original or supposed government line was erroneously fixed and therefore the building is on the property of Mrs. Doggett, then the foregoing statute creates an equitable right which should enure to the complainant through Clark Taylor, because acting on the belief that the boundary line between Clark Taylor and Mrs. Doggett was the original or supposed government line, he has caused improvements to be erected on the land of Mrs. Connie Doggett. Certainly the complainant can request the survey, § 11, Title 56, Code of 1940, and the court can direct the survey. §§ 3 and 4, Title 56, Code of 1940. The statute was enacted to alleviate the harsh rule of the common law and in Edgar v. State, 156 Ala. 147, 47 So. 295, 297, the statute was construed as follows: "This statute, we think, can mean nothing more nor less than that the party who erected the fence or building shall not lose his right to the material in the structure. * * * The purpose of the statute is to prevent one who innocently and through mistake erects a fence or building on the land of another from losing the material used in such structure. The effect of the statute is to convert the fence or building into personal property, which otherwise would be a fixture and become a part of the realty. * * *" See also Marbury Lumber Co. v. Lamont, 169 Ala. 33, 53 So. 773.
If upon proper allegation and proof the case is brought within the terms of the foregoing statute, we think it will be equitable for the court to authorize the complainant to remove the materials that went into the construction of the building, except the respondent should be first given the opportunity of paying the mortgage debt and *507 thereby retaining the improvement if she sees fit to do so.
(3) It is sought by the complainant under the circumstances in the case to impress the property of Mrs. Connie Doggett, if it is her property, with a lien for the amount of the expenditures for the improvements made on the property on the principle "that `where a person makes improvements upon property of another or otherwise increases its value, being induced by fraud, duress, undue influence, or mistake of such a character that he is entitled to restitution, he is entitled to an equitable lien upon the property'." Lee v. Menefield. 249 Ala. 407, 31 So. 2d 581, 585. See 42 C.J.S., Improvements, § 7, pp. 432-434. In other words there is an attempt to resort to the equitable doctrine of unjust enrichment frequently enforced under the doctrine of estoppel. 27 Am.Jur. pp. 275-276; Cityco Realty Co. v. Slaysman, 160 Md. 357, 153 A. 278, 76 A.L.R. p. 304.
It will be noted that there are no allegations in the bill that there was any misrepresentation or concealment on the part of Mrs. Connie Doggett. Nor is there any allegation that the conduct of Mrs. Connie Doggett was such that her action was with the intention or at least the expectation that it would be acted upon by the other party. Nor is there allegation that there was any reliance put upon the alleged action of Mrs. Connie Doggett. For aught that appears the complainant or Clark Taylor had knowledge of the truth or had the means by which with reasonable diligence they could have acquired knowledge of the truth. Estoppel "cannot be invoked by one who at the time of the improvement was acquainted with the true character of his own title or with the fact that he had none." 19 Am. Jur. p. 788. The only allegation of the bill is that the house was erected with full knowledge of Mrs. Connie Doggett and she made no objection thereto to the complainant. The effort is to show an estoppel in equity affecting the legal title to the land. The allegations in the bill are not sufficient. Jacksonville Public Service Corp. v. Calhoun Water Co., 219 Ala. 616, 123 So. 79, 64 A.L.R. 550.
For the reasons given the demurrer of Mrs. Connie Doggett should have been sustained.
It results that the decree overruling the demurrer of Clark Taylor and his wife is affirmed and the decree overruling the demurrer of Mrs. Connie Doggett is reversed and the cause is remanded.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | November 29, 1951 |
2b49d9af-c224-4d70-8313-f93b8ca360d1 | Rite Tile Company v. State | 176 So. 2d 31 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 31 (1965)
RITE TILE COMPANY, Inc.,
v.
STATE of Alabama.
1 Div. 120.
Supreme Court of Alabama.
June 3, 1965.
*32 Vincent F. Kilborn, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., Willard W. Livingston and Jas. R. Payne, Asst. Attys. Gen., for appellee.
GOODWYN, Justice.
The State Department of Revenue made a final sales tax assessment against Rite Tile Company, Inc., doing business as Stylon of Mobile, covering the period from July 1, 1958, through June 30, 1961. Rite Tile appealed to the circuit court of Mobile County, in equity. Code 1940, Tit. 51, § 140. That court, after an oral hearing of the evidence, rendered a decree affirming the assessment. Rite Tile brings this appeal from that decree.
We find no error in the decree.
Act No. 100, appvd. Aug. 18, 1959, and made effective on October 1, 1959, Acts 1959, Vol. 1, p. 298 (included in Recompiled Code 1958, Cum.Pocket Part, as Tit. 51, § 786(2), et seq.), superseded and repealed the existing sales tax laws ("Article 10 of Chapter 20, Title 51, Code of Alabama 1940, and all acts amendatory thereof or supplemental thereto"Act No. 100, § 35). Although the assessment period is covered in part by the sales tax laws existing prior to October 1, 1959, and in part by Act No. 100, which became effective on October 1, 1959, there is no need to refer to both laws since the pertinent provisions of both are the same. Reference will be made only to provisions of Act No. 100 and, for convenience, the corresponding provisions of the unofficial Recompiled Code 1958.
The taxpayer is a dealer in ceramic tile manufactured by Stylon Corporation of Florence, Alabama. Taxpayer's place of business is in Mobile, Alabama, although its franchise area covers South Alabama, South Mississippi, and Northwest Florida. It employs no salesmen outside Alabama.
The bulk of taxpayer's sales is to subcontractors who install the tile for prime contractors. The sales tax law classifies such sales as "retail sales." Act No. 100, *33 § 1(1) (j) (Recompiled Code 1958, Tit. 51, Cum.Pocket Part, § 786(2) (1) (j)).
Taxpayer has regularly reported sales to Alabama contractors as being subject to the sales tax. However, sales to contractors in Mississippi and Florida have been reported as nontaxable sales, on the basis that the Commerce Clause of the United States Constitution prohibits the taxing of such sales.
During the period here involved, sales to out-of-state contractors were accomplished in three ways: (1) Taxpayer would ship the tile to the contractor by common carrier, (2) taxpayer would deliver the tile to the contractor in the other state, or (3) the contractor would come to taxpayer's place of business in Mobile and take delivery of the tile there. The state claims a sales tax is due only with respect to the last category.
There is no question that the tile delivered in Mobile to the Florida and Mississippi contractors was immediately transported out of Alabama for use in those states, and that the taxpayer sold the tile with the knowledge it would be so transported and used. There is also no question that title to the tile passed when the buyers took delivery in Alabama. As to this, the trial court made the following findings, which the evidence supports, viz.: "[T]hat the final assessment of sales tax made and entered against Appellant, is based upon a purely local activity, to-wit: the sale of tangible personal property within this state; that delivery of the tile and tile produce was made by Appellant to its customers and same were accepted and possession obtained by the customers of Appellant [Rite Tile Company, Inc., the taxpayer] at the time of the sales transaction, and that said sales transaction occurred and was fully consummated within the City of Mobile, Alabama."
The sales tax is levied on "gross sales." Act No. 100 § 2 (Recompiled Code 1958, Cum.Pocket Part, Tit. 51, § 786(3)). Act No. 100, § 1(1) (e) (Recompiled Code 1958, Cum.Pocket Part, Tit. 51, § 786(2) (1) (e)), provides as follows:
* * * * * *
There is no question that the sales here involved were "closed transactions." Rather, the contention is that taxation of such sales is prohibited by the Commerce Clause on the theory that, when it is within the contemplation of the parties that goods sold will be promptly transported in interstate commerce, the sale itself is a part of an interstate transaction which may not be taxed by the state. In other words, the naked sale is only part of a continuous transaction and may not be singled out and made the subject of state taxation. This court and the United States Supreme Court have held contrary to this theory.
In State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 623, 52 So. 2d 693, 699, it was said:
Compare Hamm v. Continental Gin Company, 276 Ala. 611, 165 So. 2d 392, where it was held that a sales tax was not due on gin equipment delivered to a prospective out-of-state purchaser in this state and then transported by such purchaser out of the state, unless there was a "closed transaction" in Alabama. There was no "closed transaction" in that case because title did not pass until the equipment had been installed in another state and there accepted by the purchaser. In the case now before us, title passed upon delivery of the tile to the contractors in this state.
The United States Supreme Court had occasion to decide the question now before us in State Tax Commission of Utah v. Pacific States Cast Iron Pipe Co., 372 U.S. 605, 83 S. Ct. 925, 10 L. Ed. 2d 8. In that case, Utah had imposed a state sales tax on certain pipe which had been delivered in Utah by a local seller to an out-of-state buyer. It was there said:
The holding of these cases is that a sale taking place entirely within a state is an intrastate transaction, regardless of the fact that the goods sold may subsequently be transported in interstate commerce. The taxation of the sale is not taxation of interstate commerce, but of a closed, intrastate transaction.
On the trial below appellant introduced copies of Florida and Mississippi laws which provide for a use tax which apparently is, or could be, imposed on the tile bought in Alabama and transported to those states. A Florida contractor testified that he was so taxed. Appellant contends that since the Alabama sales tax law contains neither a provision for crediting the use taxes of other states, nor a provision for apportionment of the taxes, the imposition of the Alabama sales tax results in double taxation, which is an unconstitutional discrimination against interstate commerce. The inefficacy of this contention lies in the fact, aside from any other, that it is not interstate commerce which is here taxed, but an intrastate transaction. That this tile may be subjected to use taxation when transported to another state does not change the fact that the sale of the tile in Alabama constituted a taxable event, which event is taxed the same as all *35 other like events, irrespective of the ultimate destination of the merchandise.
The decree is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | June 3, 1965 |
f03883b0-be95-4003-9092-3e630cfb5bec | Hawkins v. Snellings | 53 So. 2d 552 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 552 (1951)
HAWKINS
v.
SNELLINGS.
4 Div. 605.
Supreme Court of Alabama.
March 22, 1951.
As Modified on Denial of Rehearing June 28, 1951.
*553 Patterson & Patterson, of Phenix City, for appellant.
*554 W. R. Belcher and Smith & Smith, all of Phenix City, for appellee.
BROWN, Justice.
It is well settled law that a "mortgagor in possession may without previous tender file bill to protect and enforce equity of redemption" and that a "mortgagee cannot, pending mortgagor's bill to protect equity of redemption, impair mortgagor's right to redeem." Ezzell v. First Nat. Bank of Russellville, 218 Ala. 462, 119 So. 2; Boyd v. Dent, 216 Ala. 171, 113 So. 11; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Thompson v. Atchley, 201 Ala. 398, 78 So. 196, 79 So. 478; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Burns v. Mortgage Bond Co. of New York, 199 Ala. 77, 73 So. 987.
On the former appeal reported as Hawkins v. Snellings, 252 Ala. 238, 40 So. 2d 704, 705, the decree of the circuit court was reversed for lack of proper parties and on that appeal it was observed:
"It should be noted that the mortgage in question is jointly owned by appellee and another. Likewise, the mortgage was executed by appellant and another. Appellant's co-mortgagor and appellee's co-mortgagee are not parties to this suit and have never been given notice as required. No question has been raised in this regard, but since the decree must be reversed and the cause remanded, we call attention to this apparent lack of proper parties."
Notwithstanding this observation, after remandment the respondent J. F. Snellings, an individual doing business in the name of Snelling Finance Company filed an original bill in the nature of a cross-bill, seeking to foreclose the mortgage executed to him and his wife Maude I. Snellings, against "Lillian Inez Hawkins Windham, formerly Hawkins, * * * Joe Hawkins * * * a minor over the age of Fourteen years, and George W. Hawkins, a non resident of the State of Alabama * * *," without making said Maude I. Snellings a party either cross-complainant or respondent, and prosecuted the same to the final decree from which the appeal in this case is prosecuted. The circuit court in said decree stated as a fact and conclusion of law, "From all the evidence in the case that has been introduced the court is of opinion that the respondent has title under his mortgage to a two-thirds interest in the real property known as the laundry property with one-third interest in the real property belonging to the minor," showing that the right of the co-mortgagee, not made a party to the original bill nor to the original bill in the nature of a cross-bill, left a loop hole for future litigation and vexation.
Said decree, although the undisputed evidence shows that said J. F. Snellings and his organization, either by agreement with complainant's widow who was at the time ill or by surreptitious cunning and blandishment, took over and continued to operate the laundry property without offering to pay or account for rents, income and profits arising from said business on the sole assertion that the mortgagors were in default and by virtue of such default he was the owner of the property, not only ignored the complainant's equity of redemption, but disregarded the ownership of a third interest by the minor Joe Hawkins, not covered by the mortgage.
As applicable to the first point above stated, it is well settled law in Alabama that on final hearing on the merits and on appeal from a final decree where it appears that the cause cannot be properly disposed of because of nonjoinder of a necessary party, "the objection may be made at the hearing, or on error, it may be taken by the court ex mero motu." Prout v. Hodge, 57 Ala. 28; Singo v. Brainard, 173 Ala. 64, 55 So. 603; Baisden v. City of Greenville, 215 Ala. 512, 111 So. 2.
The law applicable to both horns of the dilemma is well stated in Prout v. Hodge, 57 Ala. 28. We reproduce it here: "The general rule in a court of equity is, that all persons having a material interest, legal or equitable, in the subject matter of a suit, must be made parties, either as plaintiffs or defendants. The rule proceeds on the principle that no man's rights should be controverted in a court of justice, unless he has full opportunity to appear and vindicate them; *555 and further, that complete justice may be done and future litigation avoided, the performance of the decree being safe because of the presence in court of all who have an interest in its subject matter. Story's Eq.Pl. § 72.
"A mortgage operates in a court of law as a conveyance, transferring to the mortgagee the estate of the mortgagor. In equity, it is a mere security for a debt; and until its foreclosure, by decree of a court of equity, or by the execution of a power of sale, if such power is conferred, the mortgagor may redeem by payment of the debt. * * *."
And in this connection, if the mortgagee has received money or other effects which should be applied to the reduction of the debt, and neglects or refuses to so apply the same, the mortgagor is entitled to an accounting. Ezzell v. First Nat. Bank of Russellville, 218 Ala. 462, 119 So. 2.
The evidence is without dispute that Snellings and his finance organization took charge of the laundry and operated it continuously, as some of the evidence goes to show "day and night," on the mistaken assumption that he was the sole owner, and collected the earnings without keeping any account thereof. Under the great weight of authority Snellings should be required to account to the mortgagors and the coowner Joe Hawkins, for rents received and rents or profits made that should have been earned by "reasonable diligence, that diligence which one of ordinary diligence exercises in dealing with his own property. This is the just and equitable rule. Alexander v. Hicks, 242 Ala. 243, 247, 5 So. 2d 781.
41 C.J. p. 615; 59 C.J.S., Mortgages, § 305, page 394 states the rule to be that, "A mortgagee in possession is generally regarded as a constructive trustee, being subject to an accounting by [to] the mortgagor and those claiming under him, and he is bound to manage the property in a reasonably prudent and careful manner, so as to keep it in a state of good preservation, and make it productive." To like effect is 36 Am.Jur. p. 842, § 305.
The decree of the circuit court denied the right of the complainant to an accounting on the ground that the evidence did not show the mortgagee had agreed to pay rents or account for profits. The decree also ignores the rights of said minor.
We repeat "that in cases of accounting, such as this, equity procedure has wisely provided for a reference with appropriate instructions, wherein the register or special referee may see and hear the witnesses, state an account disclosing his findings on the several issues; with further procedure for facilitating a review. Certain presumptions support his findings of fact. Such is the better practice." Alexander v. Hicks, 242 Ala. 243, 245, 5 So. 2d 781, 782; Loftin v. Smith, 251 Ala. 202, 36 So. 2d 312.
The property consisting of a laundry a going concernand the building in which it is situated in the heart of the business district of Phenix City, the residence (the homestead of the complainant and the minor child), and an apartment on one of the main streets, on which the respondent Snellings through his finance organization advanced upward of $20,000 as a loan payable within twelve months divided into twelve monthly payments, eleven of $300.00 each and the last of more than $27,000 in December, 1947 (the year in which the loan was made), together with the interest calculated and included in the face of the notes, created a debt (according to the testimony offered by the cross-complainant Snellings) of over $30,000. Evidence was offered going to show Snellings agreed to allow the mortgagors to renew, if full payment was not made on the final due date. This he denied and when default was made he assumed control of the laundry and the building in which it was situated and declared his sole ownership thereof. The loan was evidenced by an instrument in writing, which recited that it was a "mortgage", carrying the usual provisions for declaring the entire debt due on failure to pay any one of the notes at maturity. At the public auction under the decree of the court Snellings, the mortgagee, was the only bidder. As the evidence indicates he bought the same in for less than half of the original sum advanced. *556 The one-third interest of the minor, which was unincumbered, was embraced in the sale. After the payment of expenses of foreclosure, attorney's fees and costs, the minor was awarded the measley sum of $750. The register who made and entered the sale abstained from making the usual statement in such cases that the price at which the property was sold was "not greatly disproportionate to its value," yet this sale was confirmed without evidence touching the subject of the adequacy of the bid by the purchaser.
In the light of the amount of said loan indicating the value of the property and the amount of the bid, the bid is so inadequate as to shock the judicial conscience, and should not have been confirmed. Hunter-Benn & Co. v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348.
The title and interest of Joe Hawkins, the minor heir of J. F. Hawkins, deceased, who died intestate before the mortgage was executed, passed to and vested in said heir, he being the only heir of his ancestor, free of incumbrance, and that interest in the property cannot be subjected to the diminishing processes of this litigation, seeking the foreclosure of the Snellings' mortgage. Nor is it subject to sale under the foreclosure proceedings. Forman v. McAnear, 219 Ala. 157, 121 So. 538; Gassenheimer v. Gassenheimer, 108 Ala. 651, 18 So. 520; Carroll v. Draughon, 173 Ala. 338, 56 So. 209; Carter v. Mitchell, 225 Ala. 287, headnote 42, 142 So. 514, subject of course to such further orders of that court for the protection of the parties pending final determination of the case.
The infant defendant through and by his guardian ad litem filed an appropriate answer and cross-bill, asserting his ownership of a one-third interest in and to said property and praying for an accounting by the mortgagee in possession, to which he is entitled. Burns v. Lenoir, 220 Ala. 422, 125 So. 661. The decree of the circuit court erroneously ignores these rights.
For the errors pointed out the decree of the circuit court ordering the sale of the property and the decree confirming the register's report thereof are reversed, vacated, set aside and held for naught and the cause is remanded with directions to the court to enter a decree of reference to the register or a special master to take and state an account between the parties in accordance with principles stated in this opinion. And pending further proceedings the register is directed to issue a writ, directing the Sheriff of Russell County to restore the status quo prevailing at the time of the rendition of the decree below by placing the complainant and the infant defendant in possession of the residence and the apartment connected therewith.
Reversed, rendered and remanded with directions.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur.
On Rehearing
PER CURIAM.
Opinion modified and application for rehearing overruled.
All the Justices concur. | June 28, 1951 |
6832d3ea-a858-44d9-8f9a-8570e0fcdb95 | McPherson v. Everett | 172 So. 2d 784 | N/A | Alabama | Alabama Supreme Court | 172 So. 2d 784 (1965)
Margaret M. McPHERSON
v.
Elbert Ernest EVERETT et al.
1 Div. 183.
Supreme Court of Alabama.
March 11, 1965.
Caffey, Gallalee & Caffey, and Ralph P. Loveless, Mobile, for appellant.
*785 M. A. Marsal and Howell, Johnston & Langford, Mobile, for appellees.
HARWOOD, Justice.
In the proceedings below the appellant, Mrs. Margaret M. McPherson, filed a bill in equity seeking to set aside a conveyance of real property by Elbert Ernest Everett and his wife, Lodica, to Samuel J. Everett and Ouida E. Everett. The grantees were the parents of Elbert Ernest Everett. The bill averred that the conveyance had been made with intent to defraud the creditors of Elbert Ernest Everett, of whom the appellant was one of such creditors.
The respondents' demurrer to the bill being overruled, they filed their answer setting up that although a conveyance of the property by his parents to Elbert Ernest Everett had been recorded, the deed had never been delivered to him and therefore the title to the property had never vested in him, and further that the consideration for this conveyance had never been paid, and therefore his parents had secured a deed back from him.
Subsequent to the filing of the bill, Elbert Ernest Everett filed bankruptcy proceedings and moved to stay this proceeding pending the bankruptcy proceedings. The Trustee in bankruptcy being granted leave to intervene, this motion was denied. Thereafter the Trustee intervened as a complainant seeking to have the conveyance set aside, and as to this petition decrees pro confesso were taken against the respondents.
The original bill of complaint was amended to show that a different and pending suit by complainant against Elbert Ernest Everett had been taken to final decree, the lien resulting therefrom foreclosed, but leaving a balance due on the decree of $2,733.27 plus interest, and the decree pro confesso obtained by the Trustee was set aside.
The respondents filed their answer to the complaint as amended, and to the intervention bill.
The respondents, Elbert Ernest Everett and Lodica Everett, also filed the following paper:
This pleading was challenged by demurrer, and motions to strike filed by the complainant and intervenor, which were denied and overruled by the court. Upon answers being filed by the complainant and intervenor, the cause was continued for further pleading and for evidence to be submitted to the court touching the value of the property, or such evidence as may be relevant to the cause.
After hearing the evidence the court entered its decree denying the complainant and the intervenor relief, and finding and decreeing that the property that had been conveyed was not subject to the creditor's claims inasmuch as it was less than 160 acres in area, and was worth less than $2,000.
The most material points raised on this appeal by the appellants' various assignments of error are, (1) that the trial court erred in overruling appellants' demurrer to the "cross-bill" filed by the appellants and in denying their motion to strike the same, and (2) that the court erred in entering its decree in that the evidence was insufficient to support its findings that the property in question was worth less than $2,000 at the time of the conveyance, and the appellees were thereby allowed a defense they did not properly plead.
*786 Section 625, Title 7, Code of Alabama 1940, provides that the homestead of every resident of this state, not exceeding in value of $2,000, and in area of 160 acres, shall be exempt from levy and sale under execution for the collection of debts during his life and occupancy.
Section 633, Title 7, Code of Alabama 1940, provides that a resident desiring to claim a homestead exemption may at any time make and file in the appropriate probate office a declaration in writing, subscribed and sworn to by him, describing the property selected by him and claimed as exempt, with its value.
The homestead laws are to be liberally construed to the end of advancing their beneficial objects, by giving effect to the manifest purpose of the constitution makers and of the legislature in conferring these rights. Lewis v. Lewis, 201 Ala. 112, 77 So. 406.
The matters alleged in the so-called "cross-bill" grew out of the original bill. If the land in question was in fact the homestead of the respondents, Elbert Ernest Everett and Lodica Everett, and exempt from levy and sale, such fact was available by way of answer and proof, or due claim of exemption before sale under execution. Majors v. Killian, 230 Ala. 531, 162 So. 289, and cases cited therein. And as stated in Kennedy v. First National Bank of Tuscaloosa, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308:
Admittedly the pleading labeled a "cross-bill" is faulty as a cross-bill. However, it presents matters available by answer. In 1954, Equity Rule 26 was amended by adding the following sentence:
The above amendment necessitates the conclusion that error to reversal did not result from the court's action in overruling the demurrer to the "cross-bill" nor in denying the motions to strike the same.
There is no conflict in the evidence that the property had been occupied by Elbert Ernest Everett and his wife Lodica as a homestead for a long number of years or that the property was less than 160 acres, all the evidence showing it to be less than four acres.
As to the value of the property, the respondents' evidence tended to show the value of the property to be $1,800, while appellant's witness gave as his opinion that the property was worth about $3,000 in 1960. The deed in question was dated 1 June 1960.
These conflicts in the evidence merely raised a question of fact within the province of the court to resolve, the court sitting without a jury.
Where the evidence is given ore tenus, the judgment of the trial court has the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably wrong, and a reviewing court will not substitute its own judgment for that of the trier of facts, even though such court might have reached a different conclusion. There being evidence reasonably tending to support the trial court's conclusions, (Kyser *787 v. Doan, 271 Ala. 229, 122 So.2d 764), we find no basis for disturbing its judgment based on the conclusions reached. Appellant's second point of contention is therefore without merit.
This judgment is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | March 11, 1965 |
47f25fe5-310e-4481-8317-da84b72811dd | Kendrick v. State | 54 So. 2d 442 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 442 (1951)
KENDRICK et al.
v.
STATE ex rel. SHOEMAKER.
6 Div. 9.
Supreme Court of Alabama.
October 4, 1951.
*445 John S. Foster and Maurice F. Bishop, Birmingham, for appellants.
Jerome Phillips and John T. Batten, Birmingham, for appellee.
LAWSON, Justice.
This is a mandamus proceeding filed in the circuit court of Jefferson County in the name of the State of Alabama on the relation of J. G. Shoemaker, as a voter, citizen and taxpayer of Jefferson County, against the County Commission of Jefferson County, W. D. Kendrick individually and as president of said commission, Earl Bruner, individually and as associate commissioner, and Charles E. Harrison individually and as associate commissioner.
The purpose of the proceeding was to secure an order commanding the County Commission, the governing body of Jefferson County, to furnish and provide voting machines for use in all primary, special and general elections held in Jefferson County.
Upon the filing of the petition it was ordered that an alternative writ of mandamus issue commanding the respondents to furnish and provide voting machines as prayed, or show cause why they should not be compelled to do so.
The alternative writ of mandamus is not process merely, but both process and pleading. Longshore, Judge, etc. v. State ex rel. Turner, 137 Ala. 636, 34 So. 684; Garrett, Sheriff v. Cobb, 199 Ala. 80, 74 So. 226.
Answer was filed to the alternative writ of mandamus wherein several defenses were set up. The answer was twice amended. Relator demurred to the answer as amended. The demurrer was overruled; thereupon relator filed his replication to the answer as amended.
The case was submitted to the court on an agreement or stipulation of the parties and on oral testimony.
After taking the case under advisement, the trial court rendered a judgment ordering that the peremptory writ issue "to the said Honorable W. D. Kendrick in his capacity as President of the County Commission of Jefferson County, and the Honorables Earl Bruner and Charles E. Harrison as members of the County Commission of Jefferson County ordering, directing and commanding them to furnish and provide voting machines for use in all primary, special and general elections in Jefferson County, according to the provisions of Article 7 of Title 17 of the Alabama Code of 1940." The peremptory writ issued as ordered.
From the judgment awarding the peremptory writ of mandamus the respondents have appealed to this court.
On July 21, 1939, the Governor proclaimed ratified an amendment to the Constitution of this state, the purpose of which was to grant authority to the legislature, by general or local law, to permit the use of voting machines at all elections, including primary elections, in any county, municipality, *446 or other political subdivision of the state, under such regulations provided by general law with reference thereto as the legislature may from time to time prescribe. Const.1901, § 190; Amend. No. 41.
The constitutional amendment is not self-acting, but requires enabling legislation. It is not mandatory, but grants authority to the legislature so as to relieve the former requirement of uniformity throughout the state in this respect. The constitutional amendment was evidently the result of the decision of this court in McCall v. Automatic Voting Machine Corp., 236 Ala. 10, 180 So. 695.
Enabling legislation was adopted. General Acts 1939, p. 443; see §§ 91-119, Title 17, Code 1940. For amendments and additions made to the Voting Machine Law, see 1949 Cum.Pocket Part, Vol. 4, Code 1940, Title 17, §§ 91-115(1).
In Abrasley v. Jefferson County, 241 Ala. 660, 4 So. 2d 153, 156, we dealt with certain phases of the voting machine law. In that case it was shown that more than thirty days prior to November 5, 1940, a petition signed by the requisite number of voters was duly filed with the County Commission of Jefferson County, requesting the Commission to submit to the qualified electors of the county the question, "Shall Voting Machines be used in Jefferson County"? An election to determine that question was duly called and was held on November 5, 1940, pursuant to the petition. A majority of the voters participating therein voted "yes."
Abrasley instituted a declaratory judgment proceeding in the circuit court of Jefferson County against Jefferson County, the County Commission thereof and the individuals composing the Commission, the City of Birmingham, the Commission of the City of Birmingham, and the individuals composing said Commission, to determine and declare the rights and status of the parties with respect to the Voting Machine Law. From a judgment declaring the rights of the parties Abrasley appealed to this court. We modified the judgment appealed from and, as modified, the judgment was affirmed.
In part we held: (1) That since the election wherein it was determined that voting machines should be used was county-wide, there being no separate election on the question in the City of Birmingham, it was incumbent upon the County to furnish such machines for all elections whether general, primary, or special, including municipal elections; (2) that under such an election the City of Birmingham was neither required nor authorized to purchase or rent voting machines for use in municipal primary or municipal general elections to be held in the City of Birmingham; (3) that the authority and duty imposed on the County to furnish such machines could only be exercised within the limitation of indebtedness fixed by § 224 of the Constitution of 1901; (4) that if Jefferson County owed debts equal to its constitutional debt limit, it could not incur an additional debt by leasing the voting machines for one or more years, with or without an option to buy them, or enter into an obligation to do so whereby it is undertaken to bind the county to pay for their use a stipulated amount, without making it payable solely out of revenues of the county collected during the year in which they are used for which the payment shall be made; (5) that the County could, without violating § 224 of the Constitution, rent the machines for use in any election in the County or in any precinct or municipality in the County in which they are required by law to be used, and bind itself to pay for their use only out of current annual county revenue in preference to other claims not preferred by law over such an obligation, but it could not be in the form of an unconditional obligation so as to be extended to subsequent years for payment, in event of an insufficiency of current revenues.
The decision in the Abrasley case, supra, was rendered by this court on July 29, 1941, and application for rehearing denied October 23, 1941.
This proceeding to required the County to install voting machines under the mandate of the people expressed in the election held on November 5, 1940, was filed on October 3, 1949.
*447 It is insisted here that the petition for mandamus was insufficient and that, therefore, the trial court erred in rendering the judgment ordering the issuance of the peremptory writ.
In State ex rel. Gaston v. Cunninghame, 216 Ala. 423, 426, 113 So. 309, 312, cited by counsel for appellants, we said: "With us mandamus is a civil proceeding or remedy, commenced by petition, and the petition constitutes the first pleading in the case, and where, as here, it seeks to compel official action, it is incumbent on the petitioner to show, by averments, as well as proof, a specific legal right in the petitioner to have the act performed, and that the respondents are under duty and have the authority to do the act (Lewis et al. v. Jenkins, 215 Ala. 680, 112 So. 205; Home Guano Co. v. State ex rel. Pike, 193 Ala. 548, 69 So. 419; 13 Ency. P. & P. 672); and, if the averments do not show such right the petition will be dismissed, although its averments are not controverted or denied (State ex rel. Almon v. Burke, Judge, etc., 160 Ala. 163, 48 So. 1035; 26 Cyc. 471[b]; State ex rel. King et al. v. Pearce, Judge etc., 14 Ala.App. 628, 71 So. 656)."
It is argued that the petition fails to aver or show any right in petitioner to require appellants, respondents below, to provide voting machines, in that there are no averments to the effect that petitioner votes in a precinct where there are at least 100 registered voters, or in which the majority of the registered voters have petitioned for the installation of a voting machine. This insistence seems to be based on the provisions of § 94, Title 17, Code 1940, to the effect that the governing body may in its discretion elect not to install voting machines in any ward or precinct or beat having less than 100 registered voters unless petitioned to install such a machine by a majority of the registered voters in any such ward or precinct or beat. As before indicated, the petition alleges that petitioner is a voter, citizen and taxpayer of Jefferson County. It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public; but if the matter concerns the sovereign rights of the State, it must be instituted on the relation of the Attorney General, the law officer of the State. Marshall County Board of Education v. State ex rel. Williams, 252 Ala. 547, 42 So. 2d 24; Gray v. State ex rel. Garrison, 231 Ala. 229, 164 So. 293, and cases cited. It is clear that the act which petitioner seeks to have performed does not concern the sovereign rights of the State and is one in which the public, all the people of Jefferson County, have an interest. Petitioner's right to have the act performed is not dependent upon the fact that he may or may not vote in a voting place where the governing body is required to install a voting machine.
It is next insisted that the petition is insufficient in that it does not allege facts showing that appellants, respondents below, have been guilty of a breach of duty. The petition alleges, in part, as follows:
"4. Petitioner avers that it is the duty of the County Commission of Jefferson County, as the governing body of said County, to furnish and provide voting machines for use in all primary and general elections held in Jefferson County, as provided for by the mandate of the people as heretofore set out in paragraph three (3) of this petition; and also by virtue of Sec. 92 of Article 7, Title 17 of the 1940 Code of Alabama.
"5. That Jefferson County does not own or possess any voting machines as required by law and has failed or refused, after demand was made upon the governing body to acquire same, in violation of Sec. 94 of Article 7, Title 17 of the 1940 Code of Alabama."
We do not understand from briefs that counsel for appellants attack the sufficiency of paragraph 4 of the petition, which is quoted above, and which in our opinion clearly avers the duty of respondents to furnish and provide voting machines. The criticism is directed at paragraph 5, which it is insisted does not sufficiently charge a breach of such duty. Section 94, Title 17, *448 Code 1940, requires that the governing body of a political subdivision "provide" voting machines. It is not expressly averred in paragraph 5 of the petition that respondents below had not provided such machines, but "that Jefferson County does not own or possess any voting machines as required by law." Voting machines may be provided by purchase or by rental and it is argued, in effect, that for aught appearing from the averments of the petition the governing body of Jefferson County has rented such machines. The words "own" and "possess" have been said to be synonymous, equivalents in common speech. Melvin v. Scowley, 213 Ala. 414, 104 So. 817. But the words are not always used as having the same meaning. See statutory provisions dealt with in Agnesia v. State, 35 Ala.App. 264, 45 So. 2d 712; Hurvich v. State, 230 Ala. 578, 162 So. 362. The averment that Jefferson County did not possess voting machines as required by law sufficiently charges that such machines had not been provided in any of the ways authorized by statute, namely, by purchase, lease or rental. Paragraphs 4 and 5 of the petition should be considered together and, when so considered, show a duty on the part of the respondents below to furnish and provide voting machines and a breach of that duty. We cannot follow the highly technical argument advanced in connection with this point by counsel for appellants.
It is next insisted that the petition contains no averment that there is any voting place in Jefferson County where there are as many as 100 registered voters, or that the majority of registered voters in any voting place in Jefferson County have petitioned for the installation of a voting machine; hence, no breach of duty is shown, for unless one of such conditions exists the governing body of Jefferson County is under no mandatory duty to provide voting machines. Such is the insistence of counsel for appellants. We cannot agree with that insistence. It was not incumbent upon petitioner to aver the number of persons voting in the several voting places in Jefferson County. Aside from any question of financial ability, it is incumbent upon the governing body to provide voting machines for every voting place in the political subdivision where the majority of the voters participating in an election on the question have expressed themselves in favor of such machines, unless the governing body by affirmative action elects not to provide them for voting places where there are less than 100 registered voters. If there are no voting places having as many as 100 registered voters and for that reason the governing body has elected not to install voting machines, then it would be incumbent upon the governing body in a proceeding of this kind to set that fact up as a matter of defense.
It is next insisted that the trial court erred in awarding the peremptory writ because petitioner's right to the writ was dependent upon the result of an election and that the result of the election was neither alleged nor proved. The petition specifically avers the number of votes cast in favor of voting machines and the number against. The plurality in favor of the machines is shown to have been 4,243. The respondents stipulated that the result of the election as averred in the petition was correct. It was also stipulated that certificates of result were filed with the county governing body and the Secretary of State. But appellants, respondents below, argue here that according to the averments of the petition the certificate of result of the election was not made in compliance with the method prescribed by § 93, Title 17, Code 1940. But even if it be assumed that the highly technical construction placed by counsel for appellants on the averments of the petition which relate to the manner in which the result of the election was certified is correct, such construction would not render the petition defective. As before shown, the result of the election is definitely averred and such averments admitted by respondents below. Certainly an irregularity in the manner in which the result of an election is certified cannot be permitted to thwart the will of the people. People ex rel. Woods, County Collector, v. Green, 265 Ill. 39, 106 N.E. 504.
Section 97, Title 17, Code 1940, prescribes the type of machines which must be *449 installed and provides that "Before any voting machine is purchased, rented, or leased, the person or corporation owning or manufacturing such machine must give an adequate guarantee, in writing, securing that such machines comply fully with the above requirements and will correctly, accurately and continuously register and record every vote cast." Because of such requirements appellants, respondents below, insist that their ability to comply with the peremptory writ is contingent upon the further act of a third person and, therefore, the peremptory writ was erroneously ordered.
There is nothing in the record in this case to indicate that voting machines of the type prescribed by § 97, Title 17, supra, are not available. We judicially know and it is a matter of common knowledge that they have been installed in other political subdivisions of this state and have been in use for a number of years. The requirements of § 97, Title 17, supra, fall far short of making it impossible for respondents to comply with the peremptory writ which does nothing more than direct respondents to provide voting machines according to the provisions of Article 7 of Title 17 of the Alabama Code of 1940. It is farfetched to argue that simply because the law prescribes the requirements of machines to be installed and requires a guarantee from the seller or lessor that the machines meet such requirements, the remedy by mandamus is unavailable.
It is not contended that at the time the petition for mandamus was filed and when the peremptory writ was ordered, Jefferson County was beyond its constitutional debt limit. But it is insisted that to require the county to procure voting machines would work a great hardship in that it would result in lower contributions made for the treatment of indigent patients at Jefferson-Hillman Hospital, or in curtailing work on county roads, or in the reduction of salaries of county employees below a living wage. It is to be regretted that the procurement of voting machines may bring about such results, but the fact remains that in the absence of some constitutional limitation, the action of the voters at the election on November 5, 1940, made it the mandatory duty of the governing body of Jefferson County to provide voting machines, either by purchase, lease or rental. Abrasley v. Jefferson County, supra. It cannot avoid that duty by a finding that county funds needed to provide such machines could be used to better advantage. There is no discretion vested in the governing body as to whether or not it will provide the machines except as to voting places having less than 100 registered voters.
It is contended that the petitioner below, appellee here, was not entitled to the writ prayed for and granted by the trial court for the reason that the prayer for relief and the relief granted pursuant thereto are void and uncertain.
The prayer for relief and the relief granted in the judgment are not subject to the criticism that they are void for uncertainty. The prayer of the petition is in substance that the respondents be required to forthwith furnish and provide voting machines as provided for by the mandate of the people as shown in the petition. As before indicated, the petition showed the result of the election held in accordance with the terms and provisions of the voting machine law. The judgment ordered, in substance, that a peremptory writ of mandamus issue, directed to the respondents, ordering, directing and commanding them "to furnish and provide voting machines for use in all primary, special and general elections in Jefferson County, according to the provisions of Article 7 of Title 17 of the Alabama Code of 1940." We do not see how the order could be more specific or certain. Article 7 of Title 17, Code 1940, contains the voting machine law. It was not incumbent upon the court to order the respondents to procure a certain number of machines or to designate the voting places where they were to be used. The cases cited by counsel for appellants are not in point.
The relief sought by the petition and that granted by the judgment appealed from is the performance of a specific act, namely, the procurement of voting machines. In enforcing the observance of the writ the court would not have to undertake to oversee *450 and control the general course of the respondents in regard to the machines after their procurement.
The contention is made that the authority conferred by the election on November 5, 1940, for the county governing body to procure voting machines was not present at the time the petition was filed and the peremptory writ ordered. It is said that such authority was lost because of the long lapse of time between the date of the election and this proceeding, namely, approximately nine years, and because of changes which occurred in Jefferson County with respect to important and vital matters. We cannot agree with this contention.
Section 94, Title 17, Code 1940, provides in pertinent parts as follows: "Where voting machines have been adopted for any county, municipality, or other political subdivision of the state, or for any portion of such county, municipality, or other political subdivision, the county board or the city commission shall, as soon as practicable and in no case later than six months after the adoption thereof, provide for each voting ward or precinct or beat designated, one or more approved voting machines, in complete working order, and shall thereafter preserve and keep them in repair. * * * Wherever, by reason of any constitutional or other legal debt limitation, it shall be impossible for any county or municipality to provide voting machines by either rental, lease or purchase for each election district, as provided herein, then it shall provide as many machines as it shall be possible to procure, and, as soon thereafter as possible, shall provide the remainder of such machines required hereunder. * * *"
Section 95, Title 17, Code 1940, provides in pertinent part as follows: "Any county or city may, by a majority vote of its qualified electors voting thereon at any election held not earlier than six years after the adoption and installation of such machines, direct the discontinuance of the use of voting machines at elections held in such county or city. * * *"
As before shown, we held in Abrasley v. Jefferson County, supra, that by virtue of the referendum election, the governing body of Jefferson County was not only authorized but was required to supply voting machines within the limitation of indebtedness fixed by § 224 of the Constitution.
It is clear from this record, and the trial court so found in its judgment ordering the peremptory writ, that for a period of time the county governing body of Jefferson County could not procure voting machines because of the extent of its debt. But it is equally clear that at the time this petition was filed and the judgment ordering the issuance of the peremptory writ, § 224 of the Constitution was no longer a barrier. How long that barrier had been removed does not appear.
The duty to procure the machines was a continuing one and should be performed.
Under the express provisions of § 95, Title 17, Code 1940, there could be no valid election held to determine whether voting machines should be discontinued until the expiration of six years after the adoption and installation of the machines. They have never been installed. Hence, the mere fact that the number of registered voters in Jefferson County had materially increased between the date of the election and the time this proceeding was instituted cannot affect the question. Until machines have been installed under the mandate of the people expressed at the election held in November, 1940, the voters will have no way of determining whether they are satisfactory.
It is argued that in other political subdivisions where voting machines have been installed they have resulted in inconvenience, delay, confusion and dissatisfaction. This may be true, but it is not shown that the use of such machines has ever been discontinued in the manner provided by law. But what may have happened in other places can have no bearing on this question. The voters of Jefferson County have spoken. The machines have not been installed. The County is not beyond its constitutional debt limit. The machines should be installed. If after installation they prove unsatisfactory, then the electorate of Jefferson County may express their disapproval in an election called in the manner and held at the time provided *451 by law. If such disapproval is expressed, then the machines must be discontinued.
The argument that unless the machines are installed within six months after the election, then the authority to install them is lost, is clearly without merit. We think the last sentence of § 94, Title 17, is sufficient answer to that argument. The case of Fuller v. Knight, 241 Ala. 257, 2 So. 2d 605, 135 A.L.R. 760, has no application here. We are here dealing with express statutory provisions which require the installation of the machines within six months after the election unless constitutional debt limitations prevent and if so, then the machines must be installed as soon as possible after such limitations have been removed.
In Abrasley v. Jefferson County, supra, as before indicated, we held that under the 1940 election voting machines must be used in municipal elections held in Jefferson County, although the cost of procuring the machines rested solely on Jefferson County. It is insisted that such construction of the so-called voting machine law renders it unconstitutional, in that the legislature is without power to impose upon a county the burden of bearing the governmental expenses of cities and towns located within said county.
County territory does not lose its identity as such by reason of its simple inclusion within the limits of an incorporated city or town. Under the 1940 election, the county must procure, as far as it can without exceeding its debt limit, more machines than are necessary to conduct a municipal election. In other words, the use of the machines in municipal elections does not add to the expense which the county must incur.
Counties are agencies or subdivisions of the State, created by law for more efficient administration of government. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487. The legislature, in absence of constitutional limitation, has plenary power to deal with counties. Young Women's Christian Ass'n of Plainfield, N. J., v. Gunter, 230 Ala. 521, 162 So. 120. Matters of policy as to counties and county funds and how they shall be handled and preserved are matters of legislative policy. Covington County v. O'Neal, 239 Ala. 322, 195 So. 234. It is well settled that the State may appropriate county funds by act of the legislature for public purposes. Jefferson County v. City of Birmingham, 251 Ala. 634, 38 So. 2d 844, and cases cited.
We think it well within the power of the legislature to authorize the use in municipal elections of voting machines procured by the county where the use of such machines has been approved only in a county-wide election.
We see no reason to discuss here the questions which were so carefully considered in the Abrasley case, supra. We adhere to that opinion.
The judgment appealed from is affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | October 4, 1951 |
21d1f694-5315-4a05-af18-56872097c66c | Birmingham Electric Co. v. Yoast | 57 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 57 So. 2d 103 (1951)
BIRMINGHAM ELECTRIC CO.
v.
YOAST.
6 Div. 185.
Supreme Court of Alabama.
June 28, 1951.
Rehearing Denied January 10, 1952.
Further Rehearing Denied March 6, 1952.
*104 Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Hare and Parsons and R. D. Coffman, Birmingham, for appellee.
FOSTER, Justice.
The question presented by appellant on this appeal is whether the court committed reversible error in granting a motion for a new trial made by appellee, who was plaintiff in the trial court, upon the ground that, after the trial of the case, plaintiff's counsel ascertained that a juror, one Lee Cole, was biased and prejudiced in favor of the defendant, and as to which plaintiff and his counsel were not negligent. There was verdict and judgment for the plaintiff in the sum of $1,350.
The suit was for personal injuries, as a result of a collision of defendant's street car with an automobile in which plaintiff was riding. The plaintiff was dissatisfied with the amount of the verdict and made a motion for a new trial consisting of twelve grounds. The first two grounds of the motion related to the inadequacy of the amount of the verdict. The third, fourth and fifth were that the verdict was procured through partiality of the jury in favor of the defendant. The sixth and seventh, that one of the jurors was not qualified to serve on the jury without further specifications as to his qualifications. The eighth, ninth, tenth and eleventh grounds were to the effect that the juror, Lee Cole who sat on the jury which tried the case, was disqualified and incompetent because of his prejudice against the plaintiff and his partiality in favor of the defendant, having a fixed opinion in favor of the defendant, and for that reason the plaintiff was denied a fair trial, and that this was unknown to the plaintiff until after the verdict was rendered. A more detailed statement of that ground will be given. The twelfth ground of the motion was the error in giving a certain written charge in favor of the defendant. This charge need not be considered because upon the hypothesis expressed in it the jury was directed not to find a verdict against the defendant. Since the verdict was for the plaintiff, that charge has no bearing upon the question here involved.
The trial court later amended his order granting the motion, describing it as an amendment nunc pro tunc, by adding thereto the fact that in granting the motion for a new trial he did not consider or rule on grounds one and two of said motion, and the verdict and judgment were set aside on grounds of said motion other than one and two.
Appellant claims that ground eleven of the motion is the only one which deserves consideration on this appeal, and it is the only one discussed by counsel for appellant. In support of ground eleven an affidavit was made and introduced by an attorney for the plaintiff, which is in substance to the effect that when the juror Cole was being examined by the judge, testing his qualifications to serve on the jury and before the jury was selected and after the court had qualified the panel, counsel for plaintiff, as authorized by section 52, Title 30, Code of 1940, propounded certain questions to the members of the panel, one of the questions being whether any of them had any close relatives employed by the defendant. Juror Cole stated that his father was so employed in the meter reading department. Counsel then asked the juror the following question: "Would it embarrass you to sit on a case where the Birmingham Electric Company is involved and to render a verdict against the Birmingham Electric Company if the evidence justified it? In response to that question the juror, Lee Cole, replied `No,' whereupon the following additional question was asked said juror, Lee Cole, `You think you could try the case strictly in accordance with the evidence?' Whereupon juror, Lee Cole, replied, `Yes.'" The party then proceeded to strike the jury from the panel and Cole remained and was not stricken, but served on the jury which tried the case. On the next day, after verdict and judgment were rendered in that suit, the same juror Cole was among a panel of twenty-four jurors brought into the courtroom of the same judge to try another *105 case against the Birmingham Electric Company, the defendant in the instant case. The two cases had no connection with each other, and counsel for plaintiffs in the two cases were different. The panel was questioned by plaintiff's counsel as to whether any of them or their close relatives were employed by the defendant. The juror replied that his father was employed in the meter reading department. Plaintiff's attorney then asked him the question: "Would that, in any way, cause you to be biased or prejudiced, in any way, in a case that involved the Birmingham Electric Company, where a verdict might be rendered against them?" The question was repeated, and the juror answered: "I would rather not sit on it. I sat on a case against the electric company yesterday, but they didn't ask me if I would be biased or prejudiced; they asked me if it would embarrass me and it wouldn't embarrass me." The question, "You wouldn't be prejudiced?" The reply, "I am inclined to be." Counsel: "We would like to challenge him." The Court: "Do I understand, Mr. Cole, that you feel like you couldn't follow the evidence and the law and decide the case in accordance with the law and the evidence as the court gives it to you?" Answer: "I didn't say that. I said I can follow the evidence as well as anybody else and I am not saying I have a fixed opinion or anything like that but I am more or less I might be inclined to favor the Birmingham Electric Company before I would the rest of them, to begin with. I don't know what it would be at the end." The court: "If that is the way you feel about it, I will excuse you, Mr. Cole. Just have a seat behind the rail."
It so happened that counsel representing the plaintiff in the instant case was present in the courtroom during the foregoing occurrence, but had no part in the case then on trial and simply heard what we have stated above as having taken place. He made affidavit that he did not know or find out that this juror was not qualified to sit in the instant case due to his prejudice, his fixed opinion and his inability to give a fair and impartial trial in such a case until he heard what transpired, as above stated.
There was no other evidence offered on the motion for a new trial, and the question is whether or not there was reversible error on the part of the court in granting the new trial on account of such proof as to the bias or prejudice of the juror Cole.
It is well settled that the grounds specified in section 276, Title 7, Code, are not the only causes which justify the granting of a motion for a new trial at law, but the common law causes are in full force and effect, and one of them is that of a juror having such bias or prejudice as to influence him in the discharge of his duties as such juror. Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561(24), 62 So. 199; Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526(7 and 8), 147 So. 817; Birmingham Ry. Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876; Roan v. State, 225 Ala. 428, 143 So. 454; Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782.
The general rule is that when the disqualification of the juror is not known to the injured party, the disqualification is ground for a new trial. City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728.
Appellant insists that since the statute went into effect, which is section 52, Title 30, Code, section 8662, Code of 1923, counsel for litigants trying a case cannot claim that a juror was disqualified as a ground for a motion for a new trial because he did not know of such disqualification prior to the trial and verdict, when he made an examination of the juror as authorized by that statute, or could have done so. On that subject, it is said in the case of Batson v. State ex rel. Davis, 216 Ala. 275(17), 113 So. 300, 305, that the right of the party to test jurors under that statute is secured in civil and criminal cases, and that, as a general rule, a failure to do so is a waiver of the ground of challenge, for "that the parties in interest are charged with the duty of examining jurors on their voir dire for grounds of challenge, and, not so doing, cannot complain on motion for a new trial." The court held there was *106 no error in the denial of the motion for a new trial on that account.
In the case of Peterson v. State, 227 Ala. 361, 150 So. 156, it was said by this Court that usually an examination by the court under section 8610, subdivision 7, Code of 1923, suffices as to the qualification of the juror and further examination by the court is discretionary, but that if parties fail to examine the jurors, as authorized by section 8662, Code of 1923, when by doing so they would probably have ascertained the disqualification, it is too late to make the objection after the verdict is rendered. In that case the court overruled the motion for a new trial.
In the case of Alabama Coca-Cola Bottling Co. v. Pope, 232 Ala. 32, 166 So. 682, this Court for like reason upheld the act of the trial court in overruling a motion for a new trial.
In Mills Lumber Co. v. Hull, 222 Ala. 229, 131 So. 902, the plaintiff in the trial court made a motion for a new trial, which was granted upon the ground of the disqualification of certain jurors. In passing upon that question this Court referred to the statutory right of the parties to examine prospective jurors and also to the Batson case, supra, and affirmed the judgment of the trial court granting the motion for a new trial on account of such disqualification, which was not discovered by an examination as authorized by said statute. The Court also referred to the case of Taylor v. State, 222 Ala. 140, 131 So. 236, in which it was stated that it is not ordinarily a want of due care of counsel to fail to examine a juror as authorized by the statute, unless there was something to suggest that such examination should be made.
This Court in the case of Leach v. State, 245 Ala. 539, 18 So. 2d 289, reviewed this question under circumstances similar to those in legal effect which exist in the instant case. The Court reviewed the authorities holding that if a party or his counsel is negligent in making the inquiry of the jurors, authorized by section 52, Title 30, Code, they waive the peremptory right to have their motion for a new trial granted on account of the disqualification of the jurors, which would probably have been discovered upon such examination; but observed that the trial court may, in its discretion, grant a new trial without reversible error on account of the disqualification of the juror if the party complaining does not know it, even though he may not have been as diligent as the law required. Mills Lumber Co. v. Hull, supra.
It is upon that principle appellee claims there was no reversible error in the action of the court in granting the motion for a new trial, since his act in that respect, as here applied, was largely discretionary and should not be reversed on review unless it is arbitrary or otherwise clearly erroneous. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277.
We accept that view of the situation, and for that reason the judgment of the circuit court setting aside the verdict and granting a new trial is affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN, SIMPSON and STAKELY, JJ., concur.
LAWSON, J., dissents.
LAWSON, Justice (dissenting).
The majority opinion holds that the trial court correctly set aside the verdict because the juror Cole sat on the case.
It seems to me that the verdict should not have been set aside unless it was made to appear that Cole's feelings toward the Birmingham Electric Company, as expressed subsequent to the trial of this case, could have worked to the prejudice of the plaintiff.
The verdict was in favor of the plaintiff. Hence it is obvious that any friendly feeling which Cole may have had towards the Birmingham Electric Company did not prevent him from acting on the evidence as he saw it and casting his ballot in favor of a recovery by the plaintiff. Of course, Cole could have agreed to a verdict in favor of plaintiff and yet his friendly feeling toward the defendant, Birmingham Electric Company, could have caused him to seek to keep down the amount of the verdict. However, *107 the trial court, who saw and heard the witnesses, has expressly refused to set aside the verdict on the ground of inadequacy of damages.
It seems to me that under these circumstances it is conclusive that the fact that Cole sat on the jury in this case did not result in prejudice to the plaintiff. I am constrained, therefore, to dissent from the holding of the majority, which I understand to be that the trial court correctly set aside the verdict because of Cole's presence on the jury.
FOSTER, Justice.
Objection was made on this application that we failed to give consideration to an affidavit which was introduced on motion for a new trial to sustain the verdict of the jury. The affidavit was that of Ed. D. Robinson, Jr., who was a member of the jury, and the particular portions of his affidavit, emphasized in brief, are as follows: "I remember that Cole was one of the men who was willing to give a verdict for the plaintiff in an amount substantially above that figure to which I and another man that was holding out finally agreed to. It is my best recollection that there were several men who wanted to give a verdict for the plaintiff who named a figure below that which Cole was willing to give the plaintiff. * * * At no time during the jury's discussion of this case did I get the impression that Cole was prejudiced in favor of the electric company; but, on the other hand, he took the position with a number of other jurors, that a verdict should be returned in favor of the plaintiff for an amount much larger than the amount of the verdict in this case." It is therefore argued on behalf of appellant that the evidence shows there was no prejudice to the plaintiff on account of the service rendered by Cole on the jury.
We did not give consideration to that affidavit because it was not legal evidence on the question involved. With respect to the admissibility of affidavits of jurors on a motion for a new trial, the rule sustained by the courts is in the following aspects. Generally speaking, a juror to sustain a verdict may give evidence of facts which occurred or did not occur in the jury room. Mobile & Ohio R. R. Co. v. Watson, 221 Ala. 585, 130 So. 199; City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637; Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649. Such evidence is not admissible for the purpose of impeaching a verdict. Birmingham Railway, Light & Power Co. v. Moore, 148 Ala. 115 (20), 42 So. 1024; Finney v. Newson, 203 Ala. 191(8), 82 So. 441; George's Restaurant v. Dukes, 216 Ala. 239(6), 113 So. 53; City of Dothan v. Hardy, supra.
But in order to sustain a verdict of the jury, for the affidavits of the jurors to be admissible they must be with respect to facts and occurrences open to the observation of other jurors so that they may be subject to contradiction, for the rule does not permit evidence by the jurors "of their own mental operations by disclosing the grounds of, or the reasons for, their verdict, the discussions which took place in the jury room, or the motives or influences which affected their deliberations and decision, by denying that they were affected by matters which might, if their effect was prejudicial to the moving party, furnish grounds for a new trial, or by asserting that they disregarded improper instructions by the court or incompetent material evidence which was before them and was not seasonably withdrawn or excluded." 66 Corpus Juris Secundum, New Trial, § 169, page 426; City of Dothan v. Hardy, supra; Glaspell v. Northern Pacific R. R. Co., C.C., 43 F. 900, reversed on other grounds, 144 U.S. 211, 12 S. Ct. 593, 36 L. Ed. 409.
The testimony contained in the affidavit of Robinson, which we have quoted above, comes within the rule of exclusion, sustained by the authorities, and which is last above quoted. We cannot therefore give it consideration for the purpose of determining that the motion for a new trial was improperly granted.
Our opinion may not have been accurate in saying there was no other evidence offered on the motion for a new trial, whereas it should have said there was no other legal evidence offered on such motion.
It follows the application for rehearing is overruled. | June 28, 1951 |
5ab0fbe8-1c01-4bd7-8b68-26013d8b095e | Gladden v. State | 54 So. 2d 610 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 610 (1951)
GLADDEN
v.
STATE.
7 Div. 133.
Supreme Court of Alabama.
October 25, 1951.
Keener & Keener, Centre, for petitioner.
Si Garrett, Atty. Gen., and A. A. Carmichael, Asst. Atty. Gen., opposed.
BROWN, Justice.
The petitioner was convicted on his trial before a jury in the law and equity court of the offense of driving a motor vehicle on a highway of the state while intoxicated in violation of the provisions of § 2, Title 36, Code of 1940. On his appeal the judgment of conviction was affirmed. He now complains that the Court of Appeals erred in holding that, "Where however an opportunity for observation is shown, even though slight, a witness should be considered competent to testify as to what he did observe", 54 So. 2d 609.
We think this was within the well established exception to the general rule stated in Mayberry v. State, 107 Ala. 64, 67, 18 So. 219, 220, that "Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of a particular fact, better evidence is not attainable, the opinion of a witness, derived from observation, is admissible. 1 Whart.Ev. § 511; Lawson, Exp. [and Opinion] Ev. 460."
As held by the Court of Appeals the slight opportunity to make observation goes to the weight of the evidence, and this was for the jury. Spooney v. State, 217 Ala. 219, 224, 115 So. 308, 313, cited by petitioner does not support the contention of the petitioner that the court erred in not excluding the testimony of the witness Hurley. In that case the opinion states: "The evidence is without dispute that the defendant left the scene of the tragedy immediately after he fired the fatal shot; that he was not present when the statement, imputed to Phil Utsey by the witness Mrs. Williams, made in response to her request that a doctor be called, `he told me to shut my mouth, I didn't need a doctor.' This statement was made after the fact under investigation, by a third person, in the absence of the defendant, and was so separated in point of time as not to be of the res gestae. * * *"
In the instant case, as the evidence set out in the opinion of the Court of Appeals shows, the act of driving the motor vehicle, the condition of the driver and the arrest of defendant, were within the res gestae of the offense.
The writ of certiorari is therefore due to be denied. It is so ordered by the court.
Writ denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | October 25, 1951 |
355a40c0-4972-43fe-9508-c48d93253bbf | Montgomery Limestone Co. v. Bearden | 54 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 571 (1951)
MONTGOMERY LIMESTONE CO.
v.
BEARDEN.
7 Div. 88.
Supreme Court of Alabama.
October 18, 1951.
*572 Jack Crenshaw, Montgomery, for appellant.
Beddow & Jones and G. Ernest Jones, Jr., all of Birmingham, and Ellis & Fowler, Columbiana, for appellee.
LIVINGSTON, Chief Justice.
Appellee, Peddie Bearden, instituted proceeding in the Circuit Court, in Equity, of Shelby County, Alabama, against the Montgomery Limestone Company, a corporation, appellant, to restrain appellant from the performance of certain alleged act which allegedly injured him.
In substance, the bill of complaint alleges: That appellee owns some 45 acres of land located in Shelby County; that he and his family, and his two sons and their families, live on said land in separate dwelling houses; that a part of said land is in cultivation, and a part is in pasture, and in which pasture appellee has cattle and livestock; that a natural stream of fresh, unpolluted water flows through said land; that in November, 1949, appellant began a limestone quarrying operation on lands adjacent to appellee's land and to the stream running through said land; that in its quarrying operation appellant employs a power-operated pump to remove sludge, rock, limestone, dust, sand, sediments and other impurities which gather in the quarry and discharge them into the stream of water running through appellee's land and thereby discoloring said stream, rendering it unsanitary and unfit for cattle and livestock consumption; that said power pumps are operated at night and create noises that destroy the peace, quiet and rest of appellee, his wife and tenants; that in its quarrying operations appellants use large quantities of explosives, such as gunpowder, dynamite, nitroglycerin or other explosive, and that blasting operations cause rock, limestone and other debris of great quantities and large size to be cast upon appellee's lands; that appellee, his family, his tenants and their families, and his cattle are in danger of being injured by said falling objects, and that his land is being injured thereby; that appellant uses trucks, crushing machinery, air-hammers, drills and other machinery in its quarrying operations, which cause loud and continuous noises in such *573 close proximity to appellee's dwelling and the dwellings of his tenants as to disturb his and their peace, quiet and rest; that dust, fumes and other noxious odors are caused to permeate the air above appellee's lands, and that these things are done and caused every day except Sunday; that appellants threaten to continue the pollution of said stream and blasting operations.
Appellee prays for a temporary and permanent injunction restraining the continuation of the acts complained of, and for damages.
Appellant's demurrers to the bill of complaint as a whole, and to each aspect thereof, separately and severally, were overruled and it appeals.
Appellant has treated the bill as one with the following four aspects:
"First, seeking to enjoin the pollution of a stream of water flowing through complainant's land; Second, the recovery of damages and an injunction against blasting operations; Third, an injunction restraining the respondent from frightening and disturbing the complainant and his tenants with loud noises; and Fourth, enjoining the respondent from polluting the air above complainant's land with dust, smoke and odors."
Whether or not a bill is single in scope or purpose or presents a case in more than one aspect must be determined from its allegations of fact, and we have pointed out that a bill cannot be divided up into aspects by the manner in which respondents address their demurrer to it. Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So. 2d 507; Vaughn v. Pansey Friendship Primitive Baptist Church, 252 Ala. 439, 41 So. 2d 403. However, the application of the rule, in determining whether a bill is single in scope or purpose, or contains two or more aspects, is sometimes difficult.
As to the instant bill, we think it more accurate to say that it contains only two aspects; the pollution of the stream with its attendant damages, and the blasting operations with its attendant damages. We will so treat it.
Appellant relies largely upon our line of cases dealing with the balancing of the interest of one person in keeping his property in status quo, and the convenience of the public in seeking industrial progress, citing Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192; Elmore v. Ingalls, 245 Ala. 481, 17 So. 2d 674.
The difficulty involved in cases such as this is determining the permissible acts which a property owner must accept and acts which a court of equity will enjoin.
In the Clifton Iron case, supra, [87 Ala. 468, 6 So. 193] Chief Justice Stone said:
"Counsel have pressed the proposition that mere convenience in the use of its property by the company does not entitle it to pour down upon the appellee's land, and into the stream on his land, the debris from the washers erected by it, and we think the contention is reasonable. But it is not every case of nuisance or continuing trespass which a court of equity will restrain by injunction. In determining this question, the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction. Wood v. Sutcliffe, 2 Sim.N.S. 162; [East & W.] R. R. Co. v. [East Tennessee, V. & G.] R. R. Co., 75 Ala. 275; [Columbus & W.] R. R. Co. v. Witherow, 82 Ala. 190, 3 So. 23; 1 High, Inj. § 598; Davis v. Sowell, 77 Ala. 262; Torrey v. [Camden A.] R. Co., 18 N.J.Eq. 293; McBryde v. Sayre [86 Ala. 458], 5 So. 791 [3 L.R.A. 861].
"The court will take notice of the fact that in the development of the mineral interests in this state, recently made, very large sums of money have been invested. The utilization of these ores, which must be washed before using, necessitates, in some measure, the placing of sediment where it may flow into streams which constitute the natural drainage of the section where the ore banks are situated. This must cause a deposit of sediment on the lands below; and while this invasion of the rights of the lower riparian owner may produce injury, entitling him to redress, *574 the great public interests and benefits to flow from the conversion of these ores into pig metal should not be lost sight of. As said by the vice-chancellor in Wood v. Sutcliffe, supra: `Whenever a court of equity is asked for an injunction in cases of such nature as this, (a bill to enjoin the pollution of a stream), it must have regard, not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances.'"
And it was said in the case of Elmore v. Ingalls, [245 Ala. 481, 17 So. 2d 675] supra:
"`"The natural right of one proprietor to have the stream descend to him in its pure state must yield, in a reasonable degree, to the equal right of the upper proprietors, whose fertilization, cultivation, or occupation of their own lands, and whose use of the stream for mill and manufacturing purposes, for irrigation and domestic purposes, will tend to make the water more or less impure, especially when the population becomes dense. So it is of public importance that the proprietors of useful manufactories should be held responsible only for appreciable injury caused by their works, and not for slight inconveniences or occasional annoyances, or even some degree of interference with irrigation or agriculture." We approve the following principle extracted from Sanderson v. (Pennsylvania) Coal Co., 86 Pa. 401, (27 Am.St.Rep. 711: "The exigencies of the great industrial interests must be kept standing in view; the property of large and useful interests should not be hampered or hindered for frivolous or trifling causes. For slight inconveniences or occasional annoyances, they ought not to be held responsible, and, in dealing with such complaints, juries should be held with a steady hand."
"`It is certainly true that owing to the wants, if not the necessities, of the present age,of agriculture, of manufactures, of commerce, of invention and of the arts and sciences,some changes must be tolerated in the channels in which water naturally flows, and in its adaptation to beneficial uses. Reasonable diminution of its quantity, in gratifying and meeting customary wants, has aways been permitted. So, its temporary detention for manufacturing purposes, followed by its release in increased volume, is a necessary consequence of its utilization as a propelling force. Nor must we shut our eyes to the tendency the inevitable tendencyof these and other uses, in which water is an indispensable element, to detract somewhat from its normal purity. These modifications of individual right must be submitted to, in order that the greater good of the public be conserved and promoted. But there is a limit to this duty to yield, to this claim and right to expect and demand. The water course must not be diverted from its channel, or so diminished in volume, or so corrupted and polluted, as practically to destroy or greatly impair its value to the lower riparian proprietor.'"
We entertain no doubt that the foregoing principles apply to blasting operations. In that regard the rule is stated in 66 C.J.S., Nuisances, § 47, page 798, as follows: "The blasting of rock on private premises does not of itself constitute a nuisance, but whether or not it is a nuisance is a question of fact depending on the attending and surrounding circumstances. Blasting, without reference to the particular locality in which it is carried on, is not so intrinsically dangereous as to be ipso facto a nuisance. The blasting of rocks may, however, constitute a nuisance, as where it is injurious to neighboring property owners; and a landowner may be enjoined from blasting rock on his own premises for purposes of improvement, unless he proceeds with the usual safeguards which prudent men adopt to prevent injury to adjacent owners."
Our own case of Tennessee Coal, Iron & R. Co. v. Hartline, 244 Ala. 116, 11 So. 2d 833, is cited as supporting and does support the foregoing text. See also East v. Saks, 214 Ala. 58, 106 So. 185; Romano v. Birmingham Ry., Light & Power Co., 182 Ala. 335, 62 So. 677, 46 L.R.A., N.S., 642.
Tested by the foregoing principles, we are clear to the conclusion that the bill *575 as a whole and each aspect alleges facts which are without the permissible scope of acts which the law permits in the public interest.
The demurrers were properly overruled.
Affirmed.
LAWSON and STAKELY, JJ., concur.
BROWN, J., is of the opinion that the bill is single in scope and purpose and does not contain two aspects. In other respects he concurs in the opinion. | October 18, 1951 |
2436ff33-6de9-4649-8ae2-fbdddaefab6e | Murray v. Webster | 54 So. 2d 505 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 505 (1951)
MURRAY
v.
WEBSTER et al.
6 Div. 190.
Supreme Court of Alabama.
October 11, 1951.
Ling & Bains, Bessemer, for appellant.
McEniry, McEniry & McEniry, Bessemer, for appellees.
SIMPSON, Justice.
Under date of April 1, 1946, T. O. Murray, appellant here, respondent below, entered into a lease sale contract with Lilly B. Webster and Annie Bell Simon, appellees here, complainants below, leasing to them a house and lot in the City of Bessemer for a term of eighty-eight months for a recited consideration of $1,200, payable $100 in cash and the balance in monthly installments of $12.50 each, and in addition thereto the payment of taxes. The lease agreement contained a condition subsequent that if at the end of the term the lessees had paid all of the installments of rent and taxes, and had complied with all the conditions of the contract, then the transaction should be treated as a sale, that is to say, the lessor would treat the rent paid under the lease as a payment for the property and would execute a deed thereto to the lessees. The instrument provided for a forfeiture of the lease upon failure of lessees to pay rents as they became due, the right of the lessor to reenter the premises and terminate the lease being reserved without the necessity of giving notice to or making demand upon lessees *506 for payment of rents due. It was further provided that if the lessees became in arrears for as much as two months during the first year, or as much as three months at any time thereafter, or should fail to pay the taxes or to comply with any other condition of the contract, then the agreement of lessor to treat the rents paid as payment for the property should become a nullity, and that failure of lessees to comply with any of the conditions of the instrument should "ipso facto render the said provision a nullity, and make said party of the second part a lessee under this instrument, without any rights whatever except the rights of lessee without any notice or action whatever upon the part of the party of the first part."
Policies of fire insurance were issued from year to year by the respondent American Union Insurance Company upon the improvements upon the lot of land. Such a policy was issued April 24, 1949, for a term of three years and was in force when, on October 4, 1950, the dwelling house on the property was partially destroyed by fire. The face amount of the policy was $1,000, and the insurer agreed to a loss in the sum of $850. On the following day the lessor notified the lessees that he was cancelling the contract by reason of their default in payments. Lessees offered to pay up all sums in arrears or to pay the entire amount of the consideration expressed in the contract and, in the latter event, have a deed to the property. These offers were refused by the lessor who, on November 20, 1950, instituted against the lessees a suit of unlawful detainer.
Thereupon the lessees filed this bill in equity against the lessor and the insurance company, setting up the facts hereinabove set out. It is alleged that at the time of filing the bill complainants had paid, in addition to $100 in cash upon taking possession of the premises, forty-five of the monthly installments, the last payment being made on June 7, 1950, of that installment which was due January 1, 1950, and that "said respondent by his acts during the entire contract has led the complainants to believe that strict performance of the agreement in the contract would not be insisted upon." It is further alleged that the policy of insurance provided that the property in question was sold to complainants under a lease sale contract; that each year prior thereto a like policy, with like provision, had been issued, and that, while the lease sale contract made no provision for insurance, the respondent Murray charged complainants with the premiums for such insurance; that complainants have paid each year's premium as the same became due or, if they have not paid this premium, they stand ready and willing to do so, and if not paid it was because no demand was made upon them; and that before receiving a deed respondent would require them to pay such premiums, and that such premiums were charged to complainants on the books of respondent's insurance agent.
The bill prays for an order restraining prosecution of the unlawful detainer suit; for ascertainment of the amount complainants were in arrears under the contract and permission to pay such arrearages and continue under the contract or, in the alternative, for ascertainment of the entire amount due under the contract and that complainants be allowed to pay such entire amount and that respondent be required to make and execute to them a deed to the property. It is further prayed that the American Union Insurance Company be required to pay into the registry of the court the amount ascertained to be the loss to the property by fire, and that complainants have the benefit of the insurance money, either by way of its application in restoration of the property, or by way of credit on the balance due under the contract.
The respondent insurance company filed an answer and cross bill impleading both the lessor and the lessees as conflicting claimants under the policy. Without objection, the insurer was permitted to pay the agreed amount of the loss into court and be discharged.
After submission on the pleading and the proof offered, a decree favorable to the *507 complainants was rendered. The decree ascertained the balance due on the consideration expressed in the contract, the amount of taxes paid by the respondentlessor, and the amount of the insurance premiums paid by him. It was directed that the aggregate of these amounts be paid to the respondent out of the insurance money, and that respondent thereupon execute a deed to the complainants. It was further decreed that the costs of the suit be paid out of the insurance money on deposit, the balance, if any, to be paid to complainants. Implicit in the decree was the conclusion that any forfeiture of the contractural provisions of which respondent-lessor might have availed had been waived by him, and that the insurance was in fact for the benefit of the complainantslessees. In these phases the decree is assigned as error.
In the case of Spangler v. Barber, 245 Ala. 386, 17 So. 2d 232, we had before us a lease sale contract apparently identical with the contract here involved. There the lessor sought, among other things, to enforce specific performance of the contract on the part of the lessees to purchase the property. Reversing the decree appealed from, we there held that the contract contemplated that it should continue a lease until the end of the term and then, if the tenant had paid all installments of rent, he had the right to treat it as a contract of purchase; but that his default ipso facto voided that condition without affirmative action on the part of the vendor. The property involved in that case was vacant lots. The lesseeor his assigneedefaulted in the stipulated installments some twelve years before the bill was filed, and the entire indebtedness, evidenced by unpaid notes, matured more than ten years before the bill was filed. In the case then before us the real question was whether or not the contract, by its terms, imposed upon defendant a binding obligation to purchase and pay for the property. We held that it did not, but that his right to purchase lapsed upon his failure to comply with the conditions upon which it was granted, and that his only obligation remaining was to pay rent. That case dealt with the rights of the lessor-vendor, not with those of the lessee-vendee. There was, of course, no question of a waiver of the provision of the contract for an "ipso facto" forfeiture of the right to purchase. Here the question of a waiver is the primary issue. That such a forfeiture may be waived by the lessor-vendor there can be no doubt. Whether there was a waiver is a question of fact, with the burden of proof resting upon the party asserting or relying upon a waiver. Davis v. Folmar, 203 Ala. 336, 83 So. 60.
Admittedly, the complainants were in default in payment of installments of rent, having been persistently in arrears over a considerable period. They were likewise in default in payment of taxes, the lessor having generally paid the taxes himself. Very clearly, it appears, the lessor generally paid insurance premiums. On the other hand, the evidence tends very strongly to show that, up to the time when the fire occurred and the appellant declared a forfeiture and cancellation of the contract, he treated the appellees with marked leniency. By his own testimony, detailing his transactions with appellees in and about the collection of installment payments, appellant manifested a desire and purpose to have the appellees carry out the purchase agreement, notwithstanding arrearages. He testified to an occasion on which he urged one of the appellees to catch up with the payments in order that they might not lose the property. He testified that he had paid taxes but had charged them to appellees with a view to collecting them back at the conclusion of the contract when he should make deed to them. He accepted installment payments on the lease when they were long past due. The facts and circumstances shown were well calculated to lull appellees into a belief that strict performance of the agreement was not required; and where this is so equity will not permit the lessor to take advantage of forfeiture provisions without notice to the lessee that strict compliance will be required. *508 Shaddix v. Bilbro, 220 Ala. 657, 127 So. 227.
Under the circumstances shown, no such notice having been given by the lessorvendor to the lessees-vendees of his purpose to exact strict compliance with the terms of the contracthis conduct importing the contrarywe conclude that the trial court committed no error in adjudging appellees' right to complete the contract by paying all that was found to be due, and to have a deed to the premises.
We also sustain the ruling below on the question of the insurance. It is well settled in this jurisdiction that "insurance taken by one with an insurable interest in the property, who pays the premiums * * out of his own funds, is a personal indemnity to the insured." Northern Assurance Co. v. Stewart, 228 Ala. 201, 153 So. 243, 245; Montgomery v. Hart, 225 Ala. 471, 144 So. 101; Bell v. Barefield, 219 Ala. 319,122 So. 318; Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881. A clearer statement of this doctrine, however, is thus expressed in the Bell v. Barefield case, supra: "The general rule, sustained by the great weight of authority, is, in the absence of anything in the instrument creating the estate, or of agreement to that effect, between the parties, no duty rests upon the one or the other to insure for the benefit of a remainderman or his cotenant, and insurance taken by one with an insurable interest in the property, who pays the premiums thereon out of his own funds, is a personal indemnity to the insured. * *" (Italics supplied). 219 Ala. 321, 122 So. 319.
Thus, we have declined to follow a contrary view, given effect elsewhere, that one with an interest less than the whole who insures the property for its full value is to be treated as a trustee for the benefit of the owners of the remainder interest. But it is equally clear, from our adjudicated cases, that, in such a case, whether the other joint owners have an interest, in law or equity, in the insurance money, may properly turn upon the equities of the particular case. Miles v. Miles, 211 Ala. 26, 99 So. 187. Whether the insurance was taken for the sole benefit of him who procured it; whether he did in fact pay the premiums out of his own funds; whether by express or implied agreement he took out the insurance for the benefit of the owners of the other interests in the property, such others to contribute to its cost: these questions are to be determined from the evidence in the case and the circumstances of the parties out of which arise "the equities of the particular case."
The insurance policy in force at the time of the loss, as well as all policies previously issued on the property during the existence of the contract between appellant and appellees, contained this recital: "It is hereby understood and agreed that Lillie B. Webster and Annie Bell Simon hold Lease Sale Contract to the above described real property." Such a stipulation or recital in the policy itself would seem to be inconsistent with the idea that the insurance on the full insurable value of the property was for the sole benefit of appellant, in whose name the insurance policy was issued. The evidence shows that a notice or statement was sent to appellees, by the agency through which the insurance was taken, each time the insurance was renewed or reissued. It shows that at least one full annual premium was paid by appellees, thus indicating a willingness on their part to pay others if called upon to do so. Certainly, these facts, in the light of the general course of dealing on the part of appellantinformal, as we have shown were calculated to impress the appellees that they were protected by insurance which they were paying for or were expected to pay for. Nothing to the contrary, nothing that would have tended to inform them that they were not protected, appears. On the whole, therefore, we are unwilling to put the trial court in error in finding that there was an implied contract or agreement between the parties that the insurance was for their joint protection and that the appellees would be charged with the premiums.
*509 In view of the fact that appellees were charged on the accounting with" the full amount of the balance due under the contract, with interest, with all taxes paid by appellant, with all insurance premiums paid by him and, additionally, with all costs of the case in the court below, we are persuaded that appellant has received all he was entitled to receive under his contract, and has no cause to complain. Appellees have obtained merely indemnity for their loss, being charged with the cost of such indemnity. They have still the onus of restoring the property.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER, LAWSON and GOODWYN, JJ., concur. | October 11, 1951 |
dddf0a39-b8a0-451e-b6f2-f94edca2d0e7 | Woodward Iron Co. v. Craig | 53 So. 2d 586 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 586 (1951)
WOODWARD IRON CO.
v.
CRAIG.
6 Div. 119.
Supreme Court of Alabama.
March 15, 1951.
As Modified on Denial of Rehearing June 28, 1951.
*587 Dryer & Dryer, of Birmingham, for appellant.
Lipscomb & Brobston and Jas. M. Hamrick, all of Bessemer, and D. G. Ewing, of Birmingham, for appellee. Hare & Parsons, Harsh & Glasser, Drennen & Drennen, Beddow & Jones, Cooper, Mitch & Black, Chester Austin, Hal W. Howard, and Clifford Emond, all of Birmingham, filed brief on behalf of appellee.
Cabaniss & Johnston, Burr, McKamy, Moore & Tate and White, Bradley, Arant & All, all of Birmingham, amici curiae.
FOSTER, Justice.
This is a suit under the homicide statute. Section 123, Title 7, Code. Decedent had been an employee of defendant for practically all of his mature years, working in an iron ore mine. While so engaged, he contracted silicosis of the lungs, which first appeared about 1943. He died February 21, 1949 of tuberculosis, which resulted from silicosis. His disease was not caused suddenly, violently, nor by accidental means. In 1943 he was transferred to a job outside of the mine which he filled until October 3, 1944, after which date until July 19, 1945, he was on sick leave. He then requested his release and was dropped from the employment roll. His work was in development headings, which are started off from the main air course and are dead end tunnels until they can be connected with an air course. They are said to be always dusty, very much so at times, and that no sprinkler system was used; that vent tubes convey water and air to the face of the headings, but such vent tubes were sometimes damaged and not kept close to the face of the headings. A small hose was the only means of wetting the ore which had been shot down.
The negligence alleged in the complaint was the failure to exercise due care to provide a reasonably safe place in which to work. This is a common law duty. When death results, such failure to provide a reasonably safe place to work brings the claim under section 123, Title 7, Code. That statute gives a cause of action to be prosecuted in the name of the personal representative of one whose death is caused by the wrongful act, omission or negligence of defendant. The recovery is for distribution among the distributees of the estate of decedent according to the statute of distribution. The statute also provides that action must be brought within two years from and after the death of the intestate. The cause of action there provided for must be one which gives rise to an action which the intestate could have maintained if it had not caused death.
The first question presented on this appeal arose from rulings on demurrer to certain pleas. The pleas first considered in this connection are 10 and 11. Those pleas show that intestate, while he was still alive on February 14, 1946, filed a suit in the Circuit Court of Jefferson County against the defendant. Said suit was removed to the United States District Court, which court had jurisdiction of the parties and subject matter of the suit and, on September 23, 1946, a judgment was rendered in said district *588 court in favor of the defendant and against the plaintiff's intestate upon the merits of said cause, dismissing the suit. Wherefore plea 10 alleges that plaintiff herein is estopped by virtue of said judgment. A copy of the record of that cause is attached. The plea further alleges that plaintiff's intestate was not employed by defendant and was not in any way exposed to the dust or other obnoxious substances in or about the mines of the defendant long prior to said judgment, to wit, the month of October 1944: the date of his death being February 21, 1949. That said suit was based upon the same subject matter as that embraced in the instant case. Plea 11 presented the same legal question.
Defendant filed other pleas to which demurrer was sustained, and which appellant urgently insists were not subject to demurrer.
Pleas 6 and 7 are the statute of limitations in Code form. One pleads the one year statute, and the other pleads the two year statute. As a matter of fact, we may pause to say there is no statute of limitations applicable to the cause in question under section 123, supra, notwithstanding section 123 fixes two years as the period in which the suit must be brought and makes it a condition to the maintenance of the action. Louisville & Nashville R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681. It is not subject to the rules applicable to the statute of limitations, notwithstanding section 25, Title 7, Code. The complaint shows upon its face whether the suit was brought within the two years because the complaint shows when plaintiff's intestate died and also when the suit was brought, so that such a plea is inappropriate. But the complaint would be subject to demurrer if it did not show that it was brought within two years. The general issue to such a complaint puts in issue any controversy in respect to it. The only controversy which could arise in that connection would be as to the date of the death of intestate. As the statute of limitations of one year has no application, we need give no further consideration to the pleas numbered 6 and 7.
Appellant contends that a very important legal question is presented by plea 9, to which demurrer was sustained. It is in substance that plaintiff's intestate was not exposed to dust or other obnoxious substance in or about the mine of defendant for a period of more than one year prior to the death of decedent. The theory of that plea is that section 123, supra, gives a cause of action in favor of the personal representative of a deceased when such deceased could have maintained an action on account of the same acts of defendant causing personal injuries, rather than death; and that at the time of the death of plaintiff's intestate any claim which may have been available to him for damages on account of such wrongful act of defendant was barred by the statute of limitations of one year and, therefore, he could not have maintained at that time an action for such wrongful act, omission or negligence on the part of the defendant.
The pleas of res judicata or estoppel by judgment and plea 9, supra, are closely connected with each other and both grew out of that feature of section 123, supra, which allows such a recovery in favor of the personal representative of a deceased for the wrongful conduct of the defendant only when such deceased, had he lived, could have maintained such a suit. The question here is whether that means that he could have done so at the very time of his death, if he had not then have died. So that those questions call for consideration and interpretation of section 123, supra, in connection with our decisions heretofore rendered with respect to it.
The complaint in this case, as in the case of G. W. Craig (plaintiff's intestate) versus this appellant, seeks a recovery for personal injuries on account of the continuing negligence of defendant over a long period of years, ending October 1944, which also ended his service in the mine where it is alleged he contracted the disease on account of the negligent failure of defendant to exercise due care to make his place of work reasonably safe. The complaints in both suits show that they are based on the same cause of action. It is noted here *589 again that a disease so contracted is not an occupational disease: that is, one which results from ordinary and known incidents of the employment, not due to the negligence of defendant. But where the disease came on gradually over a period of years, caused by the negligent failure of defendant to provide a reasonably safe place of work, it is the result of a tort for which an action at law will lie subject to the rules ordinarily applicable to such actions. City of Clanton v. Johnson, 245 Ala. 470, 17 So. 2d 669; American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530.
As we observed, the suit in the case of G. W. Craig was filed February 14, 1946, more than a year from the last occasion of his exposure to the danger, and was disposed of in his lifetime. After it was transferred to the United States District Court a motion was made by defendant in that court for a summary judgment because it was barred by the one year statute of limitations. This motion was granted on hearing and an involuntary dismissal resulted, which finally disposed of that case and was an adjudication that the claim was on February 14, 1946 barred by limitations. Such proceeding pretermitted consideration of other defenses. That judgment remained in force until Craig died February 21, 1949. In the interim nothing in that connection appears to have occurred. The proof submitted on the motion to dismiss shows that the basis of the claim was that Craig had not exposed himself to the danger after October 3, 1944, more than one year prior to the institution of his suit. That judgment of dismissal seems not to have been reviewed. It does not seem to have been contended that Craig's condition did not appear until more than one year after he was last exposed to the dangerous situation. On the other hand, he terminated his employment at the time when he became so afflicted, because he could not carry on his work. Gulf States Steel Co. v. Jones, 204 Ala. 48, 85 So. 264. There is no legal difficulty apparent at that point.
Had Craig sued in his lifetime before the bar became complete and had died pending the suit, the statute of limitations of course was not a bar to his suit, and though his cause of action was over a year old, his personal representative could sue within two years after his death and not be barred. Parker v. Fies & Sons, 243 Ala. 348, 10 So. 2d 13, overruling Ex parte Adams, 216 Ala. 241, 113 So. 235. Having filed suit after the bar was complete and judgment rendered dismissing it because it was barred, the question is whether the requirements of the statute were met so as to justify this suit.
In the case of South & N. A. R. Co. v. Sullivan, 59 Ala. 272, a suit was brought under the Homicide Act by the personal representative of a married woman who had been killed by the wrongful act of the defendant. The question was whether under the statute the suit could properly be brought, in view of the fact that the married woman could not in her own name have sued for the injury and recovered if she had not died. This resulted from the fact that at that time in order to maintain such a suit it must have been prosecuted in the name of both the husband and wife.
The Court held that the suit could be maintained by the personal representative of the wife under the express language of the statute which gives the personal representative the right to sue, notwithstanding the terms of the statute which limits the right to sue to cases in which an action could be maintained by the decedent if living. It was declared that those words of the statute were intended to state the character of the act or omission which would support the action in the person by whom it could be maintained, since it had already been stated in the statute that the personal representative could bring the suit.
In the case of Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L.R.A.,N.S., 996, a suit was brought by a personal representative under the Homicide Act. The Court referred to Lord Campbell's Act, which was the predecessor of our Homicide Act, and to that feature of it which provides the right of action is only given to the personal representative when the intestate could have maintained an action for the same act had it failed to produce death. It declared *590 the result of that to be that all defenses available to the defendant, if the action had been brought by the person injured when death did not result, are available to the defendant in an action brought by the administrator of the injured person. The Court therefore held that contributory negligence on the part of the deceased person, who was so injured, was available as a defense under the Homicide Act.
In the case of Ex parte Adams, 216 Ala. 241, 113 So. 235, a person having been injured died from the effects of the injury, but before she died she brought suit for such injury. Pending that suit the plaintiff died and Adams was appointed administrator. A motion was made in the circuit court to revive the suit in the name of the administrator. This motion was overruled. Before said motion to revive was made the administrator filed suit under the Homicide Act. Thereupon the defendant filed a plea in abatement to the pendency of the latter suit by reason of the former suit then pending. The question was whether or not that plea was well filed. In passing upon it, the Court observed that the statute only gives a cause of action when the deceased could have maintained an action had she survived and that any defense is available if it had been available against an action by the deceased, had death not resulted, citing Suell v. Derricott, supra. The Court thereupon held that the pendency of the former suit was good matter in abatement of the second, since the plaintiff in the second suit stands in the shoes of the intestate.
In the case of Bruce v. Collier, 221 Ala. 22, 127 So. 553, an action was brought by Bruce against Collier for personal injuries in negligence and wanton counts. Pending the action, and some eight months after the injury, Bruce died. His death was suggested and leave to revive was granted in the name of his administratrix. Prior to the order of revival, the administratrix brought a separate suit under the Homicide Act for the same tort alleging that it had caused the death of Bruce. This latter suit, after revival, proceeded to trial and judgment was rendered in favor of the plaintiff, which judgment was paid.
When the first suit came on for hearing, the defendant filed a special plea setting up the rendition of the judgment under the Homicide Act and its satisfaction in abatement of the first suit. The question before the Court on the appeal was whether or not the judgment under the Homicide Act was a bar to the prosecution of the suit which had been begun by Bruce in his lifetime and which was revived after his death. The Court observed that the plea was in substance and effect one in bar rather than one in abatement. In discussing the question presented, the Court referred to the Adams case, supra, and noted it was there held that a suit under the Homicide Act lies when the injured party could have maintained an action if the injury had not caused death. That the Homicide Act creates a new cause of action punitive in character for the benefit of the distributees of the estate. The Court held that the two actions could not be prosecuted and thereby departed from the Adams case, supra, although the Adams case was not at that time overruled. It was said that the two actions could not be maintained after the death of the injured person, although the beneficiaries in the two suits may be different, but not necessarily so; if the estate be solvent, the same beneficiaries would take in both actions. Nor would the character of damages be wholly different. In the personal injury suit punitive damages in cases of wantonness would be recoverable.
In the case of Breed v. Atlanta B. & C. R. Co., 241 Ala. 640, 4 So. 2d 315, a life convict had been injured and died as a result thereof, and his personal representative brought a suit under the Homicide Act. The question was whether or not being a life convict thereby deprived him of all civil rights for his personal representative to maintain a suit under the statute. The Court was considerably divided on the question. The majority held that feature of the statute which provided that a suit could only be brought if the deceased could have maintained an action for such wrongful death, had it not caused his death, was not intended to define the qualities of the person who might be so injured and killed. The Court referred to the case of *591 South & N. A. R. Co. v. Sullivan, supra, which stated that the provision referred to was intended to declare the character of the act or omission which would support an action and not to the person by whom it could be maintained. There were other cases cited which used that expression. All such cases which were cited were for the purpose of determining whether or not it served to declare the qualities of the person injured as a basis for the action. In the Sullivan case, supra, as we have said, a married woman was the person who was injured and killed.
In the case of King v. Henkie, 80 Ala. 505, which is cited in the Breed case, supra, the question was whether a defense of contributory negligence was available.
This writer first joined in Chief Justice Gardner's dissent from the majority opinion in the Breed case, but later withdrew that dissent and concurred in the majority; but in doing so it was not my purpose to approve all the inferences from the opinion of the majority. In Justice Gardner's dissent he asked the question whether the Court for one moment would say that one receiving an injury could not accept full settlement therefor and relieve the tortfeasor of all further liability, though death should subsequently ensue? The question is a pertinent one, and, as he points out, a great many states have noted that such an injured person could in his lifetime so release the tortfeasor. The question may also be asked whether or not if an injured person sues in his lifetime and recovers a judgment, especially if that judgment is paid, and then later he may have died from the injury, could his personal representative maintain another suit under the Homicide Act? As Justice Bouldin pointed out in the case of Bruce v. Collier, supra, the two suits would be for the same beneficiaries and in some instances they both would include punitive damages and, therefore, a different interpretation would justify two suits for the same injury and for the same damages for the benefit of the same parties, which he pertinently observed in that case was clearly not the legislative intent.
In the case of Parker v. Fies & Sons, 243 Ala. 348, 10 So. 2d 13, a person was injured and filed suit for damages within the two year period of the statute. He then died pending that suit. It was revived in the name of his administratrix. She then amended the complaint by adding a count under the Homicide Act. The court on motion struck the amended count and the plaintiff took a nonsuit. The question was whether or not a count under the Homicide Act could be added to a suit brought by the injured person in his lifetime. Reiterating the principle declared in the case of Bruce v. Collier, supra, and expressly approving the statement that the lawmakers did not contemplate two actions by the administrator against the same defendant for the same tort, the Court held that it was not available to add such a count to such a suit. This was in direct conflict with the result of the holding in the case of Ex parte Adams, supra, and, as we have said, that case was overruled in so far as it made a different holding.
Our research does not disclose a case in Alabama where an injured person lived throughout the period of the statute of limitations, in which he could maintain a suit for personal injuries and failed to prosecute such suit. Our inquiry is whether his personal representative could do so when at his death resulting from such injury, he could not have maintained that suit by reason of the statute of limitations. If the personal representative could do so it would be in direct conflict with the clear, concise terms of the statute, if those terms of the statute referred to the right of the injured person to maintain a suit at the time of his death. It may be ambiguous to a certain extent as to whether or not it refers to the right of the injured person to sue existing at the time of the injury or at the time of his death. This statute was considered by the Second Circuit Court of Appeals of the United States in the case of Seaboard Air Line R. Co. v. Allen, 192 F. 430, and it was held that if the injured person was barred of his suit at the time of his death by reason of the statute of limitations, his personal representative could not maintain a suit under the Homicide Act by reason of the terms of the statute, to which we have referred.
*592 The Allen case, supra, was called to the attention of Justice Bouldin in writing the opinion in Parker v. Fies & Sons, supra. It was not pertinent to the question he was deciding or involved in that case. However, he thought it was important to refer to the soundness of the Allen case, although it was not involved because the doctrine of that case found expression as the law of Alabama in various instances. He says it is in conflict with our own case of Gulf States Steel Co. v. Jones, 204 Ala. 48, 85 So. 264. An examination of that case will show that the statement by Justice Bouldin is inaccurate in so far as the question involved was concerned. In the Allen case the injured party died after the statute of limitations had barred his right to sue for the injury. In the Jones case, on the other hand, the statement of facts shows that Jones was injured on July 4, 1917, and that he died on April 10, 1918. It therefore affirmatively appears that at the time of his death his claim for personal injuries on account of the accident had not been barred by limitations. It was said in that case that count 2 of the complaint under the Homicide Act was not subject to the limitory effect asserted in the plea since two years is the period expressly allowed therein for commencing the action. The question was not raised or presented as to what the effect would have been had he died after the expiration of one year from the date of the injury. The question in the case that was presented to the court resulted from the fact that the action was commenced on August 2, 1918, which was more than one year after the injury occurred. The court observing that so far as the Homicide Act is concerned, it was a matter of two years after the death of the injured person. Those matters were not carefully observed by Justice Bouldin in saying that the Allen case conflicts with the Jones case. It would be so if the injured party had died more than one year after the date of his injury, but it appears here that was not the situation.
We think the opinion of the Court of Appeals of New York in the case of Kelliher, Adm'r v. New York Central & H. R. R. Co., 212 N.Y. 207, 105 N.E. 824, 825, L.R.A. 1915E, 1178, gave expression to sound views in construing a similar statute, and we quote from it as follows:
"We think the framers of the section considered that no action should be maintainable under it unless the decedent, at the time of his death, could have maintained an action. The section has been held to bar an action in favor of the representative where his decedent in his lifetime recovered a judgment for personal injuries, which was afterwards paid (Littlewood v. Mayor, etc., of [City of] New York [89 N.Y. 24, 42 Am.Rep. 271]); or where there has been a settlement between the injured person and the party charged with negligence (Dibble v. New York & Erie R. R. Co., 25 Barb. [N.Y.,] 183); or where the defendant is released from liability by the agreement of the intestate (Hodge v. Rutland R. Co., 112 App.Div. 142, 97 N.Y.S. 1107, affd. 194 N.Y. 570, 88 N.E. 1121); or where the intestate was guilty of such contributory negligence as would have barred an action by him (Shearman & Redfield's Law of Negligence (6th Ed.) § 140a, and cases cited).
"In the case at bar the decedent allowed the three years to expire within which he was permitted to commence an action. His subsequent death could not revive the cause of action based upon his injuries in favor of his representative. By the express language of the statute the wrongdoer is liable to the representative only in a case where he would have been liable to the decedent had death not ensued. In construing the meaning of this language in the Littlewood Case, Judge Rapallo said:
"`It seems to me very evident that the only defense of which the wrongdoer was intended to be deprived was that afforded him by the death of the party injured, and that it is, to say the least, assumed throughout the act that at the time of such death the defendant was liable.'89 N.Y. 28, 42 Am.Rep. 271.
"In a case involving a similar statute the United States Supreme Court said:
"`As the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the *593 existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury.' Michigan Cent. R. R. Co. v. Vreeland [227 U.S. 59, 69, 70, 33 S. Ct. 192, 57 L. Ed. 417, 421, 422, Ann.Cas.1914C, 176].
"Again in McKay v. Syracuse Rapid Transit R. Co., supra, Judge Miller said:
"`Her (the injured person's) cause of action abated upon her death, but the Legislature has substituted a new action and has specified the condition upon which it may be maintained, i. e., the right of the injured person to maintain an action if death had not ensued.' 208 N.Y. [359] 363, 101 N.E. [885] 886.
"The statute and those decisions establish the rule that, where an action could not have been brought by the decedent, it cannot be maintained for the same accident by his representative."
The same result was reached by the Supreme Court of Virginia in the case of Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271, 167 A.L.R. 886 interpreting a similar provision in its Homicide Act.
We are not willing to agree that the legislature intended to approve a situation where two suits could be prosecuted to judgment for the same injury, one by the injured person in his lifetime and the other by his personal representative after his death. We think that the legislature did not intend to create a cause of action occurring at the death of the injured party, if at that time the injured party was unable to maintain a suit for personal injuries based on that occurrence by reason of the fact that either he had already sued and recovered a judgment on account of it or he had accepted full satisfaction and release of the claim, or if his contributory negligence proximately caused his injury, or if he permitted the claim to be barred by the statute of limitations.
There is nothing in the case of Smith v. Lilley, 252 Ala. 425, 41 So. 2d 175, which reflects upon this conclusion.
The result of the foregoing discussion leads to the conclusion that in this case while the injured party did file a suit before his death for the injuries sustained by him, which caused his death it was determined in that case that his claim was barred by the statute of limitations. Whether or not the effect of that determination is conclusive of that question, and treated as if no suit had been brought by him in his lifetime, the pleadings in this case show that more than a year had elapsed at the time of his death from the occurrence of any act on the part of defendant which could have given rise to his injury and death.
We think, therefore, the demurrer to pleas 9, 10 and 11 should have been overruled.
On rehearing the original opinion is withdrawn and the foregoing is substituted in lieu thereof.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur. | June 28, 1951 |
fc2a22cd-59a0-49a1-8ef4-6d81d50fb0c5 | City of Birmingham v. Birmingham Business College | 56 So. 2d 111 | N/A | Alabama | Alabama Supreme Court | 56 So. 2d 111 (1951)
CITY OF BIRMINGHAM
v.
BIRMINGHAM BUSINESS COLLEGE, Inc.
6 Div. 233.
Supreme Court of Alabama.
June 14, 1951.
Rehearing Denied January 10, 1952.
J. M. Breckenridge, Birmingham, for appellant.
Ray & Giles, Birmingham, for appellee.
FOSTER, Justice.
The question on this appeal is whether a license placed by an ordinance of the City of Birmingham, approved November 3, 1948, entitled "School" and numbered section 231, upon a business college (which includes a commercial college, trade school or dancing school, but no other sort of school) is valid in so far as a business college is concerned.
The trial court held the ordinance invalid, without specifying the grounds for so holding. We agree with that result.
The attacks made upon the ordinance are, (1) that the public policy of the State is against taxing school property, and that a general law authorizing a city to license businesses will not cover a school, but that to do so the law should be a "specific, positive, lawful grant of power by the State to the municipality." And it is claimed there is no such grant of power. (2) That it deprives appellee of equal protection of the law in derogation of the Fourteenth Amendment, in that it does not include all the class of schools to which appellee belongs.
In respect to the first contention, the principle of law sought to be applied is not controverted and is well supported. Ward v. Markstein, 196 Ala. 209, 72 So. 41; 2 McQuillen on Municipal Corporations, 2d Ed.Rev., 708. The policy of the State is said to be established by the following constitutional and statutory provisions:
Section 229 of the Constitution exempts from the payment of a corporate franchise tax "strictly benevolent, educational, or religious corporations."
Section 217, Constitution, exempts from the uniformity of the rate of tax institutions *112 devoted "exclusively to religious, educational or charitable purposes."
Section 91, Constitution, exempts from ad valorem taxation lots with buildings on them "used exclusively for religious worship, for schools, or for purposes purely charitable." This does not exempt personalty of such schools. State v. Bridges, 246 Ala. 486, 21 So. 2d 316, 159 A.L.R. 678; Anniston City Land Co. v. State, 160 Ala. 253, 48 So. 659. The legislature may by specific legislation exempt personalty. Anniston City Land Co. v. State, supra.
Section 471, Title 51, Code, exempts from a license a baseball park owned and maintained "in good faith by educational institutions located in this state."
Section 494, Title 51, Code, exempts from the license fee for concerts, lectures, etc., "any lecture course given as a part of the course of instruction in any educational institution."
Section 582, Title 51, Code, exempts from the license fee for restaurants, etc., those "operated in connection with, by or as a part of any school, college or university."
The City of Birmingham has unlimited power to adopt ordinances and levy licenses not inconsistent with the laws of the State, Federal and State Constitutions, to carry into effect the powers and duties conferred by law upon it. Sections 455 et seq., and 735, Title 37, Code; section 654, Title 62, as amended, Pocket Part, Code, Act of June 28, 1943, General Acts 1943, page 250.
Section 91, Constitution, exempts from all taxation the property of the State, counties and municipal corporations. Therefore, there could be no tax on public school property. But this provision does not prohibit an excise or improvement tax from being levied against a city or county when it is clearly so intended. City of Huntsville v. Madison County, 166 Ala. 389, 52 So. 326; State v. City of Montgomery, 228 Ala. 93, 151 So. 856; City of Birmingham v. State, 233 Ala. 138, 170 So. 64; State Tax Comm. v. County Board of Education, 235 Ala. 388, 179 So. 197; Board of Education of Jefferson County v. State Tax Comm., 237 Ala. 434, 187 So. 414.
So that it will not be supposed that a license tax was imposed on a public school of a county or city without a clear intention to do so. This would be unthinkable. But it is by reason of its public nature and not because it is a school. In so far as schools as such are concerned, the Constitution and laws specify the exemption to which they are entitled. Exemptions can be granted to schools other than those specified in the Constitution. State v. Alabama Educational Foundation, 231 Ala. 11, 163 So. 527; State v. Bridges, supra. But where the Constitution and laws make exemptions from taxation in respect to schools and their property, it will not be implied that an exemption from other tax levies was intended: not now speaking of public schools.
We do not think that the status of the constitutional provisions and legal enactments manifest a policy to exempt schools, from the tax laws of the State except as they are so expressly exempted by law or the Constitution.
We think it is clear that a business college or school is a business enterprise and is subject to a license tax so levied, provided such tax is not subject to some other valid objection.
It is next insisted that the ordinance is discriminatory and in violation of the Fourteenth Amendment. It imposes a license or privilege tax of one hundred dollars on "each person, firm or corporation conducting a business college, commercial college, trade school, or dancing school." No other sort of schools are licensed by city ordinance, except aviation schools and beauty schools by separate ordinances.
The subjects of the power of the city to license are set out in § 735, Title 37, Code, as follows: "any exhibition, trade, business, vocation, occupation, or profession not prohibited by the constitution or laws of the state." It is made clear that it is the business that is subjected to the power to license. "`Business is as legitimate an object of the taxing power as property.'" Smalley v. City of Oneonta, 253 Ala. 663, 46 So. 2d 201, 203. But we think the licensing *113 power under section 735, supra, does not extend to schools which are not conducted as a business enterprise. That would exclude colleges and schools owned and conducted by religious sects, not for profit but as a means of developing religious activities and denominational material and to promote religion. We think it would include all privately owned schools conducted for the purpose of maintaining a business in which fees and charges are made for its maintenance and support and ultimately for the purpose, or in the hope, of earning a profit for distribution to its promotors. While a business college, such as that conducted by appellee, is subject to a license charge otherwise valid under section 735, supra, the license charge is not valid if it is discriminatory and, therefore, prohibited by the Fourteenth Amendment. Equal protection is satisfied when all persons of the same class fairly made are subject to the same amount and terms of such tax law. Smalley v. Oneonta, supra.
There are various private schools in Birmingham conducted as a business, teaching other and different subjects, but conducted technically for profit. The difference from a legal standpoint is that of the subjects taught, respectively. There are schools of music; schools for boys and schools for girls, separately conducted and owned, teaching general academic subjects; schools of fashion and design, teaching "home arts," domestic science and interior decorating; the Birmingham School of Law; also a school of speaking and dramatic arts, which undertakes to correct speech deficiencies and offering instructions in dramatics and public speaking. There are some dozen such schools being conducted in the City of Birmingham, privately owned and not for the promotion of religious activities, but for profit, differing from the appellee in a legal sense here material only in the subjects taught. They all charge fees.
We do not think it is a proper classification for license charges within the meaning of the Constitution to put schools conducted for profit and privately owned in different classes with respect to each other solely on account of a difference in the subjects taught in them, respectively. We think the business of conducting a private school for profit, if it is made the subject of a license tax, should include all such businesses, unless there is a status which supports a different exercise of the police power and, if not so included, there is a discrimination within the equal protection clause of the Fourteenth Amendment. It has been held in this State that the manner in which a commissary or store is conducted may not be the basis of a classification test. Alabama Consolidated Coal and Iron Co. v. Herzberg, 177 Ala. 248, 59 So. 305; Rochell v. City of Florence, 237 Ala. 635, 188 So. 247.
We noted in the case of State v. Alabama Educational Foundation, supra, that a classification under the Fourteenth Amendment may be also subclassified within recognized rules and limits.
But when a city is exercising its power conferred by legislation to levy a license tax upon businesses conducted in it, we do not think such businesses can be so classified as to exempt those conducted to emphasize particular phases of education and hold it operative against others, when the city is not invoking its police power.
In the case of Hale v. State, 217 Ala. 403, 116 So. 369, 58 A.L.R. 1333, this Court recognized a well known principle that it is not arbitrary to classify or reclassify businesses based upon the necessity for police protection with respect to those which are licensed, when no such protection is needed with respect to those not licensed, holding that the Fourteenth Amendment does not deprive a state of its police power to pass statutes for the protection of public health, safety or morals.
We note that, so far as the business of appellee is concerned, there is nothing shown about its conduct which calls into exercise the police power of the State in so far as public health, safety or morals are concerned.
It is made clear by the authorities that when the effort is to subclassify on account of matters of detail connected with the business, it must be based upon substantial differences which naturally call for a distinction *114 upon which taxation is dependent. 33 Am.Jur. 358 to 360.
While all such businesses must be placed in the same general class for license taxation, we do not wish to imply that they may not be subclassified for the purpose of fixing the amount of the license fee, dependent upon their respective status material to that matter.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur. | June 14, 1951 |
cf8261e8-7ba6-45d0-bb4f-6b51e9589ec9 | MacKey v. Moss | 175 So. 2d 749 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 749 (1965)
M. C. MACKEY
v.
Kenneth MOSS.
3 Div. 141.
Supreme Court of Alabama.
May 27, 1965.
*750 John P. Kohn and Hugh Maddox, Montgomery, for appellant.
Goodwyn & Smith, Montgomery, for appellee.
HARWOOD, Justice.
On 11 March 1964, Kenneth Moss filed a bill of complaint against M. C. Mackey, individually and as secretary of Local 479, American Federation of Musicians. The cause was heard on 23 March 1964, and on that day the bill was amended by adding as a party respondent the American Federation of Musicians. At the direction of the court, service upon the American Federation of Musicians was effectuated by the register serving a copy of the amended bill upon M. C. Mackey, the local secretary of the American Federation of Musicians.
The amended bill alleged that the American Federation of Musicians had arbitrarily placed the appellee's name on the "National Defaulter's List," of the American Federation of Musicians, and that as a result of such action the Federation was attempting to interfere with the contractual relationship existing between the appellee and certain musicians employed by him, and that such action would result in irreparable injury to the complainant in that musicians employed by the complainant would be compelled to cease performing under their contracts of employment with the complainant.
On the day that the amendment to the bill was filed, a hearing was had and after argument the court took the matter under consideration and on 30 March 1964, upon condition of execution of an injunction bond in the amount of $5,000, the court issued a temporary writ of injunction requiring the American Federation of Musicians and M. C. Mackey, its local secretary, to remove the name of Kenneth Moss from the National Defaulter's List, and prohibiting them from taking any further action relative to placing the name of Kenneth Moss on such defaulter's list, and further prohibiting any interference with the contractual relationship existing between Kenneth Moss and Buddy Pello, a musician employed by Moss.
Thereafter the American Federation of Musicians filed a "petition for an advice or instructions" as to whether or not there was a hearing as to the American Federation of Musicians within the meaning of the law of Alabama as respects temporary injunctions, stating that they did not know whether to appeal from said order or to file a motion to dissolve the said temporary injunction.
Pursuant to this petition the court issued an order stating that it was the court's determination that the issuance of the temporary injunction against the American Federation of Musicians was made ex parte and was an ex parte injunction, and that: *751 the temporary injunction granted against M. C. Mackey, individually and as secretary of Local 479, American Federation of Musicians, was granted after a hearing.
Pursuant to this construction of its injunctive order, the American Federation of Musicians filed a motion to dissolve the temporary writ of injunction which after hearing was denied.
Separate appeals were then taken by the respondents, M. C. Mackey appealing from the order granting the injunction, and the American Federation of Musicians appealing from the order denying its motion to dissolve the injunction.
This review concerns the separate appeal of Mackey, as Secretary, etc.
The evidence introduced below tended to show that on February 1964, the appellee, Kenneth Moss, entered into a contract with Buddy Pello whereby Pello, a musician, was to perform nightly at the Diplomat Inn in Montgomery, Alabama, said Diplomat Inn being operated by Moss. The contract was to extend through 19 December 1964. The contract was on a form of the American Federation of Musicians, and among other things contained the following provisions:
The uncontradicted evidence shows that at the time the appellee Moss executed the contract with Pello there were two claims against him filed with the American Federation of Musicians, for alleged claims growing out of breach of contract with other performers or entertainers. One such claim was by Charles Drake, a musician, and the other was by a group known as the "Star Belles." By letter dated 13 January 1963, Moss was notified by the American Federation of Musicians of the claim filed by Charles Drake against him and the Diplomat Inn for alleged salary due, and was requested to reply to the same within 14 days and was informed that failure on his part to reply within that time might result in the case going against him and the Diplomat Inn by default. This claim was allowed by the Federation.
Later, with the assistance of Mackey the claim of Charles Drake was reopened by the American Federation of Musicians, and the amount found to be due was reduced.
As to the claim filed by the Star Belles, it appears that their claim was filed by letter dated 21 November 1963, with the American Federation of Musicians, and Moss was notified of its filing and was requested to answer within 14 days. This he did not do, *752 though at a later date he did furnish the American Federation of Musicians with information to the effect that the Diplomat Inn was undergoing remodeling changes and it was impossible for him to use the services of the Star Belles in the Diplomat lounge on the date agreed to with their agent, and that upon his signing the contract and placing the same in the mails he had on that same date notified the agent of the Star Belles by telegram that it was necessary for him to cancel the contract which he had deposited in the mails a few hours earlier addressed to the agent in Kansas City.
Upon consideration of the claims filed by Drake and by the Star Belles, the executive board of the American Federation of Musicians allowed the claim of the Star Belles, and the claim of Drake, though Drake's claim was later reduced in amount as above stated.
Moss was notified by the Federation of the action of the board in each case, and was informed that failure on his part to pay the claims would result in his name as well as that of the Diplomat Inn "being placed on the list of those in default of payment to members of the American Federation of Musicians and, in addition thereto, notification thereof will be published in our official journal `The International Musician."
Thereafter M. C. Mackey, as secretary of Local 479, was notified by the Federation that Moss and the Diplomat Inn had been placed on the national defaulter's list of the Federation for failure to pay the claims.
M. C. Mackey testified that his duties included carrying out directives of the American Federation of Musicians. Upon receiving the notice from the Federation as to Moss and the Diplomat Inn being placed on the defaulter's list, he wrote Buddy Pello advising him of this fact. He had nothing whatever to do with the placing of Moss and the Diplomat Inn on the defaulter's list, and has not talked with Pello since he wrote him the letter. It was Mackey's opinion that in the face of the Federation having placed Moss and the Diplomat Inn on the defaulter's list that if Pello continued to work at the Diplomat Inn then the union would take some action against Pello. This might be in the form of a fine, or expulsion from the Federation. If Pello saw fit to continue to work at the Diplomat Inn, he was at liberty to do so and could drop out of the Federation at any time he wanted to.
Every witness who testified, including those for the complainant, stated that Mackey had never at any time threatened, coerced, or attempted to coerce by any means any employees at the Diplomat, and his only action in the Pello matter was to write Pello notifying him of the Federation's action.
While many points are argued by the appellant as constituting error, it would appear that the overriding question is whether a temporary injunction should have been issued enjoining Mackey as secretary of Local 479 of the American Federation of Musicians from notifying members of the Federation that an employer, for whom the member was then performing, had been placed on the national defaulter's list of the Federation.
Voluntary associations have the right to make their own regulations as to the admission or expulsion of members, and one who becomes a member assents, by his membership, to the constitution and rules and procedure adopted by such association. The constitution, rules and bylaws constitute a "contract" between the association and its members and the rights and duties of the members as between themselves and the association are measured by the terms of such constitution and bylaws.
In Shaup v. Grand International Brotherhood, etc., 223 Ala. 202, 135 So. 327, this court quoted with approval the following language from State ex rel. Smith v. Kanawha *753 County Court, 78 W.Va. 168, 88 S.E. 662, 20 A.L.R. 1030:
As stated in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, at page 19, 18 So. 2d 810, at page 825:
"It seems to be established by the decided weight of authority" (citations omitted) that a rule of a labor union forbidding its members to work with nonunion men or members of a rival organization is valid. * * *"
Counsel for appellee argue that the placing of Moss and the Diplomat Inn on appellant's defaulter's list, even though done peaceably, would result in an interference with the contractual relations existing between Moss and Pello, in that Pello could only continue in Moss' employment at the risk of being penalized by the Federation of which he is a member. In this connection appellee relies upon Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. It is stated therein "that interference with existing contracts of service by inducing those so contracting to violate their agreements is such a wrong as may be enjoined in equity." This principle cannot be deemed applicable to the present factual situation in that by the contract of employment between Moss and Pello it was specifically provided in effect that Pello was at liberty to cease his employment by reason of any requirement of the Federation, and that the bylaws and regulations of the Federation were incorporated into the contract. Thus Pello was given the right by the contract to determine whether he would or would not continue in Moss' employment should the rules or bylaws of the Federation be breached by Moss. In the contract Moss represented that no claim existed against him in favor of any member. In truth and in fact Charles Drake's claim against Moss had been allowed at this time, and the Star Belles' claim was on file, and was subsequently allowed by the Federation.
In Miami Federation of Musicians, etc. v. Wompearce, Inc. et al. (Fla.), 76 So. 2d 298, the action was to enjoin the local musician's union from placing or keeping the Plaza Theatre in Miami on the defaulter's list of the union. The theatre had been a white elephant so far as former lessee-operators were concerned and entertainers appearing therein had suffered loss of pay. The lower court, at the behest of a new lessee enjoined the respondents from placing or keeping the theatre on its defaulter's list, and from refusing to permit members of the Miami Local of the American Federation of Musicians to work at the theatre, on the ground that the alleged acts of omission in paying the former entertainers could not be attributable to the present lessee.
*754 In reversing this decree, the Supreme Court of Florida held that injunctive process is not available to prevent, directly, a union's enforcement of its own rules and regulations by disciplinary action against its members where no act of violence, intimidation, illegal picketing or boycotting is involved. To like effect see Radio Station KFH Co. v. Musicians Ass'n, 169 Kan. 596, 220 P.2d 199.
The Florida court further wrote:
We concur in the Florida court's apparent doubt that the publishing of the defaulter's list in the magazine of the Federation constituted a "boycott." Certainly, the constituent elements of a boycott are evanescent in this situation. Removed from the background of a labor dispute it would appear to be nothing more than credit information for the members of the Federation. This is a lawful purpose and lawful action on the part of the Federation. That the members of the Federation might be subject to disciplinary action by the union (and not by Mackey) should they furnish services to one on the union's defaulter's list is a matter of internal operation of the union, and of no concern to the complainant in this case.
From the evidence it appears that a genuine grievance existed between the Federation and the complainant. Certainly there was nothing unlawful in the Federation's action in placing Moss and the Diplomat on its defaulter's list for the information of its members. Mackey's only act was to notify Pello by letter of this fact. The union's action in the Drake claim was taken after notice to Moss and an opportunity to present his answer. As to this claim Moss' attitude is well illustrated by the following from his testimony:
*755 It is clear that under the pleadings, evidence, and legal principles governing, the issuance of the temporary injunction against Mackey, after hearing, was erroneous. For this reason the decree is due to be reversed and one is here rendered dismissing the bill.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | May 27, 1965 |
0d1047d4-c3bf-4db7-b3b5-0c9b284754de | Aircraft Sales & Service v. Gantt | 52 So. 2d 388 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 388 (1951)
AIRCRAFT SALES & SERVICE, Inc.,
v.
GANTT.
6 Div. 942.
Supreme Court of Alabama.
May 10, 1951.
*390 London & Yancey, Geo. W. Yancey and Frank E. Lankford, all of Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
Charles F. Gantt recovered judgment in the Circuit Court of Jefferson County, Alabama, against Aircraft Sales & Service, Inc., for personal injuries received in the fall or crash of an airplane operated or piloted by Gantt, and owned by Aircraft Sales & Service, Inc.
The cause was submitted to the jury in the court below on counts "B" and "D". The legal sufficiency of neither count is questioned on this appeal.
In substance, count "B" claimed damages for that, defendant negligently furnished to plaintiff an aircraft with which to make a practice flight which was defective in that the controls would not and could not be operated so as to control the aircraft in flight and that as a result the aircraft crashed or fell. Count "D" is in similar language but specifically alleges that the aircraft was defective in that it had a screwdriver beneath the floor board of the aircraft, which screwdriver was not a part of the aircraft, in a place where it was likely to and did catch or wedge in the controls of the aircraft while in flight and that as a proximate result the aircraft was caused to fall or crash.
Defendant interposed a plea of the general issue in short by consent with leave, etc.
Assignments of error 1, 2 and 3 are predicated upon the refusal of the affirmative charge, with hypothesis, requested in writing by defendant as to each count in the complaint.
Where the affirmative charge is refused the rule is axiomatic that the entire evidence must be viewed in its most favorable aspect for the adverse party and where, from it, a reasonable inference may be drawn adverse to the party requesting it, the charge is properly refused. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224.
It is not denied that prior to, and at the time appellee was injured appellant was conducting a flight school in which students were trained as airplane pilots. Appellee was enrolled as a student in this school under the so called "G. I. Bill," the essential features of which provided that the United States Government, through the Veterans Administration, paid appellant for the instruction and airplanes furnished to appellee. Prior to being injured appellee had received about 12 or 13 hours of instruction with an instructor in the airplane with him. In addition, he had about 15 hours solo time. His instructors had taught him how to make, and handle the airplane in, "S" turns, stalls, spins, landings and take offs and patterns. Prior to his being allowed to fly solo, appellee's instructors taught him how to pull out of spins and stalls, and his ability in these respects had been checked by his instructors before he was allowed to fly an airplane by himself and he had been found competent in that regard. On the afternoon the appellee was injured he was furnished with a Aeronica airplane, powered by a 65-horsepower motor, by appellant for the purpose of a practice flight.
Further, the evidence tended to show that on the afternoon he was injured appellee, after giving the airplane the customary ground check as to condition of wings, gas *391 and oil, oil pressure, revolutions per minute of the motor, controls on the plane, etc., he "took off" from the airport and maneuvered the plane to get out of the pattern, climbed to about 1500 feet and then flew the plane to a training area, with which appellee was familiar, some 15 or 18 miles from the airport: that he did some "S" turns over a road he knew, and in making these turns, lost some 800 feet in altitude: that he then climbed to an altitude of about 3000 feet, put the plane into a spin, and after three revolutions or turns pulled the plane out of the spin at about 1500 to 1700 feet: that when he started to pull out of the spin the stick "was kind of gritty; a little grab in there," but it came back all right: that he then flew on and lost more altitude: that when he was flying at about 900 feet he went into a left bank and that when he tried to straighten up from this left bank his rudder would stick and the plane would hardly straighten up: that he finally got the wing up a little but he was still going down at an angle: that he tried to pull the stick backhe jiggled it first and then pulled back on it hard but the stick would not come back: that he then tried to push the stick forward and gave the plane more gas, but the plane continued downward at about a forty-five degree angle: that when he found that he could not right the plane he cut the motor off: that the plane continued down at about a forty-five degree angle and struck the ground at about that angle. Appellee was severely injured. The evidence further tends to show that there were three eyewitnesses to the crash who immediately went to the plane and extricated appellee, and that the plane did not catch fire or burn: that employees of appellant arrived at the scene of the accident some two hours after it occurred, and that one of them guarded the plane all night and until it was dismantled the next day. The evidence further tended to show that in dismantling the plane the wings were taken off and the engine was sawed off at about the plane's windshield: that after the engine had been sawed off the front part of the fuselage of the plane was visable and a screwdriver about ten inches long was discovered in the area between the floor board and the bottom and the surface of the plane: that the screwdriver was of the same type and make as used by appellant's mechanics in working on its aircraft.
The evidence is further to the effect that the screwdriver, when found, was not in contact with any part of the controls but was wedged in front of the fire wall between the pilot's seat and engine of the plane, but was under the floor board of the plane and in a compartment, space or area housing a part of the controls. In other words, in a place where it could have come in contact with the controls before it became wedged in the place where it was found.
Here the relationship between the parties was that of bailor and bailee for hire. Where there is a bailment for the mutual benefit of the parties, as for hire, there is imposed on the bailor, in the absence of a special contract or representation, an obligation that the thing or property bailed for use shall be reasonably fit for the purposes or capable of the use known or intended. 6 C.J., § 52, p. 1117; 8 C.J.S., Bailments, § 25, page 258; 3 R.C.L., § 61, p. 138; Mallory S. S. Co. v. Druhan, 17 Ala.App. 365, 84 So. 874. And if the use of the instrumentality threatens serious danger to others unless it is in good condition, there is a duty to take reasonable care to ascertain its condition by inspection. Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39, 12 So. 2d 96. The liability is not to be determined by the contract alone, but is rested on the bailor's duty beyond the contract. The duty of diligence of a bailor in such a bailment is an obligation imposed by law on one in his dealings with his fellows to refrain from acts of omission or commission which he may reasonably expect would result in injury to the bailee or others. In such a case the bailee may waive the contract and sue for the breach of duty as was done in the instant case. Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312. See Al DeMent Chevrolet Co. v. Wilson, 252 Ala. 662, 42 So. 2d 585; Motor Terminal & Transportation Co. v. Millican, supra. See *392 also Fidelity & Casualty Co. v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669.
It is likewise well established that the cause of an injury and the question of actionable negligence may both be established by circumstantial evidence, provided the circumstances relied upon are not themselves presumed. Harbin v. Moore, 234 Ala. 266, 175 So. 264.
Appellant's theory as to what caused the aircraft to fall or crash is that appellee negligently allowed it to develop a low speed stall. There is evidence to support such a theory, but it only creates a conflict with that of appellee to the effect that appellant negligently furnished to him an aircraft not reasonably fit for the purposes, or capable of the use known or intended.
Appellant argues that there is no evidence that the aircraft was not inspected periodically, and further, that there is no evidence that an inspection would have disclosed the presence of the screwdriver beneath the floor board of the aircraft. But, be that as it may, there is evidence from which the jury could infer that the mechanics or employees of appellant left a screwdriver beneath the floor board of the aircraft and that it jammed the controls of the aircraft to such an extent as to cause it to fall. Regardless of whether or not appellant inspected the aircraft, it was appellant's duty to exercise due care to furnish appellee with a plane reasonably fit for the purposes, or capable of the use known or intended. The furnishing of a plane with a screwdriver under the floor board where it may come in contact, and interfere with, the controls of the plane may, on that theory, be a breach of that duty. State for use of Piper v. Henson Flying Service, 191 Md. 240, 60 A.2d 675, 4 A.L.R.2d 1300. We are clear to the conclusion that the evidence was sufficient to take the case to the jury, and as a consequence, the refusal of the charge under discussion, affirmative in nature, was without error.
Assignments of error 9 to 15, inclusive, are based on the trial court's refusal of appellant's motion for a new trial. They are argued together in brief and if one of the assignments is without merit the others need not be examined. Assignment of error numbered 9 is as follows: "For that the trial court erred in overruling the appellant's motion for a new trial for that the verdict of the jury is contrary to the evidence."
We are unwilling to say that the verdict of the jury is contrary to the evidence.
Appellant's assignment of error numbered 4 reads as follows: "The trial court erred in sustaining objection of counsel for the plaintiff to the introduction in evidence of a photostatic copy of a statement bearing the admitted signature of the plaintiff."
As was said in Hosey v. Southport Petroleum Co. of Delaware, 244 Ala. 45, 12 So. 2d 93, 95: "Photostatic copies, very useful in many respects, are secondary evidence. 32 C.J.S., Evidence, § 815, page 747."
No satisfactory predicate was laid, in the instant case, for the introduction of secondary evidence and the trial court did not err in sustaining appellee's objections to the photostatic copy of the statement.
For like reasons appellant can take nothing by assignments numbered 5 and 6.
Assignments of error 7 and 8 are as follows:
"7th. For that the trial court erred in overruling objection of counsel for the defendant to the following question propounded to the witness White: `Q. Mr. White, if there had been a screwdriver under the floor board of that airplane, and in connection with doing the spin late that afternoon, and that screwdriver had become caught or wedged in the stick of the airplane, would that affect the operation after it had hung in there?'"
"8th. For that the trial court erred in overruling the objection of counsel for the defendant to the following question propounded to the witness White: `Q. As a matter of fact, Mr. White, if it was hung anywhere in there so that a pilot was unable to pull that stick back, it would make him go down, wouldn't it?'"
The questions to which appellant's objections were overruled, were propounded *393 to appellant's witness while on cross-examination. On direct examination Mr. White testified that he was a student in the school operated by appellant: that he was taking a commercial pilot's course at the school: that at the time appellee was injured, he, White, had had some 70 hours flying time as a "solo pilotprivate pilot." That he was familiar with aircraft of the type appellee was flying when he was injured, in fact, had flown the particular aircraft that appellee was flying when injured, and had flown it on the morning of the day appellee was injured. In effect, White's testimony, on direct examination, qualified him as an expert on the type of aircraft involved in the cause, and as to the particular aircraft.
As we have said there was evidence from which the jury could infer that the screwdriver became entangled or caught in the controls of the aircraft. It was entirely proper to ask an expert the effect such entanglement would have on the operation of the aircraft.
We find no error to reverse, and accordingly the cause is affirmed.
Affirmed.
FOSTER, LAWSON and STAKELY, JJ., concur. | May 10, 1951 |
b90377a6-2048-411f-a755-b51e73542bb2 | North British & Mercantile Ins. Co. v. Sciandra | 54 So. 2d 764 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 764 (1951)
NORTH BRITISH & MERCANTILE INS. CO., Limited,
v.
SCIANDRA.
6 Div. 49.
Supreme Court of Alabama.
October 4, 1951.
Rehearing Denied November 23, 1951.
*765 F. W. Davies and Davies & Williams, all of Birmingham, for appellant.
Maurice F. Bishop and M. L. Gwaltney, Birmingham, for appellee.
LAWSON, Justice.
Frank Sciandra brought this action in the circuit court of Jefferson County against the North British & Mercantile Insurance Company, Ltd., a corporation. The *766 purpose of the action is to recover for loss alleged to have been suffered by plaintiff to property, which loss he alleges was caused by lightning or windstorm, risks covered by a policy of insurance that had been issued by defendant.
Defendant denied that plaintiff suffered any loss for causes covered by the policy of insurance. It is defendant's insistence that the loss suffered by plaintiff was due to the fact that the building was not properly constructed and that an accumulation of water on the roof caused it to collapse.
The trial resulted in a verdict and judgment for plaintiff in the amount of $3,350. Defendant's motion for a new trial being overruled, it has appealed to this court.
There are seventy-three assignments of error. Some of them are not even referred to in brief. They will not be considered. Hillard v. City of Mobile, 253 Ala. 676, 47 So. 2d 162; Hall v. Esslinger, 235 Ala. 451, 179 So. 639. Other assignments of error, while mentioned in brief, are not argued sufficiently to warrant treatment here. In many instances no authorities are cited. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604; Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158; Hodge v. Rambow, 155 Ala. 175, 45 So. 678.
Defendant requested the general affirmative charge with hypothesis as to both counts of the complaint. Plaintiff's loss was alleged to have been caused by lightning in Count A and by windstorm in Count B. The refusal of the trial court to give numerous charges in the nature of affirmative charges is the basis of many of the assignments of error.
The manner in which the facts are stated in brief of counsel for defendant below, appellant here, causes us to believe that we should again refer to the rule so often stated that where, as here, the defendant insists it was entitled to the affirmative charge, we review the tendencies of the evidence in the light most favorable to the plaintiff, and this without 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, and cases cited.
In July, 1946, a vacant lot at 1106 Third Avenue, West, Birmingham, was conveyed to plaintiff and his wife by deed. The wife's money, as well as plaintiff's money, was used in paying the purchase price. After the lot was purchased plaintiff entered into a contract for the construction of a building on the lot. Thereafter the building was constructed on the lot, the entire cost of which was paid by plaintiff.
On April 27, 1948, the defendant, through its agent Hughes, issued the insurance policy on which this suit was brought. Hughes had witnessed and notarized the original construction contract.
Plaintiff moved into the building on or about September 14, 1947, and continued to occupy the building as a delicatessen and store until July 16, 1948, on which day a part of the roof over the store collapsed. Plaintiff, his wife and their son all were active in the business carried on in the building.
What caused the roof of the building to collapse is the question at issue. There is evidence for the plaintiff which tends to show that the roof collapsed at approximately 4:30 p. m. on the afternoon of July 16, 1948. It is without dispute in the evidence that the weather had been bad all day. There had been rain, wind, and considerable electrical disturbances.
There was evidence to support the defendant's theory that the collapse of the roof was due to an accumulation of water on top of an improperly constructed building. But on this question the evidence was in sharp conflict. The jury found against the defendant on this issue. It was for the jury to determine which witnesses to believe.
We come to the question of whether or not the record contains sufficient evidence, when viewed in the light most favorable to the plaintiff, to present a jury question as to whether the damage to the building was caused by lightning.
*767 The evidence going to show that there was an electrical disturbance of considerable magnitude in the vicinity of the insured property, standing alone, would not in our opinion support such a finding. But the evidence shows that plaintiff's son was in the building at the time the roof collapsed. He testified in substance that just before the roof collapsed there were repeated "peals of thunder" that he saw a "streak of lightning" come through the front of the building; that immediately the ceiling began to fall; that it sounded as if "somebody" was breaking timber.
After the roof collapsed, some of the timbers appeared to have been splintered, but there were no marks found on the timbers indicating burns.
In support of its argument that it was entitled to the affirmative charge as to Count A which, as before shown, averred that plaintiff's loss was occasioned by lightning, defendant below, appellant here, in its original brief cited no case dealing with the exact question. In reply brief, the case of Clark v. Franklin Farmers' Mutual Fire Ins. Co., 111 Wis. 65, 86 N.W. 549, 551, was relied upon. In that case the Wisconsin court, in holding that the evidence was insufficient to support a finding that the loss was occasioned by lightning, referred to the fact that there were no marks of fire anywhere "such as are customarily found where lightning has come in contact with dry wood."
The facts in the case of Clark v. Franklin Farmers' Mutual Fire Ins. Co., supra, are easily distinguishable from those in the instant case. But counsel for appellant places much emphasis on the observation made by the Wisconsin court that there were no marks of fire. There are other cases wherein the absence of such evidence has not been considered in any wise controlling of the question of whether or not the loss was occasioned by lightning.
Counsel for plaintiff below, appellee here, has called our attention to a number of cases from other jurisdictions bearing on the question. We have found that there is an extensive annotation on the subject in 15 American Law Reports 2d, beginning at page 1017, wherein many cases are summarized, including some of those cited by appellee.
It would but encumber the opinion to set out here an analysis of the cases. Suffice it to say that we are clear to the conclusion that a jury question was presented as to whether the roof of the insured building was caused to collapse by lightning. We think this conclusion is fully supported by the cases hereafter cited from other jurisdictions. Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S.W.2d 629; Caledonian Ins. Co. v. Naifeh, 229 Ky. 293, 16 S.W.2d 1046; Grasso v. Glen Falls Ins. Co., 133 Neb. 221, 274 N.W. 569; Hartford Fire Ins. Co. v. Cincinnati Ice Mfg. & Cold Storage Co., 9 Ohio App. 403; Shields v. Vermont Mut. Fire Ins. Co., 102 Vt. 224, 147 A. 352; Clouse v. St. Paul Fire & Marine Ins. Co., 152 Neb. 230, 40 N.W.2d 820, 15 A.L.R.2d 1008; Beakes v. Commercial Union Assur. Co., Ltd., 65 Hun. 621, 20 N.Y.S. 37; Warmcastle v. Scottish Union & National Ins. Co., 210 Pa. 362, 59 A. 1105. None of these cases is in all respects factually in point with the instant case. However, they do hold that under similar factual situations, jury questions were presented.
The next question for consideration is whether the evidence, when viewed in the light most favorable to plaintiff, is sufficient to make a jury question as to whether the damage to the building was caused by windstorm.
As before indicated, the evidence for the plaintiff tended to show that the roof collapsed "around 4:30, something like that." The records of the weather bureau in Birmingham showed that at 4:18 p. m. the wind was blowing at a rate of thirty-one miles per hour and continued to blow at that rate for five minutes and then gradually decreased. The superintendent of a ball park located a short distance from the insured building testified that "the wind tore off about five squares of the park roof." Plaintiff's son testified in effect that the wind was blowing at a rapid rate at the time the roof collapsed.
In original brief filed on behalf of appellant, two cases from other jurisdictions *768 were cited in support of the contention that defendant was entitled to the affirmative charge as to Count B, the windstorm count. One of them, Sabatier Bros. v. Scottish Union & National Ins. Co. of Louisiana, La. App., 152 So. 85, is so clearly distinguishable from the instant case on the facts as not to require consideration here. The other case is that of Clark v. Fidelity & Guaranty Fire Corp., City Ct., 39 N.Y.S.2d 377, 380, by the City Court of Buffalo. As here pertinent, that case holds: "While a twentyeight M.P.H. wind may be no aerial lullaby, yet, in this court's opinion, it falls far short of qualifying under any or all of the above definitions as a `Windstorm'".
In so far as our research discloses, the case of Clark v. Fidelity & Guaranty Fire Corp., supra, has been cited but twice. In Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., Mo.App., 210 S.W.2d 700, while that case is cited, it was not followed in so far as it may be said to hold that as a matter of law a wind with a velocity of 28 m.p.h. cannot be said to be a windstorm. In the Metropolitan case, supra, the Missouri court held that a jury question was presented as to whether or not a windstorm caused the damage to plaintiff's property, although the records of the weather bureau showed a maximum wind velocity of 23 m.p.h.
In Friedman v. Employers' Fire Ins. Co., 336 Ill.App. 140, 83 N.E.2d 40, the case of Clark v. Fidelity & Guaranty Fire Corp., supra, was merely cited for the conclusion reached that the evidence did not fairly tend to establish that there was a windstorm or a wind sufficiently strong to cause the damage to the insured property. But a reading of that case will show that the court did not cite the case of Clark v. Fidelity & Guaranty Fire Corp. for the proposition that a wind of 28 m.p.h. is not a windstorm.
We are not willing to say that the jury would not have been justified in finding that there was a windstorm at the time the insured property was damaged merely because the velocity of the wind did not exceed 31 m.p.h. We think the question as to whether or not there was a windstorm was one for the jury. Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., supra; Bogalusa Gin & Warehouse, Inc., v. Western Assur. Co., 199 La. 715, 6 So. 2d 740; George A. Hoagland & Co. v. Insurance Co. of North America, 131 Neb. 105, 267 N.W. 239; Atlas Assur. Co. v. Lies, 70 Ga.App. 162, 27 S.E.2d 791.
Appellant argues that irrespective of the fact that the jury might have been justified in finding from the evidence that there was a windstorm in the vicinity of the insured building at the time its roof collapsed, there was no evidence tending to show that the windstorm was the direct cause of the damage sought to be recovered. On this point counsel for appellant in reply brief rely on the case of La Bris v. Western Nat. Ins. Co., W.Va., 59 S.E.2d 236. In that case Mary La Bris brought suit against two insurance companies to recover damages under windstorm endorsements attached to fire insurance policies issued by the defendant companies to the plaintiff on her two-story brick building situated in the city of Huntington, West Virginia. The complaint alleged that damages to the building were caused by windstorm and that the damages sought represented the cost of repairing the center portion of plaintiff's building, which had collapsed as the result of the windstorm. The defendants interposed by way of defense that the roof was caused to collapse by a stoppage of a drainpipe thereon. The plaintiff recovered judgment in the circuit court.
On appeal to the Supreme Court of Appeals of West Virginia, the judgment of the circuit court was reversed, the majority opinion holding that there was no competent testimony in the case to show that the collapse of the roof was the result of the windstorm.
Counsel for defendant below, appellant here, insist that the facts of the La Bris case, supra, are on all fours with those of the instant case. We cannot agree. In the La Bris case the evidence as to the velocity of the wind at the time the roof collapsed was six m.p.h. In the instant case the jury was warranted in finding that the velocity of the wind was approximately 31 m.p.h. In the La Bris case *769 the evidence was uncontradicted to the effect that the drain on the roof was clogged at the time of the collapse and shortly before and at the time of the collapse there were 38 to 45 tons of water on the roof. That is not this case. True, there was evidence on behalf of defendant to the effect that some time previous to the day on which the roof collapsed, water was standing on the roof of the insured building. But plaintiff's testimony was to the opposite effect. Counsel for appellant here make much of a record of the Birmingham Fire Department, which defendant introduced in evidence. This was a report made by a fireman after answering a call. As pertinent, the report stated that the cause of the collapse of the roof was an accumulation of water on the roof due to a stopped drain. But defendant called the fireman who made the report to the stand, and his testimony both on direct and cross-examination shows beyond any question that the statement which he had made on his report was pure guesswork. He had not gone onto the roof. He had made no inquiry as to the condition of the roof prior to the time of its collapse. He had not examined the drain. There is another point of distinction which might well be noted. In the La Bris case the evidence showed that on the day the roof collapsed there was a recorded rainfall of 4.2 inches. In the instant case the precipitation for the same period of time was .76 inches, of which .66 inches fell between four and five p.m.
We think appellant's argument to the effect that, to accept the evidence as sufficient proof that the roof was caused to collapse by a windstorm, you must build inference upon inference, is completely answered by the decision of the Missouri court in the case of Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., supra.
In the very nature of things, a difficult question is raised as to just what caused the roof of the insured building to collapse. We think the issue is one which is peculiarly within the province of the jury to decide. We hold, therefore, that in this case the question as to whether or not the roof was caused to collapse by a windstorm was for the jury's determination.
The burden was upon plaintiff to show his insurable interest and the extent thereof. Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180; Aetna Fire Ins. Co. v. Kennedy, 161 Ala. 600, 50 So. 73.
That plaintiff had an insurable interest in the building to some extent appears to be conceded.
Defendant took the position that plaintiff was not entitled to recover more than the loss and damage to an undivided one-half interest in the insured building described in the policy of insurance. Defendant sought to have the trial court give a number of written charges to that effect, which charges were refused. The refusal of these charges defendant below, appellant here, insists constitutes reversible error.
These charges were requested on the theory that the evidence shows that plaintiff had title only to an undivided half interest in the insured building and that his insurable interest is limited to the extent of his title.
We think that defendant is correct in its assertion that under the evidence plaintiff has title only to an undivided one-half interest in the building. The evidence shows without dispute that plaintiff owned only an undivided one-half interest in the land on which the building was constructed. His wife owned the other interest. The building was paid for by plaintiff alone. The prima facie intendment is that a building when erected on the land of another shall be and is a part of the realty. Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461; Sullivan v. Lawler, 222 Ala. 628, 133 So. 911. There is nothing in this record to overcome such prima facie intendment. By reason of the relationship of husband and wife, the presumption obtains that plaintiff intended a gift to his wife of an undivided one-half interest in the building. Stramler v. Holman, 229 Ala. 636, 159 So. 90. This presumption is in no wise rebutted by the evidence. So it seems to us that the conclusion is inevitable *770 that plaintiff and his wife each owned an undivided one-half interest in the insured building.
The evidence is not sufficient to warrant a finding that the insurance company had knowledge of the condition of the title to the building at the time its policy was issued.
So the question is presented whether or not plaintiff's insurable interest in the building was limited to the extent of his title.
We have held that one can have an insurable interest although he has no property in the thing insured, or an estate, legal or equitable; that the term "insurable interest" is more extensive than property or estate; that a qualified or limited interest in the subject of insurance is sufficient; that any reasonable expectation of legitimate profit is sufficient to support an insurable interest; that whatever furnishes a reasonable expectation of pecuniary benefit from the continued existence of the subject of insurance is a valid insurable interest. American Equitable Assur. Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37. See Northern Assur. Co. v. Stewart, 228 Ala. 201, 153 So. 243.
In Royal Exchange Assur. of London v. Almon, 206 Ala. 45, 89 So. 76, we held in effect that just bare possession of a barn owned by the wife did not give the husband an insurable interest therein (Replication No. 1). But as to Replication A, we said, 206 Ala. 48, 89 So. at page 78: "Replication A of plaintiff to pleas 7, 8, and 12 is set out in substance heretofore in this opinion. Under it the plaintiff, the husband, shows his right to possession of the barn under contract with his wife, when the policy of insurance was executed. It appears from this replication that plaintiff was tenant of his wife, as to the land and the barn; that the barn was used by him to store his crops raised on this place; that he was to continue to farm on the land and use the barn, the consideration being he was to pay the purchase money debt due by his wife thereon. This gave the husband, the plaintiff, an interest in the barn. It was to his interest to keep it for use, and not to destroy it. Its preservation was beneficial to him under his contract with the owner. His interest was continuous therein during the life of the insurance policy. Its destruction would bring pecuniary loss to him. This contract with his wife gave him an insurable interest in the barn. That interest is the value of his leasehold in the barn, and not the value of the barn. Com[mercial] Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am.Rep. 162; Horsch v. Dwelling-House Ins. Co., 77 Wis. 4, 45 N.W. 945, 8 L.R.A. 806."
While none of the Alabama cases above alluded to are factually on all fours with the instant case, they do settle the proposition that a husband may have an insurable interest in property, title to which is in his wife.
Counsel for appellant place much emphasis upon the case of La Font v. Home Ins. Co., 193 Mo.App. 543, 182 S.W. 1029, 1031, wherein the husband sought to collect for the one-half undivided interest of his wife in a homestead occupied by them and which was destroyed by fire. The husband was named in the policy as the insured. The Missouri court said in part as follows: "At the very outset, we are met with the insistence in behalf of the defendant that the plaintiff should not, as a matter of public policy, be allowed to insure the undivided one-half interest in the property owned by his wife, and collect the insurance thereon, and that no waiver or conduct on the part of the defendant could legalize such insurance. We concede that proposition to be true, and we have held that a party cannot collect insurance upon property in which he has no insurable interest. Wisecup v. American Ins. Co. of Newark, 186 Mo.App. 310, 172 S.W. 73, and Rutherford v. Sample, 186 Mo.App. 469, 171 S.W. 578."
The La Font case, supra, is certainly in conflict with our case of Northern Assur. Co. v. Stewart, supra, in so far as that case may be said to hold that knowledge on the part of the insurance company of the condition of the title of the insured property cannot operate as a waiver. The La Font case, supra, also seems to hold in effect that there can be no insurable interest in property *771 without title. As before shown, that is not the law of this jurisdiction.
And in so far as it holds that a husband has no insurable interest in a homestead, title to which is in the wife, the La Font case, supra, definitely represents the minority view.
In Appleman on Insurance Law and Practice, Vol. 4, § 2149, it is said: "Despite all the restrictions which the courts have placed around the husband, they seem to have held unanimously that the husband has an insurable interest in the homestead on which he resides with his wife and family, even though title thereto is in the wife. Of course, where the homestead had been jointly deeded to the husband and the wife, even less question could arise." Many of the cases cited in support of the statement are found in an annotation in 68 American Law Reports, beginning at p. 362. See Horsch v. Dwelling-House Ins. Co., 77 Wis. 4, 45 N.W. 945, 8 L.R.A. 806; Kludt v. German Mut. Fire Ins. Co., etc., 152 Wis. 637, 140 N.W. 321, 45 L.R.A.,N.S., 1131, Ann.Cas.1914C, 609; Emery v. Clark, 303 Mich. 461, 6 N.W.2d 746; Basa v. Pierz Farmers Mut. Fire Ins. Co., 178 Minn. 305, 227 N.W. 39, 68 A.L.R. 359. In the case last cited it is pointed out that the rule rests upon the basis that the spouse has a pecuniary or beneficial interest and would suffer a disadvantage from its loss.
The insured building in the instant case is not the homestead, but we think the reasoning underlying the majority holdings in the homestead cases is applicable. The building was used by plaintiff as a store and delicatessen, as a means of providing a livelihood for himself and family. It was so used with the knowledge and consent of the wife, who assisted plaintiff in the operation of the building, along with their son. Plaintiff's obligation to his family was dependent upon the continued existence of the building. Certainly the preservation of the interest owned by the wife was essential to plaintiff's welfare. Unquestionably plaintiff had a pecuniary and beneficial interest and would suffer a disadvantage from damage to the building.
We think the situation here is not unlike that presented in the case of Washington Fire Relief Ass'n v. Albro, 137 Wash. 31, 241 P. 356, 359, where it is said: "It is a rule of law, founded on sound public policy, that one person cannot insure for his own benefit the property of another in which he has no interest. But the husband in this instance was not without interest. The contents of the barn, at least the hay therein, was the product of the joint labor of both the husband and wife, and was their community property. In this plainly the husband had an interest and could lawfully insure it in his own name for their joint benefit. So, also, we think, he had an insurable interest in the barn, notwithstanding it may have been legally the separate property of his wife. As is shown by the cases collected in 20 C.J. 20, under section 3, the term `interest,' as used in the phrase `insurable interest,' is not limited to property or ownership in the subject-matter of the insurance; that where the interest of the insured in, or his relation to, the property is such that he will be benefitted by its continued existence, or will suffer a direct pecuniary loss by its destruction, his contract of insurance will be upheld, although he has no legal or equitable title. As we have shown, the husband in this instance had a direct pecuniary interest in the maintenance of the barn on the premises, and under the rule it must follow that he had an insurable interest therein. * * *"
We are of the opinion that under the evidence in this case, plaintiff is shown to have had an insurable interest in the entire building and that the charges requested by defendant which in effect would limit his insurable interest to the extent of his legal interest were properly refused.
The policy of insurance sued on provided that the insurance company should be liable to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss. The trial court in its oral charge made no mention of such provision, but charged the jury in effect that if they found that plaintiff was entitled to recover they would award *772 plaintiff such sum as in their sound discretion would compensate him for damages that he sustained as are covered in the policy. Defendant excepted to that portion of the charge. It is insisted on this appeal that the part of the charge excepted to was erroneous and constitutes reversible error on the ground that it submitted a question of law to the jury as to the extent of the recovery to which plaintiff was entitled. We cannot agree that the charge excepted to is subject to the criticism that it submits a question of law to the jury. In so far as it went, it stated a correct principal of law. If defendant was not satisfied with the oral charge on this point, it should have requested an explanatory charge. But in any event, reversible error is not made to appear, as the verdict of the jury is well within the evidence as it related to the cost of repairing the property with material of like kind and quality. Louisville & N. R. Co. v. Allegri, 215 Ala. 148, 109 So. 881; Kennedy v. Collins, 250 Ala. 503, 35 So. 2d 92.
Upon consideration of the argued assignments of error, we find no error to reverse and the judgment will accordingly be here affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | October 4, 1951 |
f79ffb26-bb7b-4a46-8f90-53128e168493 | Isbell v. Bray | 53 So. 2d 577 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 577 (1951)
ISBELL
v.
BRAY.
7 Div. 20.
Supreme Court of Alabama.
June 14, 1951.
Bibb, Blackmon & Bibb, Anniston, for appellant.
Chas. Douglass and L. Chandler Watson, Jr., Anniston, for appellee.
LIVINGSTON, Chief Justice.
The appeal is from a verdict and judgment against appellant, Dr. W. J. Isbell, Jr., in the amount of $9363.00.
The court below allowed amendments of the original complaint which, by the jury's verdict, eventuated in a complete or entire change of causes of action, not permitted under our statutes, and the cause must be reversed. This error, we think, renders unnecessary a consideration of the many other assignments of error. Although there were many amendments, demurrers, motions and rulings thereon, we go directly to the point involved, without more detail than is necessary to illustrate our view.
The case went to the jury on counts 3, 4, 7a and 8a. And the jury returned a verdict for plaintiff under count 7a. The same principles apply to counts 4 and 8a which apply to counts 3 and 7a, as will be demonstrated below, and for that reason we will confine the discussion to counts 3 and 7a, and will refer to the parties as plaintiff and defendant, their respective positions in the lower court.
On or about June 10, 1947, the defendant, Dr. W. J. Isbell, Jr., was driving his automobile along the Anniston-Gadsden highway and ran into plaintiff, Leon E. Bray, who had just alighted from a bus, a public conveyance, and injured him severely. Defendant, at the time, was insured by the State Farm Mutual Auto Insurance Company against liability up to the amount of $10,000.00, protecting him in the operation of his automobile. This policy of insurance had appended to it a medical payments endorsement under which the insurance company agreed with defendant to pay to or for each person sustaining bodily injury *578 caused by accident and arising out of the use of defendant's automobile, by, or with the permission of, defendant, the reasonable expense of medical, surgical, ambulance, hospital, and professional nursing services up to a limit of $500.00, to each person in any one accident.
On July 1, 1947, M. H. Rudisill, Jr., an adjuster for the insurance company, paid plaintiff's hospital and doctor's bills, amounting to $437.00, and gave plaintiff $200.00 in full settlement of all claims against defendant and the insurance company arising out of the accident, and plaintiff executed and delivered to Rudisill a written release, in substance, discharging defendant and the insurance company, their heirs, executors, administrators, agents and assigns, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature, and particularly on account of injuries which occurred on or about June 10, 1947.
On March 25, 1948 plaintiff instituted suit in the circuit court of Calhoun County, Alabama, claiming $10,000.00 as damages for the personal injuries he received on June 10, 1947. Count 3 of the complaint was based on the alleged simple negligence of the defendant, and count 4 on the willful or wanton misconduct of defendant. To counts 3 and 4, defendant filed a plea of the general issue and a special plea setting up the release of July 1, 1947. To the special plea, the plaintiff replied with facts to show that the release was executed and delivered on account of the fraud, misrepresentation and deceit practiced on plaintiff by Rudisill.
Before the trial of the case, and on September 1, 1948, plaintiff amended his complaint by adding thereto counts 7a and 8a.
Count 7a, alleged in substance, that plaintiff had a claim against defendant for $10,000.00, and that Rudisill, representing defendant, fraudulently obtained a release of said claim, thereby destroying his cause of action stated in count 3 and damaged him in the sum of $9363.00. Count 8a is similar to count 7a, except that it claims damages for the destruction of plaintiff's cause of action stated in count 4.
By demurrer and motion to strike, each stating appropriate grounds to raise the issue, defendant opposed the addition of counts 7a and 8a by amendment. The trial court overruled defendant's objections in each instance, and, as stated, allowed the amendments and submitted the case to the jury on counts 3, 4, 7a and 8a, and the jury returned a verdict for plaintiff in the amount of $9363.00 under count 7a.
The question then is, does section 239, Title 7, Code of 1940, provide for or permit the amendment here involved. That section provides as follows: "Amendments allowed while cause in progress.The court must, whilst the cause is in progress, amend all and every such imperfection and defect of form, on motion of the party, without costs and without delay, unless injustice will thereby be done to the opposite party, and must permit the amendment of the complaint by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, or by striking out or adding new counts or statements of the cause of action, which could have been included in the original complaint or plea, and such amendment shall relate back to the commencement of the suit, and it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction, property and title and parties as the original, and where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury. But the court shall have the right to refuse the allowance of any amendment to the complaint after the conclusion of the argument, when in its judgment the completion of the trial of the cause would be unreasonably delayed, or when in its judgment injustice would result."
Section 220, Title 7, Code of 1940, provides: "Joinder of action ex delicto, and ex contractu.All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter, and the issue may be determined separately by the jury, and the proper judgment shall be rendered by the court and the costs fairly apportioned." *579 What is now section 239, Title 7, Code 1940, appeared in the Code of 1896 as section 3331. Section 3331 was amended by section 5367 of the Code of 1907. Since 1907 there has been no change in the statutory law embodied in section 5367.
In the case of Gaines v. Birmingham Ry., L. & P. Co., 164 Ala. 6, 51 So. 238, it was said: "The question of the right to amend, and what constitutes a departure, has been rather a perplexing one, and upon which this court has not been entirely harmonious. But, the majority holding in the case of Alabama [Consol. Coal & Iron] Co. v. Heald, 154 Ala. 580, 45 So. 686, which has been since cited approvingly by this court, and the case of Alabama [Terminal & Improvement] Co. v. Hall, 152 Ala. 262, 44 So. 592, are conclusive on this subject, and the rule there laid down has been approvingly emphasized by a change in the * * * Code of 1907 (section 5367), from what it was in section 3331 of the Code of 1896. In the Heald case, supra, we held the criteria to be as follows: `A new cause of action is not set up by amendment, within the rule governing the statute of limitations in such cases, where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. * * * As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope * * * of the testimony.'"
In dealing with amendments perhaps some of our cases lack accuracy in the employment of the term "new cause of action" as being synonymous with the term "entirely new cause of action," or "a different and independent cause of action." This apparent confusion is, at least, not lessened in some of our cases dealing with the question of when an amendment to the original complaint relates back to the institution of the suit in respect to the application of the statute of limitations.
But the statute of limitations is not presently involved in the case at bar and we lay to one side the consideration of that question.
While our statute on amendments, section 239, supra, is broad and liberal, it is the creation of the law-making power. It provides that "The court must, whilst the cause is in progress * * * permit the amendment of the complaint * * * by striking out or adding new counts or statements of the cause of action * * *," etc. The limitation placed upon the right of amendment being that by it there shall not be wrought a different cause of action or entire change of parties.
Section 220, Title 7, Code 1940, provides that all actions ex delicto may be joined in the same suit. But there is nothing in that section relative to amendments after the suit is filed. Amendments are controlled entirely by section 239, supra.
The case at bar is controlled by the Robins v. Central of Georgia R. Co., case, 212 Ala. 596, 103 So. 672. There the original suit was based on the theory of the turntable cases. On appeal to this court a judgment for plaintiff was reversed for the reason that a 15-year old boy was too old to invoke the protection of the turntable theory. After remand, plaintiff amended his complaint and declared on the negligence of defendant physician in setting his leg. This court denied the right to amend because the claim based on the original complaint had been denied and the amendment set up a new and original cause of action, and was such a departure from the original cause of action as to justify the trial court in striking it on defendant's motion.
The statements made in Bridwell v. Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 338, with respect to adding new counts by amendment to a complaint at law which introduce a new cause of action, must be taken in connection with the situation there under consideration. It was not intended to declare that a new count could be added by amendment containing *580 a new and distinct cause of action which was inconsistent with the cause of action alleged in the original counts, or which would otherwise be a departure from that originally stated. Plaintiff with such a status confronting him must stand on his original cause of action or bring a new suit. There cannot be an entire change of the cause of action nor an entire change of parties. Spurling v. Fillingim, 244 Ala. 172, 12 So. 2d 740. This is accomplished if the new count adds a cause of action which is inconsistent with or a departure from the original cause of action.
The statute, section 239, Title 7, Code 1940, does not otherwise prohibit amendments which add new causes of action. Haynes v. Phillips, 211 Ala. 37, 99 So. 356.
In the instant case there was added a cause of action which was inconsistent with and a departure from the original complaint. Where the status appears on the face of the pleading, a motion to strike the amendment or an objection to its allowance is a proper remedy. When this only appears as an incident of the trial, it is the duty of the court to give effect to the principle by an appropriate charge on request or a dismissal of the suit on motion, dependent upon the state of the proceedings.
Reversed and remanded.
BROWN, FOSTER and SIMPSON, JJ., concur. | June 14, 1951 |
03bec558-b8e6-4645-97cf-c296b7056343 | Paramount-Richards Theatres v. State | 55 So. 2d 812 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 812 (1951)
PARAMOUNT-RICHARDS THEATRES, Inc.
v.
STATE.
3 Div. 564.
Supreme Court of Alabama.
June 28, 1951.
Rehearing Denied January 10, 1952.
*818 Richard T. Rives and Rives & Godbold, Montgomery, John W. Lapsley, Selma, and Gibbons Burke, New Orleans, La., for appellant.
Lawrence K. Andrews, Union Springs, for Alabama Theatre Owners Ass'n, amicus curiae.
A. A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for appellee.
LIVINGSTON, Chief Justice.
This is the second appeal in this cause. On former appeal to this court, the decree of the Circuit Court, in Equity, of Montgomery County, sustaining the State's demurrer to the original bill filed by the appellant in pursuance to an appeal from an assessment of use taxes by the State Department of Revenue was affirmed. See 252 Ala. 54, 39 So. 2d 380, 383. We there pointed out that "neither the lease nor the license for use of the films are made exhibits to the bill nor are their contents stated. We are not advised by the allegations of the bill whether the shipments of each such films are leased and shipped separately, constituting a single transaction or whether they are shipped under a long-term lease, covering a large quantity of film shipments and delivered at regular intervals to meet the needs of the lessee in the usual and daily conduct of business."
Appellant, taxpayer, amended its bill by rewriting it in its entirety so as to set forth the facts in much greater detail, and attached to and made a part thereof a typical lease or license to use the film contract between the producer distributor and the appellant, the taxpayer exhibitor. The State's demurrer to the bill as last amended was sustained. The taxpayer declined to plead further and the trial court entered a final decree affirming the assessment for use tax made by the State Department of Revenue and rendered judgment against appellant accordingly. From that final decree this appeal is prosecuted.
The case involves the interpretation and application of Alabama's use tax law. Section 787, et seq., Title 51, Code of 1940. In pertinent part section 788, supra, provides: "Property taxed; persons liable. (a) An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property purchased at retail on or after the first of March 1939, for storage, use or other consumption in this state at the rate of two percent of the sales price of such property, except as provided in subsection (b) of this section." (Subsection b is not here material.)
Subsections (i) and (j) of section 787, supra, are as follows: "(i) The term `purchase' means acquired for a consideration, whether such acquisition was effected by a transfer of title, or of possession, or of both, or a license to use or consume; whether such transfer shall have been absolute or conditional, and by whatsoever means the same shall have been effected; and whether such consideration be a price or rental in money, or by way of exchange or barter. (j) The term `sales price' means the total amount for which tangible personal property is sold, including any services (including transportation) that are a part of the sale, valued in money, whether paid in money or otherwise, and includes any amount for which credit is given to the purchaser by the seller, without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest charged, losses or any other expenses whatsoever; provided, that cash discounts allowed and taken on sales shall not be included and sales price shall not include the amount charged for property returned by customers when the entire amount charged therefor is refunded either in cash or by credit."
In part section 789 provides: "Exemptions.The storage, use or other consumption in this state of the following tangible *819 personal property is hereby specifically exempted from the tax imposed by this article: (a) Property, the gross proceeds of sales of which are required to be included in the measure of the tax imposed by the provisions of article 10 of this chapter."
Paragraphs 5 to 9, inclusive of the bill of complaint will be set out in the report of the case.
The contract attached to and made a part of the bill of complaint and which is alleged to be typical of all contracts under which appellant taxpayer exhibits pictures in Alabama, provides that the "distributor grants exhibitor, and exhibitor accepts, a limited license under copyright of the motion pictures specified in the schedule hereof and of any matter recorded therewith, to exhibit publicly, any motion pictures and to reproduce the recorded sound in synchronism therewith at the said theatre for the number of days specified in the schedule; on condition that, if copyrighted musical compositions are included in such recorded sound, exhibitor will have at the date or dates of exhibition of such motion pictures a license from the copyright proprietor of the license thereof, to perform publicly the said copyrighted musical compositions. The contract further provides:
"For the license herein granted to exhibit each of said motion pictures exhibitor agrees to pay distributor, at distributor's branch office, the license fee provided for in the schedule.
"(a) Exhibitor shall pay the fixed or guaranteed sums specified in the schedule at least three (3) days in advance of the respective dates of delivery of the prints at distributor's branch office or of the respective dates of shipment to exhibitor from another exhibitor.
"(b) Percentage bookings: If the license fee for any of said motion pictures is determined in whole or in part upon all or any part of the gross admission receipts (herein referred to as gross receipts) of said theatre, exhibitor shall pay the percentage part of such license fee immediately after the last exhibition of each such motion picture respectively, or if requested by distributor, at the end of each day's exhibition. Exhibitor shall deliver to distributor immediately after the last exhibition of each respective motion picture a correct itemized statement of the gross receipts of said theatre for each day of the exhibition, upon forms furnished by the distributor, signed by the exhibitor or manager or treasurer and the cashier of said theatre. The statement shall include such facts and figures as may be provided in the schedule to be furnished by exhibitor. Distributor is hereby given the right to verify, upon the exhibition date or dates of each motion picture, all admissions to said theatre, and the receipts therefrom; and at any time or times after the conclusion of the engagement of each motion picture distributor shall have the right to audit all the exhibitor's books, records and vouchers pertaining to the exhibition of said motion picture, the admissions to said theatre and the receipts therefrom, and pertaining to any expenditures or deductions provided hereunder to be made by the exhibitor, and if exhibitor's operating expense is an element in computing the license fees payable hereunder, pertaining to such operating expenses. The right of verification and the right to audit may be exercised by distributor through its authorized representatives. For said purposes distributor and its authorized representatives shall have free access on and after said exhibition dates, to the theatre, box office, ticket machines, tickets, stubs, books, records and vouchers. Distributor agrees that any information obtained pursuant to the provisions of this paragraph shall be treated as confidential, excepting in arbitration proceedings or litigation. Acceptance by distributor of any sum tendered by exhibitor in full or in part payment of any license fee based upon a percentage of the admission receipts of said theatre shall not estop or prevent distributor from thereafter disputing the correctness of such payment."
This and the former appeal present a case of first impression in this jurisdiction.
Does the transaction at bar constitute a "storage, use or other consumption" in the State of Alabama of tangible personal property purchased at retail for "storage, *820 use or other consumption" in the State of Alabama within the meaning of the Alabama Use Tax Act? And does the consideration paid by the exhibitor to the producer lessor for the use of the films involved constitute "sales price," within the meaning of Title 51, Sections 787 and 788, Code of 1940 as amended? In other words, as stated on former appeal: "The question presented is not whether it was within legislative competence to levy a use tax for the activity in which appellant is engaged, but whether or not the activities, as disclosed by the allegations of the bill, fall within the provisions of the statute, Code of 1940, Title 51, § 788." [252 Ala. 54, 39 So. 2d 381.]
Although it is sometimes broadly stated either that tax laws are to be strictly construed, or on the other hand, that such enactments are to be liberally construed, this apparent conflict of opinion can be reconciled if it is borne in mind that the correct rule appears to be that where the intent or meaning of tax statutes, or statutes levying taxes, is doubtful, they are, unless a contrary legislative intention appears, to be construed most strongly against the government, and in favor of the taxpayer or citizen. Any doubts as to their meaning are to be resolved against the taxing authority and in favor of the taxpayer, or, as it is sometimes put, the person upon whom it is sought to impose the burden. * * * 51 Am.Jur. pp. 367, 368; City of Bessemer v. Tennessee Coal, Iron & R. Co., 131 Ala. 138, 142, 31 So. 492; Pappanastos v. State Tax Commission, 235 Ala. 50, 177 So. 158; National Linen Service Corp. v. State Tax Commission, 237 Ala. 360, 186 So. 478.
The language of the levying statute, to repeat, is "Property taxed; persons liable. (a) An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property purchased at retail on or after the first of March 1939, for storage, use or other consumption in this state at the rate of two percent of the sales price of such property * * *."
The quoted language of the statute circumscribes the levy by limiting it to an excise tax, under the facts as they now appear, on the use in this state of tangible personal property purchased at retail at the rate of two percent of the sale price of such property.
As above stated this is a case of first impression in this jurisdiction. The appellee strongly relies on the three following cases from other jurisdictions: United Artists Corp. v. Tayor, 273 N.Y. 334, 7 N.E.2d 254; Saenger Realty Co. v. Grosjean, 194 La. 470, 193 So. 710; Crescent Amusement Co. v. Carson, 187 Tenn. 112, 213 S.W.2d 27. We will analyze those cases later but before doing so we think that some analysis of our statutory system providing for a sales tax and a use tax should be made.
Alabama is one of the states which has adopted two separate acts for the purpose of imposing a tax upon, or with respect to, or measured by, the retail sale of tangible personal property. Prior to 1939 the Sales Tax Act Code 1940, Tit. 51, § 751 et seq. embodied a use tax feature, sec. 2(d).
The Sales Tax Act applies to retail sales within the state. The Use Tax Act is designed to apply only to sales (or purchases) made in interstate commerce, or sales (or purchases) made outside of the state of goods thereafter brought into the state for use by the purchaser.
Under the Sales Tax Act the retail sale is the taxable incidence.
Under the Use Tax Act the use (technically storage, use or consumption) is the taxable incidence.
The measure of the tax under the Sales Tax Act is the retail sales price of the goods; and under the Use Tax Act the measure of the tax is likewise the retail sales price of the goods.
The intent and result of this legislation is to impose a sales tax on sales which occur within the state, and a use tax (so called) measured by the retail sale price of goods purchased outside of the state for use within the state. For these reasons these two acts are referred to as being complementary, one to the other. The Use Tax Act is referred to as a compensatory measure, to equalize the burden *821 of the sales tax and prevent avoidance of the tax by the purchase of goods in interstate commerce or from outside of the state. As was said on former appeal of this case, "The dominating legislative intent was to prevent evasion of the sales tax levy by persons resident or engaged in business within Alabama by purchasing goods, chattels and other property outside of the State of Alabama at retail and bringing them into this state for use and consumption, regardless of the methods or means of transportation or the use to which they are applied. The levy of the tax attaches after the act of transportation ends and the property comes to rest in this state for use or consumption. 26 R.C.L. pp. 236, 237, § 209; Billings v. United States, 232 U.S. 261, 34 S. Ct. 421, 58 L. Ed. 596." [252 Ala. 54, 39 So. 2d 384.]
It is therefore necessary that these two acts should be construed in pari materia, giving to each its separate field of operation.
The tax imposed under the provisions of the Use Tax Act is specifically measured by a percentage of the retail sales price of the property. Sec. 788, supra.
The technical means of confining the use tax to interstate sales or sales (purchases) made outside of the state for use in the state, is accomplished by exempting from the provisions of the use tax any property sold under such circumstances as would make the sale taxable under the provisions of the Sales Tax Act. In other words, the Use Tax Act is drafted in such manner as to impose a use tax upon the use of tangible personal property within the state, at the same rate as the sales tax. In order to limit the use tax to interstate transactions, the Act is so worded as to exempt from the measure of the tax all retail sales of tangible personal property made within the state. Sec. 789, Title 51, Code 1940. But for this provision, the Use Tax Act would have the effect of imposing an additional tax in the same amount as imposed by the Sales Tax Act. In this way, retail sales made within the state would be subjected to a double tax.
In addition to imposing a sales tax or use tax upon or measured by the retail sale of tangible personal property, the legislature imposed a similar tax burden upon various shows, exhibits, amusements, theatres, etc., in which there was no sale of tangible personal property, but only the sale of tickets for the privilege of attendance or entrance. In taxing such businesses or activities the tax is imposed upon the entire gross receipts, at the same percentage as applied to the retail sales of property and containing provisions requiring the passing on of the tax to the customer.
Since the conduct of an exhibit, show or theatre is a local activity which occurs within the state, and is therefore subject to be taxed by the state, no question of interstate commerce being involved, such tax is incorporated in the Sales Tax Act and no similar provisions appear in the Use Tax Act.
For these reasons all activities, other than sales, upon which the legislature intended to impose a sales tax or tax equal to the sales tax, were incorporated in the Sales Tax Act.
None of such activities are taxed under the provisions of the Use Tax Act.
If there is no retail sale there is no taxable event under the Sales Tax or Use Tax Act. By reason of this fact, in order to impose a tax upon building materials not purchased by the contractor but manufactured or produced by him, and thereafter consumed by him in the construction of a building within the state, the legislature adopted an amendment to the Sales Tax Act incorporated as Subsec. 2 of Sec. 752, to impose a tax, under such circumstances, upon such contractor, measured by the cost of manufacture, General Acts 1943, p. 587, subsequently changed to "reasonable and fair market value". General Acts 1947, p. 160. This amendment had the effect of preventing an escape in this tax where the manufacturer or producer is also the consumer or user of the goods, but these provisions are limited to construction work in Alabama and do not cover other instances in which a user or consumer may also be the producer or manufacturer of the goods. However if the manufacturer is not manufacturing or producing a product for sale such manufacturer is construed to be the *822 consumer of the raw materials purchased by him, and the sale of such raw materials to him would be taxable under the Sales Tax Act or Use Tax Act. The manufacturer under such circumstances could not claim that the sale to him is a wholesale sale since he is producing a product for his own use, and not for sale. See paragraph (1) Sec. 752.
Since the use of materials in the construction of a building within the State of Alabama necessarily involves a local activity subject to tax by Alabama, it was only necessary to incorporate the provisions of Subsec. 2 of Sec. 752 in the Sales Tax Act. No similar provisions were added to the Use Tax Act. The significance of this is that the legislature deemed the Use Tax Act as applying only to goods obtained in interstate commerce or from outside of the state; and the Use Tax Act is not used to impose a use tax unless the goods are purchased in interstate commerce or are purchased outside the state for use in the state.
In speaking of the exemptions contained in Sec. 789 of the Use Tax Act this Court in the case of State of Alabama v. Wilputte Coke Oven, Inc., 251 Ala. 271, 37 So. 2d 197, 198, said: "There is exempt from this tax property subject to the sales tax, Article 10, Title 51, which means that the use tax does not apply to property whose sale is effected in Alabama."
This same idea was expressed in the case of Layne Central Co. v. Curry, 243 Ala. 165, 8 So. 2d 839.
If the legislature had intended to impose a tax upon the rental of tangible personal property within the state, in addition to imposing a tax upon the sale of such property, such tax would no doubt have been included in the Sales Tax Act. The rental of property within the state, so far as the same involves the lessor as well as the lessee, is an event which transpires within the state, and is therefore a local activity, subject to state taxation. This is true whether the contract for the rental of property within the state is made by means of interstate commerce or is signed or executed wholly outside of the state. If the contract or rental provides for the renting of property actually situated within the state, the renting becomes a local event subject to state taxation, irrespective of the fact that the property to be rented is brought into the state in interstate commerce or is thereafter to be shipped out of the state in interstate commerce.
If the legislature had imposed a rental tax only upon property shipped into the state in interstate commerce or purchased outside of the state, it would constitute a direct discrimination against interstate commerce, and such provision would therefore be invalid as being in conflict with the interstate commerce clause in the Constitution of the United States, art. 1, § 8, cl. 3. If a rental tax had been intended to apply to all transactions involving the rental of tangible personal property within the state, it would only have been necessary to include such tax in the Sales Tax Act. It would not be necessary to include a similar provision in the Use Tax Act.
The Use Tax Act, as it now stands, if it should be construed as imposing a use tax upon rentals, measured by the amount of the rent paid, such construction would result in the imposition of a double tax for the reason that the sale of the property to the lessor for the purposes of rental to others would still be construed as a retail sale. The lessor would be required to pay the tax upon such sale to him, whether sales tax or use tax, and this same property would also be subject to a tax measured by the amount of rental paid by the lessee to the lessor. The lessor could not claim that the sale to him was a wholesale sale for the reason that his purchase would not be for the purpose of resale; and the lessor would actually be making use of the property in renting it to his customers.
Much stress is laid on the definition in subdivision (i) of Section 787, supra, which is as follows: "(i) The term `purchase' means acquired for a consideration, whether such acquisition was effected by a transfer of title, or of possession, or of both, or a license to use or consume; whether such transfer shall have been absolute or conditional, and by whatsoever means the same shall have been effected; *823 and whether such consideration be a price or rental in money, or by way of exchange or barter."
This provision of the Use Tax Act was obviously intended to prevent evasions of the act where there is an actual sale of tangible personal property. It was designed to prevent camouflaging an actual sale by designating it as a lease, license, or rental and was not intended to include a bona fide rental of tangible personal property. In any event, it can only apply to transactions consummated by the consumer outside the state of Alabama, and does not apply to transactions between the consumer and others in this state.
It is also argued that where property is purchased, whether in the state or outside of the state, there are two taxable events with reference to it, i. e., the purchase and the rental. But such a construction necessarily presupposes two consumers of the same property, and we are clear to the conclusion that the legislature never intended such a result. This is clearly demonstrated by such businesses as are engaged in the rental of tangible personal property purchased at retail, such as U-Drive-It businesses, the renting of skates by operators of skating rinks, the purchase of books to be used in a rental library, persons engaged in the renting of boats, bath suits, fishing tackle and other articles of personal property, and many others. That such was not the result is the effect of the holding in the National Linen Service Corporation case, where it was held that the purchaser was the consumer. It was there said, "The consumer is the last person to whom property passes in the course of ownership. This is the test of a retail transaction."
In the case of United Artists Corp. v. Taylor, supra, the New York court had before it a sales tax act, but no use tax. The court said: "This amendment contains this definition: `(e) The word "sale" or "selling" means any transfer of title or possession or both, exchange or barter, license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor.' Section 1(e). The transaction which is the subject of the tax under review consists of the transfer by the distributor to the exhibitor of the possession of corporeal property in the form of positive and negative prints of photoplays with the license to use or exhibit them for a specified time. The license to exhibit without the transfer of possession would be valueless. Together they are one transaction and constitute a sale within the definition of Local Law No. 24. In so far as this sale originates and is consummated in New York City, it is subject to the tax." [273 N.Y. 334, 7 N.E.2d 256.]
No such definition is contained in the Alabama Sales Tax Law.
The provisions of the Louisiana Act imposing a tax upon the rental of tangible personal property, Public Welfare Act, Act 2 of 1938, specifically imposes a tax upon the "gross proceeds derived from the lease or rental of tangible personal property", Section 3(c); and also imposes a tax upon the "monthly lease or rental price paid by lessee or rentee, or contracted or agreed to be paid by lessee or rentee to the owner of the tangible personal property", Section 3(d).
The provisions in the Tennessee Act, in this respect, Public Acts of Tennessee of 1947, Chapter 3, Section 3, read as follows:
"(c) At the rate of two percent (2%) of the gross proceeds derived from the lease or rental of tangible personal property, as defined herein, where the lease or rental of such property is an established business, or part of an established business, or the same is incidental or germane to said business.
"(d) At the rate of two percent (2%) of the monthly lease or rental price paid by lessee or rentee, or contracted or agreed to be paid by lessee or rentee, to the owner of the tangible personal property."
These provisions are identical with the Louisiana Act, except for the rate of tax.
These authorities construe sales tax acts which are entirely different from the Alabama Sales Tax Act.
Whenever the tax under sales or use tax acts is extended to cover the rental *824 of tangible personal property, measured by the amount of the rental (such as in New York, Louisiana and Tennessee), the lessor is not construed as the consumer, and the sale to the lessor is not construed as a retail sale; and the levy of the tax upon the lessee, measured by the rental, is in lieu of any levy upon the lessor or upon the sale of the property to the lessor. Such a construction is necessary to avoid a double tax; or to prevent what is termed as a pyramiding of the tax, or as imposing an intermediary tax.
Double taxation is permissible, it is true, but is, as a matter of policy, to be avoided whenever possible. 61 C.J. p. 137, sections 69, 70 and 71; Montgomery County Board of Revenue v. Montgomery Gaslight Co., 64 Ala. 269.
The presumption is against the intention of the legislature to impose double taxation on the same property. 61 C.J. sec. 71,and prevails unless overcome by the express words of the statute. Any construction of a taxing statute which results in the taxation of the same property twice is to be avoided if possible and never to be adopted unless necessary to affect the manifest purpose of the legislature. 61 C.J. pp. 139, 140, sec. 71; Montgomery Board of Revenue v. Montgomery Gaslight Co., supra.
But the fundamental theory of the sales or use tax is to impose the tax only once, which is usually accomplished by placing the levy upon the last or final sale, namely: the retail sale to the consumer. And when rental is specifically taxed, the sale to the lessor is not treated as a retail sale but as a wholesale sale (or sale for resale), and the lessee is construed as the consumer. But this is not the Alabama rule. In the formative period of sales and use tax legislation, in the National Linen Service Corporation case, supra, this court established the rule, and committed Alabama to the construction, that a sale of goods to the lessor (for use by him in renting or leasing the same to his customers) is a retail sale, the lessor in such case being the consumer.
Under the Alabama rule, it was not necessary to impose a tax upon rental to prevent escapes, for the reason that the lessor could not buy free of taxthe sale to him was by law construed as a retail sale. It is for this reason, no doubt, that the Legislature in its 1939 revision of the Sales and Use Tax Act did not attempt specifically to change the Alabama rule. Nothing appears in the 1939 Sales Tax Act with reference to rentals. The lessor who purchases goods in Alabama for use in the rental thereof to his customers must still pay the sales tax, as the consumer, pursuant to the Alabama rule. There is no provision in the Sales Tax Act which would relieve the lessor from the payment of the sales tax, when purchasing within the State (he cannot claim to be purchasing for resale); and, of course, no different rule or construction applies when the lessor purchases his goods outside of the State, or in interstate commerce, for use in Alabama, in the rental thereof to his customers. In fact, if a different rule should be applied to impose a greater tax upon the goods purchased by the lessor outside of the State, or in interstate commerce, the resulting discrimination would violate the Commerce Clause of the Constitution of the United States, and the statute (to that extent) would be unconstitutional and void.
We can find no authority in the Sales Tax Act to justify a holding that bona fide rentals of tangible personal property are subject to that act, and we are clear to the conclusion that there was no legislative intent to impose, under the Use Tax Act, a tax upon any property sold subject to the Sales Tax Act, and no intent in the Use Tax Act to impose a tax upon any activity or incident subjected to the tax under the Sales Tax Act. And since this taxpayer's business is specifically and separately subjected to a tax under the Sales Tax Act in Section 753(b) to the extent of 2% of the entire gross receipts of such business, and the pictures produced from the films constitute, in a sense, this taxpayer's stock in trade, there is no reason to assume that the legislature *825 intended also to tax the rental or the license fees paid by this taxpayer for the privilege of exhibiting such photoplays.
To the contrary, there is every reason to conclude that the legislature intended by the specific exemption contained in Section 789 to eliminate and exempt from the use tax any and all property purchased subjected to the sales tax and each and every incident or activity specifically subjected to the sales tax.
The appellant is therefore not liable under the allegations of the bill for the tax assessed.
Reversed and remanded
FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.
BROWN, J., dissents.
BROWN, Justice (dissenting).
I listened with much interest to the reading of the opinion by the Chief Justice, which now becomes the majority opinion in this case, during the consultation to ascertain what conclusion had been reached. After discussing broadly the tax laws levying the sales tax, the use tax and the excise tax in respect to many subjects covering this broad field, I concluded that I could not concur in the opinion.
I have since examined the opinion with much care and conclude that it is ambiguous, illogical and unsound. It concludes:
"We can find no authority in the Sales Tax Act to justify a holding that bona fide rentals of tangible personal property is subject to that act, and we are clear to the conclusion that there was no legislative intent to impose, under the Use Tax Act, a tax upon any property sold subject to the Sales Tax Act; and no intent in the Use Tax Act to impose a tax upon any activity or incident subject to the tax under the Sales Tax Act. And since this taxpayer's business is specifically and separately subjected to a tax under the Sales Tax Act in Section 753(b) to the extent of 2% of the entire gross receipts of such business, and the picture produced from the films constitute, in a sense, this taxpayer's stock in trade, there is no reason to assume that the legislature intended also to tax the rental or the license fees paid by this taxpayer for the privilege of exhibiting such photoplays.
"To the contrary, there is every reason to conclude that the legislature intended by the specific exemption contained in Section 789 to eliminate and exempt from the use tax any and all property purchased subjected to the sales tax and each and every incident or activity specifically subjected to the sales tax.
"The appellant is therefore not liable under the allegations of the bill for the tax assessed."
This conclusion is clearly based on the idea and concept that the tax levied exempts the use, storage and possession and is a property tax, while the authorities hold that it is an excise tax acquired by purchase as defined in subsection (i) Sec. 787, Title 51, Code of 1940, which is in the following language: "The term `purchase' means acquired for a consideration, whether such acquisition was effected by a transfer of title, or of possession, or of both, or a license to use or consume; whether such transfer shall have been absolute or conditional, and by whatsoever means the same shall have been effected; and whether such consideration be a price or rental in money, or by way of exchange or barter."
The allegations in the bill show conclusively that each film delivered for use is a separate transaction and the compilation of the tax is based on the gross receipts of that specific film used by the theatre operator in its business. The effect of the shipment and delivery by the distributor to the operator of the theatre vests in the operator a special property right, which gives him the right of possession, the right to store and the right to use the film in his business. A tax on that property is not contemplated by the act, but on its use, possession, storage and right to store the film. It follows as a necessary consequence that if there is a purchaser as defined in the act, there is bound to be a purchase. And if the purchase is made in this state, it is subject to the sales tax act, which is passed on to the consumer. The contract or license under which the parties operate, as the allegations *826 show, was a purchase made by the operator outside the State of Alabama and the films are shipped in interstate commerce and delivered and come to rest in Alabama, where the purchaser is engaged in business, and delivered to him. In one paragraph of the opinion, following the opinion on former appeal, it is held that when such interstate shipment ceased, there was no burden on interstate commerce. If the film was delivered to the carrier outside the state, f. o. b., the carrier became the agent of the operator to deliver the shipment as contemplated in the license or rental contract set out in the bill. Pilgreen v. The State, 71 Ala. 368.
The question of whether the carrier is the agent of the distributor or the purchaser is not important. Under the terms of the license act, the lease contract, the purchase is bound to have been in a foreign state. The clear intent and purpose of the legislature by defining "purchase" so as to bring the transaction here involved within the influence of the Use Tax Act clearly manifests that it was the purpose to tax the use or storage of the film acquired as defined. The license or lease to use shows that the business of the distributor was not subject to the jurisdiction of the state taxing authorities and, therefore, that the purchase and sale did not occur in Alabama and the levy made in the instant case was not made under the sales tax act but under the Use Tax Act.
I quote from the majority opinion:
"The tax imposed under the provisions of the Use Tax Act is specifically measured by a percentage of the retail sales price of the property. Sec. 788 [Title 51, Code of 1940].
"The technical means of confining the use tax to interstate sales or sales (purchases) made outside of the state for use in the state, is accomplished by exempting from the provisions of the use tax any property sold under such circumstances as would make the sale taxable under the provisions of the Sales Tax Act. In other words, the Use Tax Act is drafted in such manner as to impose a use tax upon the use of tangible personal property within the state, at the same rate as the sales tax. In order to limit the use tax to interstate transactions, the Act is so worded as to exempt from the measure of the tax all retail sales of tangible personal property made within the state. Sec. 789, Title 51, Code 1940. But for this provision, the Use Tax Act would have the effect of imposing an additional tax in the same amount as imposed by the Sales Tax Act. In this way, retail sales made within the state would be subjected to a double tax."
These utterances overlook the fact that when a retail sale is made to a purchaser, he acquires the entire title to the property and the tax is passed on to him. The out of state seller or lessor is not subject to the jurisdiction of the state for taxing purposes. Therefore, the excise tax is levied on the purchaser within the meaning of said subsection (i) quoted above. See also § 787, subsections (h), (g) and (i) and § 788(b) and § 788, Title 51, Code of 1940. The prevailing opinion reads out of the statute the definition of "purchase" and the Use Tax Act makes the basis of the levy, when considered in connection with section (i), the gross receipts of the earning of each film, as shown in this case.
The use of materials for the construction of buildings by the manufacturer is not a question in this case and what the opinion says in that respect is not pertinent to the facts of this case.
We quote further from the prevailing opinion: "If the legislature had intended to impose a tax upon the rental of tangible personal property within the state, in addition to imposing a tax upon the sale of such property, such tax would no doubt have been included in the Sales Tax Act. The rental of property within the state, so far as the same involves the lessor as well as the lessee, is an event which transpires within the state, and is therefore a local activity, subject to state taxation. This is true whether the contract for the rental of property within the state is made by means of interstate commerce or is signed or executed wholly outside of the state. If the contract or rental provides for the renting of property actually situated within the state, the renting becomes a local event subject *827 to state taxation, irrespective of the fact that the property to be rented is brought into the state in interstate commerce or is thereafter to be shipped out of the state in interstate commerce."
This statement is clearly inconsistent with the taxing statutes.
Said opinion further observes: "If the legislature had imposed a rental tax only upon property shipped into the state in interstate commerce or purchased outside of the state, it would constitute a direct discrimination against interstate commerce, and such provision would therefore be invalid as being in conflict with the interstate commerce clause in the Constitution of the United States. * * *" (Italics supplied.)
This statement of the law would destroy the power of the legislature to levy such tax and is unsound. As we held on the former appeal and was held in this opinion in another paragraph, when the shipment of the film came to rest at the destination of the shipment, interstate commerce ended. There is nothing in such transaction to burden interstate commerce.
We quote from the opinion again: "If a rental tax had been intended to apply to all transactions involving the rental of tangible personal property within the state, it would only have been necessary to include such tax in the Sales Tax Act. It would not be necessary to include a similar provision in the Use Tax Act."
This is a matter left to the discretion of the legislature in passing the Use Tax Act to prevent evasion of taxation under the Sales Tax Act. Moreover it assumes, contrary to the facts, that the entire transaction occurred in Alabama.
Another inconsistent, unsound and misleading statement follows: "The Use Tax Act, as it now stands, if it should be construed as imposing a use tax upon rentals, measured by the amount of the rent paid, such construction would result in the imposition of a double tax for the reason that the sale of the property to the lessor for the purposes of rental to others would still be construed as a retail sale."
No such transaction is involved in this case.
Another misleading and unsound statement in the opinion is:
"The lessor would be required to pay the tax upon such sale to him, whether sales tax or use tax, and this same property would also be subject to a tax measured by the amount of rental paid by the lessee to the lessor. The lessor could not claim that the sale to him was a wholesale sale for the reason that his purchase would not be for the purpose of resale; and the lessor would actually be making use of the property in renting it to his customers."
No such question is presented in this case.
The following observations purporting to interpret the true meaning of subsection (i), Section 787, Title 51, Code of 1940, are obviously unsound: "This provision of the Use Tax Act was obviously intended to prevent evasions of the act where there is an actual sale of tangible personal property. It was designed to prevent camouflaging an actual sale by designating it as a lease, license, or rental and was not intended to include a bona fide rental of tangible personal property. In any event, it can only apply to transactions consummated by the consumer outside the state of Alabama, and does not apply to transactions between the consumer and others in this state."
If the rental and possession were acquired under the contract set out in the bill, and the films were delivered from outside the state from which the purchaser had ordered the film, this would bring the transaction clearly within the provisions of the Use Tax Act.
The opinion further observes: "But such a construction necessarily presupposes two consumers of the same property, and we are clear to the conclusion that the legislature never intended such a result. This is clearly demonstrated by such businesses as are engaged in the rental of tangible personal property purchased at retail, such as U-Drive-It businesses, the renting of skates by operators of skating rinks, the purchase of books to be used in a rental library, persons engaged in the renting of boats, bath suits, fishing tackle and other articles of personal property, and many others."
*828 These activities are foreign to the issues presented in this case and are wholly impertinent thereto.
The last sentence in the quotation from the New York case United Artists v. Taylor, 273 N.Y. 334, 7 N.E.2d 254, "In so far as this sale originates and is consummated in New York City, it is subject to the tax", shows that the court was dealing with a sales tax.
The quotation from the Tennessee Statute, Public Acts of Tenn. of 1947, Chapter 3, Section 3:
"(c) At the rate of two percent (2%) of the gross proceeds derived from the lease or rental of tangible personal property, as defined herein, where the lease or rental of such property is an established business, or part of an established business, or the same is incidental or germane to said business.
"(d) At the rate of two percent (2%) of the monthly lease or rental price paid by lessee or rentee, or contracted or agreed to be paid by lessee or rentee, to the owner of the tangible personal property", shows that this, in substance, is what is provided in the Use Tax Act in Alabama.
We further quote from the majority opinion: "Whenever the tax under sales or use tax act is extended to cover the rental of tangible personal property, measured by the amount of the rental (such as in New York, Louisiana and Tennessee), the lessor is not construed as the consumer, and the sale to the lessor is not construed as a retail sale; and the levy of the tax upon the lessee, measured by the rental, is in lieu of any levy upon the lessor or upon the sale of the property to the lessor. Such a construction is necessary to avoid a double tax; or to prevent what is termed as a pyramiding of the tax, or as imposing an intermediary tax."
The only tax against the operator of the theatre is the license tax for doing business and this tax is passed on to its customers in the sale of tickets for attending the exhibition of the film. In effect the operator is not taxed any more than the seller is taxed who makes a retail sale. It passes on to the consumer. There is no double taxation. In the circumstances in the instant case, the tax is levied upon the use, consumption or storage of personal property acquired under a lease license entered into by the distributor in a foreign state. So the citation of authority and observations in respect to double taxation are inapplicable in the instant case.
We quote further from the majority opinion: "Under the Alabama rule, it was not necessary to impose a tax upon rental to prevent escapes, for the reason that the lessor could not buy free of taxthe sale to him was by law construed as a retail sale. It is for this reason, no doubt, that the Legislature in its 1939 revision of the Sales and Use Tax Act did not attempt specifically to change the Alabama rule."
There was no necessity for changing the Alabama rule.
Many other utterances like these quoted from the majority holding, in my opinion, show that it is inconsistent, uncertain, ambiguous and their effect, if allowed to stand, trenches on the power of the legislature to levy such use tax as here involved.
I, therefore, respectfully dissent. | June 28, 1951 |
7604cf5a-10df-4395-9350-9c07cee8684f | Crittenden v. Crittenden | 54 So. 2d 489 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 489 (1951)
CRITTENDEN
v.
CRITTENDEN.
4 Div. 590.
Supreme Court of Alabama.
October 11, 1951.
Patterson & Patterson, Phenix City, for appellant.
H. A. Ferrell, Phenix City, for appellee.
LIVINGSTON, Chief Justice.
The appeal is by the husband from a decree granting to the wife a divorce on the ground of adultery, and awarding her $20 per month as alimony.
The testimony was taken ore tenus before the trial judge. Where the testimony is taken thus, the trial judge has the witnesses before him, hears their testimony, and observes their demeanor on the witness stand, and unless his judgment is palpably wrong it will not be here disturbed. Bonds v. Bonds, 234 Ala. 522, 175 So. 561; Puckett v. Puckett, 240 Ala. 607, 200 So. 420; Marks v. Marks, 254 Ala. 612, 49 So. 2d 166, and cases therein cited.
The assignments of error are predicated upon the rendition of the decree as a whole, and the granting of a divorce to the wife, and the award to her of alimony in the amount of $20 per month.
It would serve no useful purpose to here set out the evidence in detail, some of it is sordid, and under the provisions of Title 13, § 66, Code 1940, we will refrain from setting it out. Ray v. Ray, 245 Ala. 591, 18 So. 2d 273; Davis v. Davis, 241 Ala. 385, 2 So. 2d 780. Suffice it to say, we have carefully examined all of the evidence and it is ample to support the charge of adultery. We are also unable to say that the alimony award is excessive.
We find no error in the record and the decree of the trial court is affirmed.
Affirmed.
FOSTER, LAWSON, SIMPSON and GOODWYN, JJ., concur. | October 11, 1951 |
d8270596-cd33-46f3-9c27-2c4e8413bd3e | Thomas v. Rogers | 53 So. 2d 736 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 736 (1951)
THOMAS
v.
ROGERS.
1 Div. 439.
Supreme Court of Alabama.
June 28, 1951.
Caffey, Gallalee & Caffey, Mobile, for appellant.
Harry Seale, M. A. Marsal and A. J. Seale, Mobile, for appellee.
STAKELY, Justice.
This is a suit in statutory ejectment brought by Cooper W. Thomas (appellant) against C. C. Rogers (appellee). The land involved is a lot fronting 40 feet on the east side of Whistler Avenue in the City of Prichard, Alabama, and running back of even width 95 feet. On the trial of the cause there was a verdict and judgment for the defendant. The plaintiff made a motion for a new trial on the ground, among others, that the verdict was contrary to the weight of the evidence. The court overruled the motion and this ruling constitutes the basis on which reversal is sought on this appeal.
*737 The plaintiff and the defendant claim under a common source of title. The plaintiff claims under a deed from the sole heirs at law of P. J. Glass, deceased. The defendant claims under a tax deed based on a sale against P. J. Glass and the statute of limitations of three years. The defendant made no effort to prove the regularity of the tax sale under which he claimed but relied on the short statute of limitations of three years. The decisive question before the court is whether the defendant met the burden of proving title by adverse possession of three years so that the judgment can stand as against the plaintiff's motion to set it aside and grant a new trial.
Unless relieved by statute, the burden is on one claiming title under a tax sale to show affirmatively that the requirements of the law with respect to such a proceeding were strictly observed. Galloway Coal Co. v. Warrior Black Creek Coal Co., 204 Ala. 107, 85 So. 440; Harton v. Enslen, 182 Ala. 408, 62 So. 696. Section 277, Title 51, Code of 1940 relieves one claiming under a tax title from this burden only where he claims under a tax deed executed and acknowledged by the probate judge but not when he claims under a tax deed from the state or a municipality thereof. Grayson v. Schwab, 235 Ala. 398, 179 So. 377; Harton v. Enslen, supra.
The defendant who claimed title under a tax deed from the state made no proof of regularity and validity of the tax title under which he claimed and therefore the burden was on him to show adverse possession for the statutory period in connection with his tax title in order to prevail. Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558; § 295, Title 51, Code of 1940.
When the lot was first obtained by C. C. Rogers, the defendant, under the tax deed it was grown over with heavy weeds and underbrush and had a number of trees on it. It had a chicken house on it and was serving as a dumping ground for old cans and other rubbish. The defendant, who was the Clerk of the City of Prichard, said with respect to the property when he bought it, "Well, it was a sightly (unsightly) mess in Prichard, trees and rubbish on it was as high as a house, and there was varmits (varmints) and snakes and everything else in it, it was awful looking place, * * *." There were some large trees on the lot, an old Yupon, some elders and evergreen oaks and pine trees. (Parenthesis supplied).
The tax deed was dated July 28, 1943 and this suit was filed on February 25, 1948.
Within 30 days after the purchase of the property by the defendant, he employed an engineering firm to survey the property and to place stakes on the corners. After the survey was made the following things were done by or for the defendant. (1) The property was cleaned off twice a year beginning with the first part of 1944. (2) The rubbish was cut down and the old cans and wire were piled up so that it could be seen that the property was owned by some one, the property being adjacent to Whistler Avenue. (3) A year later some of the cans and wire were hauled off and others were buried. (4) The chicken house was moved in 1944 after the lot was cleaned up. (5) The bushes were burned in 1944. (6) There was a pine tree on the lot 12 or 13 inches in diameter and at least 40 feet high. Laborers cut it down in 1945 and it was disposed of for wood. (7) In 1945 a sewer line was placed across the property to the drainage sewer from another lot across the lot in question into Whistler Avenue. (8) In 1945 a water line was laid across the property at a different location with ditches dug from 2 to 3 feet in depth and dirt piled up. (9) The property was filled in with dirt in 1944 to cover up the rough places and low places and dirt was spread over the lot. (10) A number of persons came around to purchase the lot from the defendant during the period after the tax deed was received by him. (11) The defendant stopped people from dumping stuff on the lot in 1944. (12) The City of Prichard made an assessment in 1945 to cover the cost of the sewer line as a public improvement and the defendant paid the assessment. (13) The defendant in 1944 assessed the lot for taxes and paid the taxes on it from the date of the purchase to the date of this suit. (14) A building in 1947 was erected on the lot and *738 after the erection the man who rented the building put machinery in the building and it has been used as an ice cream parlor. (15) In 1944 a "no dumping" sign 12 by 18 inches in size with the defendant's name on it was placed on the lot about 4 feet high and approximately 15 to 20 feet back from the street. (16) According to the defendant he constantly walked back and forth across the lot.
In Farley v. Smith, 39 Ala. 38, with respect to adverse possession, it was said: "The possession must always be as definite as the character of the land is susceptible of, and must be evidenced by public acts, such as a party would exercise over his own property, and would not exercise over another's; must be continued, and so notorious that the owner may reasonably be presumed to have notice of the possession, and of the claim of title. * * *."
In Bell v. Denson, 56 Ala. 444, it was said: "The possession must be by acts suitable to the character of the land; * * *." The property here involved is a vacant lot. It is obvious that the acts of ownership and dominion necessary to indicate adverse possession of a vacant lot need not be and cannot be the same with respect to a lot covered with valuable improvements or on which there is a place of residence. 2 C.J.S., Adverse Possession, § 38, page 550. See also Neese v. Ellis, 253 Ala. 377, 45 So. 2d 19.
We think there can be no doubt that in the case at bar there was evidence of adverse possession for a period of three years prior to the institution of this suit. The lot abutted on a public thoroughfare and at the time of its acquisition by the defendant was vacant, except for a small hen house. It was used as a dumping ground of rubbish, old cans and wire and was grown up in weeds and underbrush. When the defendant entered he first had it surveyed to be sure of its boundaries and then he had the rubbish and brush piled up and burned off and the chicken house moved. Subsequently he put up a "no dumping" sign. He cut down tall trees on the lot, dug a ditch across the lot and placed a sewerage line in it. He filled in the low places and in 1947 he erected a building on the lot which is used as an ice cream parlor. He walked back and forth over the lot and people came to his place of business to purchase the lot from him. He assessed the land for taxation and paid the assessment and paid the sewerage and water assessment on the land. It is clear to us that these were acts of ownership and dominion such as to indicate to others a possession and ownership.
The point seriously argued on this appeal however is that the finding of the jury was contrary to the great weight of the evidence. There was testimony for example that even though the defendant may have cleared the lot off in the early part of 1944 and again in the fall of 1944, this was not noticeable to people passing by, who testified that it was grown up in bushes, weeds and briars during all of this period. Accordingly it is claimed that either the lot was not cleared off on these two occasions or it was not kept in that condition.
We have examined the evidence however with great care and cannot agree with the position of the appellants. Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized and more rigidly limited than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546. Furthermore we recognize that when the trial court, as here, refuses 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; Smith v. Smith, supra.
The ruling of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | June 28, 1951 |
b2feb9f4-066d-4237-bb1f-5d787c65276c | McCrory v. Wood | 171 So. 2d 241 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 241 (1965)
William B. McCRORY
v.
William C. WOOD et al., Members of Alabama State Board of Optometry, and Alabama State Board of Optometry.
1 Div. 191.
Supreme Court of Alabama.
January 21, 1965.
*242 Allan R. Cameron, Mobile, and Douglas E. Bergman, Dallas, Tex., for appellant.
Lee E. Bains, Bessemer, and John Tyson, Mobile, for appellees.
SIMPSON, Justice.
Appellant filed a bill in equity praying the issuance of a temporary injunction restraining the appellees from holding a hearing to consider charges filed with appellee board against appellant until his rights are judicially determined.
The bill alleged that appellant is a licensed optometrist and is engaged in the practice of his profession in Mobile. On November 9, 1962, he was served with a copy of written charges by one R. W. L. Ross against him as filed with the Alabama State Board of Optometry, in which the said Ross averred that appellant, while licensed as an optometrist, had committed certain acts of unprofessional conduct of such a character likely to deceive or defraud the public, and, therefore, his license to practice optometry in the State of Alabama issued by the Alabama State Board of Optometry should be revoked or suspended.
The temporary injunction was granted as prayed. Subsequently appellees filed answer to the bill and appellant amended his complaint challenging the constitutionality of §§ 192 and 206 of Title 46, Code of Alabama 1940 (recompiled 1958).
After answer duly filed the cause was heard in open court and final decree ultimately entered dissolving the temporary injunction, the court holding that the provisions of Title 46, §§ 192 and 206 were constitutional and valid. From this decree appellant perfected this appeal, the temporary injunction having been reinstated pending the disposition of the case in this court.
*243 Briefly, the issue is this: Appellant is a licensed optometrist employed by Lee Optical Company, a corporation. He is charged with unprofessional conduct in that he permitted certain advertising to be printed and circulated in the Dothan Eagle, a newspaper published in Dothan, Alabama. Having engaged in such practices, he has violated the rules and regulations of the Alabama Optometric Association, Incorporated, a private corporation, which provide:
It is clear that certain of the rules of the Alabama Optometric Association are in direct conflict with the following statutes:
Title 46, § 210, Code: "Store where glasses are sold; how department conducted. Nothing in this chapter shall be so construed as to prevent any person, firm, or corporation from owning *244 or operating a store or business establishment wherein eyes are examined or glasses fitted; provided, that such store, establishment, or optometric department shall be in charge of a duly licensed optometrist, whose name must appear on and in all optometry advertising of whatsoever nature done by said person, firm or corporation."
The charge against appellant here is that he committed acts of unprofessional conduct in that he permitted advertisements to be printed in the Dothan Eagle on certain days stating that "Lee Optical is open 9:00 A.M. to 5:30 P.M. Monday-Saturday for glasses and examinations, Dr. Wm. B. McCrory, O. D.", when in fact appellant was not present to examine eyes on the dates involved and that such acts constituted conduct likely to deceive the public. The further charge is made that appellant's license should be revoked because he lent his license to one William J. Craig who practiced optometry during the days in question at Lee Optical Company in Dothan, all in violation of the foregoing statutes, and § 206, Title 46, quoted below.
This Court has previously held that Article III of the Code of Ethics of the Alabama Optometric Association is contrary to the grant of the right to advertise contained in Title 46, §§ 210 and 211, quoted above. Alabama State Board of Optometry v. Busch Jewelry Co., 261 Ala. 479, 75 So. 2d 121. The statutory right must prevail.
Appellant now raises the question of the constitutionality of §§ 192 and 206 of Title 46, Code, which was not decided in the Busch case, supra. The sections provide:
§ 192: "State board of optometry; how constituted.The governor shall appoint a state board of optometry consisting of five persons each of whom shall be a citizen of the United States, over the age of twenty-five years, a member in good standing of the Alabama optometric association, incorporated, or its legal successor, and shall have been engaged in the actual continuous practice of optometry in the State of Alabama for at least five years next preceding his appointment. One member of said board shall be appointed each year for the term of five years and shall hold office until his successor is appointed and qualified. The governor may remove from office at any time any member *245 of the board for neglect of duty, incompetency, improper or unprofessional conduct, or when the license or certificate of any member has been suspended or revoked. * * *" (Emphasis ours)
It is the position of appellant that § 192 must be declared unconstitutional because of the requirement that appointees to the State Board of Optometry must be "a member in good standing of the Alabama optometric association, incorporated, or its legal successor * * *." He insists that the quoted qualification constitutes an unlawful discrimination and deprivation of privileges, immunities and property rights of all licensed optometrists in the state who are not members of the Alabama Optometric Association, Incorporated. It is obvious that any optometrist who works for a corporation and allows his name to be used in advertisements as does appellant would not qualify for membership in the Alabama Optometric Association and therefore would not have the qualifications to serve on the State Board of Optometry under the provisions of this section, even though such employments and acts are specifically authorized by the legislature by §§ 210 and 211, supra.
The constitutionality of § 206 is questioned on the ground that it provides an unlawful delegation of authority by the legislature to the Alabama Optometric Association, Incorporated of the right to decide what shall constitute grounds for cancellation or suspension of an optometrist's license.
These questions are not without difficulty. Initially, we must consider the well established presumption that every statute passed by the legislature is constitutional. It is our duty to uphold the validity of the statute assailed where possible. As the Court of Appeals of Louisiana noted in a somewhat analagous case:
*246 The question seems to be whether there is a substantial and rational relation between the organization entrusted with the power of nomination or appointment and the function of government which the persons appointed are to perform. If so, then the statutes are generally held to be valid. A general statement on this subject appears at 12 Am.Jur. 231, § 534:
Further, at 16A C.J.S. Constitutional Law § 460, p. 179:
The cases are not all in accord and none deals with the precise problem presented in the case before us. It must be admitted that the legislature may, under the exercise of its police power for the protection of the public health and welfare, regulate the practice of optometry. We are unable to say that there is no substantial relation between the professional association and the duties which the State Board of Optometry performs. The fact that our judgment might differ from that expressed by the legislature is not controlling. In light of the rule which requires us to uphold the validity of the statute if we are able to do so, we do so in this case, with the following comment:
In connection with Title 46, § 206, we disapprove of the language "or the doing or performing of any acts in his profession declared by the Alabama Optometric Association to be unethical or contrary to good practice". The State Board of Optometry may not adopt nor enforce any rules or regulations which are inconsistent with the express provisions of a statute. We have expressly stated in Busch, supra, that insofar as the Code of Ethics of the Alabama Optometric Association are in conflict with the policy of the legislature as expressed in the statutes quoted in this opinion, the rules must failand this is particularly to be noted when the State Board considers a complaint brought before it charging "unprofessional conduct". We will not allow one to be penalized for performing acts expressly permitted by statute. It might be well in this connection to re-state the principle enunciated in Abelson's, Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929, 928, quoted in the Busch case:
"`The authority to make rules and regulations for the effectuation of the *247 statutory policy is administrative and not legislative, if its exercise is confined by certain and definite standards of action, even though the regulations be given the force and effect of law. It is a corollary of this principle that the rules and regulations and administrative action cannot subvert or enlarge upon the statutory policy or the rules and regulations therein set down. Administrative implementation cannot deviate from the principle and policy of the statute.'"
The decree appealed from impresses us as sound and consonant with the decisions on the question.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | January 21, 1965 |
f38c5dfd-8c50-4641-8c43-b8550b29b336 | State v. Crawford | 173 So. 2d 109 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 109 (1965)
STATE of Alabama
v.
Jean G. CRAWFORD et al.
1 Div. 272.
Supreme Court of Alabama.
March 18, 1965.
Thos. F. Sweeney and Bellfield T. Wells, Mobile, for appellant.
Vernon Z. Crawford, Mobile, for appellees.
COLEMAN, Justice.
The state, as condemnor in an eminent domain proceeding, appeals from a judgment of condemnation and from the judgment overruling the condemnor's motion for new trial.
Condemnor argues that the circuit court erred in overruling that ground of the motion for new trial which asserts that the verdict is contrary to the evidence.
According to the statement of the evidence in appellant's brief, the testimony of condemnor's expert witness as to the damages and compensation due the landowner fixed the amount at six hundred *110 dollars. The expert witness for landowner fixed the amount at twelve hundred and fifty dollars. That is all the testimony as to damages and compensation due the owner. The jury did not view the property. As we understand landowner's brief, the foregoing statement of the evidence is not contradicted and, therefore, will be taken as accurate and sufficient for decision. Supreme Court Rule 9.
The witnesses appear to be qualified by 15 and 10 years' experience, respectively, in the real estate business, to express opinions as to value of the property. It is not insisted that their opinions were unreliable.
The jury returned a verdict awarding the landowner nineteen hundred dollars.
Condemnor insists that were the jury has not viewed the premises, the award may not exceed the highest amount set by the testimony.
In Burchard v. State, 128 App.Div. 750, 113 N.Y.S. 233, the appellate division reversed an award for condemned property. The evidence showed the damage to be $1,100.00 and upward. The award was for only $750.00. The appellate division expressed the view that the trial court was not authorized to disregard the testimony and place the value below that given by any witness.
In the case of In re Block Bounded by Ave. A, etc., 66 Misc.Rep. 488, 122 N.Y.S. 321, the court refused to affirm the report of commissioners assessing the value of parcel No. 24 at $18,000.00 when the only expert witness called by the owner testified that the value was $16,400.00. The court observed that there is no formal pleading of value in condemnation proceedings; that if there were such pleading, the owner could not be allowed more than he claimed; and that no reason appears why the owner should not be equally bound by his proof.
In Donavan v. Fandrich, 265 Ala. 439, 92 So. 2d 1, in an action on the common counts to collect an alleged debt, this court reversed a judgment for plaintiff, saying that we were unable to find any evidence to justify a finding of the amount fixed by the jury, and that, where the verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it ought to be set aside upon proper proceedings. This court held that defendant's motion for new trial should have been granted.
In the case at bar, we do not think the verdict for $1,900.00 can be justified when the only evidence is that the damages amounted to $600.00 and $1,250.00. Under those circumstances, the jury, in allowing $1,900.00 must have proceeded upon some erroneous theory.
We have noted that the jury did not view the land. We are not to be understood as holding that the verdict would stand if the jury had viewed the land. That question is not presented. In this connection, see: State v. Carter, 267 Ala. 347, 350, 101 So. 2d 550; State v. Long, 269 Ala. 270, 271, 112 So. 2d 480.
In deciding this case, we are not unmindful of the rule that evidence of value is necessarily opinion evidence, and that it is not conclusive on courts and juries, even when without conflict. Dean v. County Board of Education, 210 Ala. 256, 97 So. 741; State v. Hunter, 270 Ala. 57, 116 So. 2d 383. In this connection, however, there is also the rule that there is no "absolute" or "unrestricted" right in the trier of facts to disregard evidence of witnesses declared competent by the statute, § 367, Title 7, whether expert or not. Such evidence is not conclusive, as of course, but is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value. O'Neill v. City of Birmingham, 221 Ala. 580, 584, 130 So. 87. In the instant case, as it seems to us, the verdict is in absolute disregard of, and without support from, the evidence.
*111 We are of opinion that the verdict is contrary to the evidence and that the court erred in overruling the grounds of the motion for new trial which take that point.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | March 18, 1965 |
c6302f9f-c82d-4a86-bd5e-48e4c499e2b4 | Hughes v. Merchants Nat. Bank of Mobile | 53 So. 2d 386 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 386 (1951)
HUGHES
v.
MERCHANTS NAT. BANK OF MOBILE.
1 Div. 433.
Supreme Court of Alabama.
May 17, 1951.
Rehearing Denied June 28, 1951.
*388 Hubert M. Hall, Bay Minette, and Ray & Giles, Birmingham, for appellant.
Alvin McConnell, Mobile, for appellee.
SIMPSON, Justice.
This is a will contest by appellant, the only heir at law of testatrix, Hattie T. Hughes, who owned property in and was *389 a resident of Mobile, Alabama, at the time of her death. Theo Little, a niece, was named as executrix and was one of the beneficiaries under the will. She propounded the instrument for probate, but died pending the proceedings and the cause was revived in the name of appellee, as her administrator. The instrument propounded for probate as the last will and testament of Mrs. Hughes reads as follows:
"Theo Little, Executrix & Hunt C. Hughes, Executor, without Bond.
The primary inquiry is whether the will was duly executed and involves a construction of that portion of § 24, Title 61, Code 1940, of our statute which requires that for such an instrument to be effectual as a will it must be "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." (Emphasis supplied.)
The two subscribing witnesses, Mrs. Williamson and Mrs. Smith, as appears, rather than signing their names at the end of the instrument, attested it toward the beginning. The evidence for proponent tended to show that Mrs. Hughes did request these two ladies to witness the instrument and that they each signed their names, as indicated, in the presence of each other and in the presence of Mrs. Hughes, after Mrs. Hughes had signed her name in their presence, with appropriate words indicating an intention that it be her will.
It is argued by appellant that because the attesting witnesses did not sign at the conclusion or end of the instrument, it was not subscribed pursuant to the statute and was therefore not effectual as the last will and testament of the signatory. We have given this argument serious consideration and have engaged in considerable research, but, like the trial court, are convinced the statute is not subject to that construction. There are statutes in some states which require that the testator and the attesting witnesses must sign or subscribe at the end of the will, 57 Am.Jur. 256, § 348; 10 A. L.R. 429; In re Walker's Estate, 110 Cal. 387, 42 P. 815, 1082, 30 L.R.A. 460, 52 Am.St.Rep. 104, but ours does not so provide.
This section of our statute of wills, like its original predecessor embodied in the Code of 1852 (and the intervening ones) relating to the subscription of testamentary documents by attesting witnesses, is a substantial counterpart or transcript of that part of the fifth section of the English statute, 29 Charles II, Chapter 3, § 5, which authorized persons of the age of twenty-one years to make devises (then of real estate only) by last will and testament in writing, "provided, that such last will and testament is signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested by three or more respectable witnesses, subscribing *390 their names thereto in the presence of such devisor." Barnewall v. Murrell, 108 Ala. 366, 376, 18 So. 831, 836; Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 538. The considered section of our will statute having come from the English statute, this court has consistently adopted the construction placed on the mother statute. As was said in Armstrong's case: "* * * the construction which had been put upon that part of the British statute, and settled as its true construction, by the British decisions before the adoption of our statute, ought to be regarded as the construction which our legislature intended to be put upon that part of our statute now under consideration. We shall adopt and follow that construction." 29 Ala. 540. (Emphasis supplied.) The principle was reasserted by Chief Justice Brickell in Barnewall v. Murrell, supra, 108 Ala. 377, 18 So. 831. Being without authority from our own court, therefore, we think it sound to adhere to this salutary rule and will look to the decisions of the English courts for guiding precedent.
The English courts in interpreting the quoted provision of their wills act held a signing at the end or foot of the instrument was not necessary, the requirement being met by the signature of the witnesses on any part of the will, with the intention of attesting it. Walker's Estate, supra; Roberts v. Phillips, 4 El.&Bl. 450, 119 Eng. Reprint 162; Braddock's Goods, L.R. 1 Prob.Div. (Eng.) 433; Horaford's Goods, L.R. 3 Prob.&Div. (Eng.) 211, 44 L.J. Prob.N.S. 9, 31 L.T.N.S. 553, 23 Week. Rep. (Eng.) 734; Ellison's Goods, 2 Ir.R. 480; Streatley's Goods, L.R.P. (Eng.) 172, 39 Week.Rep. 432; Harris' Goods, 23 Week.Rep. (Eng.) 734.
The leading English case which first considered the question is Roberts v. Phillips, supra, where one of the attesting witnesses signed his name in the body of the instrument, the other two at the end, three subscribing witnesses then being the statutory requirement. It was held, Lord Campbell, C. J., writing, that the will was properly attested. It was there said: "* * * The mere requisition that the will shall be subscribed by the witnesses, we think, is complied with, by the witnesses who saw it executed by the testator immediately signing their names on any part of it at his request, with the intention of attesting it. * * *" 4 El.& Bl., 458.
This court as early as Riley v. Riley, 36 Ala. 496, 502, seemed to have intimated a like view where it quoted with approval the following definition of Sir H. Jenner Fust: "`The witnesses are to subscribe; in other words, they are required, I conceive, to do an act which shall be apparent on the face of the will.' To subscribe, is defined to be, `to set one's hand to a writing,' (Pridgen v. Pridgen's Heirs, 35 N.C. [259], 260,) and this the act requires the witnesses to do."
Also, in the much later case of Elston v. Price, 210 Ala. 579, 98 So. 573, Gardner, J., later Chief Justice, speaking for this court, quoted with approval the New Hampshire case of Tilton v. Daniels, 79 N.H. 368, 109 A. 145, 8 A.L.R. 1073, and concluded with the result that "The essential thing is that `by the signature [the witness] meant to affirm that the deceased executed the will in his presence'." 210 Ala. 581, 98 So. 574. The opinion also approvingly quoted from the Massachusetts case of Smith v. Buffum, 226 Mass. 400, 115 N.E. 669, L.R.A.1917D, 894, where it was pointed out that the English construction of the statute of wills should be the proper guide for interpretation.
The latest case from our court treating of this particular provision is Johnston v. King, 250 Ala. 571, 35 So. 2d 202, holding that a will is properly subscribed by the attesting witnesses even though the subscription be on a different sheet of paper, just so the sheets are so connected and coherent in meaning and by an adaptation of the several parts as to be a testamentary whole. Though this case is no direct authority for decision here, its rationale is strongly persuasive of the conclusion we reach that to "subscribe" as used in the statute was not intended *391 to be used in its literal, primary sense, but in its broader meaning to attest by signing the witness' name as an act done with the intention of his witnessing the execution of the will. This is easily deducible from the holding in that case to the effect that the statutory requirement that the attesting witnesses "must subscribe their names thereto" was complied with where a notary public in Germany filled in a "protocol" (separate instrument of attestation) on an official printed form referring to the testatrix' unwitnessed will, the protocol then being signed by the testatrix and the three attesting witnesses (and the notary public) in each other's presence and attached by a cord to the will and placed in a sealed testament envelope. We might add this decision also is consonant with English precedent. In re Goods of Almosnino, 6 Jur.N.S. (1860) 302.
We hold, then, that a compliance with § 24 of our will statute does not require that the attesting witnesses sign their names at the foot or end of the will, but that the proviso is met by the attesting witnesses affixing their respective signatures on any part of the will with the intention of attesting it, the essential thing being that by their signatures they intended to affirm that the testator executed the will in their presence. The instrument under consideration was, therefore, admissible in evidence as the last will and testament of Hattie T. Hughes, resulting that there was no error either in its introduction, in the giving of the proponent's several written charges to that legal effect, or in the refusal of the several requested charges of contestant seeking to hypothesize the contrary theory.
Cogent argument urges that Bunch v. Garner, 208 Ala. 271, 94 So. 114, opinion by Miller, J., is sustaining authority to the contrary, but we cannot agree. There the section of our statute of frauds was under consideration providing that for the contract to be enforceable it or some note or memorandum thereof expressing the consideration must be in writing and "subscribed by the party to be charged therewith." Code 1940, Tit. 20, § 3. The court observed that from a construction of the entire contract it was not subscribed in conformity with the statute by the party to be charged with the intention of so binding him; that its phraseology indicated the names as used in the contract were not intended as a final signature, to wit: "* * * This phrase, `the undersigned' as used therein, indicates the names as used in the contract were not intended as a final signature, but that the instrument was to be signed under it * * *," indicating that the parties "intended that the instrument was to be further executed * * *" 208 Ala. 273, 94 So. 116. There may be some general expressions and quotation of authority in the case which might lend color to the contention as advanced by appellant, but that case is not considered as controlling the question here presented. In the face of the clear construction impelled by our other cases, as well as sound reasoning, we think the conclusion we have reached to be the only proper one and it is so held.
The foregoing disposes of the crucial question in the case. There are, however, other propositions of law raised by the several assignments of error which require some treatment. The grounds of contest were (1) lack of due execution of the will, above disposed of; (2) lack of testamentary capacity of the testatrix; and (3) undue influence exerted by Mrs. Little. The remaining assignments of error relate to rulings on matters of evidence and to the giving of certain written charges for the proponent and the refusal of certain others requested by the contestant.
Error to reverse is sought to be predicated on the ruling of the court in permitting Mrs. Smith, one of the attesting witnesses, to answer the question propounded to her by counsel for proponent, "Was it your understanding there at that time, Mrs. Smith, that this document or statement or whatever it was you call it, was to take effect at the time of the death of Mrs. Hughes?" the witness answering, "Yes." True, a nonexpert witness may not give his or her opinion of the legal effect of a document, Alabama Great Southern Ry. Co. v. Flinn, 199 Ala. 177, *392 74 So. 246; Gaston v. McDonald, 220 Ala. 155, 124 So. 208; Henderson v. Brunson, 141 Ala. 674, 37 So. 549, but we are not so sure that such was the effect of this testimony; it may have been intended as a shorthand statement of what Mrs. Hughes was saying about the document, and the burden is on the appellant to show error. Also, a careful reading of the entire testimony of Mrs. Smith indicates to our minds that the contestant invited such an inquiry and it was merely in response to previous cross-examination of the witness, where counsel for contestant defined to the witness the constituents of a gift causa mortis and then inquired, "And you don't even know whether it [meaning the instrument] was a gift causa mortis or a gift at this time or whether it was to go to them after death, do you?" the witness answering, "No." Inviting such error, if indeed it be, the contestant cannot now take advantage of it.
The same witness was also allowed, over contestant's objection and exception, to give her opinion as to the soundness of mind of Mrs. Hughes without first showing prior opportunity for observation, etc. The ruling was proper. Attesting witnesses to a will are competent to give an opinion as to the mental capacity of the testator when the will was made, without other qualification as to association with the decedent and without stating facts on which the conclusion is based. Lowery v. Lowery, 225 Ala. 376, 143 So. 556; Shirley v. Ezell, 180 Ala. 352, 60 So. 905.
One other assignment of error with reference to the admission of evidence.
On cross-examination of appellant's wife, proponent undertook to show that upon their return trip to Mobile after Mrs. Hughes' death and before the funeral, appellant went to the bank and there transacted business involving the funds of Mrs. Hughes which had theretofore been deposited in a joint survivorship account. Without treating of the admissibility vel non of such evidence, it is sufficient to say that its admission cannot be made a predicate for reversal. This same evidence came in later by the testimony of appellant himself and was therefore without injury to him. Johnson-Brown Co. v. Dominey Produce Co., 212 Ala. 377, 102 So. 606; Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579.
Giving of proponent's written charge 5 is pressed on us as error to reverse because of that portion which instructed the jury "that when Mrs. Lucile Williamson and Mrs. Beatrice Smith wrote their respective names as witnesses to the will etc.", the argument being that the charge invaded the province of the jury in assuming that the instrument was a will and that the witnesses did in fact write their names as witnesses to a will. Appellant concedes, however, that a charge somewhat similar, charge 1, in Reynolds v. Massey, 219 Ala. 265, 122 So. 29, was approved by the majority of the court as a correct proposition of law. We think at most the charge is merely misleading, since it appears from the context of the charge itself that the inquiry submitted to the jury was whether or not the instrument had been executed in accordance with the statute as a will. We do not think the jury could have assumed the court was telling them that the instrument was a will, since that was the main issue in the case, and the oral charge of the court and several given charges requested by the contestant accurately posed this issue. If there was any misleading tendency, the way was open to the opposing party to neutralize its effect by an explanatory charge. McCalley v. Penney, 191 Ala. 369, 67 So. 696; Emergency Aid Life Ass'n v. Gamble, 34 Ala.App. 377, 40 So. 2d 887, certiorari denied 252 Ala. 282, 40 So. 2d 888.
Error is also sought to be predicated on the giving of proponent's charge 12, which, in instructing with reference to the presumption of law as to sanity and the burden of showing lack of testamentary capacity to the satisfaction of the jury, omitted "reasonable." A similar charge was approved in Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, Chief Justice McClellan writing, whereas it seems to *393 have been disapproved later by the younger McClellan in Johnston v. Johnston, 174 Ala. 220, 57 So. 450, where it was observed: "* * * one alternative, exacted, as a condition to the shifting of the burden of proof, according to the doctrine just stated, that the contestants show to the jury's satisfaction that Johnston was, prior to the execution of the paper propounded, under the disability of habitual, fixed insanity. The degree of proof required by the instruction was too great. Reasonable satisfaction is the degree the law requires. * * *" 174 Ala. 227, 57 So. 453.
But it is obvious that the charge really was not one relating to the degree of proof required, but sought to instruct the jury with reference to the presumption of law as to sanity; and while the omission of the word "reasonable" might have rendered the charge inaccurate as regards the degree of proof required, we feel certain the giving of the charge resulted in no prejudice to the defendant on account of the full, lucid and specific oral charge of the court, as well as the contestant's given charge 8. Such instructions were replete with the specific admonition that the only burden the contestant carried on the issue was proof to the jury's reasonable satisfaction. Indeed, charge 12 in verbatim, with the added word "reasonable," was embodied in the oral charge. We can properly invoke the rule of error without injury to avert a reversal here. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
There was likewise no error to reverse in giving proponent's charge 94, since it is susceptible of the construction that as a matter of law the name which the maker might give to an instrument did not determine its character, but that the intention of the author would be the controlling factor. Walker v. Jones, 23 Ala. 448. The charge at most only had a tendency to mislead and could have been corrected by an explanatory charge, had the contestant so desired.
Charge 28 was properly refused as argumentative. Alabama Consol. Coal & Iron Co. v. Heald, 168 Ala. 626, 53 So. 162; Louisville & N. R. Co. v. Young, 168 Ala. 551, 53 So. 213; Louisville & N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.
For like reason charge 22 B was refused without error. Miller v. Whittington, 202 Ala. 406(14), 80 So. 499; Alabama Consol. Coal & Iron Co. v. Heald, supra; Louisville & N. R. Co. v. Young, supra; Louisville & N. R. Co. v. Holland, supra.
Contestant's requested charge 21 was properly refused in that it pretermits that for the testimony of the witnesses to be disregarded, the witness must have "wilfully or corruptly" sworn falsely to a material fact, the quoted words being omitted from the charge. Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288(3), 94 So. 281.
The final assignment relates to an episode which took place during the direct examination of one of contestant's witnesses, when his counsel, after the witness had testified to the lack of affection testatrix had for her son due to the bad company he kept, endeavored to show that among contestant's associates was the judge presiding at the trial. The court at this juncture said:
"Mr. Duggan, I don't think it is proper for you to bring the court into a question of that kind.
"Mr. Duggan: Your Honor please, I believe you are right about that.
"The Court: I think we have had too much of that. I think it is highly improper, and I want to tell you now that I never want it to occur again in my court room. I think it borders so close on contempt that the court should take some action in the matter.
"Mr. Duggan: If the Court please, if the Court feels that way about it, I want to offer my sincere apology to you, because it was not meant as any reflection.
"The Court: As long as you practice in my court, I never want you to take advantage of the court like that again.
"Mr. Duggan: Your Honor, I did not understand that I was injuring your feelings.
*394 "The Court: I think it was done purposely, and simply for the purpose of endeavoring to bolster up your case."
We are not able to say that the remarks of the judge were so highly prejudicial as to influence the jury; but be that as it may, it was not error to reverse, because such interrogation was entirely improper and the contestant provoked the reprimand himself. Having done so, he is in no position to now take advantage of it.
We have given studious consideration to the voluminous record comprising over 700 transcript pages and many exhibits, in connection with the brief and argument of able counsel, but are constrained to hold that no error intervened pending trial which would authorize a reversal.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | May 17, 1951 |
ab441a33-c402-44ef-938e-9f29e67772bf | Townsell v. State | 52 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 186 (1951)
TOWNSELL
v.
STATE.
4 Div. 644.
Supreme Court of Alabama.
April 26, 1951.
*187 John J. Martin, of Dothan, for appellant.
Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.
STAKELY, Justice.
The appellant John J. Townsell was indicted for murder in the first degree. He was tried on his pleas of not guilty and not guilty by reason of insanity. The jury returned a verdict of murder in the first degree and fixed the punishment at death. This appeal comes here under the automatic appeal statute.
The killing took place in the Townsell home which was on the Headland Road in Houston County. Shirley Mae Allday, the fourteen year old daughter of Dovie Lee Townsell, the deceased, testified in substance that she was awakened between 4:00 to 4:30 or 5:00 o'clock in the morning and heard her mother and stepfather fussing in the next room where they had been sleeping. He was fussing at her because she wouldn't get up and fix his breakfast and she said she would get up and leave him and he said she wouldn't. The witness had been sleeping in one bed in her room with her two younger sisters, the other bed in the room where she was sleeping being occupied by three little boys. The door between the room in which the children were sleeping and the room in which appellant and his wife were sleeping was open. The bed on which the witness was lying looked directly into the open doorway into the adjoining bedroom. She saw her mother approach the open doorway and the next thing there was a shot, her mother came a little further and there was another shot and her mother fell between the two beds in the room in which the witness was sleeping. She didn't see who fired the first shot but saw her stepfather fire the second shot. Both shots hit her mother in the head.
Immediately after her mother fell John Townsell came between the beds and started to beat the witness while she was still in the bed. She was beaten with the gun with the result that the gun broke in two. The witness jumped over her mother who was lying on the floor and went out of the house through the kitchen door. She saw the appellant come into the kitchen and reload the gun. He got in front of the oil stove and put it up to his chin and shot himself.
The testimony of Shirley Mae Allday was substantially corroborated by Fannie Lou Holland who was sleeping in the bed with her. Fannie Lou Holland was nine years old and was a daughter of the deceased.
When Ed Cherry, a policeman of the City of Dothan, accompanied by one Roney, another *188 policeman, were on their way to the Townsell home after the killing they first found the appellant in a yard off the highway. His chin was shot off and they got an ambulance to pick him up. He could not talk and so motioned for a pencil and wrote for the policeman to notify one John C. Powell. When they reached the Townsell home they found Shirley Mae Allday on the front porch with her arm broken. She testified to other bruises and cuts which she received. In the bedroom where the children slept they found the body of the deceased lying on the floor. She had been shot on both sides of her face and head apparently with a shot gun. They sent Shirley Mae Allday to the hospital in an ambulance.
Fred Johnson, owner and operator of a funeral home, came to the Townsell Home shortly after the shooting. In the bedroom where the children slept in addition to the body on the floor he found the stock of a gun and two empty shells. The barrel of the gun was found in the kitchen.
Albert Smith, witness for the state, testified that the defendant told him several weeks previous to the killing that he had drawn his gun to shoot her and that he wanted to "get shed" of her.
The defendant testified in his own behalf, stating that on the morning of the killing his wife was despondent and seized the gun in order to kill herself, that while he was attempting to take the gun away from her it discharged both barrels, resulting in her death. That he then went into the kitchen where he was attacked by Shirley Mae Allday with the shotgun and that in attempting to wrest the gun from her the stock was broken, the child injured and he was shot himself. He also claimed that the deceased had previously attempted to commit suicide.
After the defendant's arrest, on order of the court he was sent to Bryce's Hospital at Tuscaloosa for observation, where the commission found him sane both at the time of their observation and at the time of the killing.
Dr. W. T. Burkett treated the defendant while he was confined in jail for the septic condition brought about by the wound to his chin. According to him the defendant had no disease of the mind but at one period was mentally confused from the fever arising from the septic condition. Numerous lay witnesses, including the employer of defendant, his neighbors and acquaintances all testified to the defendant's sanity.
The defendant testified in a coherent manner on the stand and admitted that he was sane and knew what he was doing up until the time shortly before the officers found him in the road and sent him to the hospital. The gun with which the deceased was killed hung on some nails driven in the wall above the bed where the appellant and the deceased were sleeping.
I. It is contended that there was no evidence as to premeditation. There is no merit in this position. Shirley Mae Allday testified that the defendant had threatened her mother before the killing, had told her that he would kill her and had said that he wished she would die. Albert Smith testified that about four to six weeks prior to the killing the defendant told him that he had drawn a gun on his wife to shoot her and wanted to "get shed" of her. Testimony of the state tended to show that the defendant got the gun from the rack above the bed and then shot the deceased not only once but the second time. There was ample proof from which the jury could infer premeditation. Daughdrill v. State, 113 Ala. 7, 21 So. 378; Caldwell v. State, 203 Ala. 412, 84 So. 272; White v. State, 236 Ala. 124, 181 So. 109.
II. At the conclusion of the testimony of the defendant counsel for the defendant asked that the jury be permitted to go to the scene of the shooting and made a motion to that effect. The court overruled the motion stating that he didn't see that it would serve any useful purpose to go out there and observe the house in which the shooting occurred, further stating that he didn't recall any testimony in conflict with the testimony of the witnesses who testified with reference to the physical condition of the premises immediately after the occurrence. To this ruling the defendant *189 excepted. There was no error in this respect. It is within the sound discretion of the court as to whether the jury should be taken to the scene of the alleged crime. Brown v. State, 229 Ala. 58, 155 So. 358; Kilgore v. State, 19 Ala.App. 181, 95 So. 906. We see nothing in the evidence to show any abuse of discretion in this regard. After so ruling the court said: "I might say this to the jury that if you gentlemen are desirous to go, why I would endeavor to make arrangements to accommodate you. If you would like to go out and observe the place I would take the necessary steps to accommodate you but as to sending you out there, I deny that motion. I would like to have some expression from the jury either the one way or the other."
The solicitor then made the following observation: "The state at this time for the purpose of the record would like to make the observation that it has been 15 months since that killing took place, that there is no evidence that the condition of the house at this time is or would be the same as it was immediately after that killing and that no useful purpose at this time could be served by the jury or anyone else going to see its condition. I merely state that."
The court thereupon said: "That is in substance but a different phraseology of my observations. I am going to submit it to you gentlemen. Do you all want to go out there? All that do stand up." No one stood up. The court further said: "If any of you want to go out there and observe it, let it be known by standing on your feet." No one stood up and the court further said: "If you don't why remain seated." All the jury remained seated. The court further said: "I wouldn't hesitate to send the jury out to make an observation of the premises regarding this if there was any evidence in the case for the basis of it. Of course it would entail considerable arrangement and escort and so I decline to grant the motion."
There was no objection or exception to the remarks of the court or the solicitor. The automatic appeal act in the absence of objection and exception does not authorize us to review a matter of this kind. Haygood v. State, 252 Ala. 3, 38 So. 2d 593; Section 382(10), Title 15, Code of 1940 (Pocket Part).
But we see no prejudicial action in allowing the jury to determine whether it wished to view the scene of the crime. The purpose of the view is merely to enable the jurors to comprehend more clearly by the aid of visible objects the evidence before the court. McIntyre v. State, 26 Ala. App. 499, 163 So. 660, certiorari denied 231 Ala. 141, 163 So. 662. If there was no conflict in the evidence as to the appearance of the scene of the crime and there was none in this case, no harm was done just because the jury did not consider it helpful or advantageous to view the scene of the crime. Brown v. State, supra.
We do not consider that the words of the court constitute a charge upon the effect of the testimony, but rather a statement to justify the action of the court within its discretion. But even if it be assumed that the words of the court constitute a charge upon the effect of the testimony, still there is no error. The statute, § 270, Title 7, Code of 1940, was never intended to abridge the original inherent power of courts to direct the attention of the jury to undisputed, admitted facts. Goff v. Sellers, 215 Ala. 489, 111 So. 210. The trial court is vested with discretion in the conduct of a trial and appellate courts will not interfere therewith unless it clearly appears that there has been an abuse of discretion. Cantor v. State, 27 Ala.App. 40, 165 So. 597; Dennison v. State, 17 Ala. App. 674, 88 So. 211.
We have considered not only questions raised by counsel but have examined the entire record and find no error therein. The judgment of the lower court must be affirmed.
Affirmed.
All the Justices concur. | April 26, 1951 |
f289ded6-c129-42ba-a14d-6878a98f5414 | King v. Brindley | 51 So. 2d 870 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 870 (1951)
KING et al.
v.
BRINDLEY et al.
6 Div. 953, 954.
Supreme Court of Alabama.
April 12, 1951.
*871 F. W. Davies and Davies & Williams, all of Birmingham, for appellants.
Clifford Emond, of Birmingham, for appellees.
LIVINGSTON, Chief Justice.
Jean Brindley and Doris Barker sued C. B. King, doing business as Shades Valley Cab Company, Casualty Reciprocal Exchange of Kansas City, Missouri, and Tom F. Gallups, in the Circuit Court of Jefferson County, Alabama, claiming damages for personal injuries received when an automobile in which they were riding collided with an automobile belonging to King and driven by Gallups.
Separate suits were filed in the court below, but the pleadings and evidence, except as to the extent of the injuries, and applicable law being identical in the two suits, they were consolidated and tried together. The jury returned verdicts in favor of each plaintiff and defendants appealed. By amendment, Gallups was stricken as party defendant before the jury retired.
The cases were consolidated on appeal and submitted on one record. We will, therefore, treat the questions presented as if a single plaintiff was involved, with the understanding, of course, that this decision applies to each plaintiff.
The case was submitted to the jury on count A of the complaint. Count A claimed damages of $5000.00 against C. B. King, doing business as Shades Valley Cab Company; Casualty Reciprocal Exchange of Kansas City, Missouri, and Tom F. Gallups, and alleged that plaintiff was riding as a passenger in an automobile upon a public highway in the City of Birmingham, Jefferson County, Alabama, at Third Avenue and Eighth Street West on the 5th day of September, 1948, and at said time and *872 place, a motor vehicle driven by the defendant, Gallups, as agent for the defendant C. B. King, doing business as Shades Valley Cab Company, ran into, upon, or against the automobile in which the plaintiff was riding, and as a proximate consequence thereof, plaintiff suffered the injuries and damages claimed in the complaint. The count also alleged in substance that the automobile of the defendant King, at the time of the accident, in compliance with the laws, ordinances and regulations of the City of Birmingham, was insured in the Casualty Reciprocal Exchange, of Kansas City, Missouri, and that the said defendant King had procured permission from the City of Birmingham for the operation of said motor vehicle which collided with the automobile in which plaintiff was riding, and had caused to be executed and filed with the City of Birmingham, in accordance with the laws, ordinances, and regulations, an insurance contract, by the terms of which, as the laws of said City of Birmingham provided, the defendant, Casualty Reciprocal Exchange, of Kansas City, Missouri, agreed to insure the plaintiff against injuries and damages sustained as a proximate consequence of the negligence of the defendant Gallups while acting as agent for defendant King in and about the operation of said motor vehicle on said occasion, and said contract of insurance was in full force and effect on the date and occasion complained of in the principal sum of Five Thousand Dollars; and further that all her said injuries and damages aforesaid were proximately caused by the negligence of the defendant, Tom F. Gallups, while acting within the line and scope of his employment as an agent, servant or employee of the defendant C. B. King, doing business as Shades Valley Cab Company, in and about the operation and control of the said motor vehicle driven by him at the time and place aforesaid.
Demurrers of each defendant to the complaint were overruled.
Casualty Reciprocal Exchange also filed a motion to strike it as a party defendant on the ground that it was improperly joined as a party defendant. The motion was overruled.
Defendants interposed a plea of the general issue in short by consent with leave, etc.
The undisputed evidence shows that plaintiff in the court below, appellee here, was injured at the intersection of Eighth Street West and Third Avenue in the City of Birmingham, Alabama, at about 2:30 A.M., on September 5, 1948: that she was riding in a U-Drive-It car driven by James Newman; that Jean Brindley was riding on the front seat with Newman, and that Doris Barker and Thomas York were riding on the back seat of the car driven by Newman; that the Newman car was proceeding west on Third Avenue; that the taxicab of King, driven by Gallups, was proceeding south on Eighth Street West; that the Newman car ran into the side of the King car, striking it at about the left front door, in the intersection of Third Avenue and Eighth Street West; that there is a boulevard "stop" sign on Eighth Street West, some 10 or 15 feet north of the intersection with Third Avenue.
Appellee's evidence tended to prove that the car driven by Newman, and in which she was riding, was proceeding along Third Avenue in a westerly direction at a speed of from 20 to 25 miles per hour: that as the Newman car entered the intersection formed with Eighth Street West, the cab driven by Gallups, going south on Eighth Street West, drove out into the intersection and stopped, or nearly so, in the path of the Newman car.
On the other hand, appellants' evidence tended to show that the cab driven by Gallups approached the intersection on Eighth Street West and stopped at the stop sign; that Gallups looked in both directions, then proceeded slowly into the intersection and seeing the Newman car approaching at a high rate of speed stopped again after the cab had reached a point about a car's length into Third Avenue, and that the Newman car ran into the side of the cab. Gallups' testimony is in conflict as to the distance the Newman car traveled after he saw it. He testified that it was within 30 or 40 feet of his cab when he first saw it, and also that it was some 100 or 200 feet away when he first saw it.
*873 The evidence is also conflicting as to how far east the view of Third Avenue is clear from a point at the north curb line of said avenue where it intersects Eighth Street West.
Clearly the evidence was sufficient to take the case to the jury on the issue of the negligence vel non of the driver of the taxicab. Affirmative charges for the appellants, on that issue, were properly refused and assignments of error based thereon are without merit.
Appellants insist that the evidence was also sufficient to take the case to the jury on the issue of appellee's contributory negligence, and that charges, in effect written general charges on that issue, were erroneously given for appellee.
One riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury; that is, such care as an ordinarily prudent person would exercise under like circumstances. Moore v. Cruit, 238 Ala. 414, 191 So. 252; Proctor v. Coffey, 227 Ala. 318, 149 So. 838; Bradford v. Carson, 223 Ala. 594, 137 So. 426; McDermott v. Sibert, 218 Ala. 670, 119 So. 681; Birmingham Ry. Light & Power Co. v. Barranco, 203 Ala. 369, 84, So. 839; Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So. 2d 289; Mc-Geever v. O'Byrne, 203 Ala. 266, 82 So. 508, 510; Birmingham Southern Ry. Co. v. Harrison, 203 Ala. 284, 82 So. 534.
Some of the cited cases are suits by the passenger against third persons, others by the passenger against the driver or owner of the vehicle in which the passenger or guest was riding. But as said in the case of McGeever v. O'Byrne, supra: "it can make no difference in principle whether the suit is against a third person, or against him who negligently operates the car; and the duty of the passenger to observe due care under the circumstances for his own safety must be the same in either case."
And in speaking of the duty to use due care on the part of the guest or passenger it was held in the case of Birmingham Ry. Light & Power Co. v. Barranco, supra [203 Ala. 639, 84 So. 842]:
"The duty is therefore not original with respect to the operation of the vehicle, but resultant, and that only from known and appreciated circumstances capable of bringing it into effect * * * no fixed rule applicable to all cases can be formulated by which to determine when the duty stated arises, or what particular circumstances raise the duty, or what particular warning, protest, or action will suffice to manifest a discharge of the duty once it has arisen."
"The ingredients of contributory negligence do not differ in any respect from those of primary negligence; it is after all `like primary negligence, relative and not absolute, and being relative it is dependent on the peculiar circumstances of each particular case.'" McDermott v. Sibert, supra [218 Ala. 670, 119 So. 684].
It was said in Proctor v. Coffey, supra: "We do not think that the authorities support the claim that a mere opportunity to know the danger is sufficient in the absence of facts suggesting to the guest as a person of ordinary care a necessity to keep a watch. That is what was held in the case of Baker v. Baker, supra [220 Ala. 201, 124 So. 740]. So in the case of B.[irmingham] R[y] L.[ight] & P.[ower] Co. v. Barranco, supra, the duty of the guest is said to arise when he should anticipate that the driver of the vehicle will enter the sphere of danger or omit to exercise due care, not when he has the opportunity to so anticipate without anything to direct his attention to such condition. This principle is also mentioned in McGeever v. O'Byrne, supra; Dwight Mfg. Co. v. Word, 200 Ala. 221(14), 75 So. 979." [227 Ala. 318, 149 So. 840.]
And in Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610, 619: "That is, there is no duty on the guest, in the absence of `knowledge of facts charging him with that duty, to anticipate that a driver will be negligent, reckless or incompetent' in the operation of the car and in keeping a proper lookout."
In the light of the foregoing principles we turn to an analysis of the evidence touching the question of the contributory *874 negligence of appellee, keeping in mind, of course, that the burden of proof in that regard is on defendants in the court below.
Miss Brindley, Miss Barker and Newman testified that the Newman car entered the intersection first, or at about the time the King taxicab entered the intersection, and at a rate of speed of from 20 to 25 miles per hour; that after the Newman car entered the intersection the King car proceeded out into the intersection in front of the Newman car, about a car's length and stopped, or nearly so. On the other hand Gallups, the driver of the King car testified that the King car entered the intersection first after stopping at the stop sign on Eighth Street West; that he looked in both directions and saw no cars approaching; that after he had driven into the intersection about a car's length he looked to his left and saw the Newman car approaching, and that he then stopped within about a foot. Gallups further testified on direct examination as follows:
"Q. How fast in your best judgment was that car going? A. Every bit of 70 miles an hour when I first saw him.
"Q. Did he slow up until he got on you? A. Not until he got on into me. He was shimmying."
On cross-examination Gallups testified as follows:
"Q. To the best of your recollection you testified it was 70 miles an hour? A. To the nearest of my recollection.
"Q. Did you knowyou heard the man, Mr. Newman, say how fast he was going to the police? A. Yes, sir.
"Q. What was that? A. Twenty-five.
"Q. Twenty-five miles an hour. Didn't you go over there then and say he was going 70 miles an hour? A. I said that right there that night.
"Q. Told the officers; and did you tell them he was going 70 miles an hour? A. I said he would have had to be going 70.
"Q. Oh, you said he would have had to be going 70. Are you basing it on what you actually know or what you concluded about it since then? Did you know he was going 70 miles an hour? A. No, I don't know that it was going 70 miles an hour.
"Q. You didn't even see it long enough to judge his speed? A. I saw him about 30 or 40 feet."
It is undisputed that the Newman car ran into the side of the King car striking it practically head-on at about the left front door of the King car and pushed or shoved the King car some 10 to 15 feet and partially turned it around; that when the cars stopped moving after the impact, the front of the Newman car was still in contact with, or up against the King car; that Newman started his car, and on its own power, backed away from the King car, drove around it and parked at the curb of Third Avenue; the left front door of the King car would not open after Newman backed his car away, but neither Gallups, the driver of the King car, not Newman were injured at all; Gallups had two passengers in the King taxicab, neither of whom were hurt. The Newman car was a 1946 or 1947 Chevrolet, and the King car was a 1946 Chevrolet.
It was undisputed that Miss Brindley and Miss Barker got in the car with Newman and York about 10:30 o'clock, P.M., at the home of a friend of Miss Barker; that the parties rode around for a while and went to the Woodland Club and danced until about 1 or 1:30 A.M.; that they went from the Woodland Club to the Exchange Cafe and ate; that they left the cafe about 2:30 A.M., and were proceeding to the home of one of the girls when the two cars collided. It is also undisputed that the parties, except Miss Brindley, had two or three drinks at the Woodland Club. It was raining at the time of the accident and had been raining off and on all night.
There is no evidence in the record to justify an inference that Newman was an incompetent driver on account of being under the influence of whiskey, other infirmities or otherwise, at the time of the accident. The negligence of appellee must therefore rest upon the evidence as to the excessive speed of the Newman car and her duty of exercising reasonable care to avoid injury; that is, such care as an ordinarily prudent person would exercise under like circumstances.
*875 The mere fact that testimony given by a witness in support of an issue is not plausible does not destroy its probative force. Where, however, the testimony of a witness is incredible, inherently or physically impossible and unbelievable, inherently improbable and irreconcilable with, or contrary to physical facts and common observation and experience, where it is so opposed to all reasonable probabilities as to be manifestly false, or is contrary to the laws of nature of to well-known scientific principles, or where it cannot be said to amount to substantial evidence of facts testified to or accepted as a basis of liability, it is to be disregarded as being without evidentiary value even though uncontradicted. 20 Am.Jur. pp. 1033, 1034, 1035, §§ 1183, 1184; Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332; Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814, 30 A.L.R. 802; Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212.
To say that an automobile running 70 miles per hour can drive head-on into the side of another automobile standing still, or nearly so, of approximately equal weight, with the results outlined above, is by far, too great a tax on judicial credulity. We simply know that it did not happen. Stripped of this evidence, there is none left upon which to predicate a finding that appellee was guilty of negligence which proximately contributed to her injury, and the trial court did not err in giving the general charge in her favor on that issue.
The point is raised, by demurrer and otherwise, that Casualty Reciprocal Exchange was improperly joined as a party defendant.
It is not denied that the King taxicab was covered by a policy of insurance in accordance with section 1367 of the Municipal Code of Birmingham. The argument seems to be that section 1367, supra, requires that the policy of insurance be conditioned to pay and final judgment rendered against the person operating the vehicle, rather than conditioned to pay damages caused by the negligent operation of said vehicle. The ordinance reads as follows: "No license shall be granted to any person, to operate taxicabs for hire on the streets or public places of the city until such person shall have first filed with the city clerk for each and every taxicab so operated a liability and property damage insurance policy of a public liability insurance company authorized to do business in the State of Alabama, in the sum of $10,000.00 for personal injury liability, and $1,000.00 for property damage liability, which said liability insurance policy shall be issued to such person and shall provide for the payment of any final judgment, not to exceed the sum of $5,000.00 for injury to one person, and subject to the same limits per person, or $10,000.00 for injury to more than one person, and $1,000.00 property damage in any one accident, that may be rendered against such person operating such vehicle, for damage to person or property resulting from accident or collision arising out of or occurring by reason of the careless or negligent operation of such vehicle by such person or his agent, servants or employees. Said policy shall stipulate that any person who may sustain damage to his person or property, resulting from such careless or negligent operation of such vehicle, shall have his right of action on said policy as fully and to the same extent as if said policy was made and executed directly in favor of the claimant for such damages."
It will be noted that the ordinance does provide that "any person who may sustain damage to his person or property, resulting from such careless or negligent operation of such vehicle shall have his right of action on said policy as fully and to the same extent as if said policy was made and executed directly in favor of the claimant for such damages." See Employers Insurance Co. v. Johnston, 238 Ala. 26, 189 So. 58; Auto Mutual Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368; Baggett v. Jackson, 244 Ala. 404, 13 So. 2d 572; Watkins v. Reinhart, 243 Ala. 243, 9 So. 2d 113.
The policy here involved, by endorsement, contained the same provision as that quoted last above. Casualty Reciprocal Exchange was not an improper party defendant and assignments of error raising the point are without merit.
*876 There are many assignments of error based on rulings with reference to the deposition of witness Ellis who was a passenger in the King taxicab. The deposition was taken by appellants but introduced by appellee. We have examined these assignments and do not think they merit an extended discussion. They are without merit. We have also carefully considered the action of the trial court in overruling appellant's motion for a new trial and find no error.
There are numerous assignments of error, and in many instances several assignments raise but a single point, and for that reason, we deem it unnecessary to discuss each assignment separately.
We find no error to reverse, and the judgment in each of the cases consolidated on appeal is therefore affirmed.
Affirmed.
BROWN, LAWSON and SIMPSON, JJ., concur. | April 12, 1951 |
c385bff5-08e1-4927-bbda-216968aa17c5 | Graves v. Wildsmith | 177 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 448 (1965)
Danny GRAVES, pro ami
v.
Lula M. WILDSMITH.
Marvin GRAVES
v.
Lula M. WILDSMITH.
6 Div. 91, 91-A.
Supreme Court of Alabama.
April 8, 1965.
Rehearing Denied August 12, 1965.
*450 Marvin Cherner and Louis Fleisher, Birmingham, for appellants.
Henry E. Simpson, Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
LAWSON, Justice.
Danny Graves, a minor, by his next friend and father, Marvin Graves, brought suit against Mrs. Lula M. Wildsmith to recover damages for personal injuries. There were two counts, one for negligence and the other based on wanton misconduct.
Marvin Graves, the father, brought suit against the same defendant seeking to recover for expenses incurred in the treatment of his son's injuries and for loss of his son's society and services. The complaint contained one count based on negligence and one count charging wanton misconduct.
The defendant pleaded the general issue in short by consent in the usual form in each case.
The two cases were consolidated and tried together in the Circuit Court of Jefferson County under the statute which authorizes circuit courts in counties of 500,000 or more population to consolidate pending causes of like nature. § 221, Title 7, Code 1940, as amended by Act 230, approved September 15, 1961, Acts of Alabama 1961, Sp.Sess., Vol. II, p. 2241.
Trial of the two cases resulted in separate verdicts for the defendant. Motion for new trial was filed by each of the plaintiffs. Those motions were denied.
The plaintiffs have taken separate appeals to this court but the appeals were submitted here on one transcript.
The trial court refused in each case to give at the defendant's request affirmative instructions to find for the defendant on the wanton counts. And in the oral charge the trial court specifically instructed the jury as to the theory of liability included in the wanton counts.
Yet, at the request of the defendant the trial court gave a written instruction in each case in the following language:
It is error to give such a charge where there is a wanton count supported by the evidence. Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547, and cases cited; Buchanan v. Vaughn, 260 Ala. 482, 71 So. 2d 56.
The appellee, defendant below, argues that the giving of those charges was error without injury for the reason that there was no evidence to support the wanton count, citing Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516.
In considering the question as to whether there was evidence from which the jury could find for the plaintiffs on the wanton counts, we must consider the evidence most favorable to the plaintiffs. Buchanan v. Vaughn, supra, and cases cited.
Stating the evidence in its most favorable aspect for the plaintiffs, it is: Plaintiff Danny Graves, a minor of the age of fifteen years, was driving a motorbike which belonged to the mother of his friend, Randy Parker, between 4:30 and 4:50 o'clock on the afternoon of December 3, 1960. He was proceeding at a speed of between twenty-five and thirty miles an hour in a southerly direction on Arkadelphia Road, a part of Highway 78 West, a thirty-footwide paved street, when he first saw the automobile being driven by the defendant, *451 Mrs. Wildsmith, proceeding southwardly ahead of him on Arkadelphia Road. Randy Parker was riding behind Danny on the "buddy" seat of the motorbike. Mrs. Wildsmith had entered Arkadelphia Road from Ninth Avenue. She came from the east and turned left on Arkadelphia Road and proceeding in a southerly direction at a speed of between twenty and twenty-five miles an hour. When she entered Arkadelphia Road, Mrs. Wildsmith did not see the motorbike as it was moving southward up a hill to her right. As she proceeded southwardly on Arkadelphia Road, Mrs. Wildsmith was not conscious of the fact that the motorbike was following her. Both vehicles were moving in the west lane of the two-lane street, that is, in the lane designated for southbound traffic. As the two vehicles moved down a hill the motorbike was from twenty to twenty-five feet behind the automobile. The motorbike was nearer the west curb than the automobile. As Mrs. Wildsmith approached the intersection of Arkadelphia Road and 8th Terrace, West, she veered her automobile several feet to the left near the center line and then turned to the right to enter 8th Terrace, West. Before making the turn she gave no hand signal or other indication that she was going to turn. She did not look in her rearview mirror. When Mrs. Wildsmith veered her automobile to the left the brake lights on her automobile came on. When Danny Graves saw the brake lights come on, he put a little pressure on the brakes of the motorbike, but when he saw the automobile turn to the right he put the brakes on with full force. At that time the motorbike was ten or fifteen feet behind the automobile and was moving in a straight line at a speed of about twenty-five miles an hour at a distance of approximately seven feet from the west curb of the road. When Danny Graves applied full pressure to the brakes on the motorbike the rear wheel or wheels caught or "locked," the tires began to slide, the motorbike fell to the pavement and skidded into the right side of the defendant's automobile. Both boys received serious and painful injuries.
The evidence summarized above clearly shows a violation of §§ 16 and 17, Title 36, Code 1940, as amended, and therefore was sufficient to take the case to the jury on the first count of the complaints, charging negligence.
But is it sufficient to make out a case for jury determination under the wanton counts?
Wantonness has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. 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 injury. Duke v. Gaines, 224 Ala. 519, 140 So. 600; First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277.
Since Mrs. Wildsmith did not know that the motorbike was behind her, we do not think the evidence would support a finding that she veered her automobile to the left and then turned it to the right without giving the proper signals, conscious of the fact that in so acting injury would likely or probably result to the plaintiff. This conclusion is, of course, based on our statement that Mrs. Wildsmith was never conscious of the fact that the motorbike was trailing her automobile. We have not overlooked the argument of counsel for plaintiffs that despite Mrs. Wildsmith's testimony that she did not know the motorbike was on the road, the jury could have found that she was aware of that fact because when she entered Arkadelphia Road from Ninth Avenue the motorbike "was approximately 30 or 40 feet away." There is no evidence to support the statement that the motorbike was approximately thirty or *452 forty feet away from appellee when she entered Arkadelphia Road. Danny Graves testified that he did not see Mrs. Wildsmith's automobile until after it was on Arkadelphia Road and after the motorbike had come over the crest of a hill. Randy Parker did say that he saw the automobile when it entered Arkadelphia Road but he did not say how far he was from the intersection of Arkadelphia Road and Ninth Avenue when he first saw the automobile. He did say that he was "half way up this hill" when he first saw the automobile. But the length of the hill is not shown. From aught appearing in this record, it may have been impossible for Mrs. Wildsmith to have seen the motorbike as it proceeded up the hill from her position in the automobile.
Counsel for plaintiffs next assert that it was not necessary for Mrs. Wildsmith to have had actual knowledge of the presence of the motorbike in order to make out a case of wanton conduct.
We have said that wantonness may be predicated upon conduct occurring before a discovery of the peril of another, as well as afterwards. Ashley v. McMurray, 222 Ala. 32, 130 So. 401. We have also said that it is wantonness when one has knowledge that another (any person) is likely to be in a position of danger and with conscious disregard of such known danger proceeds on a dangerous course which causes the disaster, though he may not know whether any person is actually in danger. Buchanan v. Vaughn, supra, and cases cited.
But where is the evidence to support a finding that Mrs. Wildsmith had knowledge that someone was likely to be put in danger by the manner in which she made the turn into 8th Terrace, West, at the time she made it? We do not think it is the law that under all circumstances and conditions a motorist on all highways, roads and streets who does not turn in compliance with the provisions of §§ 16 and 17, Title 36, supra, is guilty of wantonness. In Buffalo Rock Co. v. Davis, 228 Ala. 603, 606, 154 So. 556, 558, we said:
There is no evidence in the record to support the italicized portion of the hereafter quoted statement, and other similar observations, in plaintiff's briefs: "* * * the accident occurred on Arkadelphia Road, which is also known as Highway U. S. 78 West, and is a heavily travelled main artery leading from Birmingham, Alabama, westwardly toward Memphis, Tennessee." No witness testified that Arkadelphia Road "is a heavily travelled main artery." There is a complete lack of evidence as to the traffic conditions on Arkadelphia Road at the point where and the time when the accident occurred, or at any other time. The map or drawing used at the trial shows that at the point where the accident occurred Arkadelphia Road runs in a northerly-southerly direction, not east and west, and Birmingham and Memphis are not mentioned as the terminal points. We make this observation solely for the sake of accuracy. There is no evidence going to show that Mrs. Wildsmith knew that Arkadelphia Road is a frequently travelled road at the time of day the accident occurred, if such be the case. As far as this record discloses, the only traffic on the road at the time of the accident were the two vehicles involved.
Since there was a complete absence of evidence showing or tending to show the frequency of the use of the road at the point of collision and at the hour of the day that it occurred, as well as an absence of evidence tending to show that Mrs. Wildsmith had knowledge that conditions existed which would make her conduct dangerous and likely to result in injury, the *453 trial court should not have submitted the wanton counts to the jury. Buffalo Rock Co. v. Davis, supra; Griffith Freight Lines v. Benson, 234 Ala. 613, 176 So. 370; Holman v. Brady, 241 Ala. 487, 3 So. 2d 30. See Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277. Hence, error to reverse is not made to appear in the action of the trial court in giving the charges which ignored the wanton counts and which in effect instructed the jury to find for the defendant if she was not negligent. Tyler v. Drennen, supra.
The case of McNickle v. Stripling, 259 Ala. 576, 67 So. 2d 832, relied upon by plaintiffs, is clearly distinguishable, in that the defendant automobile driver in that case knew that the motorcycle was behind her.
The plaintiffs next insist that the trial court erred in overruling their motion for mistrial. On recross examination of the plaintiff Danny Graves, he was asked by counsel for defendant, "Has your driver's license been suspended?" Plaintiffs' objection to the question was sustained. Counsel for plaintiffs then asked permission of the court to withdraw his objection. Permission was granted and the witness answered, "Yes, sir, they were revoked." On redirect it was brought out that the witness' driver's license had been revoked after the accident involved in this case. On further recross, counsel for defendant propounded the following question to the witness: "As a matter of fact, it was revoked as a result of your dragging by Jones Valley High School, is that correct?" Objection interposed to the question by counsel for plaintiffs was sustained and the question was not answered. A discussion then ensued out of the presence of the jury, following which the plaintiffs moved for a mistrial, which was overruled. Plaintiffs cite no authorities in support of their assertion that they were entitled to a mistrial because of the question pertaining to drag racing to which objection was sustained. We are not willing to say that the mere asking of the question was so prejudicial to the rights of the plaintiffs as to require a mistrial. If the plaintiffs entertained the view that the action of the trial court in sustaining the objection was not sufficient protection, they could have requested the trial court to admonish the jury that they could not assume an affirmative answer to the question and for them not to be influenced by the question. No such request was made.
The plaintiff, appellant, Danny Graves, contends that the trial court erred in giving Charges 10 and 11 at the request of the defendant. These charges both relate to the measure of damages. Since there was a verdict for the defendant, the giving of those charges, if error, was harmless. Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So. 2d 306, and cases cited.
The officer who investigated the accident and who talked to Danny Graves testified that the latter told him that he had looked at the speedometer on the motorbike as he was proceeding down the hill and that it showed a speed of forty miles an hour. Danny did not deny making this statement but plaintiffs sought to show that the speedometer was inaccurate, as shown by a comparison of its readings with readings from an automobile speedometer during tests conducted with friends of Danny Graves. The trial court refused to permit this proof on the ground that it was not shown that the speedometers on the automobiles used in the tests were accurate. We are of the opinion that it was not error to refuse to permit the plaintiffs to show the inaccuracy of the speedometer on the motorbike by merely showing the result of tests conducted by young boys, without some showing of their ability to properly conduct the tests and that the speedometer on the automobile used in the test was accurate. We do not think the cases cited by plaintiffs lead to a contrary result. Moreover, after an examination of the entire cause we cannot say that the ruling or rulings here complained of "has probably injuriously affected substantial *454 rights of the parties." Supreme Court Rule 45.
The judgment of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 8, 1965 |
ced17aa7-80b2-4698-85d4-94ecde73ac9e | Ex Parte Gammon | 52 So. 2d 369 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 369 (1951)
Ex parte GAMMON.
6 Div. 218.
Supreme Court of Alabama.
May 10, 1951.
Winton G. Wilson, Birmingham, for petitioner.
Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.
FOSTER, Justice.
This is an application to this Court for authority to file in the Circuit Court of Jefferson County a petition for a writ of error coram nobis. Petitioner was convicted in said court of murder in the second degree and his punishment fixed at forty-five years imprisonment in the penitentiary. The judgment of conviction and sentence were affirmed in this Court. Gammon v. State, Ala.Sup., 50 So. 2d 273.
The brief filed in this Court on behalf of petitioner predicates his right to a writ of error coram nobis on fraud practiced on the trial by R. A. McMurdo, a detective for the city of Birmingham, with the knowledge of the deputy solicitor who prosecuted this case. The basis of said fraud is in the facts asserted that when McMurdo was called as a witness he had a duty not to suppress evidence favorable *370 to the defendant, or to allow evidence favorable to the defendant to fade from his memory, but should have testified truthfully and unhesitatingly to all matters within his knowledge. The witness testified on cross-examination that he could not say whether or not other pictures were made. He identified several pictures presented in evidence at the trial. It is claimed that McMurdo's testimony should have revealed the fact that other pictures were taken, which were material evidence for the defendant, and that they were fraudulently suppressed.
The crime occurred in the cafe operated by the defendant. There were several eye-witnesses who testified. Testimony on behalf of the defendant tended to show that the defendant was standing behind the counter and deceased used some opprobrious language to him. Whereupon the deceased, with his fists doubled up, got on the counter and then, with a beer bottle in his hand, jumped over behind the counter and started after defendant who backed away from him as far as he could with the deceased continuing to advance until finally defendant shot him. Other witnesses to the transaction were examined, and testified that they did not see deceased get up on the counter nor get behind the counter and he was not there when he was shot; that deceased had no weapon and was not making an attack on defendant, and there was no provocation for the shooting.
Petitioner claims that the other photographs, which were taken on the occasion and of which McMurdo knew, showed there was a foot print in some dust on the counter. The photograph is exhibited as a part of the proof on this application. We cannot distinguish from the photograph a foot print on the counter. The proof does not show that the deputy solicitor for the State had any knowledge that McMurdo was suppressing the truth, if such be the fact. It is also claimed that the defendant informed his attorney, who represented him on the trial, of such fact and insisted upon his making every effort to obtain their production, but that he neglected to do so; and did not put the defendant on the stand as a witness, although defendant thought it advisible that he should testify.
The affidavit of the defendant submitted here complains of the negligence of his attorney in preparing for the defense and in conducting it in court. That he failed to summon witnesses and secure the benefit of the pictures in question, and was otherwise negligent.
After the verdict and judgment were rendered, the defendant employed another attorney to make a motion for a new trial, and still another is representing him on this application. Although he explained to the one representing him on the motion that there was such a picture made showing the foot prints of the deceased on the counter, and although several witnesses had not told the truth, and notwithstanding he said he could get the proof of those matters, his attorney did not try to get the proof, and his motion for a new trial was denied. The motion for a new trial was not predicated on such ground, but only on the grounds the verdict was contrary to the instructions of the court, to the great weight of the evidence, and to the law. Afterwards this defendant consulted another law firm who advised him that they could do nothing.
Petitioner wishes to bring before the Court matter of which he knew at the time of his trial and which his attorney knew, and which his newly employed attorney knew at the time of the hearing of his motion for a new trial. All of which was just as much available to him at that time as it is at the present time.
An examination of the photographs which have been offered in support of this application, in our opinion, do not constitute such evidence as would be likely to cause a different verdict to be rendered.
It is well settled that a defendant who has been convicted of a criminal offense cannot obtain the nature of relief which is here sought on account of false swearing of witnesses, unless such perjured testimony was used by the State in the prosecution of the case with knowledge that it was perjured testimony. Ex parte *371 Burns, 247 Ala. 98, 22 So. 2d 517; Brown v. State, 250 Ala. 444, 35 So. 2d 518; Pike v. State, 103 Fla. 594, 139 So. 196; Yon v. State, 138 Fla. 770, 190 So. 252.
We also believe it to be a sound principle that a defendant cannot obtain such nature of relief on account of the neglect, want of judgment, or bad faith on the part of his attorney who represented him on the trial of the case, especially when the attorney was of his choice. In the preliminary trial and in the trial court, defendant was represented by different counsel of his own choice. He complains, as we have said, of their inattention and his want of proper representation. If he had just complaint in that respect, his remedy was by motion for a new trial on that ground. A denial of his motion was subject to review on appeal. If he is denied the right of representation by counsel, he is denied due process, reviewable by certiorari in the United States Supreme Court, from a judgment overruling a motion for a new trial. Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158. Since this denial is reviewable in the manner we have just indicated, it cannot be made the basis of a writ of error coram nobis. House v. State, 130 Fla. 400, 177 So. 705. His motion for a new trial was not predicated on that as a ground, nor on account of matters of which he otherwise here complains, although that was the proper method on which to base relief in bringing them to the attention of the court.
Defendant's only relief at this time, if he has any merit in his contention (which we frankly do not discover) by reason of such a status, is the pardoning power of the State which is set up to prevent injustice to a person who has been convicted, especially when the facts of such injustice were not properly produced in the trial court. This is not a proper remedy on account of the failure to use any matter which was known to the defendant or his counsel and was available at the time of his motion for a new trial. House v. State, supra; Pike v. State, supra; Ex parte Arrington, 254 Ala. 92, 47 So. 2d 269; 49 Corpus Juris Secundum Judgments, § 311, p. 563.
We do not think it is necessary to extend the discussion of the question here involved. We have had many cases in this State and find many in other jurisdictions which have considered the subject, and all seem to be in harmony with the conclusions of law which we have expressed. It follows that the application for leave to file the writ is denied.
Petition denied.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 10, 1951 |
805758fa-312f-4682-9cb8-bb6ff36d4131 | Hartford Accident & Indemnity Co. v. Cosby | 173 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 173 So. 2d 585 (1965)
HARTFORD ACCIDENT & INDEMNITY COMPANY
v.
C. Pierson COSBY.
2 Div. 456.
Supreme Court of Alabama.
March 11, 1965.
Rehearing Denied April 15, 1965.
*587 Harry W. Gamble, J. E. Wilkinson, Jr., and Harry W. Gamble, Jr., Selma, for appellant.
W. McLean Pitts, Edgar A. Stewart and Philip Henry Pitts, Selma, for appellee.
HARWOOD, Justice.
This is an appeal from a judgment for the plaintiff rendered in what is commonly called an "excess judgment suit." The plaintiff below, who is the appellee here, was insured by the appellant, Hartford Accident and Indemnity Company, for liability resulting from accidents. The amount of the policy was $25,000. The policy provided that the insurer would defend any suit against the insured seeking damages caused by accident, but that "the company may make such investigation, and settlement of any claim or suit as it deems expedient."
The complaint in the present suit contains five counts. Each count sets forth in substance the policy contract and avers that on 15 July 1957, a suit was brought in the Circuit Court of Wilcox County, Alabama, by Carrie S. Smith et al., as plaintiffs against the Alabama Power Company, a Corporation, John J. Smedley, and C. Pierson Cosby (the latter being the insured under the policy and also the plaintiff in the present action). The Carrie Smith suit claimed damages in the sum of $100,000 for the death of one Earl Smith; that the present appellant, as insurer of the defendant Cosby, assumed control of the defense of said suit, the investigation thereof, and the negotiations for a settlement; that said Carrie Smith suit in Wilcox County resulted in a judgment against all of the defendants in the amount of $75,000, and costs of court; that the defendant Cosby filed a motion for a new trial which was overruled, and thereafter he perfected his appeal to the Supreme Court of Alabama. That court affirmed the judgment on 22 March 1962, and denied the application for rehearing on 21 June 1962. See Alabama Power Company v. Smith et al., 273 Ala. 509, 142 So. 2d 228.
Count 1 avers that the appellant "knowing that credible sworn testimony would be offered on the trial of said case against the plaintiff et al., failed to perform the duty it owed this plaintiff and the exercise of good faith in the negotiations of said settlement of said claims and suit, but on the contrary, wrongfully and in bad faith, and acting for its own interest wrongfully failed, declined, or refused to settle said claim * * * although the said defendants had the opportunity of settling said claim within the limits of said policy of insurance."
Count 2 of the complaint is virtually the same as Count 1, except it alleges that the appellant negligently failed or refused to settle the claim, etc.
The complaint further alleges that this appellee, in order to prevent an execution being issued against his personal property, was forced to execute a supersedeas bond and that this appellant refused to execute the supersedeas bond for the appellee until he deposited with the appellant U. S. Treasury notes in the sum of $50,000. It was also averred that he was caused to employ attorneys and incur fees therefor.
In February 1960, demurrers were filed to the complaint and on 2 November 1962, the demurrers were overruled.
*588 The appellant filed four pleas, the first two pleas being the general issue and pleas three and four being the statute of limitations of one year. Thereafter on 1 April 1963, the appellee amended his complaint by adding Counts 1A (alleging bad faith), 2A (negligence), and 3A (negligence). These counts contained substantially the same averments as the original count but with additional allegations setting forth more details than were averred in Counts 1 and 2.
There were other pleadings, but we do not consider it essential to this review, other than to note that the court sustained the appellee's demurrers to pleas 3A and 4, which were pleas of statute of limitations.
Upon the trial of the present cause the jury returned a verdict in favor of the plaintiff-appellee in the sum of $20,863.78, and the court entered a judgment thereon. The defendant's motion for a new trial being overruled, an appeal was perfected to this court.
The admitted or uncontradicted facts show that the appellant, as the insurer, assumed control of the defense of the appellee in the Carrie Smith case; that prior to the trial of the Smith case, and during said trial, the plaintiffs in the Carrie Smith case offered to settle their claim for $25,000; the appellant refused to pay this amount, but offered to pay $12,500 if the Alabama Power Company, one of the co-defendants, would pay the other $12,500. The Power Company declined to contribute more than $500.00 towards the settlement; the appellee's personal attorney, McLean Pitts, demanded before and during the trial of the Carrie Smith case that the appellant accept the $25,000 offer of settlement.
There was also evidence introduced which tended to show that the appellant notified the appellee that the Carrie Smith case claimed damages of $100,000 and was in excess of the policy limits; that the appellant was advised by its attorney by letter that the Carrie Smith case was a serious case, and that the appellant's (Hartford's) attorney was employed to represent the appellee in the Carrie Smith case and thereafter assumed charge and control of the defense of the Smith case; that after being notified by the appellant that the Smith case claimed damages in excess of the policy limits, the appellee employed McLean Pitts as his personal attorney to represent him in the Carrie Smith case; that Mr. Pitts, the appellee's attorney, before the trial of the Carrie Smith case, demanded that the appellant settle the case for $25,000, and advised the appellant that if the case was not settled for said amount the appellant would be guilty of bad faith and negligence; that the appellant appealed the Carrie Smith case but refused to execute a supersedeas bond to protect its assured, the appellee, unless the appellee deposited with the appellant sufficient collateral. The appellee did deposit with the appellant $50,000 in U. S. Treasury four percent notes and the appellee then executed a supersedeas bond; that $12,500 was retained by the appellant out of the U. S. Treasury notes which retained sum was used by the appellant in part payment of the judgment in the Carrie Smith case.
Under assignment of error No. 1, appellant has argued that the lower court erred in overruling appellant's demurrer to Counts 1 and 2 of the complaint.
Pretermitting the validity of the sufficiency of the assignment because of its generality, we see no need to inquire into the sufficiency of Counts 1 and 2 in that it is clear that under Counts 1A, 2A, and 3A, the same issues are presented, and the evidence offered was admissible under either Counts 1 and 2, or under the remaining three counts. There was no affirmative charge requested as to Counts 1 and 2. The verdict rendered by the jury was a general verdict, and referable as well to Counts 1A, 2A, and 3A, as to Counts 1 and 2. Therefore, if it should be conceded arguendo that Counts 1 and 2 were insufficient, the action of the court in overruling the demurrer to the complaint would be *589 error without injury. Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530; Brush v. Rountree, 249 Ala. 567, 32 So. 2d 246; Central Aviation Company v. Perkinson, 269 Ala. 197, 112 So. 2d 326. Assignment of error No. 1 is unavailing.
Assignments of error Nos. 2, 3, and 4, assert as error the court's action in sustaining the appellee's demurrers to pleas 3 and 4. These pleas seek to impose as a defense the statute of limitations of one year.
Assignment of error 13, relates to the refusal of the trial court to give the appellant's written charge, affirmative in nature, that the cause of action was barred by the statute of limitations.
The admitted and undisputed facts show that the $75,000 verdict and judgment in the Carrie Smith case was rendered and entered on 6 November 1958; that a motion for a new trial was timely filed and overruled and thereafter an appeal was perfected to this court wherein the judgment was affirmed on 22 March 1962, and the rehearing was denied on 21 June 1962.
The appeal was taken on 24 March 1959, and Hartford refused to made a supersedeas bond unless Cosby deposited with Hartford security in the amount of $50,000, which demand Cosby complied with on 18 April 1959. On 14 January 1961, some nine months after Cosby had deposited the security for the supersedeas bond, the present suit was filed.
In support of these assignments of error, it is the appellant's contention that the one year statute of limitations governing this action began to run on the day the judgment in the Carrie Smith case was entered, that is, 6 November 1958, and this suit not being filed until 14 January 1961, the bar of the statute of limitations had fallen.
Counsel for appellant argue that unless the date of the rendition of the judgment in the Carrie Smith case be considered the day on which the statute of limitations began to run, rather than the day of the affirmance of the judgment in this court, the result would be to permit the appeal to create an exception to the statute of limitations, and would therefore violate the doctrine that there are no exceptions to a statute of limitations except those made in and by the statute itself. Vines v. Crescent Transit Co., 274 Ala. 173, 146 So. 2d 318.
We consider, however, that we are not dealing with an exception to a statute of limitations, but rather with when the appellee's cause of action ripened, that is, the day on which the statute of limitations began to run.
American Mutual Liability Ins. Co. of Boston, Mass. v. Cooper, 5 Cir., 61 F.2d 446, involves the same point which we are now considering. The case involved an appeal from a judgment of the U. S. District Court for the Northern District of Alabama which held that under the Alabama statute of limitations the cause of action did not accrue until the judgment in the original case of Cooper v. Auman, 219 Ala. 336, 122 So. 351, was affirmed by the Supreme Court of Alabama. The opinion of the Fifth Circuit Court of Appeals states:
"It is suggested that the case of the insured was barred by the statute of limitations of one year, which it is agreed is applicable to this case. The cause of action did not accrue until the judgment in favor of Mrs. Auman was affirmed by the Supreme Court of Alabama and was satisfied by appellee, both of which events occurred within less than one year prior to the bringing of suit. Jones' Ex'rs v. Lightfoot, 10 Ala. 17; Attleboro Mfg. Co. v. [Frankfort Marine Accident & Plate Glass] Insurance Co. [1 Cir., 240 F. 573], supra. The contribution by appellee to the cost of the supersedeas bond was made more than a year before the suit was brought, but it did not set in motion the statute of limitations. Appellee *590 was bound by his policy to aid in prosecuting the appeal, and could not have sued before the suit against him was finally determined."
In Likenhoger v. American Fidelity & Cas. Co., 152 Tex. 534, 260 S.W.2d 884, an action by an insured against his insurer for negligently rejecting a number of settlement offers within the policy limits, it was held that the pertinent statute of limitations began to run when the judgment against the insured became final. The court pointed out that the rights of the insured under such circumstances were not invaded until such time as his liability and the extent thereof had been determined by a final judgment in the injured person's action against the insured.
On appeal the judgment in the Carrie Smith case was subject to being affirmed, or reversed, or affirmed upon condition of a remittitur by the plaintiffs. It was only upon the contingency of an unconditional affirmance that it could be said that there had been an invasion of Cosby's rights which were necessarily injurious to him. Had the case been reversed or had a remittitur been ordered reducing the amount of the Carrie Smith judgment to within the policy limits, no cause of action would then have been possessed by this appellee.
As stated in West Pratt Coal Co. v. Dorman et al., 161 Ala. 389, 49 So. 849, 23 L.R.A.,N.S., 805:
In line with the general view, we hold that the statute of limitations did not begin to run until the final affirmance of the judgment in the Carrie Smith case by this court.
Technically, the court below erred in sustaining the demurrer to plea 3, which was in code form. However, under the admitted and undisputed facts the pleas of the statute of limitations were without merit, and the court would have been in error had it refused to grant a motion to strike such pleas when timely filed, or had it refused an appropriate instruction affirmative in nature directed toward such pleas. Under such conditions the action of the court in the premises was error without injury.
Appellant's assignment of error No. 19 relates to the action of the court in overruling the appellant's objection to the following question:
The record then shows the following:
"Q. Yes, sir.
Mr. Hobbs had previously testified to the effect that as counsel for the plaintiffs he had offered to settle the Carrie Smith case for $25,000 as he thought that was the most the insurance company and Alabama Power Company would pay in settlement "* * * or I would have been asking for more."
Counsel for appellant argues that this opinion evidence by Mr. Hobbs was inadmissible in that it was invasive of the province of the jury. In support of this argument counsel relies heavily upon the expression *591 of this court in Waters v. American Casualty Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524.
In that case which was also an excess judgment suit as is the present suit, Mr. Williams and Mr. Grooms, attorneys experienced in damage suit practice, were permitted to answer hypothetical questions based upon evidential facts to the effect that assuming such situation would they have paid $5,000 to settle the suit brought against an insured ($5,000 being the limit of the insurance policy). Each of the witnesses testified that they would have taken the same position as that taken by the attorney representing the insurance company, who had declined the offer of settlement of $5,000. This court held that it was error to permit this testimony in that the questions called for answers which invaded the province of the jury, and concerned the very issues in the case.
It is readily apparent that the testimony of Mr. Williams and Mr. Grooms did relate to the very issues of the case. Mr. Hobbs' testimony is not, however, in this category.
The pertinent issue in the present case is whether the appellant was negligent, or was guilty of bad faith, in refusing to settle the Carrie Smith case within the limits of the policy issued to Cosby. The burden was upon the plaintiff to introduce evidence tending to establish one or the other of these issues. We can think of no other way that such issues could be established other than by evidence tending to show that a reasonable probability existed that a jury verdict would exceed the $25,000 limits of the policy in question. As stated in the Waters' case, supra:
Mr. Hobbs' testimony was not to the ultimate issues of the case, but was directed toward showing the reasonable probability that should the Carrie Smith case go to a jury there was in his opinion a reasonable probability of a verdict in excess of the limits of the policy. Such proof was incumbent upon the plaintiff, the appellee here. In this aspect there was no error in the rulings of the court in the above instance.
The appellant further argues under this assignment that no proper predicate was laid for the introduction of the opinion evidence of Mr. Hobbs in that no facts were elicited upon which his opinion was based.
In Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840, this court wrote:
To the same effect see also Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So. 2d 719, 59 A.L.R.2d 917; Rolls v. State, 35 Ala. App. 283, 46 So. 2d 8.
Further, Mr. Hobbs testified as to the nature of the Carrie Smith suit; that he was a trial attorney with twelve years experience, and had represented both plaintiffs and defendants in damage suits; that he fully investigated the Carrie Smith case and was thoroughly familiar with all the facts of the case; he further testified concerning *592 the Workmen's Compensation payments as a factor affecting his opinion as to the reasonable probability affecting a jury verdict; and he further testified as to his knowledge and familiarity with jury verdicts in Wilcox County in death cases prior to the Smith case.
While not all of the above details of fact testified to by Mr. Hobbs had been drawn out at the time of the above question, their subsequent elicitation, if sufficient as a whole, would cure any error in the admission of such testimony. Altogether we think that the predicate established by Mr. Hobbs' testimony furnished a sufficient predicate for expert opinion even under the contention made by counsel for the appellant.
Appellant's assignments 5, 6, 7, 8, and 9, relate to the refusal of its requested written charges, affirmative in nature, both general in nature, and also specifically and respectively as to Counts 1A, 2A, and 3A. Particularly does counsel argue that error resulted from the refusal of the affirmative charges as to the bad faith counts.
The contract of insurance gave to Hartford the exclusive power of settlement of claims within the policy coverage.
The undisputed evidence shows that Hartford investigated the Carrie Smith claim; that prior to the trial of the Smith case, and during the trial an offer by the plaintiffs to settle the Smith claim within the limits of the policy was made; Hartford had put this appellee Cosby on notice that the suit against him claimed damages in excess of the policy coverage; the attorney for Cosby, privately employed, on several occasions made demands on Hartford for the settlement of the Smith claim within the limits of the policy; that in a letter dated 25 September 1958, the attorney for Hartford had informed Hartford, among other things: "This is a serious case and we are preparing in every way possible for its trial which is scheduled * * *"; that the attorney for Hartford informed Mr. Pitts that Hartford would pay one half, or $12,500 to settle the claim if the co-defendant, Alabama Power Company, would pay the other half, but the Alabama Power Company refused this offer, whereupon Mr. Pitts again demanded that the Smith claim be settled for $25,000.
The attorney for Hartford testified in detail as to the factors which he considered in recommending to Hartford that they pay $12,500 provided the Power Company would pay a like amount in order to settle the Smith claim.
In rebuttal Mr. Pitts testified as to the factors he considered in arriving at his conclusion that the verdict in the Smith case would probably be in excess of $25,000.
In Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524, supra, this court observed:
Again, as to proof of the issue of bad faith, it is stated in American Mutual Liability Ins. Co. of Boston, Mass. v. Cooper, 5 Cir., 61 F.2d 446:
"In our opinion the insurer cannot escape liability by acting upon what it considers to be for its own interest alone, but it must also appear that it acted in good faith and dealt fairly with the insured. The insurer, as it had a right to do under the policy, assumed exclusive control of the claim against the insured, and took unto itself *593 the power to determine for the insured all questions of liability, settlement, of defense and management before and during trial, and of appeal after final judgment. We are of opinion that this relationship imposes upon the insurer the duty, not under the terms of the contract strictly speaking, but because of and flowing from it, to act honestly and in good faith toward the insured. It was open to the jury to find that the insurer did not perform this duty."
We are clear to the conclusion that under all the evidence the court below was justified in refusing appellant's charges which were affirmative in nature and submitting the issues of negligence and bad faith to the jury. Such conclusion is necessitated in view of the scintilla rule prevailing in this state, to the effect that in civil cases, issues must go to the jury if the evidence, or reasonable inferences therefrom, and viewing the evidence for the plaintiff in its most favorable light, furnishes a mere glimmer, spark, or smallest trace in support of an issue. Brandwein v. Elliston, 268 Ala. 598, 109 So. 2d 687; Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So. 2d 727; Robinson v. Morrison, 272 Ala. 552, 133 So. 2d 230.
Assignments 5, 6, 7, 8, and 9, must be considered as unavailing as a basis of error.
As stated in appellee's brief in regard to these assignments:
In his complaint in the present suit the plaintiff averred that as a proximate result of the negligence or bad faith of the defendant he was damaged as follows, to-wit: (The plaintiff here cataloged his damages among which are listed, "* * * he was caused to employ attorneys and incurred attorney's fees.")
The above averment as to attorney's fees is most general. We therefore must look to proof of the attorney's fees in determining the content of the above averment.
In the trial below the plaintiff introduced evidence to the effect that a reasonable attorney's fee from the date of the verdict and judgment through the appeal in the Carrie Smith case was $3,000. The plaintiff also introduced evidence to the effect that a reasonable attorney's fee in prosecuting the present suit was $2,500.
We will first consider the matter of the fee involved in appealing the Carrie Smith case.
Under the provisions of the policy issued by the defendant it agreed to defend any suit against the insured for bodily liability.
It appears that the defendant Hartford did furnish the plaintiff with an attorney to defend the suit. Upon being notified by Hartford that the suit was in excess of the policy limits, the plaintiff employed Mr. McLean Pitts. Thereafter Mr. Pitts and Mr. Harry Gamble, the attorney employed by Hartford to represent Mr. Cosby in the Carrie Smith case, worked together and co-operated in the investigation and defense of the suit. They were in accord as to the defense tactics except as to whether the court would submit to the jury a question of whether John J. Smedley was a "loaned servant" of Cosby, and they were further in discord as to the matter of settling the Smith case within the limits of the insurance policy.
After the verdict and judgment of the lower court, the defendant Hartford again furnished the services of Mr. Gamble to Mr. Cosby in the appeal of the Carrie Smith judgment to this court. Again Mr. Gamble *594 and Mr. Pitts co-operated in representing Mr. Cosby in the appeal. It would appear therefore that Hartford has done everything it was bound to do under its contract in furnishing legal representation to Mr. Cosby on the appeal of the Carrie Smith case. The evidence below was directed solely to the value of Mr. Pitts' services subsequent to the verdict in the Carrie Smith case, and not to the value of services rendered in the trial of the Carrie Smith case.
The judgment rendered in the Carrie Smith case in the Circuit Court was presumptively valid and free of error. Hartford's agreement was only for the defense of the Carrie Smith case. Insofar as the appeal was concerned it could extend only to the perfection of the appeal and its proper prosecution. It did not guarantee success in such effort. The agreement to prosecute the appeal was not equivalent to a warranty that the appeal would succeed. It furnished Mr. Cosby with an able and competent attorney. There is no intimidation but that the services of the attorney furnished Mr. Cosby on the appeal of the Carrie Smith case were rendered with diligence and with competency.
It is a fundamental rule that one seeking to hold another liable for neglect to perform some duty or obligation must show that the neglect has resulted in some loss or injury, and that as a result thereof certain damages have been suffered. Insofar as Hartford's duties in connection with the appeal of the Carrie Smith case are concerned, neither breach of duty nor damages is shown.
The fact that Mr. Pitts, the plaintiff's privately employed attorney, cooperated fully with the attorney furnished Mr. Cosby by Hartford fails to establish any breach of duty on Hartford's part, but merely tends to establish the diligence and competence with which the appeal was prosecuted, though to an unsuccessful end. It would appear therefore that the lower court erred in its rulings pertaining to the attorney's fees claimed by Mr. Cosby in reference to the appeal of the Carrie Smith case. See Getchell, etc., Co. v. Employers' Liability Assur. Corp., 117 Iowa 180, 90 N.W. 616, 62 L.R.A. 617; Wynnewood Lumber Co. v. Travelers' Ins. Co., 173 N.C. 269, 91 S.E. 946; McAleenan v. Mass. Bonding & Ins. Co., 232 N.Y. 199, 133 N.E. 444; Sterios v. Southern Surety Co., 122 Wash. 36, 209 P. 1107.
Appellant places much reliance upon Brassil v. Maryland Cas. Co., 210 N.Y. 235, 104 N.E. 622, L.R.A.1915A, 629. The facts in this case show that the insurance company, after refusing to settle a claim within the policy limits, refused to appeal the excess judgment, but offered to pay the insured the amount of the offer of settlement upon the insured's satisfaction of the entire judgment. The insured appealed and secured a reversal of the judgment. The court held that the insurer's failure to continue the defense of the case was in effect a breach of the contract of insurance. These facts are so entirely different from the present case as to make the doctrine of the Brassil case inapplicable.
Counsel for appellee also relies upon Maryland Cas. Co. v. Elmira Coal Co., 8 Cir., 69 F.2d 616. In that case the insurer had arbitrarily refused to make other than superficial investigation of the claim, and such omission gave rise to the employment of counsel by the insured. In the Carrie Smith case Hartford had made a full investigation of the facts through an adjuster and in addition Mr. Gamble had investigated the facts. This factual distinction destroys the persuasiveness of the Maryland Casualty Company case, supra, when applied to the facts of this case.
The gravamen of the instant plaintiff's action is bad faith or negligence in failing to settle the Carrie Smith claim within the policy limits, and not negligence or bad faith on the part of the defendant in the investigating and defending the Smith claim. This duty Hartford did perform, and as far as disclosed by the record, this *595 duty was performed with diligence and competence. There is no intimation otherwise. In this aspect the plaintiff has failed to show either negligence or bad faith, or damage. This being so, the fact that the plaintiff employed his own attorney to protect his interest and his cooperation with counsel furnished by Hartford cannot be deemed to show either negligence, bad faith, or damages in the premises.
As to the plaintiff's claim for counsel fees in prosecuting the present suit, it should first be noted that the general rule is there can be no recovery as damages of the expenses of litigation or attorney's fees paid by the opposing party, in the absence of a contractual or statutory duty, other than in a few recognized grounds of equity principles authorizing such liability. Clark v. Exchange Ins. Association, 276 Ala. 334, 161 So. 2d 817.
Counsel for appellee however argue that the doctrine of Fidelity & Cas. Co. of New York v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669, enunciates an exception to the above general rule, and should govern the present question. In the Pittman case, supra, it is stated:
It should be noted however that the attorney's fees allowed as damages in the Pittman case, supra, were for defense of the original suit and not attorney's fees in the second suit seeking recovery of such fees as part of plaintiff's damages.
If attorney's fees are to be allowed under the factual situation similar to the present case, other courts have held that attorney's fees must be by virtue of a statute (American Fidelity & Cas. Co. v. Greyhound Corp. 5 Cir., 258 F.2d 709), or by the provisions of the insurance contract (Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750), or by the insurer's failure to defend the action thereby putting the insured to the necessity of the expense of hiring counsel. Christian v. Preferred Accident Ins. Co., D.C., 89 F. Supp. 888.
Hartford had no contract to furnish the plaintiff with attorneys in the present suit. We know of no statute that so provides. It follows therefore that Hartford is not liable for attorney's fees in plaintiff's prosecution of the present suit.
Appellant's assignment of error 10 relates to the action of the trial court in overruling its motion for a new trial. Under this assignment the appellant adopts its argument in support of the assignments of error to which we have already written.
It appears therefore that the trial below was free of error except in the matter pertaining to the rulings concerning the allowance of attorney's fees to the appellee. As before stated, it is our conclusion that the court erred in such rulings.
The verdict and judgment being excessive to the extent of $5,500, the amount of the attorney's fees shown in the trial below, the lower court should have directed a reduction of the verdict conditionally on the motion for a new trial.
This being the only reversible error shown, if the appellee files a remittitur of the damages to the extent of $5,500 with the clerk of this court within thirty days, this judgment will be affirmed, otherwise the judgment of the lower court is reversed and remanded.
Affirmed conditionally.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | March 11, 1965 |
646e3586-dad3-417a-8b82-d82a646ff0e4 | Low v. Low | 52 So. 2d 218 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 218 (1951)
LOW
v.
LOW.
1 Div. 413.
Supreme Court of Alabama.
April 19, 1951.
Rehearing Denied May 10, 1951.
*220 V. R. Jansen, of Mobile, for appellant.
Chason & Stone, of Bay Minette, for appellee.
FOSTER, Justice.
The bill in this case was filed by one alleged to be in possession of land to remove an alleged cloud from his title. The cloud consists of a deed signed and acknowledged by complainant with his wife (respondent) as grantee, but alleged not to have been delivered.
A demurrer raises the contention that the bill does not allege complainant was in peaceable possession of the land when the bill was filed. The demurrer taking that point was properly overruled. The bill is not set up as one to quiet title under the statute but to invoke the traditional equitable power to remove a cloud from title. If complainant's claim, when the cloud is removed, is one recognized and enforceable at law, complainant must be in possession of the property when the suit is brought, for if he is not his remedy is at law. But his possession need not be peaceable. Being in possession, when his right is to have an instrument which appears to be a deed cancelled as a cloud upon his title, the essentials of his bill stated in broad terms are the existence of an instrument which appears on its face to be valid and affects his title, but which is not so on account of matter not so appearing, so that it takes evidence other than that shown by the instrument to prove its invalidity. King v. Artman, 225 Ala. 569, 144 So. 442.
This principle has application when the invalidity of the instrument consists in the failure of its delivery as a deed. Randolph v. Randolph, 245 Ala. 689, 18 So. 2d 555.
Appellant's point is not well taken wherein he insists that the bill is defective for failure to allege that the possession of complainant was peaceable.
These assignments go to the ruling of the court upon objection made to evidence on behalf of complainant when the complainant himself was testifying. The following appears in the record with respect to which these assignments relate. The question by complainant's counsel to complainant as a witness, "Did you have any intention of delivering the deed to her at that time or any agreement to deliver it at any future time?" Defendant's counsel objected to that question because it called for a mental operation of the witness. The court overruled the objection. The witness answered: "I did not deliver the deed." The question was again propounded in the same language and his answer was, "no, sir." Defendant's counsel moved to exclude his answer on the same ground stated in the objection.
We note here that exceptions are continuously stated by counsel whenever the court made unfavorable rulings on the evidence, without regard to the fact that such exceptions have no place in the trial of equity cases. Section 372(1), Title 7, Pocket Part, Code; Threadgill v. Home Loan Co., 219 Ala. 411, 122 So. 401.
The question presented is one which this Court has considered on numerous occasions. The rule is well understood to be that ordinarily one cannot prove by a witness on direct examination what was his *221 motive, purpose or other mental operation. Armour & Co. v. Cartledge, 234 Ala. 644 (19), 176 So. 334; McGuff v. State, 248 Ala. 259, 27 So. 2d 241; Ingram v. State, 252 Ala. 497, 42 So. 2d 36.
The question was in a double aspect and called for two distinct matters of evidence, one of which was legal and the other was not. We do not think a person has the privilege of getting illegal evidence before the court by incorporating it in the same question with an inquiry as to matter which is legal and in which the answer to both questions could be united as it was in this instance. Louisville & N. R. R. Co. v. Dilburn, 178 Ala. 600(6), 59 So. 438; Holman v. Clark, 148 Ala. 286(8), 41 So. 765; Pike County v. Hanchey, 119 Ala. 36(4), 24 So. 751. See, also, Case v. English, Ala.Sup., 52 So. 2d 216.
The important question in the case is whether or not the complainant, who was the witness testifying, acted with reference to the deed after he signed and acknowledged it as that his conduct amounted to a delivery of the deed to his wife who was then living with him as such. His intention in connection with such conduct is the ultimate inquiry to be solved. That intention is to be derived from what he said and did at the time or at some other time. Perkins v. Perkins, 206 Ala. 571, 91 So. 256; Elsberry v. Boykin, 65 Ala. 336; Skipper v. Holloway, 191 Ala. 190, 67 So. 991. But it is not permissible to prove by him on direct examination what his intention was at the time he was disposing of the deed.
The admission of illegal evidence over objection in equity requires a reversal, unless the remaining evidence is without conflict and sufficient to support the judgment. Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12; Schwab v. Powers, 228 Ala. 205, 153 So. 423. This is not inconsistent with the statute which requires that it is not necessary to object to illegal evidence in equity trials. The court will, without objection, only consider legal evidence, but where the trial court overrules an objection, which was made to illegal evidence, the presumption is that he considered the evidence which was illegal and the ruling is reviewable. Act of June 8, 1943, General Acts of 1943, page 105, Section 372(1), Title 7, Pocket Part, Code.
The evidence is conflicting as to whether the complainant delivered the deed to the respondent and his intention, accompanying his manner of disposing of the deed and handling it, goes to the very essence of the contention. We are not willing to say that the illegal evidence with respect to his undisclosed intention did not affect appellant's substantial rights under Rules of Practice in Supreme Court, Rule 45, Code 1940, Tit. 7 Appendix.
Appellant also insists that the court committed error in excluding purported evidence to the effect that the complainant sent a telegram dated March 13, 1947, after he had knowledge of the fact that his wife had recorded the deed. The telegram was to an income tax accountant at Mobile, and contained the following words: "Tax seven dollars and fourteen cents both on state and federal." It is claimed by appellant that this telegram means that the tax accountant in the preparation of the income tax for his wife was directed to deduct seven dollars and fourteen cents tax paid on account of the property in question. We think the telegram in that connection is ambiguous and has no such clear meaning.
Appellant claims she should be allowed an amount necessary for suit money to pay her attorney in the defense of the instant suit.
In considering that question we are of course confronted with the nature of the particular suit and are led to observe that it is not one respecting the marital rights of the parties or their marital status in any respect, such as with respect to the duty of the husband to support and maintain his wife so long as that relation exists. We have no statute in Alabama which covers this particular subject. Our statutes have relation to suits involving the marital rights of the parties and even those statutes do not in terms provide *222 for an attorney's fee. The allowance of an attorney's fee is a feature of the provision for an allowance for the support of the wife as provided in sections 30 and 31, Title 34, Code. Ex parte Austin, 245 Ala. 22, 15 So. 2d 710. We have held that under those statutes an allowance for expenses of defending or prosecuting a suit exists in cases in which such allowance was made at common law. Torme v. Torme, 251 Ala. 521, 38 So. 2d 497; Sims v. Sims, 253 Ala. 307, 45 So. 2d 25.
We have accepted the principle in this State that, in the absence of contract, statute or recognized ground of equity, there is no right to have an attorney's fee paid by the opposing party. Penney v. Pritchard & McCall, Ala.Sup., 49 So. 2d 782; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Johnson v. Gerald, 216 Ala. 581, 133 So. 447, 59 A.L.R. 348.
Since there is no statutory provision for an attorney's fee applicable to the present situation, and there is no contract between the parties whereby the husband is to make such payment for the benefit of the wife, we are remitted to the question of whether it is authorized on recognized grounds of equity. We do not seem to have a case in this State where an effort was made to have a husband provide an attorney's fee for the wife in a controversy in court between them which only affects property rights between themselves.
In the case of Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408, 410, there was a separation agreement between the husband and wife, which was the subject of that suit. It was sought to have that agreement set aside with respect to their property rights contained in it because it was alleged that the agreement was procured by fraud and duress. The jurisdiction of the court was obtained by virtue of such general powers of a court of equity to set aside an agreement for fraud and duress. The fact that the parties were husband and wife was but a circumstance influential upon the controversy as to that contention. It was not the foundation of the litigation. The Appellate Division of the Supreme Court of New York allowed an attorney's fee. 151 App.Div. 545, 136 N.Y.S. 249. On appeal to the Court of Appeals of that state the judgment was reversed, holding there was no difference so far as the equitable rights of the parties were concerned whether it be between husband and wife or parties not so related. The court observed: "I am not aware of any influential authority for the proposition that in an ordinary equity suit between wife and husband affecting property rights counsel fees should be allowed to the former during pendency of the action. Certainly no such an one has been cited."
And no such authority has been cited to us. The cases which we have been cited are manifestly different from this one. We agree with the views expressed in Johnson v. Johnson, supra, and therefore think the trial court was correct in disallowing an attorney's fee and other expenses to appellant for the defense of this suit.
Appellant has entered into an elaborate argument seeking to show that the conclusion reached by the trial court from the evidence taken before him on the trial was not properly supported. We do not think it is necessary to review that question at this time, since we are constrained to reverse the decree of the court for the admission of testimony which we think was illegal and also material, and which went to the very core of the controverted question. On another trial the evidence may not be the same.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur.
LIVINGSTON, Chief Justice (concurring specially).
My views with reference to the questions presented by assignments 3 and 4 were expressed in the dissenting opinion of McGuff v. State, supra, where similar questions were discussed and passed on. The majority opinion in the McGuff case of course established the rule in this state in that regard. So long as my brothers are disposed to follow the McGuff case it is the law in this state | April 19, 1951 |
b981ae5d-abb0-4f31-96c7-5691f56c3b80 | Tanner v. Dobbins | 53 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 549 (1951)
TANNER
v.
DOBBINS.
8 Div. 582.
Supreme Court of Alabama.
April 12, 1951.
Rehearing Denied June 28, 1951.
S. A. Lynne, Julian Harris and Norman W. Harris, all of Decatur, for appellant.
Melvin Hutson, Sherman B. Powell and Bryan McAfee, all of Decatur, for appellee.
BROWN, Justice.
This is the second appeal in this case. The first appeal is reported as Tanner v. Dobbins, 251 Ala. 392, 37 So. 2d 520. That appeal was dismissed for the reason that the decree appealed from was not such a decree as would support the appeal and confer jurisdiction on this court. The motion for alternative mandamus was denied for the reason that the decree was merely interlocutory and subject to vacation or change by the trial court on application or motion,an adequate remedy which the appellant did not pursue.
This appeal is from the final decree fixing the boundary line between the lands of the appellee and the appellant, but not in accordance with the contention of either of the parties or the issues formed by the pleadings.
The bill filed by the appellee on June 15, 1945 under the provisions of the statute, Code 1940, Tit. 13, § 129; Tit. 47, §§ 2, 3 *550 and 4, conferring concurrent jurisdiction on courts of equity in respect to disputed boundary lines between coterminous owners, alleges, "that the complainant is the owner and in possession of the following described real estate, to-wit: The SW-¼ of the SE-¼ and the NW-¼ of the SE-¼, except eleven (11) acres in the Northeast corner, and except fourteen and one-half (14-½) acres evenly off the west side, all in Section 33, T 7, R 5 West, situated, lying and being in the County of Morgan, State of Alabama; that your complainant is informed and believes and upon such information and belief states and alleges as a fact that respondent is the owner of the following described real estate, to-wit: The NE-¼ of the SE-¼ and the SE-¼ of the SE-¼, all in Section 33, T 7 R 5 West, situated, lying and being in the County of Morgan, State of Alabama; thus rendering complainant and respondent coterminus land owners; that the dividing or boundary line between the lands of complainant and respondent is the half-quarter section line running north and south between and dividing the: W-½ of the SE-¼ from the E-½ of the SE-¼ in Section 33, T 7, R 5 West, situated, lying and being in the County of Morgan, State of Alabama; That the respondent has encroached upon the land owned by complainant and has constructed a fence thereon running in a north and south direction thirty-four (34) feet west from the said east boundary line of complainant's land, and the said dividing boundary line is disputed by complainant and respondent; that the respondent is trespassing on and cultivating a portion of complainant's land after she has repeatedly objected to the same, and has requested and demanded that he refrain from so doing."
And the bill prays "that on final hearing of this cause to adjudge and decree the true boundary line between the tract of land owned by complainant and that owned by respondent to be the quarter section line running north and south between and dividing the W-½ of the SE-¼ from the E-½ of the SE-¼ of Section 33, T 7, R 5 West, situated, lying and being in the County of Morgan, State of Alabama; that the respondent by order or decree of this Court be required to move the said fence from complainant's land, and that he be enjoined from thereafter trespassing on her said land, or from interfering in any way with her possession and peaceable use and occupation of the same."
The defendant in his answer "admits that he is the owner of the land alleged to be owned by him, and further admits that the complainant and the defendant are coterminus land owners, and that the land of the complainant joins the land of the defendant and lies to the west of the land of the defendant" and then avers: "That the defendant denies that he has encroached upon land owned by the complainant. The defendant further avers that the true dividing line between the land of the complainant and the land of the defendant is a line running north and south, commencing at a point on the south line of Section 33, Township 7, Range 5 West, at which is located a cedar stob, and running from said stob in a northerly direction along a ditch for a distance of approximately 600 feet to a fence, and running thence north along said fence to the northwest corner of the land of the defendant, and that the defendant has been in continuous possession of his land up to said boundary line for a period of to-wit 25 years, all during said time claiming to be the owner of said land, and the defendant's said possession has been open, notorious, peaceable, exclusive, undisturbed, and under claim of right."
The line fixed by the decree is "a straight line running approximately north and south between said farms, which line coincides with the line on which the west side of the respondent's vegetable garden fence is located over that area covered by said fence. The property lying west of said line is declared to be the complainant's, and the property lying east of said line is declared to be the respondent's."
As explanatory of said line we attach a plat furnished by the appellant, as to which appellee states in brief, "The plat prepared and attached to appellant's brief seems to be substantially correct, except it also fails to show the barb wire fence which defendant *551 erected parallel with and approximately four and one-half feet west of the west fence of defendant's garden. This fact is of the utmost importance. We have been unable to find anywhere in the testimony any evidence contradicting the testimony that defendant, within the ten years next preceding the filing of the bill of complaint in this cause, erected said fence running in a north and south direction parallel with and approximately four and one half feet west of the west fence of defendant's garden."
The testimony was taken by deposition and not in open court, hence we must examine and form our judgment as to its probative force without any presumption in favor of the findings of the court at nisi prius. We reaffirm the doctrine of Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am.St.Rep. 182, upon which appellant strongly relies, that: "* * * Possession, to be adverse, must be held under a claim of right, and there can be no adverse possession without an intention to claim title. Hence it is essential to the proper determination of the character of the possession to consider the intention with which it was taken and held. If one occupies land up to a certain fence, because he believes that to be the line of his land, but not having any intention to claim up to the fence, if it should be beyond the line, the intent to claim title does not exist coincident with the possession, and the possession up to the fence is not, therefore, adverse. * * *" 117 Ala. 528, 23 So. 136; McLester Bldg. Co. v. Upchurch, 180 Ala. 23, 26, 60 So. 173, 174.
*552 Another principle applicable is when one enters upon land, he is presumed to enter under the title which his deed purports on its face to convey, both as to the extent of the land and the character of his interest. Moore et al. v. Elliott, 217 Ala. 339, 116 So. 346; Dew v. Garner, 207 Ala. 353, 92 So. 647, 27 A.L.R. 5; Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81, 109 Am. St.Rep. 603.
The muniments of title adduced in evidence by the respective parties purport to convey title to the quarter section line as established by the government survey. The call in the complainant's deed is for the SW¼ of the SE¼ and the NW¼ of the SE¼, except eleven (11) acres in the Northeast corner, and except fourteen and one-half (14½) acres evenly off the west side, all in Section 33, T 7, R 5 West. The call in the defendant's deed is the NE¼ of the SE¼, and the SE¼ of the SE¼, same section, township and range.
While the evidence shows that there has for a number of years existed uncertainty as to the exact location of the dividing line between the coterminous owners and their predecessors, the great weight of the evidence shows that there was no contention or claim that the line fixed by the government survey was not the true line between said two parties. The weight of the evidence shows there has been no claim to any specific segment of land situated between the two tracts, except the strip lying east of the quarter section line established by the Pattillo Survey and the defendant's west garden fence which, so far as the evidence shows, was located on the assumption and belief that it was on the quarter section line.
The burden was on the defendant to establish adverse possession. Barbaree v. Flowers, 239 Ala. 510, 196 So. 111.
The weight of the evidence shows that the ditch was dug by Hays, the immediate predecessor of complainant on his own land for draining surface water from terraces on his property. There is evidence going to show that after this litigation was started some of the "ancient landmarks" were shifted or destroyed contrary to Holy Writ (Prov. Chap. 22, Verse 28; Chap. 23, Verse 10), which, according to the Roman Law was a capital offense. The evidence also shows that the fruit trees planted in line with the garden fence and north thereof were young trees about two or three years old when the evidence in the case was taken.
After full consideration of the voluminous testimony we are at the conclusion that the defendant has failed to establish title to any part of complainant's land by adverse possession and that the true boundary line between such coterminous owners is the line established by the survey made by Lewis C. Pattillo, Registered Civil Engineer, of date October 16, 1949, embodied in the record on this appeal between pages 10C and 10D and a decree will be here rendered correcting the decree appealed from fixing and establishing said line "A", "B" as the boundary line between said coterminous properties. Smith et al. v. Cook, 220 Ala. 338, 124 So. 898; Pounders v. Nix, 222 Ala. 27, 130 So. 537.
The case is remanded to the circuit court to enforce the decree here rendered and have said line properly marked as provided by the statute. Code 1940, Tit. 47, §§ 2, 3 and 4.
Corrected and affirmed and remanded.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur. | April 12, 1951 |
ee5cf502-5ae7-4892-9b70-28d2953ae8f7 | Ex Parte Ingalls | 54 So. 2d 288 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 288 (1951)
Ex parte INGALLS.
6 Div. 211.
Supreme Court of Alabama.
June 14, 1951.
Rehearing Denied October 18, 1951.
*289 Chas. W. Greer and Francis H. Hare, Birmingham, for petitioner.
Beddow & Jones and G. Ernest Jones, Birmingham, for respondent.
SIMPSON, Justice.
This is an original proceeding in this court praying that a writ of mandamus issue to the respondent circuit judge with the object of having him set aside an order requiring a party to answer interrogatories propounded by his adversary.
Before stating the question for decision, we will relate the facts superinducing the proceeding: In 1947 Eleanor Ridgely Flick Ingalls filed suit for divorce against Robert I. Ingalls, Jr. The final decree rendered in June of that year granted the divorce as prayed and, among other things, fixed the custody of the two minor children of the parties in accordance with an agreement made and filed in the cause. The children were placed in the custody of their father during the school months and in the custody of their mother during vacation period. Though not necessary, jurisdiction was specifically retained for future control of the custody of the children.
In 1950 Ingalls, defendant in the divorce action, filed a petition seeking modification of the decree to the end that he be given exclusive custody of the children. By way of answer Mrs. Ingalls, original plaintiff, filed what is denominated a cross-petition, inter alia, seeking herself full and complete custody of the children. Both petitions are grounded upon alleged changed conditions affecting the welfare of the children. After filing her "cross-petition," Mrs. Ingalls filed interrogatories to Mr. Ingalls, pursuant to Equity Rule 39, Code 1940, Tit. 7, Appendix. On failure of the original petitioner to answer such interrogatories, the cross-petitioner applied to the respondent circuit judge for an order compelling petitioner to answer. Such an order was entered by the judge, calling on petitioner to make answer by a date stated. Thereupon petitioner filed a motion to vacate said order. The respondent judge overruled the motion and this petition for mandamus was presented to this court.
The single question presented is: When a final decree has been entered granting a divorce, and one of the parties to that suit thereafter files in the cause a petition to modify the decree in so far as it fixes the custody of minor children, is either party entitled to propound and require the other party to the original action to answer written interrogatories?
Solution of this question, it is agreed, depends upon an interpretation of Equity Rule 39, Code 1940, Title 7, Appendix, p. 1084, which as pertinent is as follows:
"Examination of parties by each other. (a) Defendant May Examine Plaintiff. If a defendant wishes to examine a plaintiff touching the subject-matter of the bill, or his defense, he may, before or after filing his answer, exhibit interrogatories to such plaintiff, which must be answered under oath within thirty days after service, unless otherwise ordered by the Court; and upon his failure to answer within the time allowed, the bill must be dismissed as to such plaintiff, with costs, unless the time *290 to answer the interrogatories is extended. But filing such interrogatories does not extend the time for answering the bill.
"(b) Plaintiff may examine defendant. If a plaintiff wishes to examine a defendant, after filing his bill, he may exhibit interrogatories to such defendant, which must be answered under oath within thirty days after service, unless otherwise ordered by the Court; and on his failure to answer them within such time, the Court may, by attachment, compel him to answer them, or may render a decree granting appropriate relief to the plaintiff against such defendant, or may extend the time for such answers to be made. But filing such interrogatories does not extend the time for answering the bill."
The respondent judge by answer to the rule and in able brief takes the position that Section (b) of Rule 39, supra, clearly sustains the right of Mrs. Ingalls to propound interrogatories and the action of the respondent in requiring their answer. The basis of this conclusion is that Mrs. Ingalls, being the plaintiff in the original suit for divorce, was, by the rule, afforded the right to propound interrogatories to her adversary after the filing of her bill. Further, it is pointed out that the original bill for divorce vested the circuit court with jurisdiction over the children named in the bill during the period of their infancy, and over each of the parties to said bill for divorce so far as it was necessary to exercise such jurisdiction to protect and promote the welfare of said children, which jurisdiction is exclusive and continuous, citing Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911; Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Porter v. Porter, 216 Ala. 169, 112 So. 646, among others.
Without question, the court of equity, having once obtained jurisdiction over the minor children, relative to their care and custody, retains such jurisdiction during their infancy. Rosa v. Underwood, 235 Ala. 447 (1), 179 So. 530. But this, in our opinion, does not answer the question posed. It is to be borne in mind that there was at common law no right of one party litigant to propound interrogatories to his adversary and have answers thereto enforcedthis, of course, being distinguished from the right to file a bill for discovery. The right is purely statutory, and being in derogation of the common law, statutes giving the right are to be strictly construed. Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903. See, also, on the general subject, our recent case of City of Prichard v. Hawkins, 255 Ala. 676, 53 So. 2d 378.
That Equity Rule 39 is statutory in nature cannot be successfully questioned. It is an adaptation of § 7764, Code of 1923 now Code of 1940, Title 7, § 477, which, prior to adoption of the rule, embraced both suits at law and in equity, and of Code 1923, § 6570; and equity rules now appearing in the appendix to Vol 2, Title 7, of the Code of 1940, were formulated and adopted under statutory authorization. General Acts 1935, p. 177.
The construction sought to be placed upon the rule, that the right to file interrogatories on the part of the plaintiff after filing the bill inheres so long as jurisdiction remains in the circuit court for any purpose, is untenable. The word "after," we think, as here used could only embrace a period of time up to the rendition of the final decree. We think it requires no argument that the rule did not intend to grant such a right after the final decree, the logical purpose of the interrogatories being to discover evidence which, along with other evidentiary matter, should form the basis of the decree.
The rule uses the term "bill." That the petition filed by the original respondent, Ingalls, is not a bill is selfevident; and so of the cross-petition filed by Mrs. Ingalls. A petition for modification of a decree as to alimony or custody of minors in a divorce suit is sui generis. It is an instrument of equity, designed to effectuate justice with respect to such matters, and is dependent upon changed conditions. It cannot be used to inquire into conditions existing prior to the final decree of divorce. White v. White, 247 Ala. *291 405, 24 So. 2d 763. The proceeding to modify the provision of the final decree as to custody was initiated by Ingalls' petition, not by a "bill." Mrs. Ingalls' pleading thereto was not a cross-bill, but merely a counter-petition. We have held that such a pleading, not partaking of the character of a bill in equity, cannot be made the predicate of a decree pro confesso. Ex parte Lavender, 207 Ala. 666, 93 So. 661.
It follows as our conclusion that the filing of interrogatories by Mrs. Ingalls was unauthorized and, hence, that the respondent judge was without authority to compel answer by the party interrogated. The writ of mandamus will therefore issue to the respondent, requiring him to vacate and set aside the order in question, unless, on being informed of this opinion, he shall voluntarily do so.
While the conclusion we have reached is rested upon the reasons hereinabove stated, namely, that the right of a party to file interrogatories to his adversary in connection with the bill does not extend to a party interposing a petition to modify the final decree entered in the cause, yet we deem it not out of place to advert to some incidental considerations. First, the burden of proof rests upon him who moves for a modification to satisfy the court by clear evidence that a change in the circumstances, conduct or conditions of the parties, to the detriment of the children's welfare, warrants a change in the provisions made by the decree. Second, the court is in no wise lacking in power to direct the production of evidence on the part of either party which will disclose to the court the conditions, as they exist, surrounding the custodial situs of the children involved. In all such proceedings the question of custody rests at last upon the determination of wherein lies the best interest of the children, the conflicting parental rights being secondary in importance. It is for the court as their omnipotent guardianto order such custodial arrangement as best subserves their interests, upon satisfactory evidence of changed conditions as would warrant it.
Writ granted conditionally.
LIVINGSTON, C. J., and BROWN and FOSTER, JJ., concur.
BROWN, Justice (concurring specially).
I am not in sympathy with the statement in the foregoing opinion that when a court of equity assumes jurisdiction of infants its jurisdiction continues until they reach their majority. A better statement of the rule can be found in the following cases: Midgley v. Ralls, 234 Ala. 685, 690, 176 So. 799; Ex parte Gilbert, 253 Ala. 232, 43 So. 2d 816. | June 14, 1951 |
9da904af-8bea-40c5-8bc4-3073d46dd58d | State v. Mobile Stove & Pulley Mfg. Co. | 52 So. 2d 693 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 693 (1950)
STATE
v.
MOBILE STOVE & PULLEY MFG. CO., Inc.
1 Div. 378.
Supreme Court of Alabama.
December 14, 1950.
As Extended on Denial of Rehearing May 24, 1951.
*694 A. A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for appellant.
Smith, Hand, Arendall & Bedsole and Thos. G. Greaves, Jr., all of Mobile, for appellee.
LAWSON, Justice.
The State Department of Revenue, entertaining the view that the amount of sales tax paid by Mobile Stove & Pulley Manufacturing Company, Inc., a corporation (hereinafter referred to as the taxpayer), for a period of approximately five years was incorrect, gave notice thereof to said taxpayer, who appeared in protest of any increased assessment. §§ 766, 767, Title 51, Code 1940.
On September 22, 1948, the Department of Revenue made a final assessment against taxpayer of a deficiency of sales tax liability for the period from February 1, 1943, to December 1, 1947, in the amount of $1,032.11 as tax, plus interest and penalty. Art. 10, Title 51, Code 1940.
The taxpayer, being dissatisfied with the assessment thus finally fixed, prosecuted an appeal to the circuit court of Mobile County, in equity, as authorized by § 768, Title 51, and in the mode prescribed by § 140, Title 51, Code 1940. The procedure followed by the taxpayer to have the assessment of the Department of Revenue reviewed is not questioned. State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465, 11 A.L.R.2d 918.
Taxpayer complained as to only a part of the assessment made by the Department of Revenue, as appears from the averments *695 of its bill filed in the circuit court of Mobile County, in equity, the material parts of which are as follows:
"4. Appellant shows unto the Court that said assessment was and is illegal and void, to the following extent: Included within the gross receipts from sales, upon which tax was assessed by the State Department of Revenue, were receipts totaling $7,009.32 derived by appellant from sales of patterns during the period covered by said assessment. Each of such sales was made to buyers outside Alabama, in interstate commerce. The tax assessed against such receipt amounted to $140.18 and an appropriate portion of the penalty and interest assessed against the appellant resulted from the assessment of such tax. Appellant denies that its sales of such patterns were subject to sales tax, and denies that any part of its receipts from such sales should have been taken into account in the making of said assessment, for the following reasons:
"(a). The State of Alabama is prohibited from taxing such sales, or the receipts therefrom, under the Constitution or laws of the United States of America and under the Constitution of Alabama.
"(b). No provision of the laws of Alabama provides for the assessment sought to be made with respect to such sales or any part of the proceeds thereof.
"(c). Such sales were made in interstate commerce and are, therefore, not subject to the sales tax assessed." (Emphasis supplied.)
Upon a hearing on appeal in the circuit court, a decree was entered upholding the contention of the taxpayer. In pertinent part the decree reads:
"* * * that included within the gross receipts from sales upon which said assessment was based were receipts totaling Seven Thousand Nine Dollars and Thirty-Two Cents ($7,009.32), derived by appellant from sales of patterns; that the facts with respect to such sales are correctly set forth in the appellant's appeal from assessment and such sales are not subject to taxation for the reasons therein assigned; and that the sales tax sought to be assessed with respect to such sales amounted to One Hundred Forty Dollars and Eighteen Cents ($140.18), plus penalty and interest thereon;
"Now, therefore, it is hereby ordered, adjudged and decreed that said assessment is invalid and excessive to the extent of One Hundred Forty Dollars and Eighteen Cents ($140.18), plus penalty and interest thereon, the amount assessed because of said sales of patterns; that said part of said assessment is hereby set aside and declared null and void; * * *."
The State of Alabama has prosecuted this appeal, as authorized by § 140, Title 51, supra.
In § 140, Title 51, supra, is the provision that the assessment made by the Department of Revenue should be deemed, on appeal to the circuit court, to be prima facie correct, and where the appeal is taken by the taxpayer the burden shall be on it to show that such assessment is incorrect. A like provision is found in § 767, Title 51, supra, dealing specifically with the sales tax, the closing sentence being: "Any assessment made by the department shall be prima facie correct upon appeal." See, State v. Mims, 249 Ala. 217, 30 So. 2d 673; State v. Levey, 248 Ala. 656, 29 So. 2d 129; State v. Pullman-Standard Car Mfg. Co., 235 Ala. 493, 179 So. 541, 117 A.L.R. 498.
Taxpayer sought to meet the burden which was upon it by the testimony of only one witness, namely, Mr. C. S. Latshaw, its president. No witnesses were called by the State.
Counsel for taxpayer argue that the trial court, after hearing Mr. Latshaw's testimony, concluded that taxpayer had met the burden upon it of showing that the assessment was incorrect; that such conclusion was based upon a finding of fact; and that, therefore, this court should indulge every presumption in favor of the ruling of the trial court.
We think no such presumption can be indulged in this case. We are, of course, aware of the well established rule that a presumption should be indulged in favor of the conclusion of the trial judge, who sees and hears the witnesses, when there is a conflict in the evidence. But here there was *696 only one witness and, while his testimony is not too clear in all respects, it does not contain conflicts upon which to base this general presumption. Murphree v. Hanson et al., 197 Ala. 246, 72 So. 437; Bowling v. State, 204 Ala. 405, 85 So. 500; Marsh v. Elba Bank & Trust Co., 205 Ala. 425, 88 So. 423; Scott v. McGriff, 222 Ala. 344, 132 So. 177; Henderson v. Henderson, 228 Ala. 438, 153 So. 646; Wright v. Price, 226 Ala. 591, 147 So. 886; Barnes et al., v. Clark et al., 227 Ala. 651, 151 So. 586, 90 A.L.R. 637; Hamilton et al. v. James, 231 Ala. 668, 166 So. 425; Esco v. Davidson, 238 Ala. 653, 193 So. 308; Turner v. Turner, 251 Ala. 295, 37 So. 2d 186.
Since no presumption is to be indulged in favor of the findings of the trial court, it is our duty on this appeal to determine whether the testimony of Mr. Latshaw is sufficient to overcome the presumption of correctness of the assessment of the Department of Revenue.
As before indicated, the only evidence in this record as to the transactions out of which the taxpayer received the sum of $7,009.32, on which the disputed tax was based, is the testimony of C. S. Latshaw, taxpayer's president.
Taxpayer is an Alabama corporation with its principal office and place of business in Mobile. During the period covered by the assessment, it was engaged in the business of operating an iron and steel foundry and machine shop, where it produced heavy castings, such as stern frames, anchor windlasses, etc., used in the construction of boats and ships.
The heavy castings could not be manufactured without the use of forms known to the business or trade as "patterns." The part which "patterns" play in the manufacture of castings is described by Mr. Latshaw as follows: "A pattern is a form that has to be manufactured before we can make a casting in the mold. Whatever shape we put in the sand that is the shape of the final product, and they have to be made of wood or plastic, whatever the case may be. * * * Well, in order to make a casting you first have to have a pattern, to get it in the mold, and whatever shape that is, of course, that is the shape of the [sic] casting comes out. * * *"
Taxpayer maintained a pattern shop or department for the manufacture of patterns. The patterns were made according to the customer's specifications and blueprints.
The $7,009.32 received by taxpayer during the period covered by the assessment and upon which the disputed tax was computed, was paid to it by out of state customers for the manufacture of patterns, which patterns were used by taxpayer in the production of castings for these customers. The castings produced from the patterns were shipped to the purchasers in other states. The patterns are still in the possession of taxpayer in Mobile County. It does not appear that the State sought to collect a sales tax based on the receipts from the castings shipped to the out of state buyers.
Mr. Latshaw's testimony is far from complete as to the transactions here involved. But we think it supports the inference that the general course of conduct of that part of taxpayer's business with which we are here concerned was as follows: A prospective purchaser of castings submitted specifications and blueprints as to patterns needed for the manufacture of the castings and made inquiry as to the cost of the pattern and the cost of the castings; taxpayer quoted prices on the two articles separately. Upon being given the order, taxpayer proceeded to manufacture or produce the pattern. By the use of the pattern, the casting was manufactured. After the casting was manufactured, it was shipped to the out of state buyer. When the casting was shipped to that customer, he was "billed" separately for the pattern and the casting.
As to what happened to the pattern after the casting was shipped and both articles paid for by the purchaser, Mr. Latshaw testified as follows:
"Q. Now, I will ask you whether or not during the period involved in this sales tax assessment, you had made sales of castings to customers outside of the State of Alabama, under circumstances where those *697 castings were shipped in interstate commerce to customers outside the State of Alabama, where the charges made for the patterns, as distinguished from the castings, amounted to $7,009.32? A. Yes, sir.
"Q. Now, those charges for patterns, Mr. Latshaw, were mailed by you to customers outside of Alabama at the time you shipped those customers' castings to them in interstate commerce, were they not? A. That is correct.
"Q. Now, Mr. Latshaw, were those patterns themselves shipped at that time? A. Well, we have two practices, we at first lots of times the customers demand that we ship them with the finished job, and then again they leave them in our storage for some time, and title remains in their possession, to be shipped whenever they stipulate to go out.
"Q. Now, during the time that you have them, if anything happened to them, whether from act of God or anything else, would you have to make additional patterns for them? A. Yes, we are liable for them as long as they are in our possession.
"Q. You are required then to ultimately send to your buyers outside of the State of Alabama these patterns? A. That is correct. Any patterns we make and charge them for, we are due to ship them whenever they say so.
"Q. And ultimately you are going to have to ship all these patterns outside the State of Alabama? A. That is correct. I can state that in one case here about two years ago we had various patterns accumulating over a period of fifteen years for the Bogalusa Paper Company, and about two years ago we sent a truck in and took every one of those out.
"Q. And how long does it generally take before they ask for them? A. You can't tell; it might be one year and it might be five years or might be six years. I can show you a case where Ingalls left a pattern here not long ago, and asked that their pattern be returned."
"Q. Are the patterns always shipped out of the state? A. Whenever the customer specifies.
"Q. When they specifyis it not the custom that these patterns are left in your shop? A. Not necessarily.
"Q. On many occasions? A. Some are and some are not.
"Q. Are your books such as to distinguish when such shipments of patterns are made and when they are stored? A. That is correct.
"Q. They are? A. Yes, sir, and also we can tell the date they are shipped out of the state to the customer, wherever they are shipped to * * * I would like to report a condition that maybe the State would like to know too * * * that sometimes, when we make a set of patterns, one of these orders might run eighteen months or two years, and castings being made off of those same patterns, where you couldn't make shipment of the patterns with the initial shipment of the castingsbut we have and can show you, where we had an order and built patterns, and over a long period of timefor instance, it might have been a set of manifold castings and we might have had the first shipment to go out in say, six months, and when the fourteenth set went out it might have been eighteen months from the date we manufactured those patterns so we couldn't ship them right away, and yet it would show on your purchase order.
"Q. The patterns then would remain here during the entire time the castings were being made? A. That is correct.
"Q. Then you were using the vendor's [obviously "vendee" was intended] patterns to make castings for him? A. That is right."
"Q. Mr. Latshaw, with respect to Mr. Culverhouse's [counsel for the State] last question, when you said that you were using the vendor's patterns, were you trying to state that they were entitled to the patterns? You would use the patterns you had made subject to the vendor's [vendee's] orders, would you? A. That is correct.
"Q. You weren't addressing your answer then to any technicalities you were entitled to? A. No, sir, whenever we bill them the title goes to them."
"Q. After the manufacture of these patterns, in whom is the control vested? A. The control is vested in the customer when we bill him."
The evidence shows a taxable event, a sale within the meaning of the sales tax law. Subsec. (e), § 752, Title 51, Code, as amended. The patterns were manufactured on orders of buyers. Upon completion, in accordance with the understanding of the parties, they were used in the production of the castings. Buyers paid taxpayer for the patterns, title to which, according to taxpayer's president, passed at the time taxpayer "billed" the buyers for the patterns. True, the evidence shows that the patterns remained in the actual possession of the taxpayer in this state, but we think it is clear from the testimony that the parties understood that actual delivery to the buyer was not necessary to the passing of title. Constructive delivery is shown by the following statements of Mr. Latshaw: "* * and then again they leave them in our storage for some time, and title remains in their possession, to be shipped whenever they stipulate to go out. * * * Whenever we bill them title goes to them. * * * The control is vested in the customer when we bill him." The statement of Mr. Latshaw that taxpayer is liable to the customer as long as the pattern remains in its possession is not inconsistent with his testimony that title passed when taxpayer billed the customer. Whether liable as a bailee or in accordance with the terms of some special agreement with the buyer does not appear.
Actual delivery is considered as of the greatest importance in determining whether there was an intention to pass title. But there may be a constructive delivery, and the intention of the parties, however disclosed, is conclusive on the question of whether title passed. Shealy v. Edwards, 73 Ala. 175; Shriner v. Meyer, 171 Ala. 112, 55 So. 156. The statements of Mr. Latshaw to the effect that title to the patterns passed when taxpayer "billed" the customer for them were, in legal consequence, but his way of expressing his understanding of the agreement or intention of the parties.
The sale of the patterns here taxed and the sale of the castings constituted separate and distinct transactions. The patterns were necessary to the manufacture of the castings. Perhaps those who were desirous of securing castings from taxpayer might have obtained the castings without also buying the patterns from which the castings were to be produced. In that event, no doubt, the cost of the castings would have included the cost of manufacturing the patterns. But title to the pattern would have remained in the taxpayer, and the purchaser would not have been entitled to the use of the pattern in the future in the production of other castings.
But we cannot decide this case on the manner in which the parties might have dealt with each other. We must consider the manner in which they did transact their business. The evidence is clear to the effect that the buyer ordered two separate and distinct articles to be manufactured by taxpayer, title to both of which should ultimately go to the purchaser. Such articles were manufactured and we think the evidence shows that in accordance with the intention of the parties title passed.
The separation of the two articles cannot be explained as being a mere matter of bookkeeping, for as before indicated, the evidence is, in our opinion, subject to no other construction than that for some reason the purchasers desired to obtain title to two separate and distinct articles, namely, the pattern and the casting.
Since the sale of the patterns here taxed and the sale of the castings constituted separate and distinct transactions, the right of the State to tax the sale of the patterns is not affected by the interstate character of the sale of the castings.
Generally, when a sale involves the delivery of merchandise to a destination outside the state where sold, the validity of a sales tax levied by such state on such transaction is denied. Crew Levick Co. v. Commonwealth of Pennsylvania, 245 U.S. 292, 38 S. Ct. 126, 62 L. Ed. 295; J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S. Ct. 913, 82 L. Ed. 1365, 117 A.L.R. 429.
*699 But, "sales completed entirely within a state are not transactions in interstate commerce; and this rule has been applied to a completed contract of sale between residents of a state, and a contract between citizens of different states, when the contract is made and delivery accepted in the state where the property is situated, although the buyer intends to ship the property outside the state." 15 C.J.S., Commerce, § 26, P. 300, citing In re Conecuh Pine Lumber & Mfg. Co., D.C., 180 F. 249; Brunner v. Mobile-Gulfport Lumber Co., 188 Ala. 248, 66 So. 438. See, Dept. of Treasury of Indiana v. Wood Preserving Corp., 313 U.S. 62, 67, 61 S. Ct. 885, 888, 85 L. Ed. 1188, 1193.
We are not told how or where the orders for the patterns were made. For aught that appears in this record, they were made as well as accepted in this state. The sale itself was complete, under the undisputed facts in this record, when taxpayer billed the purchaser for the pattern. Thereafter taxpayer held the pattern in storage on behalf of the purchaser, in accordance with an understanding between them, the terms of which are not shown by the record. The purchase price has been paid. The evidence does not even support an inference to the effect that the parties did not consider the sale of the patterns complete until they should be actually delivered to the purchaser beyond the boundaries of this state.
We think the evidence shows the parties understood that the transaction was wholly completed in this state.
Even if the taxpayer and each of the purchasers had definitely understood that after the completion of the transaction, that is, after the castings had been produced from the patterns, the patterns would be moved out of the state of Alabama to the state of the residence of the purchaser, this would not make the sale an interstate transaction under the facts in this case. Trotwood Trailers v. Evatt, 142 Ohio St. 197, 51 N.E.2d 645. This last cited case has close parallel, both in facts and in legal implications, to the case at bar. True, in the Trotwood Trailers case, actual delivery of the product was given to the buyer in the seller's state, that is, the state of manufacture, and it was then moved to the state of the residence of the buyer. But in the case at bar there was constructive delivery in accordance with the clear intention of the parties.
However, in the instant case, we do not think the evidence can be said to show definitely that as to the patterns here involved, the purchaser and the taxpayer had any definite understanding or agreement that the patterns would definitely be moved outside of the state. True, Mr. Latshaw replied in the affirmative to questions propounded by his counsel as to whether or not the patterns would ultimately move beyond the boundaries of this state. But a careful reading and analysis of his replies to such questions clearly indicate that his affirmative reply was predicated on a course of conduct over a period of years in dealings with other purchasers and was not based on any understanding between the taxpayer and the purchasers of the specific patterns here involved.
We are of the opinion that the evidence presented in the trial court was not sufficient to overcome the presumption of correctness of the assessment made by the Department of Revenue and that the trial court erred in vacating and annulling the assessment of the Department of Revenue, as indicated in its decree.
The decree appealed from is reversed and the cause is remanded.
Reversed and remanded.
BROWN and LIVINGSTON, JJ., concur.
SIMPSON, J., concurs specially.
SIMPSON, Justice (concurring specially).
I concur in the conclusion on the basis of the finding in the opinion that it cannot be said that the evidence showed that "the purchaser and the taxpayer had any definite understanding or agreement that the patterns would definitely be moved outside of the state." Brunner v. Mobile-Gulfport Lumber Co., 188 Ala. 248, 66 So. 438.
LAWSON, Justice.
Appellant has filed application for rehearing wherein it is insisted that we should have rendered a decree in this court rather than remand the cause to the circuit court. We are in accord with this insistence. § 140, Title 51, Code 1940; State v. Woods, 242 Ala. 184, 5 So. 2d 732. It results that the decree of the trial court is reversed and a decree will be here rendered for the amount of the assessment made against appellee by the Department of Revenue of the State of Alabama.
Judgment corrected. Application for rehearing overruled.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur. | May 24, 1951 |
de4e8059-ec9e-425f-85c6-5f737114663e | Jackson v. Hubbard | 53 So. 2d 723 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 723 (1951)
JACKSON et al.
v.
HUBBARD et al.
5 Div. 490.
Supreme Court of Alabama.
March 15, 1951.
Rehearing Granted June 30, 1951.
Lawrence K. Andrews, Union Springs, and Walker & Walker, Opelika, for appellants.
A. A. Carmichael, Atty. Gen., amicus curiae.
Borden Burr, Frontis H. Moore and Benners, Burr, Stokely & McKamy, Birmingham, and L. J. Tyner, Opelika, for appellees.
LAWSON, Justice.
On December 16, 1947, the Water Works Board of the City of Auburn was incorporated in accordance with the provisions of §§ 394-402, Title 37, Code 1940, as amended. It will hereafter be referred to as the corporation.
Several weeks thereafter on, to wit, January 6, 1948, the governing body of the city of Auburn, its mayor and council, acting under the provisions of § 397, Title 37, Code 1940, as amended, appointed H. R. Hubbard, Charles S. Rush, and B. Conn Anderson as members of the board of directors of the corporation. Section 397, Title 37, Code 1940, as amended, reads as follows: "Each corporation formed under this article shall have a board of directors which shall constitute the governing body *724 of the corporation, which board shall consist of three members who shall serve without compensation, except they shall be reimbursed for actual expenses incurred in and about the performance of their duties hereunder, and, at the discretion of the board of directors, they may be paid a director's fee of $10.00 for each directors' meeting attended by them not exceeding one meeting during each calendar month. No member of the board of directors shall be an officer of the municipality. The directors of the corporation shall be elected by the governing body of the municipality, and they shall be so elected that they shall hold office for staggered terms. The first term of office of one director shall be two years, of another director shall be four years, and of the third director shall be six years, as shall be designated at the time of their election, and thereafter the term of office of each director shall be six years. Provided, that with respect to corporations heretofore organized under this article their directors shall continue to hold office for the terms for which they were elected and at the expiration of such terms their successors shall be elected for staggered terms in accordance with the provisions of this section."
Hubbard was appointed for a six-year term, Rush for a four-year term, and Anderson for a two-year term. After their appointment, they immediately entered upon the performance of their duties as the governing body of the corporation.
Upon the formation of the corporation, the city of Auburn conveyed its water works system to the corporation.
On February 1, 1948, the corporation, acting through its governing body, its board of directors, executed a bond issue in the amount of $600,000 with the Birmingham Trust National Bank of Birmingham as trustee. The loan is secured by a mortgage on the water works system and is payable solely from the revenues of the corporation. The mortgage debt is payable serially and will not be completely paid until February 1, 1978.
On May 4, 1948, an election was held in the city of Auburn under the provisions of Article 1, Chapter 4, Title 37, Code 1940, to determine whether the form of government of the city should be changed from the aldermanic form to the commission form or plan. The change in the form of government was approved by the electorate.
As of July 20, 1948, G. H. Wright, T. A. Sims, and W. H. Ham were elected as city commissioners. They qualified and have continued to serve in that capacity.
Thereafter, on January 3, 1950, the city commissioners above named, acting as the governing body of the city of Auburn, adopted a resolution purporting to remove Hubbard, Rush, and Anderson as members of the board of directors of the corporation and to appoint as members of the board of directors R. C. Jackson for a six-year term, Herbert Benson for a four-year term, and J. B. Hitchcock for a two-year term.
After such action was taken by the city commission of the city of Auburn, Hubbard, Rush and Anderson instituted this proceeding in the circuit court of Lee County, in equity, against Jackson, Benson and Hitchcock.
The complainants allege in their bill that the action of the city commission of the city of Auburn, taken on January 3, 1950, purporting to remove complainants from the board of directors of the corporation and to appoint the respondents as their successors, was illegal, without authority of law, and is a mere nullity. It is alleged in the bill that complainants are the only legal members of the board of directors of the corporation and that since their appointment on January 6, 1948, they have continued to discharge the duties and obligations imposed upon them by law. But it is averred that respondents are vexing, harassing and interfering with complainants in the exercise of their duties as members of the board of directors of the corporation; that because of the dispute which exists between complainants and respondents, the corporation is faced with irreparable damage unless prompt declaration by judgment is made as to whether complainants or respondents constitute and are the legal members of the corporation and unless, in the meantime, there is issued against respondents and each of them a temporary *725 injunction enjoining them, their agents and representatives, from in any way interfering with the administration of the affairs of the corporation by complainants and authorizing and directing complainants to continue in the customary administration of such affairs pending the rendition of the declaratory judgment prayed for.
The prayer of the bill was in substance that the court render a declaratory judgment, declaring that complainants and not respondents are the lawful and rightful members of the board of directors of the corporation and that complainants are entitled to continue as such during the time for which they were appointed. The bill also prays that pending the declaratory judgment that a temporary injunction be issued enjoining respondents from in any way interfering with the exercise by complainants of the control and management of the corporation and that, upon final hearing, the temporary injunction be made permanent.
Upon the filing of the bill, the court set a time for hearing the application for injunction. Counsel for respondents, being present at the time such order was entered, waived formal notice and consented that the hearing be held at the time fixed.
On the day set for the hearing, the respondents filed their sworn answer and incorporated therein their demurrer to the bill of complaint. It is settled that demurrer to a bill of complaint may be incorporated in the answer at any time before final decree. Eisenberg v. Stein, 222 Ala. 576, 133 So. 281; Baggett Mercantile Co. v. Vickery, 213 Ala. 427, 105 So. 207; Wells v. Wells, 252 Ala. 390, 41 So. 2d 564.
The answer of the respondents admitted the averments of the bill of complaint except as hereafter pointed out. The answer averred: "The respondents aver that by reason of said change in the form of municipal government of the City of Auburn, which change was effected under Article 1 of Chapter 4 of Title 37 of the Code of Alabama, 1940, the theretofore existing Board of Directors of The Water Works Board of the City of Auburn, consisting of the complainants was abolished. If the complainants continued to serve as said directors, they served merely as a de facto board until their successors were appointed by the City Commissioners. The respondents admit that on January 3, 1950, the City Commission of the City of Auburn adopted a resolution purporting to remove the complainants as members of the Board of Directors of The Water Works Board of the City of Auburn (they having in fact been removed by operation of law as above stated) and appointing your respondents as members of such Board of Directors but they deny that the action of said Commission was illegal, without authority of law and a mere nullity, but, to the contrary, aver that the action of said City Commission was lawful and legal in all respects and was certainly lawful and legal in respect to the appointment of your respondents as members of said board and that as a result of such action on the part of the City Commission, respondents constitute the duly appointed and lawful members of the Board of Directors of The Water Works Board of the City of Auburn; and respondents deny that the complainants or any of the complainants are members of said Board of Directors."
Respondents denied that they were vexing, harassing and interfering with complainants in the exercise of their duties and aver in effect that complainants, since the date of the appointment of respondents, have had no duties to perform in connection with the corporation and that the duties imposed by law upon the Board of Directors of the corporation have been performed by respondents since the date of their appointment.
The cause was submitted on the bill of complaint, demurrer, answer and affidavits of the parties.
Two decrees were rendered. In one the trial court overruled the demurrer of respondents. In the other the trial court granted the temporary injunction as prayed. From such decrees the respondents below appealed to this court.
In our original opinion, we held certain grounds of demurrer were well taken. We reversed the decree overruling the demurrer *726 and rendered a decree here sustaining the demurrer. The decree granting the temporary injunction was also reversed. In the original opinion we did not write to the question of whether the averments of the bill were sufficient to show that appellees, complainants below, were the legal members of the board of directors of the corporation.
Application for rehearing was filed. The certificate of reversal was withdrawn and the temporary injunction reinstated pending decision on the application for rehearing.
Appellants join with appellees, who made the application for rehearing, in requesting that all procedural questions be ignored and that a decision be rendered on the question of whether under the averments of the bill it is made to appear that complainants below, appellees here, are the legal members of the board of directors of the corporation and therefore entitled to have the respondents enjoined from interfering with them in the performance of their duties. All interested parties seem to be in accord with this request. In view of the public interest, we have acceded to this request. The application for rehearing is granted, the judgment of reversal set aside, and the original opinion is withdrawn.
We will treat this appeal as presenting the one question which, as before indicated, all interested parties seek to have decided.
Appellants, respondents below, do not contend that appellees, complainants below, were not duly and legally appointed as members of the board of directors of the corporation by the governing body in existence at the time of their appointment, or that such governing body could have removed appellees before the expiration of the period for which they were appointed. Nor is it contended that appellees, complainants below, had served out the full period for which they had been appointed when on January 3, 1950, the newly-created city commission sought to remove appellees and appoint appellants.
It is the insistence of appellants, respondents below, that when the city of Auburn changed from the mayor and council form of government to the commission form of government, the board of directors of the corporation was abolished by operation of law by virtue of the provisions of §§ 45 and 96, Title 37, Code 1940, which sections read as follows:
"§ 45. Board of commissioners; powers of.The commissioners of such city, to be known as the board of commissioners of such city, shall have, possess and exercise all the powers and authority, legislative, executive, and judicial, possessed and exercised by the mayor and board of aldermen and board of police commissioners, and any and all other boards (except board of education), commissions and officers of said city of any and every sort whatsoever; and all such boards, commissions and officers (except those provided for by this article) shall then and thereby be abolished and the terms of office of any and all such officers or officials shall then and thereby cease, except boards of education. Such city shall continue its existence as a body corporate under the name of `City of _____' (inserting the name of such city). It shall continue to be subject to all the duties and obligations then pertaining to or incumbent upon it as a municipal corporation, and shall continue to enjoy all the rights, immunities, powers, and franchises then enjoyed by it, as well as those that may thereafter be granted to it."
"§ 96. Powers and duties of commissioners. The commissioners of such city, to be known as the board of commissioners of such city, shall have, possess and exercise all the powers and authority, legislative, executive and judicial, theretofore possessed by the mayor, or governing body or bodies of said city, by whatsoever name called, all boards of public works, boards of police commissioners and any and all other boards and commissions, except school boards and other commissions and boards having in charge educational matters. All boards and commissions whose powers are hereby conferred upon such new commissions shall stand abolished upon the organization of such new commission. Such city shall continue its existence as a body corporate without change of name, and shall continue to be subject to all the duties *727 and obligations then pertaining to or incumbent upon it as a municipal corporation, and shall continue to enjoy all the rights, immunities, powers, franchises then enjoyed by it, as well as those that may hereafter be granted to it. All laws governing such city and not inconsistent with the provisions of this article shall apply to and govern said city after it shall become organized under the commission form of government provided by this article. All by-laws, ordinances and resolutions lawfully passed and in force in any such city under its former organization shall remain in force until altered or repealed according to the provisions of this article. The territorial limits of such city shall remain the same as under its former organization, but all commissioners shall be elected from the city at large. All rights, powers, and property of every description which were vested in it shall vest in it under the organization herein provided for as though there had been no change in the organization of said city; and no right or liability, either in favor of or against it, and no suit or prosecution of any kind shall be affected by such change, unless otherwise expressly provided for by the terms of this article."
The provisions of law now codified as §§ 45 and 96, Title 37, Code 1940, have been a part of our statutory law since 1911. The legislature first authorized the incorporation of municipal water works boards in 1937. General Acts, Extra Session, 1936-37, p. 274. The provisions of such act, with certain changes, have been codified as Article 5, Chapter 7, Title 37, Code 1940.
We think the question here is one of legislative intent. Did the legislature intend that the provisions of § 397, Title 37, Code 1940, should no longer be operative when a municipality in which a water works board has been created changes its form of government from the mayor and council form to the city commission form of government? We think not.
It is to be noted that appellants, respondents below, do not contend that because of the change in the form of government the corporation itself has been abolished. It is the board of directors of the corporation which they contend has been abolished. The corporation must function. It must have a governing body. If the board of directors has been abolished, then who are to constitute the governing body of the corporation? If §§ 45 and 96, Title 37, Code 1940, are said to abolish the board of directors, then the other provisions of those sections must have application and those sections in effect provide that all the powers and authority, legislative, executive and judicial, possessed and exercised by the abolished boards shall be vested in the board of commissioners of the city. So if §§ 45 and 96, Title 37, Code 1940, are held to have operated as a matter of law to abolish the original board of directors of the corporation, then it must follow that the board of commissioners of the city of Auburn is now the board of directors of the corporation. Certainly it cannot be said that §§ 45 and 96, Title 37, supra, merely give the board of commissioners the authority to remove incumbents from existing boards and to replace them on such boards with other individuals and, of course, nothing can be found in those sections which authorizes the board of commissioners to create other boards in lieu of those abolished.
We are convinced it was the legislative intent that under no circumstances should an officer of a municipality be a member of the board of directors of a municipal water works corporation such as that here involved or perform the duties of a member of a board of directors of such a corporation.
At the time the water works board law was passed, the legislature was cognizant of the fact that under the laws of this state some municipalities had a commission form of government and others a mayor and council. Yet the prohibition against officers of the governing body serving as members of the board of directors of such a corporation was made to apply to all types of municipal governing bodies. The prohibition was not limited to mayor and councilmen. If a water works corporation is organized in a municipality having a mayor and councilmen, such officers cannot *728 serve as members of the board of directors. Likewise, where such a corporation is formed for a municipality having a commission form of government, the commissioners are not eligible to be on the board of directors. We do not understand appellants, respondents below, to contend to the contrary. Certainly it would be an anomaly to hold that the legislature intended that while neither a mayor nor any member of the city council could serve as a member of the board of directors of the water works board organized for their city, yet if the city changes its government to that of the commission form, the members of the city commission would in effect become the board of directors of the corporation. The reason for the prohibition is present regardless of the form of government and irrespective of a change in the form of government.
We can find nothing in the laws relating to the formation and operation of such a corporation that evinces a legislative intent that the board of directors do not have a fixed term. Originally the members of the board of directors held office concurrently with the mayor or other chief official of the city; but in 1943 the legislature amended § 397, Title 37, Code 1940, so as to provide for fixed and staggered terms. The pertinent provisions of the 1943 amendment read as follows: "* * No member of the board of directors shall be an officer of the municipality. The directors of the corporation shall be elected by the governing body of the municipality, and they shall be so elected that they shall hold office for staggered terms. The first term of office of one director shall be two years, of another director shall be four years, and of the third director shall be six years, as shall be designated at the time of their election, and thereafter the term of office of each director shall be six years. Provided, that with respect to corporations heretofore organized under this article their directors shall continue to hold office for the terms for which they were elected and at the expiration of such terms their successors shall be elected for staggered terms in accordance with the provisions of this section."
The change made by the legislature in 1943, providing for staggered terms, seems to us to indicate a clear legislative intent to make free from any doubt the permanency and independence of the status of the members of the board of directors. If the legislature had intended that the terms of the members of the board of directors should end upon the city's adopting a commission form of government, it would not have so carefully provided that those in office should complete the terms for which they were appointed.
We agree with counsel for appellants, respondents below, that the supplying of water to a city and its inhabitants is a municipal function and that the Water Works Board of the City of Auburn is in that sence an agency of the city. But we cannot agree that it was the legislative intent that the board of directors of a water works board be construed as that character of board which is abolished upon the adoption of a commission form of government.
We recognize the fact that the conclusion we have reached is not in accord with the holding of the Supreme Court of New Jersey in Stark v. Fell, 124 N.J.L. 475, 12 A.2d 706. We entertain the highest respect for that court, but we cannot agree with its holding in Stark v. Fell, supra.
We hold, therefore, that appellees, complainants below, at the time of the filing of this suit were members of the board of directors of the Water Works Board of the City of Auburn. They were entitled to the injunction which was issued under decree of the trial court.
The application for rehearing is granted, the judgment of reversal is set aside, and the decrees appealed from are affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | June 30, 1951 |
a6c3fea9-c00b-4eb9-89db-1f48fd372a93 | Finerson v. Hubbard | 52 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 506 (1951)
FINERSON et al.
v.
HUBBARD et al.
6 Div. 10.
Supreme Court of Alabama.
May 10, 1951.
*507 Ross, Ross & Ross, of Bessemer, for appellants.
Hayden & Hayden, of Birmingham, for appellees.
STAKELY, Justice.
This is a statutory action in ejectment for 1½ acres of land located near Dolomite in Jefferson County, Alabama. The plaintiffs are Mattie Cora Young and Dora Finerson. The defendants are Melvin Hubbard, Roy Hubbard and Lois Wright Foster. Trial of the cause resulted in a verdict and judgment for the defendants. This suit was filed on the 15th day of September, 1948.
The plaintiffs claim the property sued for as the sole heirs at law of Dave Bell who died in 1911. Tendencies of the evidence show that he received a deed to the property on May 23, 1887.
The defendants claim title to the land under a claim of purchase in 1937 or 1938, the entry into possession at that time and a continuous holding thereafter by adverse possession. The defendants also claim by virtue of a deed made to them by the Land Commissioner of Alabama on March 6, 1940 and continuous adverse possession thereafter.
Tendencies of the evidence show that the defendants entered into possession of the property in 1937 or 1938 and have *508 since that time held adverse possession of the property. The proof tends to show that the defendants received a deed from the State to the property at the time they purchased in 1937 or 1938. The deed was not introduced in evidence. There was no effort to account for its absence or to prove the description contained therein. It cannot be said that there was proof of a certain and adequate description either by reference to the deed or by secondary evidence of the description contained therein. In fact the proof shows that the defendants were uncertain as to what property they received under the deed and for that reason made the purchase from the state in 1940. To operate as color of title a deed must adequately describe the land in controversy and where it does not so describe the land it does not constitute color of title as to such land. Lathem v. Lee, 249 Ala. 532, 32 So. 2d 211; Stephens v. Bowen, 209 Ala. 417, 96 So. 331; Hale v. Tennessee Coal, Iron & R. R. Co., 183 Ala. 507, 62 So. 783. Nor was there proof of the assessment for taxes of the property as required by § 828, Title 7, Code of 1940. Accordingly the defendants did not comply with the requirements of § 828, Title 7, Code of 1940, in their effort to show adverse possession from 1937. Lowrey, v. Mines, 253 Ala. 556, 45 So. 2d 703; Cox v. Broderick, 208 Ala. 690, 95 So. 186.
The suit originally was for about 3½ acres. There was a disclaimer by the defendants as to the property sued for except as to 1½ acres which then became the subject of the litigation. It is argued that the result of this situation was to create a boundary dispute between the plaintiffs and the defendants and therefore under the express provisions of § 828, Title 7, Code of 1940, the requirement of color of title or assessment for taxation became inapplicable. It is sufficient, however, to say that there was no suggestion as required by § 942, Title 7, Code of 1940, that the suit arose over a disputed boundary line with the further suggestion describing the location of the true line. Since this suggestion was not made as required by the statute, we cannot regard the suit as a boundary line suit, dispensing with the requirements of color of title or assessment for taxation as pointed out above. See Pennington v. Mixon, 199 Ala. 74, 74 So. 238; Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898.
In view of what has been said to this point it was error for the court to refuse the affirmative charge requested in writing by the plaintiffs and to give to the jury charges 5 and 8 requested in writing by the defendants.
But it is earnestly insisted that the giving of charges 5 and 8 at the worst was error without injury and the plaintiffs were not entitled to the affirmative charge by reason of the following. Tendencies of the evidence show that the land was sold for taxes on June 5, 1930 and bought in by the State of Alabama. The state held the property until March 6, 1940 when it sold the property to the defendants and executed a deed to them therefor in consideration of the sum of $76.00 paid by them. Tendencies of evidence further show that from the time the defendants received the aforesaid deed they were in adverse possession of the property until the present suit was filed. It is claimed that by virtue of § 295, Title 51, Code of 1940, the plaintiffs are barred from recovery of the real estate. Plaintiffs attempted to show that the sale made by the state was void by reason of noncompliance with statutory requirements. It is sufficient as to this contention to say that this is not an answer under the statute as it is now worded. Bobo v. Edwards Realty Co., 250 Ala. 344, 34 So. 2d 165; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479. The fact that the land was purchased from the state does not change the result. Lindsey v. Atkison, 250 Ala. 481, 35 So. 2d 191.
We would uphold the contention with reference to the bar of the action set up by § 295, Title 51, Code of 1940, except for tendencies of the evidence which must be now considered.
When Dave Bell died in 1911 he left three children, Mattie Cora Young and Dora *509 Finerson, referred to above. Albert Bell, his son, was also living at that time and was originally a party plaintiff to this action. After this suit was instituted Albert Bell died intestate, leaving Mattie Cora Young and Dora Finerson as his sole heirs. His name was stricken as party plaintiff by amendment. But Dave Bell also left a widow. The three children, which have been mentioned, were the children of Dave Bell and Emma Bell. Emma Bell died before Dave Bell and several years after the death of Emma Bell he married Mary who became in this way the stepmother of his children. Two or three years after Dave Bell's death in 1911 Mary Bell married a man named Philpot. Mary lived on the land here involved four or five years after Dave's death and then went to Georgia, renting the house out to tenants. Thereafter Mary Philpot and her husband came back and reoccupied the premises in 1924 and tore the house down in 1935 or 1936. They lived on the premises up to a short time before the house was torn down. Mary Philpot is now dead but tendencies of the evidence show that she had charge of the property in 1928, 1929 and 1930. After that time she died, it not appearing from the evidence as to just when she died. One witness testified that five years prior to the trial he heard that she was dead.
The property was sold for nonpayment of taxes in 1929. This was the sale at which the state purchased the property. The record shows that for the year 1929 the property was assessed by one Cora Sankfield. Why the property was so assessed does not appear.
Tendencies of evidence show at the time of his death in 1911 the property was occupied by Dave Bell as his homestead and it was all the real estate which he owned. It was obviously less in area than 160 acres and there are tendencies of evidence showing that its value was less than $2,000. Upon the death of Dave Bell the legal title to the real estate descended to his heirs at law subject however to the homestead exemptions of the widow. This homestead right of the widow is determined by the law in force at the time of the death of the husband. O'Rear v. Jackson, 124 Ala. 298, 26 So. 944. The property was never set apart to the widow Mary nor was there any ascertainment of the insolvency of his estate. Under the circumstances Dave Bell's widow Mary became entitled to the use and possession of the homestead for and during her lifetime and at her death it reverted to the surviving children. Craig v. Root, 247 Ala. 479, 25 So. 2d 147; §§ 4196 and 4198, Code of Alabama of 1907, Code 1940, Tit. 7, §§ 661, 663. The surviving children of Dave Bell are the plaintiffs in this suit.
It is expressly provided by § 276, Title 51, Code of 1940 that a tax sale of real estate shall not convey the right, title or interest of any reversioner or remainderman therein. Furthermore it is expressly provided in § 295, Title 51, Code of 1940 that what has been called the "short statute of limitations" has no application to cases where real estate is sold which is not the subject of taxation. Clearly whether it was the duty of Mary Philpot or perhaps Cora Sankfield or someone else to pay the taxes, it was not the duty of these plaintiffs to pay the taxes during the life of Mary Philpot and no sale made for nonpayment of taxes due during her lifetime could affect their rights. Gunter v. Townsend, 202 Ala. 160, 79 So. 644; State v. Clarke, 240 Ala. 362, 199 So. 543; §§ 276 and 295, supra.
It is therefore no answer to say that it was error without injury to submit to the jury the issue of adverse possession of ten years, since the verdict of the jury for the defendants cannot be predicated on a finding under the three year statute of limitations. In order to leave no room for misunderstanding, the three year statute of limitations is not applicable because the tax proceedings which culminated in the deed from the state were based on the nonpayment of taxes for 1929 when Mary Philpot was alive. The ten year statute of limitations would not begin to run against the plaintiffs who were remaindermen until the *510 death of Mary Philpot. Bishop v. Johnson, 242 Ala. 551, 7 So. 2d 281. The date of her death was not shown. If such date was less than ten years prior to the institution of this suit, then this would be an additional reason why charges 5 and 8 should not have been given. Under all the evidence the plaintiffs were entitled to the affirmative charge which was refused them.
For the errors indicated the judgment of the lower court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | May 10, 1951 |
9bc2f977-5687-4991-86c0-2dea6c85d849 | Loop National Bank of Mobile v. Cox | 51 So. 2d 534 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 534 (1951)
LOOP NATIONAL BANK OF MOBILE
v.
COX et al.
1 Div. 442.
Supreme Court of Alabama.
March 29, 1951.
Vickers & Thornton, of Mobile, for appellant.
*535 Hamiltons & Denniston and John T. Gray, all of Mobile, for appellees.
STAKELY, Justice.
The questions for decision are (1) whether under the facts in this case a temporary restraining order can be issued under § 1054, Title 7, Code of 1940 without bond and (2) whether there is sufficient equity in the bill filed in this cause to justify the issuance of a temporary restraining order.
Don N. Cox and Dorothy A. Cox (appellees) filed their bill in equity seeking as owners of certain real estate located at Mobile, Alabama, upon which certain improvements had been undertaken, for a declaration of the rights and liabilities, if any, existing between themselves and the Loop National Bank of Mobile (appellant), the holder of a promissory note purporting to be secured by a mortgage on the real estate and various holders of alleged materialman's liens on the real estate.
Subsequently Don N. Cox and Dorothy A. Cox filed an amendment to their bill supported by sworn affidavit seeking an injunction pendente lite against foreclosure of the alleged mortgage and seeking further relief against the mortgagee in the event foreclosure was not restrained pendente lite. At the same time the appellees filed a motion to set the cause for hearing on the application for injunction.
Thereafter the motion for a temporary restraining order was heard and submitted on the sworn allegations of the bill of complaint as amended. Oral arguments of the solicitors for both appellees and appellant were heard by the court. An injunction was issued temporarily restraining appellant from making any foreclosure sale under the mortgage. No bond was required. Whereupon this appeal was taken.
The bill of complaint alleges in substance the following. Don N. Cox and Dorothy A. Cox entered into a contract, a copy of which is attached to and made a part of the bill, on or about November 30, 1949 with Wayne E. Banks. Under the terms of the contract Wayne E. Banks agreed to build a house and garage on the property of Don N. Cox and Dorothy A. Cox for 110 percent of the cost of labor and materials not to exceed $7,500.00. The real property is located in the City of Mobile, Alabama.
Wayne E. Banks undertook construction of the improvements but thereafter abandoned the contract on or about June 17, 1950. At the time the contract was made Don N. Cox and Dorothy A. Cox paid Wayne E. Banks $2,000.00 in cash and since abandonment of the contract by Wayne E. Banks have expended or become obligated for labor and materials to complete the improvements in the sum of towit $2,577.86, leaving an alleged unpaid balance of $2,922.41. Materialmen's liens are asserted by Jack C. Galallee and Frank A. Bailey Lumber Co. for $230.14 and $764.35, respectively, both of whom were made respondents to the bill.
Loop National Bank of Mobile claims of Don N. Cox and Dorothy A. Cox the sum of $4,000.00 with interest by virtue of an alleged promissory note dated January 11, 1950 and which was tendered to Wayne E. Banks, undated, with the mutual understanding and condition precedent that the note would not be used or negotiated until the construction of the dwelling and garage had substantially progressed and in no event until Don N. Cox and Dorothy A. Cox were further consulted. Contrary to the aforesaid understanding and condition precedent Wayne E. Banks on February 28, 1950 endorsed the note and purported to transfer the same to Loop National Bank. At the same time and as a part of the same transaction Wayne E. Banks purported to transfer to Loop National Bank an alleged mortgage on the property of Don N. Cox and Dorothy A. Cox securing the note. The aforesaid note and mortgage were a part of one transaction to finance the construction of the house and the garage and this fact was known to Loop National Bank at the time it took the note and mortgage from Wayne E. Banks. At the time of the purported transfer, to the knowledge of the Loop National Bank, the mortgage had neither been witnessed nor had it been acknowledged by either Don N. Cox or Dorothy *536 A. Cox before an officer authorized to take acknowledgments. Notwithstanding these facts Loop National Bank accepted the purported transfer of the note and purported assignment of the alleged mortgage without inquiry of or notice to Don N. Cox and Dorothy A. Cox. With the knowledge of the Loop National Bank the acknowledgments on the alleged mortgage were signed by a notary public in the absence of and without the will of either Don N. Cox or Dorothy A. Cox.
On February 28, 1950, Wayne E. Banks endorsed the note and deposited it to an account which he carried with the Loop National Bank in the name of W. Edward Banks and his account was credited with the sum of $4,000.00, the amount of the note. The note matured on May 12, 1950, and during the interim of the deposit and the maturity of the note the aforesaid account with the Loop National Bank was never exhausted and at all times had a balance of not less than $1688.06, so that the Loop National Bank paid out before maturity not the full amount of $4,000.00 but only the sum of $2311.94.
The amendment to the bill alleges that subsequent to the filing of the bill but prior to service of summons, Loop National Bank published the first advertisement of a foreclosure sale to be held on November 27, 1950 under the purported authority of the power of sale contained in the alleged mortgage, that the fair and reasonable market value of the property as of the date of filing of the amendment was not less than $10,000.00, that Don N. Cox and Dorothy A. Cox were the fee simple owners of the property free from all liens or incumbrances except those mentioned in the bill as amended, that the property was insured for $8,000.00 against all common and usual risks by a reliable insurance company, that a bona fide dispute and controversy existed with respect to the amount of the indebtedness owing to Loop National Bank and as to whether Don N. Cox and Dorothy A. Cox had executed a valid conveyance or mortgage and that Don N. Cox and Dorothy A. Cox offered to do equity and to pay the Loop National Bank such amount as the court may find to be due and owing by Don N. Cox and Dorothy A. Cox to the Loop National Bank. Don N. Cox and Dorothy A. Cox then prayed the court to enjoin or restrain the Loop National Bank from foreclosure of the mortgage until final determination of the cause and for such other and further and different orders as might be necessary to preserve the dignity of and prevent pendente lite the impairment of the just exercise of the inherent right of the court to protect and enforce its jurisdiction over the entire subject matter of the litigation. Don N. Cox and Dorothy A. Cox further prayed that if the Loop National Bank was not so restrained from foreclosure, the court would on final hearing of the cause set aside such foreclosure and allow Don N. Cox and Dorothy A. Cox to remain in possession of the property and pay in discharge of any indebtedness owing the Loop National Bank such sum as might be found proper by the court.
As stated the court heard the case which was submitted on the motion for a temporary restraining order and on the sworn allegations of the bill of complaint as amended and entered the following order.
"Now, Therefore, in order to prevent, pendente lite, the impairment of the just exercise of the inherent right of this Court to protect and enforce its jurisdiction over the entire subject matter of this litigation, it is ordered, adjudged and decreed that respondent, Loop National Bank of Mobile, be and hereby is temporarily restrained, pending a final decree in this cause, from consummating any sale or purported sale of the real property described in the Bill of Complaint as amended pursuant to the powers of sale contained in the mortgage hereinabove described."
Pursuant to the foregoing decree the register issued an injunction without bond, which was served on Loop National Bank. With the case and record in this condition, Loop National Bank took this appeal.
I. The requirement for bond in connection with the issuance of injunction is set out in §§ 1041, 1042, 1043 and 1056, Title 7, Code of 1940. Equity Rule 96, as it appears in Title 7, Appendix, Code of *537 1940, at page 1117 provides: "Chapter 28 of Title 7, section 1038 et seq., is hereby adopted as a part of these rules."
In Ex parte Miller, 129 Ala. 130, 30 So. 611, 612, 87 Am.St.Rep. 49, this court said: "In this state it is provided that injunctions can be issued alone, upon the execution of bonds, such as are prescribed by the statute. Section 786 of the Code provides, that no injunction must issue to stay proceedings after judgment in a personal action until the party applying for it gives bond and security as prescribed. Section 787 directs, that no injunction must issue to stay proceedings at law for the recovery of land, unless the party give bond and security as provided; and section 788 requires, that in other cases,than those specified above, the party must give bond with surety in such sum as the officer granting the injunction directs, payable and conditioned as prescribed. These sections cover any and every case that may arise for an injunction. To issue one without the bond prescribed, would be irregular. * * *"
In the case of Morris v. Sartain, 224 Ala. 318, 140 So. 373, an application was made for a temporary restraining order. The temporary restraining order was issued but without bond. This court held (citing the statute), that the action of the court in failing to require a bond was error. The principle laid down in Morris v. Sartain, supra, was followed by this court in Grooms v. Brown-Marx Co., 236 Ala. 655, 184 So. 698, and in Taylor v. Federal Land Bank, 238 Ala. 366, 191 So. 211.
It is insisted by the appellee, however, that the foregoing cases do not deal with the exercise of the inherent jurisdiction of a court of equity but only with the statutory authority of the court and that a court of equity has the inherent power to issue a restraining order without bond to prevent the impairment of the exercise of the court's jurisdiction or the enforcement of its orders. In support of this position, reference is made to certain statements made by the court in Grooms v. Brown-Marx Co., supra.
While the principle of inherent power was referred to in this last mentioned case, it was not held that the court could issue a restraining order without bond. It does not appear that the authorities of other jurisdictions, referred to in the opinion, had any effect on the decision in that case or were held to give an Alabama equity court power beyond the Alabama statutes. In view of the language of the statute as contained in Section 1043 that, "In other cases, the party must give bond with surety," and the effect of this language as stated in Ex parte Miller, supra, and the foregoing authorities, there is no ground for the issuance of a temporary restraining order without requirement of bond. In considering the question presented, we have pretermitted inquiry as to whether foreclosure under the power of sale would impair the exercise of the court's jurisdiction. See Carroll v. Henderson, 191 Ala. 248, 68 So. 1; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207. The court was in error in issuing the temporary restraining order in this suit without requirement of bond.
II. "A bill without equity will not support an injunction of any character under any circumstances." Pearson v. Duncan & Son, 198 Ala. 25, 73 So. 406, 408, 3 A.L.R. 242. And it is further true that "the bill must be determined as to its equity, `upon the averments contained in it, unaided by construction and unamplified by assumed amendment.' The complainant is the actor, and he must present a case entitling him to injunctive relief, or it will be denied. He can be aided by `no rule of favor, like that of assumed amendment, to his initial pleading.'" Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566, 570. But for purposes of granting a preliminary injunction, "The bill will be sufficient if, on any state of proof which its allegations justify, the court can, in the reasonable exercise of judicial discretion grant injunction." 28 Am.Jur. p. 456.
The bill of complainant is described as a bill in the nature of interpleader. We will, however, consider the nature *538 and sufficiency of the bill from its allegations and not by a name which the pleader may give to the bill. A bill has equity where the owner of real estate submits himself to the jurisdiction of the court to ascertain the validity of a mortgage claimed to exist thereon and offers to do equity and to pay such amount, if any, as the court may ascertain and decree to be due on the debt. In this situation the court has the discretion to enjoin foreclosure of the mortgage pending final determination of the cause. Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782; Union Central Life Ins. Co. v. Thompson, 229 Ala. 433, 157 So. 852; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Brown v. Bell, 206 Ala. 182, 89 So. 659; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207.
While the bill seeks an adjudication of other matters as for example the rights of the parties in and to an alleged unpaid balance due by the owners, it is not necessary to consider the equity of the bill as to such other matters at the present time. The present bill is sufficient for the reasons given to support the issuance of the injunction.
For the error indicated the decree of the lower court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | March 29, 1951 |
38f8d885-6651-4367-8626-ad2bbf4a3d7f | Fulford v. BD. OF ZONING ADJUSTMENT OF CITY OF DOTHAN. | 54 So. 2d 580 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 580 (1951)
FULFORD et al.
v.
BOARD OF ZONING ADJUSTMENT OF CITY OF DOTHAN.
4 Div. 652.
Supreme Court of Alabama.
October 18, 1951.
T. E. Buntin and L. A. Farmer, Dothan, for appellants.
Lewis & Lewis, C. R. Lewis and P. S. Lewis, all of Dothan, for appellee.
*581 SIMPSON, Justice.
This is a zoning case. The question is whether the sale of beer, under a duly issued license, in a restaurant known as the "Wagon Wheel" would be an unauthorized extension of that nonconforming business under the zoning ordinance of the city of Dothan.
"Wagon Wheel" is in a "Residential B" section of the city, where restaurants are not permitted. This nonconforming business, however, having been extant when the ordinance was enacted, is permitted to continue as such under Article 11, § 112.1 of the said ordinance, but this use of the property is strictly limited to that specific business, § 112.2 providing that "no nonconforming use or structure shall hereafter be extended unless such extensions conform with the provisions of this ordinance for the district in which it is located."
The ordinance was passed in 1946 and at that time until now, "Wagon Wheel" had no license to sell beer. It did strictly a restaurant business, selling food and incidental thereto coffee, tea, milk and soft drinks. In January of this year the restaurant sought to extend the business by procuring a license to sell beer. Residents in the area objected and the Board of Zoning Adjustment denied the permit on the ground that it was an unauthorized extension of this nonconforming business. "Wagon Wheel" appealed to the circuit court, where the ruling of the Board was affirmed, and now brings this appeal from that judgment.
The judgment of the circuit court in part recites:
"The Court is of the opinion that the sale of intoxicating beverages, including beer, is not within the purview of the restaurant business. This question, however, in this jurisdiction, so far as the Court has been able to determine, is new, but referring to other jurisdictions the Court finds the following:
"`A restaurant is defined by Webster to be an eating house and such it has always been construed under the law and not where intoxicants are dispensed under the guise of running a restaurant, a restaurant keeper in contemplation of law is not a saloon keeper.' 37a Words & Phrases, Page 62 ([Savage v. State, 50 Tex.Cr.R. 199] 88 S.W. 351). `A restaurant does not necessarily mean a beer and wine restaurant, and a written lease of premises for use as a restaurant did not obligate landlord to assent to application for a beer and wine license.' 37 Words & Phrases, page 60, ([Saul v. McIntyre, 190 Md. 31] 57 A.2d 272).
"Premises considered, it is ordered, adjudged and decreed by the Court that the use of the premises known as the `Wagon Wheel' in the City of Dothan, Alabama, in the sale of beer in connection with the operation of a restaurant on said premises was and is an unlawful and unauthorized extension of the non-conforming restaurant business under the Zoning Ordinance of the City of Dothan, Alabama, passed and approved by the City Commission on the 7th day of May, 1946.
"It is further ordered, adjudged and decreed by the Court that the beer license issued by L. R. Driggers, as City Clerk of the City of Dothan, Alabama, on the 3rd day of January, 1951, authorizing the sale of beer at the `Wagon Wheel' in the City of Dothan, Alabama, be, and the same is hereby cancelled and held for naught."
We are in accord with the foregoing conclusion and approve the authorities cited.
The intention of the zoning act as regards a use of the nonconforming property "is to restrict any increase of any nonconforming use" Conaway v. Atlantic City, 107 N.J.L. 404, 407, 154 A. 6, 8, and "`continuance of a nonconforming use' is a continuance of the same use and not of some other kind of use". Kensington Realty Holding Corp. v. Jersey City, 118 N.J.L. 114, 115, 191 A. 787, 788; Burmore Co. v. Smith, 124 N.J.L. 541, 12 A.2d 353, 356; Lane v. Bigelow, 135 N.J.L. 195, 50 A.2d 638; Yokley, Zoning Law and Practice, p. 261, § 135.
*582 It is also declared that if the extension of the nonconforming use is materially different from the previous use and in itself creates new problems, such nonconforming use would be unauthorized. Yokley, supra, p. 263, § 136; President and Trustees of Village of Ossining v. Meredith, 190 Misc. 142, 73 N.Y.S.2d 897.
Zoning is "For the purpose of promoting health, safety, morals or the general welfare of the community" § 774, Title 37, Code 1940, and it would be regarded as rather a naive conclusion should we declare that there is no material distinction between the strictly restaurant business and the retail beer business and between the sale of coffee, tea, milk and soft drinks as an incident to the sale of food and the sale of intoxicating beverages. We think it not fairly debatable that intoxicating liquors are in a class by themselves and not to be regarded as one of the ordinary commodities of food or other harmless products. Indeed, we have said as much. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 337(9), 186 So. 487, 121 A.L.R. 283. That the carrying on of the business of selling beer and other intoxicants entails new problems and extra policing and creates new conditions vastly more undesirable in residential areas that the mere restaurant business seems to us to be quite clear.
In determining the question, each case must rest on its own particular facts, Yokley, supra, p. 264, § 137; National Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 42 A.2d 753; and we think it reasonable to conclude that when § 112.1 and § 112.2 were enacted as a part of the zoning ordinance, the intention was manifest to prohibit an extension such as here contended for in the use of such nonconforming property. As somewhat sustentive by way of analogy, see City of Dallas v. Haworth, Tex.Civ.App., 218 S.W.2d 264, and Miller v. Zoning Commission of City of Bridgeport, 135 Conn. 405, 65 A.2d 577, 9 A.L.R. 2d 873.
Affirmed.
LIVINGSTON, C. J., and FOSTER, LAWSON and GOODWYN, JJ., concur. | October 18, 1951 |
5c4f4a8d-4b7e-4ecd-9842-63c2bf4dd7f3 | Louisville & NR Co. v. Green | 53 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 358 (1951)
LOUISVILLE & N. R. CO.
v.
GREEN.
6 Div. 872.
Supreme Court of Alabama.
June 14, 1951.
*359 Chas. H. Eyster, Decatur, and Gibson & Gibson, Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is an action under the Federal Employers' Liability Act to recover damages for personal injuries. 45 U.S.C.A. § 51, et seq.
The case is of course governed by the Federal decisions, and, as construed by these decisions, the Federal Employers' Liability Act does not make the employer the insurer of the safety of its employees while on duty. The basis of liability is the negligence of the employer, not the fact that injuries occur. Negligence must be "in whole or in part" the cause of the injury. Atlanta, B. & C. R. Co. v. Cary, 250 Ala. 675, 35 So. 2d 559, 560; Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So. 2d 102.
Count one of the complaint, the only count submitted to the jury, alleged in substance that plaintiff was employed by defendant in interstate commerce, as a night station porter at Athens, Alabama, on to wit, 19th of October, 1946; that on or about said date, while so employed, he suffered a double rupture and consequent damages, and that his said injury and damages were the proximate result of the negligence of defendant's servant, servants, agent, agents, employee, or employees, in failing to furnish plaintiff with sufficient help to perform the duties of his employment.
Defendant entered plea of the general issue, in short by consent with leave, etc.
The jury returned a verdict for the plaintiff, and after defendant's motion for a new trial was overruled this appeal was perfected.
The refusal of the affirmative charge, with hypothesis, to appellant necessitates the examination of the evidence.
The applicability of the Federal Employers' Liability Act is not questioned. Appellee was employed by appellant as night station porter at its railroad station in Athens, Alabama, and had been regularly so employed since 1940. The duties of his employment required him to handle the mail and baggage arriving at and departing from the station and to transport mail between the United States post office and appellant's station at Athens, and to perform certain other duties around the station. He suffered a double rupture on the morning of October 19, 1946, while handling a sack or bag of mail preparatory to its being loaded on the mail car of a train operated by appellant. At the time he was about 63 years of age, weighed about 172 pounds and had been in good health up to the date of his injury. For transporting the mail between the railroad station and the post office at Athens appellant furnished appellee with two types of conveyances, one, a four-wheeled, rubber-tired platform truck about 9 or 10 feet long, 3 feet wide *360 and 3 feet high. The other a two-wheeled cart. Both conveyances were operated by hand, that is, pushed or pulled by appellee. At the time he was injured appellee was loading the four-wheeled truck with mail bags preparatory to putting them on the train. About 50 bags had been placed on the truck. He attempted to place a bag weighing 100-115 pounds on top of the load piled on the truck but it fell somewhat short of the top and came to rest at about the height of appellee's shoulders. He then attempted to push or heave the bag to the top of the load, a point some twelve inches higher than appellee's head, and when he did so he felt a sudden and sharp pain in both sides of his abdomen. The evidence further showed that appellant's hours of employment were from 10:00 P.M., on one day to 6:00 A.M., the following morning. During appellee's hours of employment four trains arrived at and departed from Athens as follows:
Some of these trains carried mail in addition to mail destined for Athens, called "turn-around" mail, that is, mail which came in on a train going in one direction and was unloaded at Athens and then placed on another train going in the opposite direction. It was, therefore, appellee's duty to sort the mail bags arriving on certain trains into two lots, i. e., mail destined for Athens, and "turn-around" mail. The mail destined for Athens was delivered by appellee to the post office at Athens, and the "turn-around" mail was retained at the station for reloading on the proper train. The evidence further showed that the volume of mail handled by appellee between the post office and station (not including "turn-around" mail) immediately prior to the time appellee was injured was approximately as follows:
The evidence further tended to show that the post office in Athens was approximately a quarter mile distant from appellant's station, and that the streets from the post office to the station were paved; that there was a slight upgrade a part of the way from the station to the post office; that Mr. W. E. Flood was the station agent at Athens, and appellee worked under his supervision; that Mr. E. H. Civils, Jr., was the trainmaster of the Nashville division of appellant's railroad; that prior to appellee's injury he had made protest to Mr. Flood and Mr. Civils that he needed help on the job or that the work was too heavy, but that no assistance was furnished him. The evidence further tended to show that the average weight of the bags of mail handled by appellee was about 30 pounds, and that postal clerks regularly and usually handled the bags without assistance, and that appellee had not complained that the bags of mail were too heavy for him to handle; that no one told appellee how heavy a load to load and transport at each trip to and from *361 the post office; that he was free to place whatever number of bags of mail on each load and use either the four-wheeled truck or the two-wheeled cart; that there were two or three other four-wheeled trucks at the station which he could use in handling the mail, and that no one told him how to handle the bags of mail; that he had at least 2 hours idle time during his shift or tour of duty and there is nothing in the record to indicate that the element of time was a factor in causing appellee to load all the outgoing mail bags on one truck or to pile them high on one truck. In other words, appellee had ample time, in handling the mail, to make as many trips to and from the post office as he desired, and in handling the mail at the railroad station preparatory to loading it on the trains, to use more than one truck if he desired. The evidence further showed that the volume of mail during the war years was much heavier than at the time he was injured; that appellee always handled the mail by himself except at Christmas time, and upon some occasions when he hired some one to assist him.
The gist of this action is the negligence of the railroad company in its failure to provide appellee with sufficient help to prevent that class of hazards which result from an inadequate force to do the work in hand, and that such failure is, in whole or in part, the cause of appellee's injury. Seymour v. Holman, 229 Ala. 634, 158 So. 525; Reynolds v. Atlantic Coast Line R. Co., 251 Ala. 27, 36 So. 2d 102. But negligence on the part of the employer is not presumed. The evidence to sustain the claim must be of a substantial sort, not a mere scintilla, and it cannot be predicated on conjecture or speculation. The inference of negligence must be from a reasonable and fair interpretation of the evidence. If the evidence does not fairly show negligence, and that such negligence was the proximate cause, in whole or in part, of the injury plaintiff cannot recover. Alabama Great Southern R. Co. v. Davis, 246 Ala. 64, 18 So. 2d 737; Atlanta, B. & C. R. Co. v. Cary, 250 Ala. 675, 35 So. 2d 559; Reynolds v. Atlantic Coast Line R. Co. supra. The cases establishing those principles have often been cited and are fixed by the act itself as interpreted by the Supreme Court of the United States. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239; Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520.
But there are other principles enunciated by the Supreme Court of the United States which need be considered.
In the case of Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 446, 87 L. Ed. 610, it was said:
"We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to `non-negligence.' As this Court said in facing the hazy margin between negligence and assumption of risk as involved in the Safety Appliance Act of (March 2) 1893, 45 U.S.C.A. § 1 et seq., `Unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name'; and no such result can be permitted here.
"The assumption of risk clause in the statute became the subject of endless litigation. The Federal Code Annotated and the United States Code Annotated devote over thirty pages each of fine type merely to the citation and brief summary of the reported decisions and the number of unreported and settled cases in which the defense was involved must run into the thousands. Aside from the difficulty of distinguishing between contributory negligence and assumption of risk many other problems arose. One of these was the application of the `primary duty rule' in which contributory negligence through violation of a company rule became assumption of risk. Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 49 S. Ct. 91, 73 L. Ed. 224; Davis v. Kennedy, 266 U.S. *362 147, 45 S. Ct. 33, 69 L. Ed. 212. Other complications arose from the introduction of `promise to repair,' `simple tool' and `peremptory order' concepts into the assumption doctrine. In the disposition of cases the question of a plaintiff's assumption of risk has frequently been treated simply as another way of appraising defendant's negligence, as was done by the court below in the instant case.
"It was this maze of law which Congress swept into discard with the adoption of the 1939 amendment to the Employers' Liability Act, releasing the employee from the burden of assumption of risk by whatever name it was called. The result is an Act which requires cases tried under the Federal Act to be handled as though no doctrine of assumption of risk had ever existed.
"In this situation the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done. A fair generalization of the rule is given in the Senate Committee report on the 1939 amendment: `In justice, the master ought to be held liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances.' Of course in any case the standard of care must be commensurate to the dangers of the business. Hough v. Texas & P. R. Co. 100 U.S. 213, 218, 25 L. Ed. 612 [615]; cf. Northern P. R. Co. v. Herbert, 116 U.S. 642, 652, 6 S. Ct. 590, 595, 29 L. Ed. 755, 760."
And in Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S. Ct. 1062, 1064, 87 L. Ed. 1444, in writing to the question of the negligence of an employer the Supreme Court of the United States said: "The debatable quality of that issue, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue (Tiller v. Atlantic Coast Line R. Co. [318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967,] supra) as well as issues involving controverted evidence. Jones v. East Tennessee, V. & G. R. Co., 128 U.S. 443, 445, 9 S. Ct. 118, 32 L. Ed. 478 [480]; Washington & G. R. Co. v. McDade, 135 U.S. 554, 572, 10 S. Ct. 1044, 1049, 34 L. Ed. 235 [241]. To withdraw such a question from the jury is to usurp its functions."
The question then is, whether a fair interpretation of the facts, considered in a light, most favorable to Green, justifies a finding that the appellant was negligent, in its failure to provide appellee with sufficient help to do the work in hand. In determining that question we, as we must do, lay to one side a consideration of any question of appellee's contributory negligence, and any risk assumed by him in the premises.
The burden was on appellee in this case to show inadequacy of force to handle the mails with safety to himself, employing such plans and precautions as were reasonably open to him. The employer is not to be held negligent for inadequacy of force to do a specific work, if there is a safe and reasonable way to do it with the force in hand. It may reasonably assume that the employee will adopt such plan as to conserve his own safety.
There is no evidence to indicate that the work in which Green was engaged at the time he was injured called for any special skill, as indeed we know that it did not. It involved no element of danger, unless danger arose from the method employed by Green in its performance. Bags or sacks of mail are ordinarily handled by one person, and the uncontradicted testimony in this case is, that Mr. Calvin, the postal clerk at Athens, and who weighed 143 pounds, handled all the sacks of mail without assistance that appellee handled except the "turn-around" mail. And appellee testified that he thought the sack of *363 mail he was handling at the time he was injured was not "turn-around" mail but came from the Athens post office. True, the height of the lift necessary to handle mail at the post office by Calvin was somewhat less than the height of the lift necessary for appellee to handle the mail at appellant's station. But it is equally true that appellee was not compelled, under any phase of the evidence, to lift the sack of mail to the height which caused his injury.
The evidence indicates that the sack of mail which appellee was handling at the time of his injury was heavier than the ordinary sack of mail. But be that as it may, we do not think that appellant could have reasonably foreseen such an event, coupled with the further contingency that appellee would attempt to lift it to such a height as he did, when a less hazardous method was available to him, and which method he was at liberty to choose.
Here the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done. Tiller v. Atlantic Coast Line R. Co., supra.
On the record before us we cannot say that the issue of appellant's negligence is debatable, and that fair-minded men might reach different conclusions. The employer is not liable for injuries which it could not avoid in the observance of its duty of care.
The situation here simply shows a regrettable incident for which the appellant is not responsible, since its duty to appellee was fully discharged. The affirmative charge should have been given for appellant. We think it unnecessary to consider other assignments of error.
Reversed and remanded.
BROWN, FOSTER and SIMPSON JJ., concur. | June 14, 1951 |
88718ec5-f499-440a-9098-41227056979e | Burgess v. State | 53 So. 2d 568 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 568 (1951)
BURGESS
v.
STATE.
6 Div. 179.
Supreme Court of Alabama.
June 14, 1951.
*569 Jas. F. Berry, Murray A. Battles and Ralph Bland, all of Cullman, for appellant.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., for the State.
BROWN, Justice.
The tragedy portrayed in the trial of the case in hand, resulting in the conviction of the appellant John Burgess of the offense of murder, occurred about midnight July 13, 1950, in a community in the southwestern section of Cullman County which its inhabitants have dubbed "Bug-Tussle". One of the characters involved in the tragedy was Tom Payne, a farmer twice married and twice a widower, a man in his late sixties. At the time mentioned he lived in the second house at the foot of a hill on the settlement road leading from the cross roads at the main highway, apparently the community center, through the community.
*570 Payne's house was near a flowing spring the branch of which flowed down the ravine under the hill below the home of his neighbors Row Green and wife about four hundred yards distant from his own. Green was an invalid and was confined to his bed. His wife was the daughter of the familiar character "Fiddling Tom Freeman." Mrs. Green attended her husband with the aid of a niece, Pernie Swann, a granddaughter of "Fiddling Tom" and on the night in question Martha Freeman, Tom's wife, referred to in the testimony as "Granny Freeman", was at the home of the Greens when Andrew Jackson appeared about nine o'clock, aroused the inmates and tried to induce Pernie, apparently an attractive curly haired girl fifteen years old, to go out with him in the night and drink homebrew, a quantity of which he brought with him, which she refused to do. While Jackson was at the Green home the dogs at that habitationthe sentinels of the night in such out of the way rural communitiescontinued their barking as if someone else was on their premises and appellant Burgess subsequently stated to some of the witnesses in the case that he was there at the Green house and heard every word that was said by and between the parties in the home,Jackson, Mrs. Green and Pernie. The undisputed evidence shows that before going to the Green's residence Jackson was at the Burgess house located on the settlement road about three hundred yards from the cross roads and within from 200 to 300 yards from Tom Payne's house. Burgess and Jackson talked about a job of work which Jackson claimed he had found and incidentally about women, apparently Grace and Pernie. At this time Jackson was drinking, had a bundle of some kind under his arm and had with him what appeared to Burgess to be a single barrel shotgun. Burgess testified that he could not tell whether it was an automatic or not.
There was born to Tom Payne and the wife of his first marriage a daughter mutus et furdus à nativitate (a deaf-mute), whom they named Grace, "lacking the sense of hearing and the faculty of speech." Webster's Unabridged Dictionary (2d ed.), p. 675. There was born to said Payne and his second wife a son in all respects apparently normal. At the time of the trial the son Frank Payne was 42 years of age, married and had established a home in the community about two miles from his father's house, where he lived with his wife and children.
Grace during her early childhood, as the evidence goes to show, attended one session of the state school for deaf and blind children and aside from this was uneducated, except through the school of experience and necessity. Aside from the infirmities mentioned she seemed to be normal. She and her father lived alone. She kept the house, did the cooking and worked in the field chopping cotton, picking cotton, doing the family washing and other chores. The evidence tends to show that she was physically attractive, possessed sex appeal, and that the defendant Burgess liked to be in her company and could understand her in her efforts and gesticulations as a means of conveying her thoughts. There was evidence tending to show that Burgess' attentions and association with Grace aroused the resentment of her father and the jealousy of Burgess' wife. Both Burgess and Jackson had just recently moved into the community and lived therein about a year or more. Jackson lived with his uncle, a Mr. Hudson, a tenant farmer and worked for him in crop time and both he and Burgess worked at the neighborhood saw mill and at odd jobs when they were available.
On the date mentioned, July 13, 1950, Tom Payne was bludgeoned to death and robbed in his room about midnight. There was no one in the house other than the deceased and his daughter Grace, who was offered by the state as an eyewitness, and was permitted by the court to testify over the strenuous objections of the defendant and exceptions duly reserved thereto. These rulings present the major contentions by the appellant for the reversal of the judgment of conviction.
The brother of Grace Payne was examined on the voir dire touching his ability to communicate with her and elicit from her facts pertaining to things and acts *571 which she had observed and his ability to interpret her arbitrary signs, motions and gesticulations in response to his effort to interrogate her in respect to the occurrence which she had observed through the sense of sight. The evidence goes to show that for a series of years he and his sister had been enabled to understand each other by the means used, which time and necessity had invented between them. The subjects of their conversations, no doubt, had been confined to the domestic concerns and familiar occurrences of daily life.
She was also examined through her brother, as interpreter, after being sworn on the voir dire as to the sanctity of the oath, as to her knowledge of God and her concepts of Christianity and the examination goes to show that she had a true notion of the moral and religious nature of an oath and of the temporal danger of perjury. She recognized a picture of the Christ and expressed the thought that he was the author of the Bible and one who swore falsely would have to seek forgiveness from him or be punished.
It is well settled by modern authority that it is permissible for such witness to testify as against the objections that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the witness's credibility. 5 Chamberlayne, The Modern Law of Evidence, §§ 3635, 3636; Pruitt v. State, 232 Ala. 421, 168 So. 149. And it is observed by Prof. Chamberlayne in the last paragraph of said § 3636, pp. 5171-72, that: "And though a dumb person may not be educated in the use of signs and can only express assent or dissent by a nod or shake of the head, thus rendering cross-examination difficult, he may nevertheless be permitted to testify, but it is said that his disability may be considered by the jury, as bearing upon the weight of his testimony. That difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded,", citing Quinn v. Halbert, 1882, 55 Vt. 224; Ritchey v. People, 1896, 23 Colo. 314, 47 P. 272, 384; Rushton's Case, 1 Lea.C.C. 455(1786); State v. De Wolf, 1830, 8 Conn. 93, 99; Snyder v. Nations, 1840, 5 Blackf., Ind., 295.
In determining the qualifications of such witness to testify and the selection and qualification of the interpreter, much must be left to the sound discretion of the trial court who has full opportunity to see and observe the witness, and the interpreter, in the presence and hearing of the interested parties and their counsel, much of which cannot be portrayed on the written pages of the record. Pruitt v. State, supra; 53 Am.Jur. p. 44, § 29. We, therefore, hold that the circuit court did not err in permitting the witness Grace Payne to testify against the defendant. Nor was error committed in allowing her brother Frank Payne to act as the interpreter of her testimony.
The evidence is without dispute that the deceased Tom Payne was bludgeoned by a club or a blunt weapon of some sort by a blow upon his head above his right eye, causing an open wound, and so injuring his brain that he died 3 or 4 days later in the hospital without ever regaining consciousness. The medical testimony goes to show that the blow not only injured his brain but fractured his skull so that he bled from his ears and his nose and became totally unconscious, symptoms indicating a fractured skull. Grace Payne, his daughter, was the only person in the house with him on the night of the assault upon him. She testified, through her brother, sworn as required by law to make true interpretations and relate the facts to the jury, that she saw two persons enter the room, one through the front door and the other through the window of the deceased's room; that a scuffle immediately ensued and that Andrew Jackson, who is indicted as an accomplice with the appellant Burgess, struck her father (the deceased) with a club over his eye, knocking him to the floor, where he bled profusely on the floor and on the bed; that Jackson searched him and took his purse; that John Burgess was present, participating in the assault. The witness further testified that she immediately went first to the home of the Greens where her friend Pernie Swann was staying *572 and communicated to Pernie what had happened and Pernie got out of bed, dressed in her blue jeans, put a butcher knife in her pocket and they returned to the house where Grace's father was on the bed, where Grace placed him after he was bludgeoned before she left the house to seek aid. The two girls, Grace and Pernie, then went to the home of the defendant Burgess and tried to arouse him and received no response. They then went to the home of Bill Nichols and informed him what had happened. Nichols thereupon got up and dressed and he and his wife got in the truck, taking the two girls who sat in the back of the truck, and carried them to the cross roads near the Payne home and let them out to go on back to the house, and then went by Burgess' home, Nichols getting out of his truck and arousing Burgess, who came to the door and said, "That you Bill", and Nichols answered in the affirmative and told him what had happened and to go on down there and aid the girls in taking care of the injured man. He and his wife went on to the home of Frank Payne, the son of the injured party, and returned in the truck with Frank Payne and his wife, stopping by Burgess' home and Burgess was still at home. Payne and Nichols told him again to get up and come on down to the Payne house. Nichols and his wife then went to get the doctor and when they returned Burgess and his wife had come to the Payne home and some of the testimony goes to show that Burgess sat in the front yard on some grass and did not go into the house. On this issue of fact the evidence was in conflict. There was testimony to the effect that defendant stated to one or more persons that he did not intend to go to the Payne home until some responsible person like Bill Nichols was present.
The evidence goes to show that the defendant Burgess and Andrew Jackson, the alleged accomplice, were not flushed in funds and were seeking work. One Williams testified that defendant about six months before deceased was killed, made the threat that he would cut deceased's head off; that defendant had stated on numerous occasions prior to the time deceased was killed that deceased had an "old rusty fruit can full of money." There was evidence of other threats made by defendant against Payne. The defendant admitted on his trial that he made the statement about deceased having money, but asserted this was a mere joke, that he didn't know who had money.
Mrs. Margaret Freeman, the wife of "Fiddling Tom", and other witnesses testified that they had heard the defendant state that Jackson was sent to Green's house on the night of the killing and that he (Burgess) listened to the conversation and heard every word that was said in the Green house that night. This evidence tends to show a conspiracy and that Burgess and Jackson were at the Green home principally for prefabricating evidence of an alibi, which was his only defense.
There is no question that Burgess and Jackson were at Burgess' house immediately before Jackson went to the Green home and shortly after Jackson left the Green home the fifteen year old girl Pernie testified to hearing a noise, expressing it in her language,"a great lumberment at Uncle Tom Payne's house" and several shots were fired from a gun. Soon thereafter Grace appeared at the Green home and communicated to her what had happened and asked Pernie to go with her.
The evidence shows that Payne, the deceased, had a double barrel shotgun which he kept in the front room, "the fire place room", as some of the witnesses expressed it, on the gun rack, unloaded, but this gun was found after he was bludgeoned under his bed loaded and shells were found in his pockets, evidence going to show that he anticipated trouble. There was evidence that the gun had not been fired.
On the morning after the bludgeoning of Payne, Andrew Jackson was found at the home of his kinsman Mr. Hudson with a hangover and with his face all scratched and lacerated and there was evidence going to show that a "bump" or contused wound was observed by some of the witnesses on the defendant's head the day following the assault on the deceased.
The evidence shows without dispute that the assault on the victim occurred in Cullman *573 County before the finding of the indictment and that he died as a result thereof in that county.
There was also evidence offered of threats made by the defendant against the deceased and of defendant stating that he had had some trouble with "Uncle Tom" about defendant cutting trees around the spring from which the deceased obtained his water. And there is evidence tending to show that the deceased upbraided the defendant about his attentions to Grace.
The evidence goes to show that early in the day of July 14th the injured man was removed to the hospital and that Grace Payne with her household effects was moved to the home of the brother, that in the meantime Frank Payne, the son, was away from home looking after the father and after his death attending his burial and while Burgess came in contact with Grace Payne on several occasions when other persons were present, she did not make known to her brother the fact that the defendant Burgess was one of the parties guilty of participating in the assault until after the funeral. In the meantime Burgess was heard to say to Grace in a very audible voice accompanied by a motion of his hand to his own throat, "It's a wonder they didn't cut your head off", or words to such effect.
On an occasion in February prior to the assault on the deceased, when deceased was repairing a chimney for the defendant, defendant went to the home of the deceased where the deaf-mute daughter was alone to procure a brace and bit and remained away for a considerable time. Defendant's counsel asked him on direct examination while he was testifying in his own behalf the following questions with the following results:
"Q. I'll ask you, Mr. Burgess, if at any time there you touched Grace? A. No, sir.
"Q. I'll ask you whether or not while you were there you had a butcher knife? A. No, sir."
In reference to the same time, place and occasion the solicitor asked the defendant on cross-examination, "There at that time and place on that morning, did you have intercourse with Grace?" The defendant's counsel objected on the ground that "it is highly prejudicial." The court overruled the objection and the defendant answered, "No, sir, I didn't touch her.
"I'll ask you whether or not you didn't forceably have intercourse with Grace Payne?
"No, sir."
The defendant's counsel on direct examination, having brought into the trial evidence that the defendant was in the house of the deceased alone with the deaf girl and that he "did not touch her", the state had the right to ask the defendant on cross-examination the questions above set out and the court did not err in overruling the defendant's objections thereto.
It is familiar law applicable to both civil and criminal trials, that where one of the parties brings out a part of a transaction or conversation the other party has a right to show the entire transaction "although it may not be admissible as independent testimony." Chandler v. Goodson, 254 Ala. 293, 48 So. 2d 223, 226; Allen v. State, 134 Ala. 159, 32 So. 318; Vinson v. State, 10 Ala.App. 61, 64 So. 639; Evans v. State, 15 Ala.App. 383, 73 So. 562, Id., 198 Ala. 689, 73 So. 999. Moreover, the scope and extent of the cross-examination of the accused was within the sound discretion of the trial court, not reviewable except for abuse. Chandler v. Goodson, supra; Pynes v. State, 207 Ala. 413, 92 So. 666; Cox v. State, 162 Ala. 66, 50 So. 398.
We have examined the numerous rulings of the court on questions of evidence and find nothing further that requires treatment. The rulings were free from reversible error.
After due consideration it is our judgment that the evidence adduced on the trial required the submission of the issues in the case to the jury and that the court did not err in overruling the defendant's motion to exclude all the evidence nor in refusing the affirmative charge requested in writing by the defendant.
We note that in the court's oral charge to the jury, the court stated: "The *574 Grand Jury of this county returned this indictment against this defendant, charging him with first degree murder. First degree murder ordinarily carries with it one of two punishments: the death penalty, or life imprisonment. But in the beginning, it has been agreed between the State and the defendant that a special jury would be waived in this case, and that the death penalty would be waived in this case; so there has been arrangements made so that you do not have before you the death penalty in this case, in the event you find the defendant guilty. I will explain to you what your verdict will be with reference to punishment at a later time in this charge, but I will state at the outset that the death penalty has been taken out of the case by agreement between the State and the defendant, and that agreement was that each side gave a little in that agreement, because ordinarily we would have to summon not only the group you were selected from, but there would have to be quite a few more jurors selected, and it would be expensive, and it was the idea of the State, and of the defendant to make that agreement. I instruct you in the beginning that that agreement which has been made, and is on record in this case, is not a fact which should be considered against either of the parties; it should not be considered in favor of either the State or the defendant. It has nothing in the world to do with what the outcome of this case should be. I tell you that merely to explain why you are not dealing with the death penalty in this case, as is ordinarily the case when you have a first degree murder case."
We are of opinion that this sets a precedent which should not be followed. The effect of the charge was not to nolle prosse the indictment for murder in the first degree but to suspend the application of the statute by an agreement between the parties, contrary to the provisions of the statute that, "Any person who is guilty of murder in the first degree, shall, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury". Code of 1940, Tit. 14, § 318. Such agreement is also in violation of the constitution which inhibits the suspension of laws except by the legislature. Constitution of 1901, § 21. The appellant however was not injured and has no grounds on which to complain.
The oral charge of the court was otherwise a full, clear statement of the applicable law and in connection with the special written charges, given at the defendant's request, embodied every principle and rule of law to which defendant was entitled. In fact no insistence is made that the court erred in refusing any of the defendant's requested charges.
We are further of opinion that the motion for new trial was overruled without error.
The jury returned a verdict finding the defendant guilty of murder in the second degree and fixing his punishment at imprisonment in the penitentiary for twenty-five years.
The judgment entered on the record after reciting the verdict is as follows:
"Thereupon the defendant being personally present in open Court, was asked by the Court if he had anything to say why the sentence of the law should not be pronounced upon him, and he said nothing.
"It is therefore considered and adjudged by the Court that the said defendant, John Burgess, be and he is hereby sentenced to hard labor for the County of Cullman for the term of Twenty-Five (25) years, the punishment fixed by the jury in this case for his offense."
This judgment of sentence is void and the same will be reversed, set aside and vacated and the cause remanded for an appropriate sentence.
There being no error on the record up to and including the judgment of conviction, the same is affirmed. Minto v. State, 9 Ala.App. 95, 64 So. 369.
Affirmed in part and reversed and remanded in part.
Judgment of conviction is affirmed and the judgment of sentence set aside and the case is remanded for proper sentence.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur in the opinion, except *575 as to the statement that the agreement and charge as to the penalty of death was a suspension of the statute, which conferred on the jury the discretion to fix such penalty. | June 14, 1951 |
a774e99f-c3b8-4965-af73-b333762edae1 | De Mouy v. Jepson | 51 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 506 (1951)
DE MOUY
v.
JEPSON.
1 Div. 423.
Supreme Court of Alabama.
March 22, 1951.
*507 Marshall J. DeMouy and Inge, Twitty, Armbrecht & Jackson, all of Mobile, for appellant.
Rickarby & Rickarby and J. Jefferson Bennett, all of Fairhope, for appellee.
SIMPSON, Justice.
This suit was brought in the circuit court, in equity, on a bill by appellee, Emily Jepson, as legatee under the will of Mary E. Rupf, deceased, against Sophie G. De-Mouy, individually, and as executrix under the will of said decedent. By agreement of the parties, there was consolidated with said cause a case on appeal to the circuit court in a detinue suit instituted in the justice of the peace court between the parties, involving certain personal property, to be mentioned later, owned by decedent in her lifetime.
This suit was instituted under the provisions of § 159, Title 7, Code 1940, and *508 the general authority of equity, to have the court construe Paragraph A of the will and the first clause of the codicil.
Paragraph A of the will reads: "I give, devise and bequeath to my beloved friend, Emily Jepson, wheresoever situated, now of 510 Wilmott Avenue, Bridgeport, Conn., my home wherever situated, now of 301 White Avenue, Fairhope, Alabama, including all furniture and equipment."
The codicil reads: "First I wish my home that is left to Mrs. Emily Jepson of Bridgeport, Connecticut, to have the lease, adjoining my home, on the West thirty-three feet to go to her with the home."
There are two issues in dispute between the parties, one involving personal property consisting of one dining room set, one china cabinet, one buffet, and one red carpet, which were situated in the property devised to Mrs. Jepson, which Mrs. DeMouy is claiming under a memorandum hereafter to be considered; and a strip of land approximately nine feet in width between the Jepson house (the "home" mentioned above) and Mrs. DeMouy's house on the east, which Mrs. DeMouy received by the terms of the will as residuary legatee. The personalty is the subject property of the detinue suit mentioned above.
The memorandum under which Mrs. De-Mouy claims the aforesaid articles of personal property, though they were, at the time of testator's death, in the "home" which Mrs. Rupf devised to Mrs. Jepson, was dated after the execution of the will and is as follows: (Sophie is Mrs. De-Mouy) "Chair for Dr. Dahlgren. Antique desk for Marshall. Dining room set for Sophie. 4 dinner plates for Allison. Antique drop leaf table for Sophie. Vase for Mrs. Damrell. Silver pitcher and dishes for Mrs. Ernest. Little house on 75 foot lot & furnishings for Sophie. Clothes basket for Sophie. Chair for Mrs. Moore. Book case or mahogany victrola for Mrs. Cheeseman. Red carpets and pink drapes for Sophie. Large chest and pink camellia for Mary Rose. Double cot, mattress & covering for Sophie."
Appellant, Mrs. DeMouy, contends that by this memorandum the articles of personal property mentioned were gifts inter vivos from Mrs. Rupf to her, in consequence of which they were lifted from the terms of Paragraph A of the will above quoted, entitling her to receive them rather than Mrs. Jepson. Appellee, however, advances the contrary contention, which was sustained by the trial court, that if given any effect at all, the memorandum was testamentary in character, and not having been mentioned in and having no relation to the will, was void as not having been executed in the form as required by law. We are in accord with that ruling. We think the evidence is too uncertain and unsatisfactory to show a completed gift to Mrs. DeMouy.
It is an essential prerequisite of a gift inter vivos that there must be a clear intention of the donor to make the gift with the donor's relinquishment of all present and future dominion thereover and a delivery to and acceptance thereof by the donee. Collins v. Baxter, 231 Ala. 247, 164 So. 61.
The burden is on the donee, the appellant here, to establish the fact of gift by clear and convincing proof and if the impartial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee has failed to discharge the burden imposed and the claim of gift will fail. Collins v. Baxter, supra; Hudgens v. Tillman, 227 Ala. 672, 151 So. 863; Miller v. Tubb, 202 Ala. 631, 81 So. 573; Wheeler v. Glasgow, 97 Ala. 700, 11 So. 758; Thomas v. Tilley, 147 Ala. 189, 41 So. 854; Barnes v. Barnes, 174 Ala. 166, 56 So. 958.
We think the evidence is entirely too uncertain as to just what result the memorandum did have upon the clear terms of the will and the contested articles of personal property described in Paragraph A of the will. All the evidence shows to sustain the gift inter vivos to Mrs. DeMouy is that Mrs. DeMouy was residing in the home of Mrs. Rupf and looking after her business for her when the memorandum was purportedly executed and when Mrs. Rupf died. The only proof as to the execution and delivery of the memorandum was that it bore Mrs. Rupf's signature and that within two or three months of her death, according to the deposition of Morgan, a *509 tenant of hers, she told Morgan that she had directed Mrs. Sophie G. DeMouy to make up a list of certain personal property which she desired to give (not had given) to various people, that Mrs. DeMouy did make up such list and that she, Mrs. Rupf, had signed it and had had it witnessed by Mrs. DeMouy and that she had delivered it to Mrs. DeMouy. It was in Mrs. De-Mouy's possession when it was presented in court. The articles described in the memorandum "for" Mrs. DeMouy which are in litigation here remained in the home of Mrs. Rupf until after her death and thus, as we view it, there was never any completed delivery with relinquishment of control to make an executed gift.
It is to be conceded, as argued by able counsel for appellant, that where the personal property is not susceptible of manual delivery, symbolic or constructive delivery is sufficient to constitute an enforceable gift and under circumstances where a gift is evidenced by writing executed by the donor, the delivery of the writing is held to be sufficient delivery to support the gift. Collins v. Baxter, supra, and cases cited; First National Bank v. Hammel, 252 Ala. 624, 626, 42 So. 2d 459; Goodson v. Liles, 209 Ala. 335, 338, 96 So. 262; 38 C.J.S., Gifts, § 22, pp. 801, 802.
But conceding the execution and delivery of the memorandum, whatever may have been its dubious import, the circumstances disclosed by the present record fail to satisfactorily convince the impartial mind of a completed gift inter vivos. True, the other items listed in the memorandum are not contested here as being completed gifts to the respective persons named therein, but these articles were delivered presumably before Mrs. Rupf's death and we will assume with her authorization or approval. The circumstances with reference to them are not shown and the articles are not in contest. The situation is different as regards the articles claimed by Mrs. DeMouy. There is no evidence that Mrs. Rupf ever parted with the dominion and control over them or that they were ever delivered over to Mrs. DeMouy, and without a release of dominion and control over them and a delivery by the donor to the donee, regardless of the status of the other articles mentioned in the memorandum, the gift was not completed. Our view of the case is that the memorandum as regards the personal property in suit must be regarded as merely indicative of Mrs. Rupf's intention as to the disposition of the articles after her death, as is not unusual with so many elderly people, ignorant of the legal requisites of carrying out such a testamentary purpose. There was no change of possession of the property and we are bound to hold that the claim for a gift inter vivos for the personalty in suit must fail. The following may be cited as clearly sustentive: Barnes v. Barnes, supra; Thomas v. Tilley, supra; Sims v. Sims, 2 Ala. 117; Hunley v. Hunley, 15 Ala. 91.
The other phase of the case, relates to the nine-foot strip of land in dispute between the "home" devised to Mrs. Jepson and the "little house" immediately east of Mrs. Jepson, which went to Mrs. DeMouy under the residuary clause.
It is to be first noticed that this property is in the single tax colony of Baldwin County, where the title to real estate on which the respective houses are situated rests in the colony, with a leasehold interest only in the respective parties. The end result, however, will be the same as regards the disputed strip of land as to the leasehold interest acquired. The lots were platted by the colony as sixty-six feet each in width, but the evidence is rather preponderant that in the use of these respective pieces of property, the lot lines were not observed, but the eastern boundary line of the curtilage of the home place where Mrs. Rupf resided, which was devised under Paragraph A of the will above to Mrs. Jepson, was between five and nine feet west of the eastern lot line of Lot 1, on which the home was situated; and the curtilage of the property on the east, willed to Mrs. DeMouy, extended beyond the western lot line of Lot 2, upon which her house is situated, over into Lot 1 so as to include the disputed strip. Thus the claim of appellant that when Paragraph A willed to Mrs. Jepson "my home wherever situated, now of 301 White Avenue, Fairhope, Alabama," it was intended as a devise of the home and the *510 curtilage without regard to the exact location of the platted lot lines. We are strongly impressed with the merit of this contention. The learned trial court entertained the contrary view and we are constrained to pronounce error in that regard.
This provision of the will devising the "home" to Mrs. Jepson is manifestly ambiguous as to exactly what area of land was intended to go with it. The will as to the residuary clause is general and silent as to the area of land to go with the little house east of the home, which is Mrs. DeMouy's. Under such circumstances the intention of the testator must be ascertained not only from the language of the will, taken in connection with the existing circumstances known to the testator at the time of drafting the will, but also from the testator's relevant declarations or statements at or about the time of the will's execution. Smith v. Nelson, 249 Ala. 51, 29 So.2d 335(11); Money v. Money, 235 Ala. 15, 176 So. 817; Dozier v. Dozier, 201 Ala. 174, 77 So. 700. Cf. Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154; Chambers v. Ringstaff, 69 Ala. 140; 94 A.L.R. 151.
Turning then to the evidence as to exactly what real estate was intended by Mrs. Rupf to be devised with "my home * * * 301 White Avenue, Fairhope, Alabama," we think it establishes rather convincingly that she intended the nine-foot strip in dispute, most of which is a part of the curtilage of the property devised to Mrs. De-Mouy, to go with that property, making the width of the lot seventy-five feet; and the real estate with the "home" place to be the remainder of the sixty-six feet of Lot 1, together with the west thirty-three feet devised in the first codicil to Mrs. Jepson, to be the land intended to go to Mrs. Jepson.
The word "home" as here used certainly did not mean that Mrs. Jepson should only receive the house and the land on which it is situated, but meant that she should receive the house and the curtilage thereof, viz., her "home" where she lived and the grounds used in connection therewith. Black's Law Dictionary defines curtilage as a "space, necessary and convenient and habitually used for the family purposes, and the carrying on of domestic employments." We have approved the substance of this definition. Ivey v. State, 61 Ala. 58, 61; McNutt v. State, 23 Ala.App. 43, 46, 121 So. 432; Holland v. State, 11 Ala. App. 164, 166, 65 So. 920.
The will, of course, speaks as of the time of the testator's death. It seems she had already executed the memorandum mentioned above, in which she referred to the property devised to Mrs. DeMouy as "little house on 75 foot lot." This strongly indicates she did not consider or intend the seventy-five feet (which included the nine-foot strip in dispute) as a part of her home place, but as a part of the curtilage of the property she had devised to Mrs. De-Mouy. While, as heretofore observed, this memorandum was not effectual to enforce an executed gift of the property designated as "for Sophie" (Mrs. DeMouy), it is admissible under the rule heretofore adverted to as bearing on the intention of the testator as regards this ambiguous devise. Then there is testimony of statements made by Mrs. Rupf going to show that she intended Mrs. DeMouy to have this nine feet of ground so that a porch should be built on "this small house." (Record, p. 23)
The whole case considered, we think the circumstances regarding the use of the respective properties prevailing at the time of the execution of the will, up to the death of testator, the memorandum later executed and testator's statements in regard to the matter, clearly evince her intention that the west nine-foot strip of Lot 1 go to Lot 2 and to Mrs. DeMouy as part of the curtilage of the little house so as to make the area seventy-five feet in width. It will be so decreed.
Short of these two main controversies, the question of costs is to be considered. The bill was filed by Mrs. Jepson to construe the will and the memorandum, in which she claimed all of the property, including the little house devised to Mrs. De-Mouy. She did not succeed fully in sustaining this interpretation. She has succeeded in enforcing her interpretation of the will as to the personal property, but *511 not as to the little house or the nine-foot strip claimed by her to be a part of the devise under Paragraph A of the will. The fixation of costs is a matter within the sound discretion of the court and we believe it would be fair to assess one half the entire costs against the appellee and one half against the appellant, individually, and it will be so ordered.
Affirmed in part and in part reversed and rendered.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | March 22, 1951 |
cdda2863-cd21-453d-af33-14e9a10b0b83 | Sanford Service Co. v. City of Andalusia | 55 So. 2d 856 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 856 (1951)
SANFORD SERVICE CO., Inc.
v.
CITY OF ANDALUSIA
4 Div. 653.
Supreme Court of Alabama.
May 24, 1951.
Rehearing Denied June 28, 1951.
Further Rehearing Denied January 10, 1952.
*857 Powell, Albritton & Albritton, Robt. B. Albritton and Albert L. Rankin, all of Andalusia, for petitioner.
Jas. M. Prestwood, Andalusia, opposed.
FOSTER, Justice.
This suit is to test the legal right of a city to levy an excise tax on the act of delivering by the seller in the consummation of a sale of petroleum products in the City of Andalusia, after transporting the same in one act from without the city and state through a portion of the city directly to the place of business of a customer in the city and unloading same directly from the taxpayer's tank trucks, so engaged, into the tanks of its said customer within said city (the taxpayer not being at the time a carrier), under an ordinance of the city. The pertinent provisions of which ordinance are as follows:
"Freight or Produce Delivery: Each person, firm, corporation or motor transportation company who unloads, delivers, distributes or disposes of any goods, wares, merchandise or produce, including fuel oil, lubricating oil, gasoline, kerosene or other hydrocarbons, in the City of Andalusia, Alabama, which said goods, wares, merchandise or produce, including fuel oil, lubricating oil, gasoline, kerosene or other hydrocarbons were transported from a point without the City of Andalusia, Alabama, to a point within the City of Andalusia, Alabama.
It will be observed that, for all practical purposes, the ordinance is the same and the question as to it is likewise the same as that considered in Sanford v. City of Clanton, 31 Ala.App. 253, 15 So. 2d 303, certiorari denied 244 Ala. 671, 15 So.2d 309: also our case of City of Enterprise v. Fleming, 240 Ala. 460, 199 So. 691, and State v. Coca Cola Bottling Works, 29 Ala. App. 508, 198 So. 363.
It is not materially affected by the case of Dorsky v. Brown, Ala.Sup., 51 So. 2d 360, which was also controlled by the principles declared in the Sanford case, supra.
The Sanford case was decided in 1943, before the decisions in Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S. Ct. 815, 91 L. Ed. 993, and Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S. Ct. 508. It is contended that those cases modify the rule on which the Sanford case was based. In that case the Court of Appeals, in which this Court concurred on certiorari, tried to interpret the decisions of the United States Supreme Court, which were thought to have application, leading to a holding that the tax was not on interstate commerce as there applied, or an undue burden on interstate commerce. McGoldrick v. Berwind-White, 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565, 128 A.L.R. 876.
It seems now that those broad principles have not been limited or modified, but open a wide avenue for difference of opinion in their application. It has been said that the levy must not impede the free flow of trade between the states, nor be laid on interstate commerce directly. Freeman v. Hewit, 329 U.S. 249, 67 S. Ct. 274, 91 L. *858 Ed. 265; Morgan v. Com. of Virginia, 328 U.S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317; Interstate Transit, Inc., v. Lindsey, 283 U.S. 183, 51 S. Ct. 380, 75 L. Ed. 953; Spector Motor Service v. O'Connor, supra. It is not controlling that local commerce is subjected to a similar incumbrance. Freeman v. Hewit, supra.
The question here is whether those principles serve to support the tax in question as applied to plaintiff. As to plaintiff, that tax contains all of those elements of a permissible tax without question, except that of whether it is laid on interstate commerce or impedes its free flow. We do not think that it is accurate to hold that it is laid on such commerce as applied to plaintiff in hauling his own goods and delivering them pursuant to a contract of sale made by him. It is more properly laid upon a feature of such contract of sale.
The case of McGoldrick v. Berwind-White, supra, was based on a sales tax imposed by the City of New York on the sale of goods delivered within the city, purchased for shipment from outside the city and transported in interstate commerce as a part of their delivery in the city. We can see no difference between such a situation and one where the seller himself transports the goods as a part of the delivery rather than to have them transported by an independent transportation company. In neither case is there any tax or other burden upon commerce. The burden falls, and the tax is laid, not upon the transportation, but upon the delivery as an act in consummating a sale between persons who may or may not have an interest in the transportation, but whose relationship is exclusive of transportation, although transportation is necessary to its consummation. We do not think the Berwind-White case, supra, followed by our Sanford case, supra, has been modified by any later cases, to which we have been referred. See Annotation 128 A.L.R. 901 et seq. The case of Freeman v. Hewit, supra, manifests no purpose to reflect upon it as an authority. The other cases relied on are not in point, as we will show.
We of course concede that, when such unloading is at the end of a continuous movement in interstate commerce, it is a feature of such commerce. Puget Sound Stevedoring Co. v. Tax Commission of Washington, 302 U.S. 90, 58 S. Ct. 72, 82 L. Ed. 68. But this tax was not laid, as respects this plaintiff, on delivery as a feature of such commerce, but as a feature of a sale made by the taxpayer to his purchaser as in the Berwind-White case, supra, and as in Caskey Baking Co. v. Com. of Virginia, 313 U.S. 117, 61 S. Ct. 881, 85 L. Ed. 1223.
In the Joseph case, supra, the business of the taxpayer was that of stevedoring, serving vessels in interstate commerce. The court struck down the tax declaring that stevedoring is an essential part of the commerce, and the tax was upon the privilege of conducting that business measured by a percentage of the gross receipts and was an interference by the state with the freedom of interstate commerce. It was a burden primarily on interstate commerce. It demonstrates that the principles we relied on in the Sanford case, supra, have not been modified, and so our duty now is to apply them again.
In the Spector case, supra, the court was dealing with a state tax measured by the income received from business transacted within the state during the tax year upon each corporation or association carrying on business of a certain sort in the state. The tax was to be an excise upon its franchise for the privilege of carrying on or doing business within the state. The taxpayer in that case was engaged solely in the interstate transportation of freight by motor truck and was doing such business within the taxing state. The opinion noted that the tax which was levied was not a fee for an inspection or on sales or for use, but it was an excise based unequivocally upon the corporate franchise or the privilege of carrying on exclusively interstate transportation in the state. It was noted that the question of whether a state may validly make interstate commerce pay its way depends, first of all, upon the constitutional channel through which it attempts to do so. Applying that principle to such situation, the court observed that the incidence of the tax provides the answer, since the *859 courts of that state have held the tax attaches solely to the franchise of the petitioner to do interstate business, but it was also stated that "the State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State * * *, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and nondiscriminatory." [340 U.S. 602, 71 S. Ct. 512.] The privilege of carrying on business in the state exclusively interstate in character cannot be locally taxed, and it was held that such was the nature of the tax there involved. See, also, Freeman v. Hewit, 329 U.S. 249, 67 S.Ct 274, and authorities supra.
The tax imposed in the Spector case, supra, was upon the act of transportation itself, levied on one for doing an interstate business. The quotation above shows that the court did not intend to revise or overrule the principle that taxes may be validly imposed, although their payment may come out of funds derived from interstate business, provided their business is reasonably related to the powers of the state and nondiscriminatory, and not laid on interstate commerce itself.
Applying the foregoing principles to the situation with which we are here dealing, we note a material distinction between the Joseph case and the Spector case, supra, on the one hand, and the Berwind-White case, supra, on the other. In the first two cases the tax was imposed directly on the transportation or a feature of transportation in interstate commerce. The Berwind-White case, followed by us in the Sanford case, supra, dealt with a tax which was not placed, as there applied, upon the act of transportation or a feature of it, but upon an act involved in dealings between persons consummated by transportation in interstate commerce. Such a tax, not imposed directly upon interstate commerce, is not invalid merely because interstate commerce entered into the transaction which was taxable, provided the tax, which was so imposed, was reasonably related to the powers of the state and nondiscriminatory, and not a burden on interstate commerce. Caskey Baking Co. v. Com. of Virginia, 313 U.S. 117, 61 S. Ct. 881, 85 L. Ed. 1223; State v. Coca Cola Bottling Works, 29 Ala.App. 508, 198 So. 363.
This ordinance applies equally to deliveries in the City of Andalusia, without regard to whether the transportation began within or without the state. There is no allegation in the complaint showing that the local situation was such as that the tax was peculiarly aimed at or more directly affected interstate transactions than intrastate transactions.
There is no doubt of the fact that the City of Andalusia could pass an ordinance fixing an excise tax on the delivery of property in the city, although the transportation began at a point outside of the city. The broad authority given a city in the exercise of its police and revenue producing power fully justifies such an ordinance. Title 37, sections 455, 735, Code of 1940; City of Enterprise v. Fleming, 240 Ala. 460, 199 So. 691.
As said above, we think beyond doubt, it results from the foregoing that the City of Andalusia is in the exercise of its lawful authority in imposing a license tax for the delivery within its corporate limits of goods sold by the taxpayer, although transported by it from a point beyond the city's corporate limits, and that such a license tax will be upheld although the delivery is at the end of interstate transportation, when such license tax is nondiscriminatory and is not a burden on the free flow of interstate commerce or laid upon the business of interstate commerce or any feature of it.
Writ of certiorari denied.
LIVINGSTON, C. J., and LAWSON and STAKELEY, JJ., concur.
FOSTER, Justice.
The question of the effect of a transaction, somewhat similar to that here involved, upon interstate commerce has been discussed also in the case of McLeod v. J. E. Dillworth Co., 322 U.S. 327, 64 S.Ct. *860 1023, 88 L. Ed. 1304. In that case it was held that, under the circumstances there existing, the tax was a burden upon interstate commerce for that the taxpayer was shipping goods by interstate commerce from Tennessee into the state of Arkansas. It had its offices in Tennessee where the sale was made and consummated by delivery f. o. b. in Memphis, Tennessee, in interstate commerce for shipment to the purchaser in Arkansas. The sale was therefore completed, so far as the seller was concerned, in the state of Tennessee when the delivery was made f. o. b. to the interstate carrier. The delivery in Arkansas was not necessary to a completion of the transaction.
The controlling distinction between the Dillworth case and McGoldrick v. Berwind-White, 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565, is in the fact that the delivery in New York in the latter case was necessary to a completion of the sale, whereas in the Dillworth case the sale was completed when the goods were placed f. o. b. with the interstate carrier in Memphis. The general rule of law applicable to sales is that "where the agreement is to sell goods `f. o. b.' (free on board) a designated place, such place will ordinarily be regarded as the place of delivery." 55 Corpus Juris 332. This is also in accordance with the Uniform Sales Law, Title 57, section 25, Rule 5, Code of 1940. Capehart v. Furman Farm Imp. Co., 103 Ala. 671, 16 So. 627; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 So. 672; Hatcher v. Ferguson, 33 Idaho 639, 198 P. 680; 16 A.L.R. 597.
So that instead of the Dillworth case being authority to the contrary, it does not in any respect conflict with what we have said in the instant case. It does not overrule the Berwind-White case and does not conflict with it. The result is controlled, as we have said, by the fact that the petitioner was obligated by the contract to deliver the goods into the possession of his customer and in his tanks in the City of Andalusia, and the sale was not complete until that occurred. Such delivery was a feature of the sale, not of the transportation. Whereas, in the Dillworth case the sale was completed by the seller when he delivered the goods f. o. b. Memphis to the carrier for shipment into Arkansas.
We have given attention to the case of Nippert v. City of Richmond, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760, but we did not treat it specifically because the same principles declared in it had been analyzed and fully stated and distinguished in the Berwind-White case, supra, all to the same effect.
On this application, as on the original submission, petitioner argued that the ordinance in question is discriminatory against petitioner who transported his property over the state line and as an out of state distributory in favor of a local distributor of the same kind of product, and contended and is still contending that the Nippert case, supra, and other drummers' license fee cases, support that contention and that they should be here applied. We stated in the opinion, supra, that we did not consider the license tax discriminatory, meaning inherently so, and observed that there is no allegation in the complaint showing the local situation or that the tax was aimed at the out of state distributors. We think the question whether it is discriminatory in favor of local distributors whose business is completely local, is not presented by this record. There is nothing in the complaint on which to base that contention.
The question here is solely upon the sufficiency of the complaint tested by the demurrer to it. The complaint alleges that the license tax is a burden upon interstate commerce, without explanatory detail in respect to the claim of discrimination made in brief. We think it could not be so interpreted as to mean that the ordinance is more than inherently subject to attack on that ground. We treated it upon that basis in our opinion, supra, and we think that treatment is proper. We repeat therefore that the question of whether it is discriminatory in favor of local distributors is not here presented, and we are not called upon to determine what is the meaning of the decisions of the Supreme Court of the United States as they affect that question.
*861 This is emphasized by the further fact that the complaint does not show that local distributors, whose business is done wholly within the city, if there are such who are competitors with petitioner, are not subject to an ordinance license tax comparable to that here in question.
We cannot assume that the tax here in question is discriminatory when there are are no facts alleged upon which such a conclusion may be reached.
There was no such contention made in the case of Sanford v. City of Clanton, supra. While the argument was made here, the emphasis was placed on the contention which was fully considered in the Berwind-White case, supra.
Our attention has been called to the case of City of Winchester v. Lohrey Packing Co., 237 S.W.2d 868, by the Kentucky Court of Appeals, not officially reported. The ordinance in that case laid a license tax for "soliciting for sale, selling or delivering". The taxpayer had a solicitor who lived in Kentucky and who obtained and transmitted the orders to the taxpayer out of state. We observe that this is controlled by the drummers' tax cases, Nippert case and others. That case found the distinction between the Berwind-White and Nippert cases to be that in the former the coal was transported to New York before the tax was applied, and in the latter the tax was for soliciting before the transportation began.
But in our opinion that is not the controlling distinction which is efficacious. The delivery of the coal in New York was completing the transportation and not after it had ended. We think the Nippert case, supra, which is a drummers' license tax, was based more emphatically upon the alleged discrimination there created in favor of local merchants who were not subject to the tax, but who were competitors of out of state merchants who were subject to it. But if the important distinction between the two lines of cases is as the Kentucky opinion in the Lohrey case seems to indicate, the instant case would fall on the side of Berwind-White rather than Nippert.
The application for rehearing is overruled.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur. | May 24, 1951 |
cabd5a30-a661-4d71-9bf3-d236b4aedf9c | Stringer Realty Co. v. City of Gadsden | 53 So. 2d 617 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 617 (1951)
STRINGER REALTY CO., Inc.
v.
CITY OF GADSDEN et al.
7 Div. 55.
Supreme Court of Alabama.
June 28, 1951.
Lusk, Swann & Burns, Gadsden, for appellant.
Dortch, Allen & Meighan and H. S. Patterson, Jr., Gadsden, for appellees.
STAKELY, Justice.
Stringer Realty Company, Inc., a corporation, filed a bill to quiet title against the City of Gadsden and Hermine C. Patterson, alleging that she was such a person as would fairly insure adequate representation of all other persons in a class. The bill contained the usual provisions required by the statute in bills of this character. Code of 1940, Tit. 7, § 1110. The bill contained further allegations. Since these additional allegations and the proof offered in support thereof are in accord, it is sufficient to state in substance the facts as shown by the evidence.
Prior to March 9, 1938 certain lands in the City of Gadsden had been platted as shown by a map or plat known as Edenwood Addition. This map or plat was recorded in the office of the Judge of Probate of Etowah County. This map or plat contained Block A, lots 1 to 20, with a portion *618 of the property not divided into lots in the north end, and Block B, lots 1 to 24, with a portion of the property not divided into lots in the south end. Block A was north of Block B so that the two tracts not divided into lots were widely separated. These two tracts comprise the property involved in this suit.
On March 9, 1938 along with other property in Edenwood Addition complainant acquired the property included in Blocks A and B with certain exceptions not here important. The complainant then replatted the property it had obtained into a somewhat differently arranged subdivision, designated as "Stringer Realty Company Resurvey of Edenwood Addition." The two tracts not divided into lots on the first map were left unchanged on the second map, except that on the second map each was designated "Private Park."
The complainant sold the majority of the lots then owned in the subdivision. Many homes were built and the community grew. In none of the deeds executed by the complainant was any reference made to the "Private Park." No deed executed by the plaintiff was pleaded or proved. The two tracts each designated "Private Park" remained unimproved. They were never developed or used as parks. The plaintiff assessed and paid the taxes thereon and no resident or owner in the subdivision ever evidenced any interest therein. The complainant is in peaceable possession of the property and no suit is pending to enforce or test the validity of any title or claim which any of the parties may have to the land involved. There is no evidence that the tracts or either of them were ways of necessity, accessibility, ingress or egress.
It is alleged in the bill that the defendants claim that the describing of those portions of said Blocks A and B as "Private Park" on the map or plat, the filing of the map or plat for record and the selling of lots constituted an effective dedication of the property to the public as a public park or a private reservation or easement common to all owners or residents in the addition and that the complainant has no further interest therein except in common with the public or as an owner of the remaining lots. The complainant prayed: "This court will order and decree there has been no dedication by the plaintiff of the above described parcels of land to public use and neither the public nor the defendant Hermine C. Patterson nor any other owners of lots or residents in said addition have any right, title, interest, or easement in, or encumbrance upon said property and all such claims as the defendants may have to said property as a public park or otherwise be forever quieted in your plaintiff and your plaintiff is vested with a good and indefeasible title in fee simple thereto."
There was no demurrer to the bill. The City of Gadsden answered:
"1. This defendant claims no interest in the lands described in Paragraph 2 of the bill of complaint and referred to in said paragraph as `Private Park'.
"2. This defendant has never accepted either of said tracts of land as a park and has never exercised any dominion or control whatever over either of them and has no intention of so doing."
The respondent Hermine C. Patterson answered: "The complainant had surveyed and platted the lands as shown by the copy of the map or plat attached to said Bill of Complaint as Exhibit `A' and made a part thereof, and the entire tract owned and possessed by the complainant was divided in said map or plat into smaller tracts known as lots with the exception of two tracts marked `Private Park'. It is further averred that the purpose of dividing said lands and platting them was to make said lands attractive to prospective purchasers thereof, at more favorable prices, and this defendant was one of said purchasers * * * The statutes of the State of Alabama provide for the statutory dedication of land for public use and because of the nature and location of the heretofore referred to tracts and the mode, plan and scheme of division by said map or plat, this defendant is informed and believes and upon such information and belief, says that the title, ownership and possession of the two said tracts were intended to be dedicated and actually were dedicated, in fact and law, to purchasers *619 of said lots in said map or plat, Exhibit `A', of whom this defendant is one."
Only one witness testified in the case. This witness was T. A. Stringer, President of the Stringer Realty Company, the complainant in the cause. His testimony supported the statutory allegations in the bill and also the allegations of the bill that the areas of the blocks designated on the recorded map as "Private Park" were never intended to be dedicated to public use or for the private use of persons buying property in the platted areas, that at no time since the property was platted had the public or any person owning property in the subdivision exercised any rights in connection with the property and further that the Stringer Realty Company had assessed and paid the taxes on the property designated as "Private Park" along with its other property. At the conclusion of the hearing the court entered a decree denying the relief sought by the bill and dismissing the bill.
It is obvious that the decree denying the complainant relief can only be sustained on one of two theories (1) dedication to public use or (2) the granting of an easement for private use.
It cannot be sustained as a dedication to public use. To describe a tract of land as "Private Park" appears to indicate the opposite of public use. There is such a thing as a private park as contrasted with a public park. Golf View Realty Co. v. Sioux City, 222 Iowa 433, 269 N.W. 451; 67 C.J.S. Park, page 859. The acknowledgment and recordation of the map or plat did not operate as a statutory dedication of the lands in question since the map or plat did not show these lands to be "public grounds." § 12 et seq., Title 56, Code of 1940. Nor was there a common law dedication.
In Steele v. Sullivan, 70 Ala. 589, this court said: "A dedication of land to the public use, as a highway, need not be in writing, but may originate by any act or declaration of the owner, which manifests an intention to devote the property to such public use. Being a voluntary donation, it will not be presumed, without the clearest intention to this end. It must be completed by the acceptance of the public, and, when once accepted, is irrevocable. The act of dedication, especially if single, must be clear and unequivocal; but acceptance may be shown by long public use, or by acts of corporate or other public officers, recognizing and adopting the highway as such. * * *."
In 16 Am.Jur. p. 359, § 15, it is said: "There is no such thing as a dedication between the owner and individuals. The public must be a party to every dedication. In fact, the essence of a dedication to public uses is that it shall be for the use of the public at large. There may be a dedication of lands for special uses, but it must be for the benefit of the public, and not for any particular part of it; and if from the nature of the user it must be confined to a few individuals, such as the use of land for piling wood, the idea of dedication is negatived. Thus, if the dedication confers a right of way, such right of way is a highway, not a private passway; and a grant by the owner of a private right of way over his lands to buyers of different parcels of the same to furnish them with convenient access to the street is no dedication to public use."
In Hill v. Wing, 193 Ala. 312, 69 So. 445, 446, this court said: "The case of our own court, nearest in point, which we have examined, is that of Steele v. Sullivan, 70 Ala. 589. In that case it was said that a dedication can properly be made only to the public use; that a private right of way cannot be created by dedication."
In Town of Leeds v. Sharp, 218 Ala. 403, 118 So. 572, 573, where the question of the dedication of a public park was involved, this court said: "The argument in favor of the relief sought rests upon the contention that there has been a commonlaw dedication. No controversy arises as to the general rule of law here applicable. To establish such a dedication the `clearest intention' on the part of the owner must be shown, and the burden of proof rests on complainants. `To discharge this burden * * * the evidence must be clear and cogent, and the acts of the owner relied on to establish a dedication must be convincing of an intent to dedicate the property to *620 public use, and such acts must be unequivocal in their indication of the owner's intention to create a public right exclusive of his own.' * * *."
To summarize, there was neither a statutory dedication nor a common law dedication of the lands here involved. Fort Payne Co. v. City of Ft. Payne, 216 Ala. 679, 114 So. 63; Smith v. City of Dothan, 211 Ala. 338, 100 So. 501; authorities supra.
It seems equally clear that the theory of easement for private use common to all purchasers of lots cannot be sustained. There is a complete absence of any grant, express or implied, or any prescriptive use. There was no deed. In Jacksonville Public Service Corp. v. Calhoun Water Co., 219 Ala. 616, 123 So. 79, 80, 64 A.L.R. 1550, it was said: "`An easement always implies an interest in the land in or over which it is enjoyed.' `It lies not in livery, but in grant, and a freehold interest in it cannot be created or passed * * * otherwise than by deed.'"
See also Hicks Bros. v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, 57 L.R.A. 720, 91 Am.St.Rep. 38.
We have considered whether the designation "Private Park" on the two tracts would bring the case within the rules declared by this court in Scheuer v. Britt, 218 Ala. 270, 118 So. 658, 660, where it was said: "Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots, and conveying these with uniform restrictions as to the purposes for which the lands may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by any one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers. The owner of each lot has as appurtenant to his lot a right in the nature of an easement upon the other lots, which he may enforce in equity."
But in the case at bar there are no deeds containing covenants with reference to the area or areas in which those designated "Private Park" are situated. There are no deeds containing restrictions of any kind. The rules declared in the foregoing authority are not applicable here. Since there was no express easement or covenant or restriction, this leaves only for consideration whether there could arise an easement by implication. In Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559, 561, this court said: "Easements by implied grant of the nature involved in this case are usually limited to such as are open and visible, continuous, and reasonably necessary to the estate granted. Mere convenience is not equivalent to reasonable necessity. The right is an implication at best, and it is a question of fact in each particular case to determine whether the right is reasonably necessary to the enjoyment of the property conveyed."
If the word park had been used such a word could undoubtedly have been construed to mean a public park. Such appears to be the conclusion in Avondale Land Co. v. Town of Avondale, 111 Ala. 523, 21 So. 318. But here the lands were specifically designated as "Private Park". Under the evidence in this case we do not see how any other construction can be had than that the property was private property exclusively owned and for the sole use of the owner. In Webster's New International Dictionary the word "private" is defined as follows: "Belonging to, or concerning, an individual person, company or interest; peculiar to oneself; unconnected with others; personal; one's own; not public; not general; separate; as, a man's private opinion; private property; a private purse; private expenses or interests; a private secretary; a private wrong; specif., of an act, bill, etc., relating only to persons and hence not receiving judicial notice by the court; opposed to public."
Under the facts shown in the case at bar the bill should not have been dismissed and the complainant should have been granted the relief sought.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER, J., concur.
*621 SIMPSON, J., agrees with the conclusion, based on the evidence adduced.
BROWN and LAWSON, JJ., dissent.
LAWSON, Justice (dissenting).
I cannot agree with the conclusion reached by the majority to the effect that those who purchased lots in accordance with the plat designated "Stringer Realty Company Resurvey of Edenwood Addition" and whose deeds make reference to the plat do not have an easement in such areas described in the plat as "Private Park."
The general rule is stated in 28 C.J.S., Easements, § 44, page 708, as follows: "Where land is sold with reference to a map or plat showing a park, beach, or open square, the purchaser acquires an easement that such area shall be used in the manner designated, and an easement over the streets which afford access to such area."
The majority opinion seems to indicate that if the word "private" had not been used a different question might be presented. The word "private," in my opinion, merely indicates that the park was not to be dedicated to the public but was to be used for the benefit and enjoyment of those who purchased lots in the subdivision. It was an inducement for one to purchase such lots, and the grantors should not now be permitted to repudiate the easement or deny that it exists.
In effect the majority opinion says that the words "private park" as used in the plat showed that those who platted the lands were reserving such area for their own private purpose. The answer to that argument is that if the owners had intended to reserve complete dominion and control over such area they could have done so by the simple device of excluding it from the plat.
In Caffey v. Parris, 186 Ga. 303, 197 S.E. 898, 900, the rule is stated as follows: "Where an owner of land sells a part of it in lots for residential purposes, the sales being made with reference to a plat by which another part of the land is designated as a park, and where the purchasers in buying rely upon the plat, the seller is estopped from asserting a claim adverse to the right of the purchasers, or their assigns, to have the land so designated restricted to use as a park and to share the use of it as such. East Atlanta Land Co. v. Mower, 138 Ga. 380, 75 S.E. 418. * *"
To like effect see Williamson v. Salmon, 105 Misc. 485, 173 N.Y.S. 617.
I am of the opinion that the decree should be affirmed.
BROWN, J., concurs in this dissent. | June 28, 1951 |
d445fbc8-269d-4711-9f83-8d0591d8bb92 | Terry v. Nelms | 54 So. 2d 282 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 282 (1951)
TERRY
v.
NELMS.
8 Div. 567.
Supreme Court of Alabama.
May 17, 1951.
Rehearing Denied June 28, 1951.
Further Rehearing Denied October 18, 1951.
*283 R. B. Patton and D. U. Patton, Athens, and S. A. Lynne, Decatur, for appellant.
Peach, Caddell & Shanks, Decatur, for appellee.
SIMPSON, Justice.
The appellant brought suit against appellee for personal injuries and property damage growing out of a collision of his automobile with defendant's truck at a street and highway intersection in the city of Decatur, Alabama. The usual conflicting tendencies of evidence obtained here, as in most such trials, but in view of our conclusions it will not be necessary to discuss it. From a judgment for the defendant, the plaintiff has appealed.
The question of importance is whether reversible error prevailed in giving for the defendant two patently erroneous requested charges, numbers 4 and 9. We will here reproduce 4 and the reporter will set out 9. "4. If you are reasonably *284 satisfied from the evidence in this case that the plaintiff Terry was guilty of negligence on the occasion in question and that this negligence contributed in the slightest degree to his damage and injury you should not render a verdict in his favor but your verdict should be in favor of the defendant."
Concededly the charge is erroneous in failing to hypothesize that the negligence of the plaintiff to bar recovery must proximately contribute to his injuries. Such negligence must be a concurring proximate cause of the injury and not merely a remote or antecedent occasion or condition of the injury to be available under a plea of contributory negligence. Hayes v. Alabama Power Co., 239 Ala. 207, 194 So. 505; Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 5; J. H. Burton & Sons Co. v. May, 212 Ala. 435, 103 So. 46; Hines v. Champion, 204 Ala. 227, 85 So. 511; McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; Newsome v. Louisville & N. R. Co., 20 Ala.App. 349, 102 So. 61.
Charge number 9 is subject to the same defect.
The consistent holding of this court has been that error to reverse must be pronounced in such a misdirection to the jury. McCaa v. Thomas, supra; Dudley v. Alabama Utilities Service Co., supra; Newsome v. Louisville & N. R. Co., supra; Seaboard A. L. Ry. Co. v. Laney, 199 Ala. 654, 75 So. 15; Thompson v. Duncan, 76 Ala. 334; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Brooks v. Rowell, 222 Ala. 616, 133 So. 903; Kelly v. Hanwick, supra.
True, as argued by able counsel, there were other instructions which properly charged on contributory negligence, but the precedent has also been established that the error in giving such an "erroneous charge was not cured by the fact that, in the court's oral charge, or in other special charges given at the request of defendant, the jury were properly instructed that only such negligence as proximately contributed to his injury could be considered. Birmingham Ry., L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Roberson v. State, 183 Ala. 43, 62 So. 837; Ala., T. & N. R. Co. v. Huggins, 205 Ala. 80, 87 So. 546; Birmingham Ry., L. & P. Co. v. Hunt, 200 Ala. 560, 76 So. 918." Dudley v. Alabama Utilities Service Co., supra, 225 Ala. 531, 532-533, 144 So. 5, 6.
The defendant's answering argument is also predicated on the principle of error without injury. McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So. 2d 332, 337, is thought to sustain the position. The case at hand is to be easily distinguished. Here positively erroneous instructions on the law of contributory negligence were given to the jury. They were fundamentally bad, in which circumstance we have said a reversal of the case is in order. In the McGough case the charges considered were held to be incomplete, but not altogether incorrect, and that the court's oral charge that "no person is responsible for any negligence unless that negligence is the proximate cause of the injury or damage. That applies throughout the charge to anything I say" (emphasis supplied) effectually eradicated any prejudice which might have prevailed by the giving of the charges there considered.
In the case at bar, however, no such explanation was made by the trial court and, indeed, the same vice inhered in a portion of its oral instruction as regards contributory negligence, where the court charged: "Nor does the defense of contributory negligence, which I will later define to you, prevent a recovery, if it is not the proximate cause, or if it does not contribute in some degree to the injury or damage." The second alternative of the quoted excerpt pretermits proximate causation. This instruction, rather than remedying the defect in the two erroneous charges, approved them. To illustrate, the same situation prevailed in the case of `Chapman v. Blackmore, 39 Ohio App. 425, 177 N.E. 772-773, where the court was considering an instruction in the alternative that the contributing negligence should have been either a proximate cause or must have contributed in the *285 slightest degree to the accident. In analyzing the error, the court said: "By the defendant's request No. 1 the jury was instructed that if the plaintiff was negligent in any respect, and `such negligence was the proximate cause of the accident, or contributed thereto in the slightest decree,' a verdict should be returned for the defendant.
"Of course, it is fundamental that contributory negligence on the part of the plaintiff will not bar his recovery unless such negligence is a proximate or direct cause of the injury. * * *
"The instruction from which quotation has just been made indicates that this principle of law was appreciated and probably undertaken to be covered; but the instruction is in the alternative form, and justifies a finding that the plaintiff would be barred from recovery if his negligence contributed in the slightest degree to cause the accident. That portion of the instruction should have read so as not to bar him from recovery on the ground of contributory negligence unless it proximately or directly contributed to the injury. The instruction being in the disjunctive form would authorize the jury to find against the plaintiff if it found that his negligence was the proximate cause of the injury, or if it found from the evidence that his negligence contributed in the slightest degree to his injury.
"This court is of the opinion the error in giving instruction No. 1 was prejudicial to the plaintiff."
The remaining errors contended for appear not to be so vital and will probably not occur on a retrial, so we will not treat of them.
For the error noted, however, we are strongly convinced the judgment should be reversed. So ordered.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur.
SIMPSON, Justice.
This response is in deference to the earnestness of able counsel on rehearing, for on original consideration we took full account of the propositions now advanced to avert a reversal of the cause but were then and are now in disagreement with the argument.
On a very careful re-examination of the case we must hold:
1. McGough Bakeries case, supra, is not authoritative; nor is the principle of that case conflictory with the pronouncement quoted from Dudley v. Alabama Utilities Service Co., supra. But in applying the rule of error without injury, as was done in the McGough case, the particular case in hand must be judged on its own record. As was so aptly observed long ago by Chief Justice Marshall in Ogden v. Saunders, 12 Wheat. 213, 313, 6 L. Ed. 606, 647: "It is a general rule * * * that the positive authority of a decision is coextensive only with the facts on which it is made." So instantly we must judge the record before us and not that in the McGough case, since they are not the sameas we thought had been pointed out on original deliverance.
For many years this court has pronounced reversible error in giving charges as condemned hereinabove, where their giving probably injuriously affected the party against whom given. And since in the case at bar the oral charge and the given written charges gave both correct and incorrect instructions on the applicable law of contributory negligence, we are bound to be governed by the stated principle of the Dudley v. Alabama Utilities Service Co. case and order a reversal.
2. The case of Gillespie v. Woodward Iron Co., 209 Ala. 458, 96 So. 595, cited as justifying the omission of proximate causation from a contributory negligence charge, has already been held to be inapposite in a case action in Bradshaw, Plosser & Rowe v. Hoskins, 223 Ala. 23, 134 So. 625. The court there pointed out that in the Gillespie case the action was "for damages resulting from a nuisance, not involving a question of negligence, and is not pertinent to the question presented here" (contributory negligence).
*286 3. Likewise untenable is the argument that because plaintiff's requested charge 4 was given, which it is contended omitted the idea ofproximate causation, error to reverse might be averted for the giving of the aforestated charges numbered 4 and 9 for the defendant. Without analyzing the correctness, vel non, of plaintiff's charge 4, if it was bad, it was bad for a different reason from the patent illegality imminent in defendant's said two given charges. So the principle of estoppel argued to sustain the ruling below would in any event be inapplicable.
On a careful reconsideration, we must say we think our original opinion is sound.
Opinion corrected and extended, and application for rehearing overruled.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | May 17, 1951 |
20985a3c-7063-42a8-b6b0-c613d1a76a5f | Haywood v. HOLLINGWORTH | 51 So. 2d 674 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 674 (1951)
HAYWOOD et al.
v.
HOLLINGSWORTH et al.
7 Div. 47.
Supreme Court of Alabama.
March 8, 1951.
Rehearing Denied April 19, 1951.
Chas. Thomason, of Anniston, for appellants.
Knox, Jones, Woolf & Merrill, of Anniston, for appellees.
BROWN, Justice.
This appeal is from the final decree of the circuit court, in equity, fixing a disputed land line between the properties of coterminous proprietors, who as the undisputed evidence shows, each own a lot in the Griffishurst Subdivision to the City of Anniston, situated just west of said city in Calhoun County, Alabama.
The bill filed by appellees seeking such relief alleges,
"Complainants own the following described property, to-wit: Lot 2, in Block A, as shown on the map of Griffishurst, just west of the City of Anniston, in Calhoun County, Alabama. Respondents own the following described property, to-wit: Lot 1, in Block A, as shown on the map of Griffishurst, just west of the City of Anniston, in Calhoun County, Alabama.
"Complainants and Respondents are coterminous owners, complainants' lot lying adjacent to and immediately west of respondents' said lot, both of which front on the south side of Tenth Street and extend southward to an alley, as shown on the map of Griffishurst Subdivision. The east boundary line of complainants' said lot is the same as the west boundary line of respondents' said lot.
"Complainants aver that the location of said boundary line between said lots is disputed by said owners and complainants desire to have the same established and determined by this Court."
The bill further avers, in short, that "more than ten years ago the boundary line above referred to was established and agreed upon between the then owners of said respective lots, who were the predecessors in title of the present owners, and a fence was erected on said dividing line which separated said lots; that both of said parties acquiesced in the construction of said fence and for more than twenty years recognized the same as the boundary line between said lots and treated the same *675 as such, each party having actual possession of his respective lot up to said fence."
"Complainants aver that the true boundary line between said lots is the line upon which the original fence was erected and the same is well marked by postholes where the fence posts constituting a part of said fence stood, and that the same runs four feet nine inches east of and approximately parallel to the new fence that has been erected by the respondents."
The bill prays inter alia that "The Court will determine and establish the true boundary line between the said lots of said parties and that the Court will adjudicate that the true boundary line is the line upon which the original fence separating said lots was located, and complainants further pray that the Court will enjoin respondents from maintaining the fence that they have recently erected upon complainants' property, and will require him to remove the same and to reestablish said original fence, and that the boundary line between said lots will be clearly established and marked under the supervision of the Court," and for general relief.
After demurrer overruled the defendants answered, admitting that said lots "lie adjacent to or parallel with one another and that they front on the south side of Tenth Street, and extend southward to an alley, as shown on the map of Griffishurst Subdivision,"that the East boundary line of complainants' said lot is the same as the west boundary line of respondents' said lot"; and that the "boundary line between the above named and identified lots is in dispute." The respondents deny that "more than twenty years ago the boundary line above referred to was established and agreed upon between the then owners of said respective lots." Further respondents deny that a fence was erected on said dividing line by them and acquiesced in by them for more than twenty years, or at all. The respondents "emphatically deny and specifically deny that for more than twenty years last past the complainants or their predecessors in title claimed to own the land west of the old fence, that the predecessors in title and the complainants never actually used the land right up to the fence."
The respondents in their answer deny that the true boundary line between said lots is the line upon which the original fence was erected.
On submission on the pleadings and proof noted by the register, consisting of documentary evidence, testimony taken by depositions and testimony taken ore tenus, the court entered a final decree as follows:
"It is accordingly ordered, adjudged and decreed by the Court that the boundary line between the lots of complainants and respondents, * * * is hereby determined to be and established by the Court as follows, to-wit:
"Beginning at a point on the south line of Jefferson Street 47 feet 3 inches west of an iron marker established by A. J. Saks, Surveyor, at the southwest corner of Jefferson Street and First Avenue, which point is 4 feet 9 inches east of an iron marker established by A. J. Saks, Surveyor, purporting to mark the dividing line between the said Lots 1 and 2, Block A, Griffishurst, and is the point where the existing fence erected by respondent H. L. Haywood referred to in the bill of complaint intersects the south line of Jefferson Street. From said beginning point said boundary line extends southward following the old fence row where the fence erected by W. P. Pointer in 1948 stood (being the fence removed by respondent H. L. Haywood a short time prior to the filing of this suit) to an alley, which is the south line of said lots, located in Calhoun County, Alabama.
"It is further ordered, adjudged and decreed by the Court that the respondents be, and they are hereby, ordered, directed and enjoined to forthwith remove the fence heretofore erected by respondent H. L. Haywood as a dividing fence between said lots, and they are hereby enjoined and prohibited from maintaining or permitting the same to remain in its present location, or elsewhere on the west side of the boundary line between said lots as herein determined and fixed by the court. * * *" *676 The single assignment of error made on the record after stating the caption of the case is:
"Now comes the Appellants, respondents in the cause below, and show unto the Court that manifest error has been committed on the trial of this cause in the Court below to their great damage, and as ground of error assign the following:
"The Court below erred in the final decree rendered in the above styled cause, signed August 26, 1949, and recorded in Transcript on pages 18 and 19 of record."
The evidence is without dispute that the lots, the dividing line between which we are considering, is in dispute and are located in Griffishurst Addition to Anniston, Calhoun County, Alabama, the land owned by Mr. Griffis and platted by G. B. Pickett Civil Engineer in December 1915 and plat and map thereof recorded in the office of the Judge of Probate of Calhoun County in "Plat Book `B', page 14;" that said lots are situated in Block "A" and are numbered 1 and 2. That said lots front on the south side of 10th or Jefferson Street. Said lot 1 is a corner lot running west of and adjacent to First Avenue and as platted is fifty-two feet in width. Lot 2 is immediately west of and contiguous to lot 1 and as shown by the plat is fifty feet wide. Both of said lots extend back to the south to an alley and are 140 feet in length.
The evidence is further without dispute that W. P. Pointer, the immediate predecessor in title of the complainants, who had owned said lot 2 for twenty years or more, on June 7th, 1948, conveyed the same to complainants by warranty deed which describes the same as "Lot No. (2) in Block `A', as shown on the map of the Griffishurst property just west of the City of Anniston, Alabama, together with all the improvements thereon and appurtenances thereto belonging."
Any accretion to or enlargement of such lot through the processes of adverse possession or estoppel, if any, acquired by Pointer during his ownership was not embodied in said description.
The evidence is also without dispute that A. G. Newriter owned and was in possession of said lot 1 in Block A of said Griffishurst Addition for many years, improved and lived on the same with his wife and after his death his widow Grace Newriter and Lillie Mae Sparkman, his only heir at law, on July 10th, 1945, conveyed said property to the respondents (appellants here) by warranty deed, containing the following description: "Lot One (1), Block A, as shown and numbered on the map of Griffishurst, Anniston, Alabama, more particularly described as follows: Beginning at a point on the south line of Tenth Street at the intersection of First Avenue, thence running south along the west line of First Avenue One Hundred Forty (140) feet; thence west along the north line of the alley fifty-two (52) feet; thence north one hundred forty (140) feet to the south line of Tenth Street; thence east along said line fifty-two (52) feet to point of beginning; in the City of Anniston, Calhoun County, Alabama."
Said widow and the only heir at law were and are the immediate predecessors in title of the respondents. The only basis for adverse possession, the holding up to an agreed line, was the testimony of the witness W. P. Pointer, who was not competent to testify as to a transaction between himself and A. G. Newriter, long since deceased. Code of 1940, Tit. 7, § 433; Smith v. Cook, 220 Ala. 338, 124 So. 898. And under the recent rulings here applying, the "lazy lawyer statute," that testimony should not have been considered. § 372(1), Tit. 7, Code of 1940; Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115.
The description in complainants' deed from Pointer cannot be extended by construction so as to embrace the 4 ft. and 9 inches which encroaches on defendants' Lot No. 1 in Block A. Brown v. Powers, 167 Ala. 518, 52 So. 647; Alford v. Rodgers, 242 Ala. 370, 6 So. 2d 409. The claim of complainants that a line had been established along the old fence row by agreement between Pointer and Newriter and adverse possession not being sustained, the defendant was entitled to have the true line described in the deed from Mrs. Grace A. Newriter and Lillie Mae Sparkman established *677 by the decree of the court. Smith v. Cook, 220 Ala. 338, 124 So. 898.
The decree of the circuit court entered August 26, 1949, is reversed and one is here entered defining the true line between said coterminous owners as follows: Beginning at a point on the south line of Tenth Street at the intersection of First Avenue; thence running south along the west line of First Avenue one hundred and forty (140) feet; thence west along the North line of the alley fifty-two (52) feet; thence north one hundred and forty (140) feet to the South line of Tenth Avenue; thence East along said line fifty-two (52) feet to the point of beginning, in said Griffishurst Addition to the City of Anniston, Calhoun County, Alabama.
The case is remanded to the circuit court, in equity, with direction to appoint a competent engineer to locate said dividing line and place permanent markers along the same each twenty feet, showing that the same has been settled by judicial decree.
Reversed, rendered and remanded with directions.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur. | March 8, 1951 |
fa296f43-77b6-453f-b198-00483456bad7 | Copeland v. Swiss Cleaners | 52 So. 2d 223 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 223 (1951)
COPELAND
v.
SWISS CLEANERS, Inc., et al.
1 Div. 422.
Supreme Court of Alabama.
March 29, 1951.
Rehearing Denied May 10, 1951.
*225 V. R. Jansen, of Mobile, for appellant.
Holberg, Tully & Aldridge and J. W. Grayson, all of Mobile, for appellees.
FOSTER, Justice.
This is a suit by U. S. Copeland, the appellant, against Swiss Cleaners, Inc., a corporation, and Jesse L. Dillard on a promissory note purporting to be executed by the Swiss Cleaners, Inc., by Jesse L. Dillard, president and endorsed by Jesse L. Dillard. The note contains a waiver by the endorser of demand, presentment, protest and notice of protest, suit and all other requirements necessary to hold them. The defendants pleaded separately, first, non est factum, and, second, want of consideration. The sixth plea of the Swiss Cleaners sets up the fact that plaintiff together with Idell R. Copeland entered into a written contract with Jesse L. Dillard, one of the defendants herein, on August 22, 1947, after the execution of the note sued on, whereby for the consideration named the said U. S. and Idell Copeland warranted that all outstanding indebtedness of the corporation had been or would be paid by them, attaching a copy of the agreement. Defendant alleged that the terms of the contract had been complied with by said Dillard, and that by virtue of said agreement said note has been paid and discharged. The copy of the agreement, alleged to be attached, purports to be dated August 22, 1947, between U. S. and Idell Copeland and Jesse L. Dillard. It recites a sale thereby made by the Copelands to Dillard of one hundred and fifty shares of stock of the corporation and their interest in certain fixtures and equipment of the corporation. The corporation had one hundred and seventy shares of stock. The consideration expressed was to pay $8,000.00 indebtedness of the Copelands, $4,000.00 cash to the Copelands, and $11,000.00 to be paid the Copelands September 20, 1947, without interest. The agreement recites that the price stated, aggregating $23,000.00, was to include the purchase of twenty shares of stock owned by George R. Copeland, a minor, whose disabilities were to be removed and he was then to transfer the same to Dillard by September 20, 1947, in default of which there was to be deducted from the $11,000.00, then payable, the sum of $2706.00. In said agreement the Copelands warranted that all outstanding indebtedness of the corporation had been or would be paid by them. Said plea does not in terms refer to the note sued on as an outstanding indebtedness of the corporation. But it gives the date of the contract as August 22, 1947, and the complaint describes the note as dated August 21, 1947. The basis of the claim thus set up is that the note to plaintiff was an outstanding debt of the corporation on August 22, 1947, and therefore within the terms of plaintiff's warranty that it had been paid or would be paid by him.
The seventh plea sets up the same matter and alleges that the plaintiff is estopped by reason thereof to maintain this action. The same matter was pleaded by Jesse L. Dillard in pleas B and C. A demurrer was overruled to those pleas, and plaintiff made replication. Replications A, B and C were those which were finally filed, and demurrer was sustained to them. Replication A alleges in substance that prior to the execution of the note sued on and the execution of the contract attached to the pleas, plaintiff was the owner of a controlling interest in Swiss Cleaners, Inc., that he owned the capital stock, and that negotiations for the purchase of the property by defendant Dillard began in August 1947; that an agreement was reached to acquire all the capital stock and take over the direction of the company for the purchase price of $25,000.00 to be paid by the assumption of certain *226 obligations of the corporation and plaintiff and by a cash payment and by deferred payments. That on August 21, 1947, $4,000.00 was paid by Jesse L. Dillard to plaintiff and the parties joined in the preparation of contracts to transfer the property. Said Dillard was to become thereby the only stockholder and officer of said corporation, and executed and delivered to plaintiff the note sued on after its endorsement by him, to be taken as a part of the deferred payment to be made to plaintiff by said purchaser; that the debt evidenced by said note was not a pre-existing obligation but was created by Jesse L. Dillard as the sole stockholder and owner of said business. Replication B admits the execution of the contract but denies that the note sued on was due prior to the sale of said property and alleges that said debt was created by the sole stockholder of the capital stock upon its transfer to him. Replication C alleges that the debt evidenced by the note was created by the said contract and said note was given to reduce the purchase price of said property which said Dillard originally agreed to pay in cash at the time of his purchase, and said debt was not an obligation of plaintiff or the corporation prior to the transfer of said business by plaintiff, nor was it a pre-existing obligation. The court sustained demurrer to all those replications.
The cause went to trial before the presiding judge without the intervention of a jury on the complaint and pleas of non est factum and want of consideration and special pleas 6 and 7, B and C, supra. There was evidence introduced by plaintiff with respect to the execution of the note. The court ruled that the evidence was not sufficient to prove the execution of the note and sustained objection to it. Plaintiff was not able to proceed further on account of the adverse rulings of the court and took a non-suit for the purpose of reviewing those rulings on appeal.
Appellant has assigned as error the ruling of the court overruling the demurrer to defendant's pleas sustaining the defendant's demurrer to plaintiff's replications and sustaining objection to the introduction of the note.
Appellee has moved to strike certain assignments of error upon the ground that they are insufficient, particularly those assignments referring to the court's action in overruling plaintiff's demurrer to pleas of defendant, to which we have referred, and sustaining defendant's demurrer to plaintiff's replications.
It is our view that the motion to strike the assignments is not well taken. The motion is based on the ground that there is not a separate assignment as to each ground of demurrer relied on. We have had occasion to deny that contention in several of our cases wherein the assignments of error merely challenged the ruling on demurrer with no separate assignment challenging the ruling as to each separate ground. Allison, Russell, Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42; Jackson v. Ariton Banking Co., 214 Ala. 483, 108 So. 359, 45 A.L.R. 1026.
We revert to the question of whether the evidence was sufficient to admit the introduction of the note, required by the plea of non est factum. It appears from the evidence without conflict that on and prior to August 21, 1947, the plaintiff and Idell Copeland owned one hundred and fifty shares of the stock of the Swiss Cleaners, Inc., a corporation, doing business in Mobile. There were one hundred and seventy of such shares outstanding. Twenty shares of stock were owned by a minor brother. There were negotiations between plaintiff and Jesse L. Dillard looking to a sale of it all to Dillard. It resulted in an agreement between them, including Idell Copeland, and a sale of such property. The sellers had purchased the property from another party by purchasing the stock in the Swiss Cleaners. There was a balance due to such sellers of something like $8,000.00. The agreement reached between him and Jesse L. Dillard, as shown by the testimony, was that the purchase price of the property should be $25,000.00, payable as follows, $8,000.00 to the plaintiff's sellers, $6,000.00 cash payment to the plaintiff and Idell Copeland, and $11,000.00 payable September 20th next. When it came to the matter of closing the transaction, the defendant Dillard made known to the plaintiff that, instead of paying *227 him the whole $6,000.00 in cash, it would better suit his convenience to pay $4,000.00 in cash and give him the note of the Swiss Cleaners with Dillard as endorser for $2,000.00. This was accepted by the plaintiff and, on August 21, 1947, an agreement was entered into between them in writing, signed and witnessed. The note sued on was likewise on that occasion executed by defendant signing the name of the Swiss Cleaners, Inc., by defendant Dillard as president, and at the same time endorsing the note with a waiver of demand, notice and protest. It then developed that the defendant Dillard desired to consult his lawyer with respect to the transaction, and they all went to the office of defendant's lawyer who happened to know that a few shares of the stock, to wit, twenty shares were owned and held by George R. Copeland who was a minor. And so it became necessary or appropriate to redraft some feature of the contract which had been written and signed by the parties and witnessed. That was done, to the extent here material, by taking out of the contract certain sheets thereof and inserting others which included a provision that the twenty shares of stock standing in the name of George R. Copeland should be transferred and conveyed to the purchaser on or before September 20, 1947, when the $11,000.00, the balance of the purchase price, was payable, and in default of same the sum of $2,706 should be deducted and retained out of said $11,000.00 by the said Jesse L. Dillard. The contract was in fact not re-executed or witnessed but, with the consent of all parties concerned, the new sheets containing the added features were inserted before the last page containing the signatures, so that it appeared to be over the signatures as it was originally executed. It was redated however, making the date August 22, 1947, whereas the original contract as executed was dated August 21, 1947. The note sued on was likewise dated August 21, 1947, and due September 20, 1948. The contract contains a clause whereby the plaintiff as the seller warranted that all outstanding indebtedness of the corporation has been paid or will be paid by the sellers.
On the trial of the case the court held that the note was not admissible in evidence. The suit, as we have said, is against both the Swiss Cleaners, Inc., and Jesse L. Dillard, which is permissible when the endorsement contains such a waiver as we have indicated. Clark v. O'Neal, 231 Ala. 577, 165 So. 853; Guttery v. Kilgore, 233 Ala. 514, 172 So. 627.
The court sustained the objection of both the Swiss Cleaners, Inc., and the defendant Jesse L. Dillard, individually, to the introduction of the note upon the ground that its execution was not proven on account of the duty imposed by the plea of non est factum by defendant, but the evidence shows that Jesse L. Dillard executed the note on behalf of the Swiss Cleaners, Inc., and endorsed it individually, all at one and the same time. So far as he is concerned, the evidence sufficiently shows the execution by him of the endorsement.
Against the theory that his endorsement of an instrument, which is itself not duly executed may not be binding upon him, the principle obtains that under the circumstances detailed above, he as an irregular endorser by his endorsement warranted the due execution of the note by the maker. Section 68, Title 39, Code; Little v. Peoples Bank, 209 Ala. 620, 98 So. 763; Guttery v. Kilgore, 233 Ala. 514, 172 So. 627. See, also sections 31, 65 and 67, Title 39, Code. Such endorsement does warrant to the payee that the instrument is genuine in all respects that it purports to be.
There is another principle which would, prima facie, fix liability of Jesse L. Dillard under those circumstances. That is, that when an agent contracts in the name of his principal, but without authority or in such manner as to impose no legal obligation on his principal, he is himself personally liable although he acted in good faith and actually believed that he had such authority. Belisle v. Clark, 49 Ala. 98; Foster v. Featherston, 230 Ala. 268, 160 So. 689; section 24, Title 39, Code. As a rule this principle is subject to the limitation that it does not apply when the person *228 dealing with the alleged agent has notice of his want of authority. Foster v. Featherston, supra. But this latter theory is subject to another that when a note is executed on behalf of the corporation by one who is the sole or controlling owner and the alter ego of the corporation, the note is binding on the corporation as between the parties to it, though as to creditors of the corporation it may not stand up if such owner is not in fact an officer of the corporation and it was done without express corporate authority. The following authorities are in point: 18 Corpus Juris Secundum, Corporations, § 513, p. 1193; 19 Corpus Juris Secundum, Corporations, § 1004, p. 472; 14-A Corpus Juris 361, section 2223; 14 Corpus Juris 865, section 1321.
In Sargent v. Palace Cafe Co., 175 Cal. 737, 167 P. 146, it was held that a corporation may execute its note for the personal indebtedness of its sole stockholder, and no one but the creditors can complain. In Bankers Trust Co. v. Economy Coal Co., 224 Iowa 36, 276 N.W. 16, where the sole owner of a corporation deals with corporate property, acts done by him or at his instance in reference to property of the corporation are done on its behalf or for its benefit and are binding on the corporation. One who is apparently the sole stockholder and sole acting officer of the corporation and conducts all negotiations and signs a contract on behalf of the corporation is bound by the terms of the contract. In Alaska Juneau Gold Min. Co. v. Ebner Gold Min. Co., 9 Cir., 239 F. 638, 152 C.C.A. 472, it was held the owner of nearly all of the stock of a corporation sustains a fiduciary relation to it, and acts done with relation to its property at his instance are done on behalf of the corporation or for its benefit. In Norman Mining Co. v. MacKay, 9 Cir., 241 F. 640, 641, 54 C.C.A. 398, in a suit to foreclose a corporate mortgage, claimed by the corporation to have been executed by its president without consideration and not for a corporate purpose, the evidence was held sufficient to warrant a finding that by reason of stock ownership the president was in effect the corporation. The case of Cotten v. Tyson, 121 Md. 597, 89 A. 113 was where one owns all the stock of a corporation, the corporation is bound by his acts in reference to corporate property. In Pacific State Bank v. Coats, 9 Cir., 205 F. 618, the president and secretary of a corporation were not only its sole trustees, but also its sole stockholders and a mortgage of the corporation's property to secure a loan of money used for the corporation, executed by them and to which they attached the corporate seal, was not invalid because they did not convene as a board of trustees and resolve that they be authorized as officers to mortgage the corporation's property.
These principles have application here because Dillard by the contract became the equitable owner of all the stock upon the basis of our decisions holding that when there is a contract for the sale and purchase of all or substantially all the capital stock of the corporation, or under other circumstances sufficient to support a suit in equity for a specific performance of the contract, the purchaser thereby becomes the equitable owner of such stock in respect to the seller. Boozer v. Blake, 245 Ala. 389(8), 17 So. 2d 152; Nashville Trust Co. v. Cleage, 246 Ala. 513 (9 and 10), 21 So. 2d 441. That means in dealings then and there had between them, their status to each other is such that the purchaser is the owner of the stock.
Such was the relation here between the plaintiff and Dillard when the note was executed. So that Dillard as a part of the transaction by which plaintiff sold him substantially all the stock was its owner in his dealings with plaintiff. Here the contract made on August 21, 1947, and signed by all of them purported to sell all of the stock to Dillard. As the equitable owner, with no creditors here complaining, he could execute in the name of the corporation a note to plaintiff as a part of the purchase price of the stock and to pay his own obligation without a formal assignment of the stock and without authority by the corporation in any way expressed.
We think the court erred in sustaining objection to the introduction of the note after the proof had been made to which we have referred. When the court made that *229 ruling, plaintiff took a non-suit on account of the adverse rulings of the court on the pleadings and the evidence. We find in the record no exception to the ruling of the court sustaining objection to the introduction of the note.
This non-suit was taken under the authority of section 819, Title 7, Code. While this statute contemplates that an exception will be reserved to the ruling of the court which occasioned the non-suit, if an exception is necessary in order to review the ruling, we have held that the exception need not be stated in any particular form of words. We observed in the case of Sims v. Tigrett, 229 Ala. 486, 158 So. 326, 329, "If the bill of exceptions shows by its statements that it was understood by the court and parties at the time the ruling was made that plaintiff wished to have it reviewed on appeal, the reservation should be considered as made."
The statement of plaintiff's counsel in that connection made in open court after the court sustained objection to the introduction of the note, is sufficient to manifest a purpose to review by appeal such adverse ruling. It was therefore not necessary in so many words to declare that there was an exception to the ruling of the court.
Pleas 6 and 7 of Corporation, and B and C of Dillard.
Those pleas do not show that the note sued on was created at the time the contract was entered into and as a part of the contract by which plaintiff obligated himself to pay all outstanding indebtedness of the corporation. They allege facts which show that said note was an outstanding indebtedness of the corporation. We do not think those pleas were therefore subject to the demurrer interposed to them.
Those replications state in substance that the note sued on was executed as a part of the transaction evidenced by the contract of August 22, 1947, and was not a pre-existing obligation, but was created by the sole stockholder and owner of the business in connection with said transaction. They sufficiently allege that the note was not such an outstanding indebtedness of the corporation as was contemplated by the contract.
But it is said that the pleas, to which the replications answer, allege that the contract was executed on August 22, 1947. On that day the note sued on was in fact outstanding because it bears date of August 21, 1947, and it is claimed that parol evidence is not permissible to connect the two transactions so as to show that the note feature of the transaction was a part and parcel of the sale. The replications admit of such parol evidence.
Let us analyze the situation as illustrated by the evidence. On August 21, 1947, a contract was executed by both parties and witnessed, which provided for a sale of all the capital stock of the corporation to the defendant and at the same time the note sued upon was executed. The note was intended by the parties to secure the payment of a part of the consideration for the purchase of the property. If that contract was then and there completed by a delivery of it, the transaction which occurred on the next day was but an alteration of a completed contract entered into the day before. Taking that view of it, the altered contract embraced all of those features which had entered into it on the day before and which were not thereby altered. They brought into the altered contract the note which had been executed. If the note was delivered on August 21, 1947, and the contract was not, but held for examination by the defendant's attorney, which examination led to its alteration so as to be as executed on that day, that situation had the effect of suspending the force and effect of the note until the contract was finally consummated, and it became a part of such contract as finally executed the same as it was intended to be before the change was made.
Often the creation of a contract extends over a period of days, some of the transaction occurring one day, completed at once, and others several days later. It may consist of writings extending over a period of several days and the writings may contain different dates. It is competent under *230 the circumstances to show by parol evidence that it was all one transaction and to connect the writings with each other. This does not in any respect violate the rule against altering, adding to or varying the terms of a written contract. Cowan v. Cooper, 41 Ala. 187; Reader v. Helms, 57 Ala. 440; Drennen v. Satterfield, 119 Ala. 84, 24 So. 723; Rock Island Sash & Door Works v. Moore-Handley Hdw. Co., 147 Ala. 581, 41 So. 806; Hunter-Benn & Co. Company v. Bassett Lumber Co., 224 Ala. 215 (8), 139 So. 348. A somewhat stricter rule applies to contracts required by law to be in writing. Johnston v. King, 250 Ala. 571, 35 So. 2d 202.
Replications A, B and C would admit of such proof which was offered on the trial and excluded by the court. We think there was reversible error in sustaining the demurrer to those replications.
The judgment is reversed on account of the adverse rulings of the court which caused the non-suit to be taken by plaintiff. The cause is therefore restored to the docket of the trial court for another trial. Although this cause was tried by the judge without a jury, which justifies the rendition of a final judgment when the judgment is reversed on appeal without remanding the cause for another trial, sections 260 and 810, Title 7, Code; Penney v. Pritchard & McCall, Ala.Sup., 49 So. 2d 782 (9), that status does not here obtain because the only judgment which we can render in connection with the reversal and setting aside of the non-suit is to restore the cause to the docket of the trial court for another trial.
We think it is easy to interpret what has been here said to mean that, in our opinion, upon proper issues being made upon another trial and upon substantially the same evidence shown by this record, a judgment should be rendered for the plaintiff against both the defendants.
The judgment of non-suit is reversed and judgment here rendered restoring the cause to the trial docket and remanding it to the circuit court.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
FOSTER, Justice.
We know of no practice in this Court whereby a motion to strike assignments of error should be sustained as a prerequisite to consider their insufficiency. When the assignments are insufficient or are waived because not duly insisted on as required by Rules 10 and 12 of Supreme Court Practice, Code 1940, Tit. 7 Appendix, if we refer to them at all, it is merely to point out their insufficiency or waiver. We so treated them on this appeal. The matters which we did treat were duly assigned as error and duly insisted upon in brief for appellant. They relate to rulings on demurrer to the pleadings or objections to the introduction of evidence. Nothing has been brought to our attention which causes us to modify the opinion rendered on this appeal.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 29, 1951 |
efe25f25-178e-4a2a-a446-2f925f60af7f | Price v. Marshall | 52 So. 2d 149 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 149 (1951)
PRICE et al.
v.
MARSHALL et al.
4 Div. 630.
Supreme Court of Alabama.
April 19, 1951.
*150 John W. Rish and Richmond M. Flowers, of Dothan, for appellants.
G. D. Halstead, of Headland, for appellees.
SIMPSON, Justice.
This is a contest of the will of Girlie Hutto Fraser, made in Daytona Beach, Florida, December 22, 1945. Mrs. Fraser died in Newville, Henry County, Alabama, in May, 1948, and the parties are the next of kinthe brothers, a sister, nieces and nephews of testatrix. Trial was by jury in the probate court, pursuant to the statute.
The grounds of contest were insanity and undue influence allegedly exerted on testatrix by her nephew, Byrd Marshall, one of the proponents of the will. Trial below resulted in a verdict and judgment for the proponents and the contestants bring the appeal.
By the 1945 will, testatrix left all of her property to proponents, her niece, Kathryn Marsh, and nephews, Byrd Marshall and Francis Marshall, share and share alike. Thereafter on June 22, 1946, it is contended by contestants, she executed a second will which revoked the prior will, making various dispositions of her property to all of her next of kin. The proof for proponents shows that on November 11, 1947, she obtained from her attorney, Mr. Selden, this second will, he having been made the depository thereof, destroyed it, with appropriate words indicating an intention to revive the 1945 will, and at that time executed a written instrument in words and figures as follows:
"To Whom It May Concern:
The proponents contended that if the 1946 instrument revoked the 1945 one, the above-quoted memorandum effectually revived the 1945 will. Thus were the issues presented on trial.
The first proposition advanced for error is the action of the trial court in overruling contestants' demurrer to the petition to probate. The petition and petition as amended sufficiently invoked the jurisdiction of the court over the particular testamentary instruments to authorize the proceedings for probate in accordance with the statute. No great formality is required in such cases, just so the procedure is sufficient to call into exercise the court's jurisdiction to take probate. Small v. McCalley, 51 Ala. 527. The original petition applied for probate of the 1945 will and the amended petition brings in the instrument of alleged revival executed on November 11, 1947, and offers to probate the two instruments as constituting the entire will of the decedent. This is the approved procedure. Wheat v. Wheat, 236 Ala. 52, 181 *151 So. 243. The demurrer was properly overruled.
Likewise untenable are the assignments of error challenging the action of the trial court in refusing the affirmative charge for the contestants. On the disputed issues of fact, this will contest was typically a jury case and we are not disposed to burden the opinion with any lengthy discussion of the evidence. It is sufficient to say that a jury question was presented as to the due execution of the 1946 will and, therefore, its efficacy to revoke the 1945 will, as was also whether the testatrix possessed mental capacity at the respective times she executed the several instruments mentioned, and whether, as contended by contestants, she was subject to the undue influence of Byrd Marshall when she executed the 1945 will and the quoted memorandum of revival in 1947.
If the 1946 instrument was a legal will, its effect was to revoke the 1945 will, Code 1940, Title 61, § 26, and, under such circumstances, after the destruction by testatrix of the 1946 will, the strict legal question would be whether the quoted memorandum was efficacious to revive the 1945 will. This is the primary legal question and we answer it in the affirmative. The evidence was without conflict that this latter instrument was duly executed by Mrs. Fraser in the presence of the two witnesses who attested it in the manner and with the same formality prescribed for the execution of a will. It possessed, therefore, all the elements of a testamentary document. Such an instrument could have been made a codicil to the 1945 will, but this was not necessary to constitute it an effective instrument to revive that will. The will was subject to revival just as effectually by this separate instrument.
Our pertinent statute provides: "The making of any subsequent will or writing, and the cancellation, destruction, or revocation thereof do not revive any will previously executed, unless it appear, by the terms of such revocation, that it was the intention of the testator to revive and give effect to the first will; or unless, after such cancellation or destruction, he duly republish the previous will." § 27, Title 61, Code 1940. We do not find a case adjudicated by this court exactly bearing on the question, but the statute is plain and no particular elaboration seems necessary, since the memorandum clearly comes within its influence. There are, however, cases from other jurisdictions with statutes somewhat similar to ours which entertain a like view.
Two cases bearing much similarity to the one at bar are Grotts v. Casburn, 295 Ill. 286, 129 N.E. 137, 138, 14 A.L.R. 1015, 1016, and Derr v. Derr, 123 Kan. 681, 256 P. 800, 801, 53 A.L.R. 515, 516. The memorandum of revival in the Grotts case, executed May 31, 1948, was:
"To whom it may concern: This is to certify that I hereby revoke the will made last winter favor of Ed. Grotts and desire that the will made and dated October 5, 1914, be my last will.
"Signed, sealed in our presence and in the presence of each other as witnesses to revoke the will made last winter in favor of Ed. Grotts.
And that in the Derr case was:
"I wish my first will to be in effect this date.
In each instance the court held that the clear effect of the execution of the respective writings was to reinstate or restore the provisions of the prior first will which had been revoked by an intervening one.
On the legal question, then, of the effect of a writing such as the 1947 memorandum, we are constrained to hold that it would be sufficient to revive the prior will referred to therein (assuming, of course, the mental capacity, etc., of testatrix at that time). It expresses the wish (or will) of the testatrix to revive the 1945 instrument as her last will and it was, therefore, a completed act of revival.
A careful study of the record, however, has convinced us that error prevailed in certain rulings on the evidence, to be now adverted to, which resulted in probable *152 prejudice to the contestants and necessitates a reversal.
As stated, one ground of contest was lack of mental capacity of the testatrix. Testatrix was a native of Newville, Henry County, Alabama, and owned considerable property there. She died there. During the last few years of her life she had been a resident of Daytona Beach, Florida, where she spent considerable of her time, but due to her extensive holdings in Henry County she made frequent trips back to her home, staying sometimes several days and sometimes a week or two, on which occasions she would see her various relatives who testified in the case and who had known her through the years. During the years 1945, 1946, 1947 and until her death in 1948, and for a long period of time prior thereto, she had become addicted to the excessive and continuous use of morphine and other narcotics and alcoholic beverages, and there was some proof to sustain the contention that her mind had become seriously impaired, the medical evidence showing that such continuous use undoubtedly would result to such an effect. The question vel non, however, as stated, of her mental capacity when she executed the three instruments was one of fact to be resolved by the jury. We merely mention this to illustrate the error which we think prevailed in the rulings of the trial court in refusing to allow several intimately related witnesses to express an opinion as regards her unsoundness of mind.
Our view is that the court should have permitted Mary Price, a niece of testatrix; Esther Wells Price, niece of testatrix; Nancy Price, sister of testatrix; and Iona Wells, a nephew's wife, who managed Mrs. Fraser's Henry County farms from 1946 to 1948 and was intimately associated with her during that period, to express their opinions on the basis of their association with the testatrix and the related facts and circumstances within their knowledge as to the soundness or unsoundness of her mind during the period inquired about. We think these witnesses were shown to possess the requisite intimate acquaintanceship with the testatrix to qualify them to answer whether or not she was of sound or unsound mind at the times in question. Hale v. Cox, 231 Ala. 22, 163 So. 335; Houston v. Grigsby, 217 Ala. 506, 116 So. 686; Chandler v. Chandler, 204 Ala. 164, 85 So. 558.
We are, of course, mindful of the rule that the question of competency or qualification vel non of a witness to give an opinion on the subject is one for the trial court, decision of which will not be revised on appeal unless clearly erroneous. We believe, however, in the instances noted the court erred in its discretion and should have allowed the witnesses to so testify. (There may be other instances which might have escaped our notice due to the failure of appellants' brief to identify the assignments of error by the proper transcript page number. But the ones indicated are sufficient, as we see it, to require a new trial.)
We also think error prevailed in refusing permission to contestants to prove by Dr. Lee Whigham that in his opinion the mind of decedent had been impaired by continued use of morphine, liquor and other stimulants and narcotics. Dr Whigham had known Mrs. Fraser for about thirty-five years, had been her family physician for the last ten years of her life until she moved to Florida, and saw her on her frequent visits back in Newville. As a physician, he was shown to have sufficient knowledge and intimate acquaintanceship to give an expert opinion on this question. Cf. Wear v. Wear, 200 Ala. 345 (13), 76 So. 111.
It was the contention of contestants that this long, continued and excessive use of narcotic drugs and intoxicating beverages had so impaired testatrix' mind as to render her mentally incapable of executing a legal will. There was, as observed, evidence to sustain this theory. We also think it proper to have proven by Early O. Wells, brother of testatrix, that testatrix became addicted to this excessive use of morphine as early as 1916; that she had requested him to obtain morphine for her in 1924 and in the same year her condition was such that she went to an institution to be treated for the habit. All *153 such circumstances bear probatively on the degree with which this long and continuous use of these deleterious drugs might have affected Mrs. Fraser's mental ability to make a legal will. The court has recognized that mental incapacity on the part of the testator produced by the use of medicines may have effect to invalidate a will. Stedham's Heirs v. Stedham's Ex'r, 32 Ala. 525. And if Mrs. Fraser was using these drugs as early as 1916 and was continuing the use thereof in 1924, and this excessive use continued throughout the period until her death, as contestants' proof showed, the testimony of Mr. Wells, showing the long-past onset of this debility, would have had strong probative value for the consideration of the jury as to whether or not the degree of impairment of her mind had progressed to such an extent as to render her incapable of making a valid will in 1945 or to revive the 1945 will by the 1947 memorandum. Therefore, this malady of testatrix, its nature and duration, were legitimate subjects of inquiry under the issue of testamentary capacity. Lewis v. Martin, 210 Ala. 401, 416(53), 98 So. 635; Batson v. Batson, 217 Ala. 450(9), 117 So. 10.
We gather from these several adverse rulings, in the light of the objections interposed by counsel, that the learned trial court thought proof on the issue of mental capacity should be somewhat limited to the period from the execution of the 1945 will to the 1947 memorandum. This impresses us as limiting too strictly the contestants' proof on the issue. In such cases considerable latitude is accorded the parties in the matter of proof, and whatever acts, conduct or declarations, either prior or subsequent to the execution of the several documents, which bear probatively on the chronic and progressive mental impairment of the testatrix should be allowed in evidence to aid the jury in reaching a correct conclusion. Batson v. Batson, supra; Johnston v. Johnston, 174 Ala. 220, 57 So. 450; Tucker v. Tucker, 248 Ala. 602, 28 So. 2d 637.
We notice the author of the opinion in the Tucker case, supra, cited to this proposition several criminal cases where insanity was relied on as a defense. We have said in such cases that upon the question of insanity a wide range of evidence is allowable and that "It has become a maxim of the law that in cases where insanity is relied upon as a defense, `Every act of the party's life is relevant to the issue.'" Hall v. State, 248 Ala. 33, 36, 26 So. 2d 566, 568. That principle is here applicable to the extent of opening up the avenue of permissible examination in such cases to extend to times prior and subsequent to the date of the execution of the will and to any acts, declarations or conduct of the testatrix which would have a tendency to shed light on her mental capacity at the time of the will's execution.
In view of another trial, one further proposition needs to be mentioned. It was contended by contestants, and they tried to show on cross examination in order to impeach his testimony, that attorney Selden, of Daytona Beach, Florida, had occupied a dual position of representation with reference to proponents and contestants. He appeared as a witness and testified in the case in order to sustain the validity of the 1945 will, vouchsafing the mental capacity of the testatrix during the years in question. His testimony was most material. He was Mrs. Fraser's regularly employed attorney. It was he who prepared the 1945 will; it was he who authorized his secretary to prepare the alleged 1946 will; and it was he who discussed with Byrd Marshall the memorandum of 1947 and the details of the revocation of the 1946 will. These material tendencies of his testimony made him an important witness for the proponents and he was subject to be impeached by the contestants on cross examination. Prior to trial he had represented the proponents in taking the depositions of witnesses in Florida. On cross examination, we think it was proper matter of impeachment for the contestants to be permitted to show that he had also accepted employment as attorney for the contestants and that he had recognized such employment in a written communication to contestants' attorney. We think this evidence, if so, would reflect on the witness' character, his sincerity and *154 good faith, and would thereby tend to impeach his credibility. 70 C.J. 811, § 1015.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | April 19, 1951 |
72c7f681-8e3c-4596-b0cf-da1361f3670c | Austin v. TENNESSEE BISCUIT | 52 So. 2d 190 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 190 (1951)
AUSTIN
v.
TENNESSEE BISCUIT CO. et al.
6 Div. 150.
Supreme Court of Alabama.
March 29, 1951.
Rehearing Denied May 10, 1951.
*192 D. G. Ewing and T. Eric Embry, of Birmingham, for appellant.
Sadler & Sadler, of Birmingham, for appellees.
LAWSON, Justice.
This is a suit by Thelma McGinty Austin against the Tennessee Biscuit Company, a corporation, and James Otis Edwards to recover damages for injuries to the person of plaintiff and damage to her automobile resulting from a collision of the automobile driven by plaintiff and a truck owned by the corporate defendant and driven by the defendant James Otis Edwards.
The cause went to the jury on two counts, one charging simple negligence and the other wantonness. The defendants pleaded the general issue in short by consent in the usual form. There was a jury verdict for the plaintiff against both defendants, wherein plaintiff's damages were assessed at $1,875. Judgment was in accord with the verdict. Plaintiff filed a motion for a new trial, which was overruled. The appeal to this court is by the plaintiff, Thelma McGinty Austin.
It is settled by a long line of cases that on an appeal by the plaintiff from a judgment in his favor, we will not consider as revisable error any ruling of the trial court bearing merely on the naked question of defendant's liability, and not affecting the amount of the damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff. Donovan v. South & North A. R. Co., 79 Ala. 429; Carrington v. Louisville & N. R. Co., 88 Ala. 472, 6 So. 910; Glass v. Memphis & Charleston R. Co., 94 Ala. 581, 10 So. 215; Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775; Randle v. Birmingham R., L. & P. Co., 169 Ala. 314, 53 So. 918; Neyman v. Alabama G. S. R. Co., 172 Ala. 606, 55 So. 509; Fike v. Stratton, 174 Ala. 541, 56 So. 929; Morris v. Bragan, 195 Ala. 372, 70 So. 717; State v. Montgomery Savings Bank, 199 Ala. 365, 74 So. 942; Jones v. Woodward Iron Co., 203 Ala. 66, 82 So. 26; Holloway v. Henderson Lumber Co., 203 Ala. 246, 82 So. 344; Franklin v. Argyro, 211 Ala. 506, 100 So. 811; O'Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A.L.R. 1263; Vance v. Myers, 213 Ala. 660, 106 So. 142; Davis v. Erwin, 214 Ala. 341, 107 So. 903; Cocke v. Edwards, 215 Ala. 8, 108 So. 857; Lowery v. Jones, 219 Ala. 201, 121 So. 704, 64 A.L.R. 553; Pounds v. General Motors Acceptance Corp., 220 Ala. 145, 124 So. 204; Beatty v. McMillan, 226 Ala. 405, 147 So. 180; Miller v. Thomason, 229 Ala. 267, 156 So. 773; Caudle v. Sears, Roebuck & Co., 236 Ala. 37, 182 So. 461; Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537. To like effect are the following decisions of the Court of Appeals: Huffstutler v. Chandler Transfer & Freight Line, 33 Ala.App. 182, 31 So. 2d 302; Sims v. Warren, 32 Ala.App. 516, 27 So. 2d 801, certiorari denied, 248 Ala. 391, 27 So. 2d 803; Tennessee Coal, Iron & R. Co. v. Dunlap, 24 Ala.App. 515, 137 So. 320; Odum v. Coldwell, 21 Ala.App. 74, 105 So. 398; Jones v. Spradlin, 18 Ala.App. 29, 88 So. 373; Patt v. Welsch, 18 Ala.App. 82, 89 So. 94.
Under this rule we pretermit any consideration of assignments of error 3, 4, 5, 10, and 11. All these assignments deal with the action of the trial court on matters relating to the legal liability of the defendants to the plaintiff. None of these assignments relate to the rules of law governing the proper measure of plaintiff's damages in the event of a recovery by her.
Assignments of error 1 and 2 relate to the action of the trial court in giving written charges C and B at the request of the defendants. It is argued, in effect, that the rule above alluded to has no application for the reason that these charges had the effect of eliminating from the jury's consideration the charge of wantonness as contained in the second count of the complaint, and thereby deprived plaintiff of the recovery of punitive damages.
We have considered the action of the trial court in giving these instructions without regard to the rule heretofore stated, and find no reversible error.
It is not reversible error either to give or refuse charges such as C and B given on behalf of defendants. In Vessel *193 v. Seaboard Air Line R. Co., 182 Ala. 589, 591, 62 So. 180, 181, the trial court gave at the request of the defendant the following charges: "(1) The court charges the jury that wantonness is the moral equivalent of intention. (2) The court charges the jury that a wanton wrong is the moral and legal equivalent of an intentional wrong." There was verdict for the defendant and on appeal to this court the plaintiff complained of the giving of those charges. We held the trial court did not err to a reversal in giving such charges, although they might be said to be misleading.
In Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 573, 96 So. 915, 919, it was said: "Another group of charges (V and HH) instructed the jury that wanton injury, as here charged, is the legal equivalent of an intentional injury; that is, of intentionally killing or injuring some person on that occasion, or of intentionally allowing him to be killed. This, of course, does not mean that it must have been an actual intention to kill. Charges like these have been held as not erroneous, though possibly misleading, in Vessel v. S[eaboard] A[ir] L[ine] Ry. Co., 182 Ala. 589, 62 So. 180, citing the cases which support the proposition stated. In the instant case, the general instructions given to the jury could have left no doubt in their minds, as to the true elements of wanton injury."
Neither the opinion nor the report of the case sets out charges V and HH, which were held to have been given without error in Grauer v. Alabama Great Southern R. Co., supra. However, we have gone to the original transcript in that case and find that those charges read as follows:
"Charge V: Before you can find that the plaintiff's intestate's death was wantonly caused, as charged in the fifth count of the complaint, the burden of proof is on the plaintiff to reasonably satisfy you from the evidence that some servant, agent or employee of the defendant intentionally caused or intentionally allowed the train to strike him on that occasion, or that such agent, servant or employee was guilty of such recklessness as amounted to the legal equivalent of an intention to injure or kill some person on that occasion."
"Charge HH: The court charges the jury that when the plaintiff charged in the fifth count of his complaint that his intestate's death was wrongfully and wantonly caused on the occasion complained of, this is the legal equivalent of charging that some servant, agent or employee of the defendant intentionally caused or intentionally allowed the deceased to be killed on said occasion."
On the other hand, in Alabama Great Southern Ry. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342, 344, we held that the trial court did not err in refusing to give at the defendant's request the following written charge: "(C) Before you can find that defendant's engineer wantonly damaged the plaintiff's truck, you must be reasonably satisfied from the evidence that said engineer was guilty of such conduct as was equivalent to intentionally damaging said truck." In upholding the action of the trial court in refusing charge C, it was said:
"Refused Charge C is faulty in its misleading predicate that the wanton injury charged must be equivalent to intentional injury. Vessel v. S[eaboard] A[ir] L[ine] Ry. Co., 182 Ala. 589, 594, 62 So. 180.
"`Wanton injury' is the legal and moral equivalent of `intentional injury,' but their elements are different, and proof of the one would not suffice for proof of the other." 211 Ala. 301, 100 So. 345.
It is to be noted that the case of Vessel v. Seaboard A. L. R. Co., supra, was cited as authority for the holding of the court that the refusal of the charges was not reversible error. As before pointed out, in the Vessel case, supra, this court held that the giving of such charges was not reversible error although they are subject to the vice of being misleading. Hence, they can be refused without error.
We come now to consider the several assignments of error which are to the effect that the trial court erred in refusing to grant a new trial to plaintiff on the ground that the amount of damages awarded plaintiff by the verdict of the jury is inadequate.
*194 The verdict of the jury is conclusive for the purposes of this appeal that defendant at least negligently caused injury to plaintiff and damage to her automobile. As before indicated, the cause went to the jury on two counts, the first charging simple negligence and the second charging wantonness. The verdict was general, specifying no count or counts. We will presume, therefore, on plaintiff's appeal that it was on the simple negligence charge for which compensatory damages only were subject to recovery. Seitz v. Heep, 243 Ala. 376, 10 So. 2d 150. But without indulging in such presumption, our consideration of the question would be limited to compensatory damages, for although under count 2 the jury could have awarded plaintiff punitive as well as compensatory damages, still the assessment of punitive damages in any sum in a case of this kind is a matter within the sound discretion of the jury. Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604. Punitive damages are not recoverable as a matter of right, but the imposition of such damages is discretionary with the jury. Blackmon v. Gilmer, 221 Ala. 554, 130 So. 192; Sovereign Camp, W. O. W., v. Roland, 232 Ala. 541, 168 So. 576. The discretion is a legal and sound one, not to be exercised arbitrarily. Cox v. Birmingham Ry. Light & Power Co., 163 Ala. 170, 50 So. 975; Meighan v. Birmingham Terminal Co., supra. Under the evidence in this case, although the jury may have found the defendant guilty of wantonness as charged in count 2, we cannot say that a failure of the jury to award punitive damages was an arbitrary act.
Under the pleadings and evidence in this case, the plaintiff was entitled to be compensated for damage to her automobile. The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before the accident and its market value immediately after. Blackmon v. Gilmer, supra; Plylar v. Jones, 207 Ala. 372, 92 So. 445. The difference between the value of an automobile before and after an injury may be shown by proof of a reasonable cost of restoring it to its original condition. Webb v. O'Kelly, 213 Ala. 214, 104 So. 505; Cocke v. Edwards, supra. The jury could not have found that the cost of repairs exceeded $333.36. The difference in market value of the automobile before and after the injury was given by two witnesses, plaintiff and her husband. According to plaintiff, the value of the automobile before injury was from $800 to $1,000 and after injury was reduced to $500 or $450. According to plaintiff's husband, the value of the automobile before the injury was fixed at from $900 to $1,000 and after injury at not over $300. It appears, therefore, that under the evidence the jury could have found that the difference between the value of the automobile before and after injury was $350, using the testimony of plaintiff to the effect that the automobile was worth $800 before the injury and $450 after the injury.
The plaintiff was entitled to recover for doctor's and dentist's fees and hospital bills. Under the evidence, the most the jury could have awarded plaintiff for such services was the sum of $608.
So under the evidence we think the jury would have been justified in finding that plaintiff's "out of pocket" expenses, that is, for damage to her automobile and for doctor's and hospital bills, did not exceed the sum of $958.
Although plaintiff in her complaint sought to recover for loss of wages and loss of ability to earn, there was no evidence to support these claims.
The plaintiff also sought to recover damages for injuries to her person and for pain and mental suffering. The collision occurred on January 10, 1949. Immediately thereafter plaintiff felt considerable pain in her neck and back. She was immediately examined by a physician, but was unable to obtain a room in a hospital until January 12th. She remained in the hospital until February 5th. After a few weeks she returned to her work, but made frequent trips to the doctor for heat treatments.
X-rays taken on about January 10th revealed that a small piece of bone had been *195 pulled away from the sixth cervical vertebra. Plaintiff was required to wear a steel and leather brace for several weeks. After that brace was removed she was required to wear a felt and leather brace. By April 30, 1949, when she was in effect discharged by her physician, she had improved considerably, although she suffered pain in her neck. In November of 1949 another X-ray was taken, which showed that the bone which had been pulled away had rejoined the vertebra. However, plaintiff could not move her neck from side to side and backward and forward as freely as before the accident. The attending physician testified that while he could not state positively that the restriction as to the movement of plaintiff's head and neck would disappear, he expected plaintiff to recover complete freedom of movement of her neck. Medical evidence is also to the effect that there was no reason not to believe plaintiff's claim that she still suffered pain in her neck. According to plaintiff's testimony, she had never been nervous or excitable prior to the collision, but thereafter for a period of several weeks she was highly excitable and nervous. The evidence further showed that as a result of the collision one of plaintiff's front teeth was cracked and a crown had to be placed thereon.
The injury to the tooth was, of course, permanent. It does not appear, however, that it resulted in any material disfigurement. It is evident that under the evidence the jury could have found that the injury to plaintiff's neck was not permanent.
There is no yardstick by which compensatory damages for pain and mental suffering can be measured and the assessment of the amount plaintiff is due as recompense for these elements of damage must be left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So. 2d 830; Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 78 So. 536.
As before pointed out, the verdict of the jury was in the sum of $1,875. The evidence tends to show that the jury could have found the plaintiff was entitled to recover the sum of $958 for "out of pocket" expenses. So the question remains as to whether or not the sum of $917 was adequate to compensate plaintiff for injury to her person and for pain and mental suffering.
The rules governing the review of rulings of the trial court on motions for new trial upon the ground of excessive or inadequate damages in various forms of tort actions have been often considered and applied in this court. These rules are fully and clearly set forth in the case of Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, and need no detailed treatment here.
Suffice it to say that where the presiding judge refuses to grant a new trial on such a ground, the presumption attending the verdict of the jury is thereby strengthened and on a review of the question here we will not overturn the verdict of the jury or reverse the ruling of the trial court refusing the new trial unless it clearly appears that the verdict was the result of inadvertence or intentional or capricious disregard of the evidence or was infected with bias, passion, or other improper motive and that the excessiveness or inadequacy of the verdict was the result thereof. Birmingham Electric Co. v. Howard, supra, and cases cited.
We do not find in the verdict rendered in this case any such abuse or passionate exercise or other improper motive on the part of the jury. On a careful study of all the evidence, we cannot say the trial court erred in refusing to grant the plaintiff a new trial on the ground of the inadequacy of the verdict.
The next question is also included in the motion for a new trial, and is based on the contention that the verdict was a quotient verdict. Plaintiff, the movant, made out a prima facie showing in that respect by introducing a sheet of paper found in the jury room immediately after the jury retired, upon which it appears that twelve figures were added and the sum divided by twelve. The quotient was $1,875, the exact amount of the verdict. Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649; *196 McBride v. Baggett Transportation Co., 250 Ala. 488, 35 So. 2d 101; International Agriculture Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A.,N.S., 415.
But the prima facie effect of such evidence may be overcome by proof, which is permissible to be made by the jurors themselves, that the verdict was not arrived at by that process, and that it was used without previous agreement that the result would be taken as the amount of the verdict, but that it was tentative only, and to afford a basis for subsequent consideration by the jury. Fortson v. Hester, supra, and cases there cited; McBride v. Baggett Transp. Co., supra, and cases cited.
We think it clear that the trial court was correct in holding that there was no quotient verdict, inasmuch as the proof submitted by defendant sufficiently shows there was no previous agreement that the verdict should be thus arrived at, but that the procedure was for the purpose of discussion and that afterward all agreed that the figure correctly represented plaintiff's damages.
The objection to the statements in the affidavits of the jurors to the effect that the jury was taking an experimental ballot and that the result was to be a mere indication to each juror of what the composite group of jurors thought the verdict should be, and that there was an understanding before the figures were written down that the average figure to be so obtained would in no wise be binding on any juror nor upon the jurors as a group, on the grounds that they were statements of a mental conclusion, were propertly overruled. Mobile & O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199.
Counsel for plaintiff sought to testify that the foreman of the jury or one of the other jurors who made such an affidavit told him shortly after the jury returned its verdict that the jury had tried hard to reach a verdict the day before and were unable to do so, and in order to avoid a mistrial the jurors agreed they would "take a general average" and let that be their verdict. This testimony was offered not to impeach the verdict, but for the limited purpose of impeaching the makers of the affidavits.
The trial court correctly sustained the objection of defendants. The makers of the affidavits could not be impeached in this manner. Although the testimony of a witness is in the form of an affidavit or deposition, the rule requires a predicate to be laid for the introduction of impeaching testimony, directing the attention of the witness to the time, place, person, and supposed contradiction. Adams v. State, 253 Ala. 387, 45 So. 2d 43; Simon v. Wyler, 222 Ala. 91, 130 So. 778; Baird Lumber Co. v. Devlin, 124 Ala. 245, 27 So. 425; Hughes v. Wilkinson, 35 Ala. 453.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | March 29, 1951 |
c470d142-4d4a-461e-b7e8-04f56e5cae8e | Austin v. Pepperman | 179 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 299 (1965)
Burton F. AUSTIN
v.
J. Ed PEPPERMAN et al.
John C. GODBOLD, as Guardian Ad Litem, et al.
v.
J. Ed PEPPERMAN et al.
3 Div. 21, 21-A.
Supreme Court of Alabama.
June 3, 1965.
Rehearing Denied October 21, 1965.
*305 Rufus M. King, Capell, Howard & Cobbs and Walter J. Knabe, Montgomery, for appellant Austin.
L. Lister Hill and Godbold, Hobbs & Copeland, Montgomery, for Godbold, as guardian ad litem and others as cross-appellants.
David W. Crosland, Montgomery, guardian ad litem for minor appellees.
Richard A. Ball, Montgomery, for appellee Pepperman.
COLEMAN, Justice.
The husband of testatrix appeals from a decree construing the will adversely to the husband.
The guardian ad litem for certain minor beneficiaries under the will also appealed and has undertaken to cross-assign errors.
The reporter will set out pertinent provisions of the will and two codicils.
Testatrix died January 28, 1959. The will and first codicil were admitted to probate and J. Ed Pepperman was appointed executor March 6, 1959.
On June 2, 1959, executor filed petition to probate the second codicil, which was admitted to probate June 8, 1959.
Testatrix left an estate which included two parcels of realty consisting of her homeplace of about 17 acres on Woodley Road, herein sometimes called the Woodley property, and a house and lot on Adams Avenue. Each of the two parcels was subject to a separate mortgage. Cash and insurance amounted to $2,354.11. The other personal property does not appear to be of significance.
The executor, on April 19, 1960, filed a petition praying for removal of administration to circuit court. Removal was ordered April 25, 1960.
On June 20, 1960, executor filed a petition for instructions as to the proper construction of the will and codicils. Among other things, the petition recites:
*306 On August 5, 1960, the court rendered a decree authorizing executor to determine what part of property should be sold and to advise the court thereof.
On March 2, 1961, executor filed petition, advising that the Woodley property be sold and that he had an offer of $58,500.00, less commission of $1,500.00, for this property. The executor attached to this petition a paper signed by the executor, the husband, and three blood members of family of testatrix other than the executor, whereby the signers agreed to the sale of "any and all property" of testatrix as provided in the will. This agreement is dated: ".... this ______ day of April, 1959."
The court approved the sale and the Woodley property was sold. The separate mortgage on this property was assumed by the purchaser and, out of proceeds of sale, executor paid debts and claims against the estate. We understand that a balance of approximately $19,000.00 remains in the hands of executor for payment of legacies and costs of administration.
Various beneficiaries under the will assert their several claims to the undistributed balance. The court rendered a decree construing the will and declaring rights of parties. On rehearing, certain parts of the decree were changed.
The errors insisted on are that the court erred in certain parts of the last two decrees.
The court noted in its decree that, under the original will, the husband was given the privilege of living on the Woodley property, subject to certain conditions; that, under the first codicil, reference is made to payment to the husband of a sum equal to all payments made by him on a mortgage on the Woodley property in event it is sold and the husband is not provided a home for his lifetime; that the property had been sold under order of court; that remainder of proceeds of sale were held subject to further order of the court; and that "The Court finds that said Bert Austin has failed to comply with the conditions and requirements placed on his selection of a homeplace from said Woodley Road property. He has made no selection but instead bought a home elsewhere and after remarriage has occupied it with his present wife. He has failed to insure, repair, and pay taxes on any of said Woodley Road property and has not continued to occupy said Woodley Road property. Temporarily he managed the Woodley Road property, then turned over the same to a real estate agent and settled his management account with said read estate agent. The Court finds that said Bert F. Austin has no right to reimbursement, and if he ever had such right has waived the same."
The husband insists that the court erred in denying him reimbursement for mortgage payments he had made. It appears undisputed that the husband had paid $14,432.40 on the mortgage on Woodley property.
Appellees are divided into two opposing forces on certain items in the decrees, but all appellees, except executor who remains neutral here, unite in support of the decree denying payment to the husband.
In paragraph 2, testatrix provided:
"(a) My husband, Bert Austin, shall have the privilege of living in any one of the four houses now on the said property according to his choice, so long as he shall live, except that he shall not be permitted to use the.... garage apartment, in the *307 event that part .... is being occupied by my daughter-in-law.... at the time of my death. He may select any one of the houses.... Once he has made his selection he shall continue to occupy that house, except that in the event that he selects the house we are now using as our home and then in the further event that he remarries, he shall vacate said house and occupy any one of the other three, subject to the rights of Cornelia Sealy as to the garage apartment .....
In paragraph 3, testatrix gives to the daughter-in-law, Cornelia Sealy, "the privilege of occupying" the garage apartment so long as she remains unmarried or married to the son of testatrix; gives to the children of the marriage of daughter-in-law and son "a home in said garage cottage apartment so long as any of them shall live"; provides for renting the house if it becomes vacant; but provides that "one of the persons herein specified" may recover possession on giving sixty days' notice in writing. Testatrix also provided that "the property shall have with it a lot" as specified, said "lot to be established" by the trustee. We note here that we have not found where the trustee established this lot.
In paragraph 4, testatrix provided that the privilege of occupying property shall be "limited to occupancy by the beneficiary" and beneficiary "shall not have the privilege of renting said property."
In paragraph 5, testatrix recognized that sale of the property left by her might become necessary or advisable, and provided for a method of approving a sale.
In paragraph 12, testatrix provided that her brother should have the privilege of selecting a lot if he should return to Montgomery to live. As we understand the record, the brother did return to Montgomery to live, but did not select a lot prior to the sale. In the final decree, the court said:
"6. Under Item 12 of the original will J. Ed Pepperman, brother of the testatrix, was granted the privilege of selecting a lot from the Woodley Road property. Since the real estate from which the lot was to have been selected was sold for payment of debts of the estate the Court finds that in lieu *308 of said lot said J. Ed Pepperman is entitled to the sum of $2,100 which under the testimony would have been the value of the lot he was authorized to select, said sum to be subject to claims and debts of the estate in the same manner as the lot would have been."
In the decree on rehearing, the court directed the register to pay to the brother "individually the sum of $2,100.00." The parties do not argue that this award to the brother was error.
By the first codicil, testatrix provided that in the event the Woodley property, ".... or any part of it, is sold and by such sale my husband, Bert Austin, is not provided a home for his lifetime, then out of the proceeds of such sale he shall be paid a sum ...."
There were four houses on the Woodley property, to wit: the big or main house occupied by testatrix and husband, the garage apartment occupied by the daughter-in-law, a stucco building, and a frame house. The daughter-in-law testified that, during the two months following the death of testatrix, the stucco house was occupied by "somebody else," who, as we understand, was a tenant. The frame house was similarly occupied during those two months.
Husband testified that after the death of testatrix, he continued to live in the main house until he married again about April 10, 1959. Seven or eight days later he moved his furniture and personal effects from the house. He has not resided on the Woodley property since. He did not pay any taxes, insurance, or repairs on the Woodley property. He managed it until about June, 1959, when a real estate company took over the management.
After the husband remarried and moved out of the main house, he made no demand for either of the other houses. He lived for a time in an apartment and later bought a house on Hull Street.
From the quoted provisions of the will and codicil and the testimony as outlined, the rights of the husband must be determined. There appears to be no material dispute in the testimony. We do not understand that any party insists there is such dispute.
The husband contends that, by the will and first codicil, testatrix intended that he be reimbursed in event the Woodley property should be sold as has been done under the existing circumstances, that his right to payment is not barred or forfeited by any action or inaction on his part, and that the court should order payment to him as provided in the first codicil.
Opposing appellees contend that the court correctly denied payment to the husband because the will and codicil imposed a condition precedent on husband's right to payment and the husband has not performed the condition. Appellees say that testatrix intended that before the husband could have a right to live in one of the houses, he was required to make a choice or selection of a house; that he made no such choice, and, therefore, had no right to live in a house; that, since he had no right to live in a house, he had not been deprived of such right by the sale of the Woodley property; that the codicil required, as a condition precedent to husband's right to payment, that "by such sale" the husband be not provided a home; and that, since he was deprived of a home, not as a result of the sale but as the result of his own failure to select a house, he is not entitled to be reimbursed for the mortgage payments he had made on the Woodley property.
Appellees say also that, by his actions, the husband had waived or abandoned the legacy. We do not understand that any authority is cited to support this last proposition. It may well be the rule that a beneficiary can abandon benefits given by a will, but we are of opinion that husband's conduct here does not constitute abandonment of his claim under the first codicil.
*309 Certain well-recognized rules appear to be pertinent in deciding whether selection was a condition precedent to the husband's right to payment.
The cardinal rule for the construction of wills is to ascertain the intention of the testator and give it effect if not prohibited by law. Betts v. Renfro, 226 Ala. 635, 639, 148 So. 406.
The law favors a vested rather than a contingent estate, and, where a codicil is made to a will in which is declared a deliberate purpose to change the will, the courts must observe with care the mandates of the codicil embodying the change. Betts v. Renfro, supra.
The law favors the construction by which the estate is regarded as vested rather than contingent, or by which it will become vested at the earliest moment; and this time is usually at the death of the testator. The intent to postpone the vesting of an estate must be clear, and not arise from mere inference or construction. Authorities in Betts v. Renfro, supra.
If futurity is annexed to the substance of a gift, it is contingent; if merely annexed thereto as the time of payment, enjoyment, or delivery of possession, it is vested. Betts v. Renfro, supra.
Where an estate or interest is given in one clause of a will in clear and decisive terms, the interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Authorities cited in Sewell v. Byars, 271 Ala. 148, 150, 122 So. 2d 398.
The generally accepted rule is that conditions precedent are not to be excused of performance, for the courts must observe care that they not make a new will for the testator. Watters v. First National Bank of Mobile, 233 Ala. 227, 237, 171 So. 280.
It is also a general rule that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance. Finlay v. King's Lessee, 3 Pet. 346, 28 U.S. 346, 7 L. Ed. 701.
If she had wished to do so, testatrix could have limited husband's right to reimbursement for the mortgage payments to the condition that he must have selected one of the houses for a home prior to the sale of the Woodley property. There are, however, no words expressly creating such a condition. Did she create such a condition by words which must be given that effect?
*310 In the first sentence of paragraph 2, testatrix expresses her desire that husband shall have a home "during his lifetime." In paragraph 2(a), testatrix states her will to be that the husband shall have the privilege of living in one of the four houses "so long as he shall live." In the first codicil, testatrix says that in the event the Woodley property is sold, and by such sale the husband is not provided a home "for his lifetime," he shall be paid. Three times in will and codicil testatrix uses words which expressly state that, whatever interest or estate she gives to the husband in a house on the Woodley property, the interest given is to last throughout the husband's lifetime and will not end until his death.
Testatrix does not say that the husband's interest shall end if he moves off the property. The codicil does not say that husband is not to be paid if he was not living on the property at the time of sale or had not selected one of the three smaller houses.
Paragraph 2(c) requires that the main house, home of testatrix, be kept open for certain purposes at all times, and, at any time none of the beneficiaries is using "said property," the trustee may rent it. Testatrix seems to have intended that any occupant of the main house might go from it without losing the privilege of returning. Paragraph 2(b) suggests the same intent.
Did testatrix express a different intent as to the other three houses? In paragraph 3, testatrix gives daughter-in-law privilege of occupying garage apartment as long as she remains unmarried or married to the son of testatrix. If the garage apartment becomes vacant, however, trustee may rent it, subject to right of "one of the persons herein specified" to receive possession after sixty days' written notice. Who is included among the persons specified is not stated. It could reasonably include the husband because in paragraph 2(a) testatrix says husband "shall not be permitted to use" the garage apartment if it be occupied by daughter-in-law "at the time of my death." This seems to imply that husband would have the right to select it if it were not occupied by daughter-in-law at time of testatrix's death.
At death of testatrix, husband continued to live in the main house. To that extent, certainly, he made one selection. On remarriage he lost the right to occupy the main house. He never selected another house. Did he, by failing to select before the sale, lose the right to select another house and also the right to payment? The first codicil does not so state. That codicil is the place, and the only place where husband's right to payment is mentioned. Does its language, read in connection with the whole will, clearly and unequivocally indicate the intent of testatrix to make a conditional estate or interest in the husband? Libby v. Winston, supra.
Appellees say that: "It is important to note that appellant must, in the language of the codicil, be deprived of his home `by such sale'. In fact appellant was `not provided a home' not by the sale of the property but by his own failure to take a home."
It will be noted that, in the first codicil, testatrix says that if "the property .... or any part of it," is sold. She contemplated two kinds of sale, a sale of all and a sale of part. The phrase, "by such sale," may reasonably be taken to mean the sale of part on which husband was living. If part were sold and husband were not living on the part sold but was living on another part, he would not be deprived of a home by such sale. If he was living on the part sold, however, he would be deprived of a home by such sale and be entitled to payment. The will and codicil, considered as a whole, do not, in our judgment, clearly and unequivocally create a conditional estate and selection of one of the three smaller houses by the husband was not a condition precedent to the husband's right to be paid the sum he had paid on the mortgage.
Did the testatrix intend for the gift of payment to the husband to fail if he failed to select before sale of the land? She did *311 not expressly say so. The gift of payment does not come into being except the land be sold. The right to select came to husband at death of testatrix. No limit is set on the time within which he was bound to select. The husband had his life for performance even if selection be considered a condition to payment, which we do not think selection was. Did testatrix intend that the husband's right to select and, therefore, his right to payment be destroyed by the very occurrence which created the latter right? We think not.
We are of the view that his right to select vested on the death of testatrix, that he did select the big house, that by remarriage he did not divest himself of the right to select another house, that the right to select another house continued "for his lifetime," that when the land was sold he was deprived of the right to a home and became entitled to the right to payment.
Appellees rely on Vaughan v. Vaughan's Heirs, 30 Ala. 329. There testator gave to his widow the right "to pick out fifteen of my best negroes, and keep possession of them during her natural life." The widow sued for recovery of the negroes. This court held that "the picking out of the fifteen negroes by the widow, was in the nature of a condition precedent; and if she did not pick them out before she filed her original bill, and was not prevented from picking them out, she cannot recover them or their hires in the present suit. But if.... during her widowhood, she did pick them out, and give notice .... she thereby acquired, under the will, the equitable right to their possession and hires from that time."
We do not think Vaughan applies here. If husband were suing for possession of one of the houses, Vaughan might be apposite, but that is not the instant case. Husband is not suing for possession of one of the houses and loss of its use. Husband is claiming what testatrix said he should have if "by such sale" he were not provided a home for his lifetime.
We have noted that in paragraph 12, testatrix gave her brother "the privilege of selecting any lot which is unsold," etc., and that the brother returned to Montgomery but did not select a lot. Testatrix provided no forfeiture if brother did not select. We have not found where testatrix provided for any payment to the brother if he never selected a lot and the land were sold. Yet, the decree ordered payment to the brother in lieu of his unselected lot. We think husband also should receive payment, as expressly provided in the first codicil, in lieu of his unselected house.
One further argument, perhaps, calls for attention. The trial court stated and appellees mention in brief, apparently as argument to support denial of payment to the husband, the fact that husband had "failed to insure, repair, and pay taxes on any of said Woodley Road property." In paragraph 2(a) testatrix provided that insurance, taxes, and repairs shall be paid for by the husband on "The home which he selects."
As we understand the evidence, there is no showing that any insurance premiums, taxes, or repairs on the main house became due and payable while the husband occupied it. If there were no necessity for payment or nothing due, it does not seem that the husband could be in default or breach of a condition by failing to pay what was not due. If he never selected another house, as was the case, he could not be in default by failing to pay for insurance, taxes, or repairs because the duty was to pay as to "The home which he selects."
The duty to pay could be, at most, a condition subsequent. The will provides no forfeiture on failure to pay for insurance, taxes, or repairs.
It is a general principle and rule that conditions subsequent are not favored in law, and must be strictly construed, because they tend to destroy estates and a vigorous exaction of them is a species of summum jus, and in many cases hardly *312 reconcilable with conscience. If it is doubtful whether a clause in a deed imports a condition or a covenant, the latter construction will be adopted. C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 388, 42 So. 858, 9 L.R.A.,N.S., 663. If the meaning is doubtful as to whether a clause in a will is a condition or covenant, it will be construed as a covenant. Peck v. Drennan, 411 Ill. 31, 40, 103 N.E.2d 63; Cook v. Sink, 190 N.C. 620, 628, 130 S.E. 714.
We hold that the requirement that husband pay for insurance, taxes, and repairs on "The home which he selects" was a covenant and not a condition, and that no default has been shown.
Paragraph 4 of the original decree of the trial court recited as follows:
On rehearing, the court ordered:
The residue consists almost entirely, of the unexpended receipts from the sale of the Woodley property, to wit: $18,085.19, plus $936.51 in hands of executor. Out of these funds or out of the property specifically bequeathed and devised, executor must pay the expenses of administration, the bequest to the husband, and the awards to the granddaughters and brother in lieu of their rights in the Woodley property. If any residue remain, it goes into trust for the two granddaughters as provided in paragraph 11 of the will.
It readily appears that if paragraph 4 of the original decree be followed, the residue placed in trust for the granddaughters will be substantially larger than such residue will be if paragraph 4 of the decree on rehearing be followed. The guardian ad litem for the granddaughters has brought a cross-appeal in their behalf. Cross-appellants insist that the court erred on rehearing in striking original paragraph 4 and in ordering that debts and claims against the estate be paid out of the residue.
The granddaughters say that testatrix clearly expressed her intention that the only charges against her estate which she intended to have paid out of residue were *313 funeral expenses; that this intention clearly appears from the first sentence of paragraph 11 of the will when that sentence is considered in connection with paragraph 1 of the will.
The first sentence of paragraph 11 recites:
Granddaughters contend that testatrix, in paragraph 11, said pay out of residue only the "expenses" set forth in paragraph 1 and that the only expenses therein set forth are funeral expenses; therefore, only funeral expenses and no other charge are to be paid out of residue.
Granddaughters say that debt and expense are not the same; that expenses of last illness and funeral expenses are not debts; that funeral expenses are not debts but are a charge against decedent's estate; that a direction that all just debts and expenses be paid out of certain property means expenses incurred in settling the estate and does not signify expenses incurred by testator in his lifetime; that "my debts and expenses" may mean all debts and all expenses of last illness and of administration, Hill v. Hill, 37 Ariz. 406, 294 P. 831, but in instant case testatrix did limit expenses to be paid out of residue to those of a particular kind, namely funeral expenses; that expense in paragraph 11 means the same thing as expense in paragraph 1; that these conclusions are necessary under the rules of ejusdem generis and that the expression of one thing is the exclusion of others; that the residuary trust is elaborately and carefully drawn for benefit of granddaughters and shows a primary purpose to care for the two little girls by means of a substantial trust estate; that in paragraph 11, by referring to "expenses," testatrix excluded debts and all expenses not described in Item 1; and that by reference to expenses set forth in Item 1, testatrix excluded all expenses other than funeral expenses because that is the only kind of expense set forth in Item 1.
In deciding what charges shall be paid out of the residue, as in deciding other questions as to the meaning of a will, the court should ascertain and follow the intention of testatrix expressed in the will.
In the absence of expressed contrary intent of testator, generally, where assets of an estate are insufficient to pay debts and legacies, the loss falls (1) on the residuary, (2) then on the general legacies, and (3) then on the specific legacies and devises. Garrett v. Snowden, 226 Ala. 30, 33, 145 So. 493, 87 A.L.R. 216; Powell v. Labry, 210 Ala. 248, 250, 97 So. 707.
Does the instant will show, as granddaughters contend, an expressed intent that the loss shall not fall first on the residue? If such intent be expressed, it must be expressed in paragraphs 1 and 11.
In paragraph 11 testatrix says pay out of residue all expenses set forth in Item 1. Note the words of Item 1. Testatrix said "all my just debts, including funeral expenses." She did not say debts and funeral expenses, or debts and expenses. She included funeral expenses in her debts to be paid by her executor.
Note the language of paragraph 11. Testatrix says pay out of the residue "all" the expenses set forth in paragraph 1. If she intended to pay only funeral expenses, why did she use the word "all"?
From brief of counsel for the executor, we quote as follows:
Guardian ad litem for the grandson argues to like effect.
One other circumstance appears. For aught that appears, testatrix may not have owned the Adams Street property at the time she made the will. If she did not, she could hardly have intended that the Adams Street property should pay the debts of the estate. If she did own that property at the time of making the will and did intend for it to pay the debts, however, what effect did the second codicil have on her intent, or, perhaps more accurately, on the expression of her intent?
Where there is irreconcilable conflict between two clauses of a will, the latest clause must prevail as being the latest expression of testator's intention. Moore v. Dudley, 2 Stew. 170, 174.
Whatever intention testatrix may have had with respect to Adams Street property in original will, the codicil plainly expresses the intent as to her grandson that "he alone" is to receive the property, subject only to the father's failure to keep up payments.
To give effect to the contention that funeral expenses and none other be paid from residue would prevent giving effect to the intention of testatrix that grandson alone should have the Adams Street property.
One final argument noted in counsel's brief is that in paragraph 11, testatrix uses the word "desire." To desire, according to context or circumstances, may import a request, or even a command, but means ordinarily to wish for more or less earnestly. Woods v. Postal Telegraph-Cable Company, 205 Ala. 236, 240, 87 So. 681, 27 A.L.R. 834. In other places in the will testatrix used mandatory language, to wit: I will; I give, devise, and bequeath; He shall manage; the income shall be accumulated; payments shall be pro-rated; all shall go. If testatrix had intended to command that only funeral expenses be paid out of residue, she could have used language to express that intent. We do not think desire is used as a command in paragraph 11, and even if the words "all expenses" in paragraph 11 be limited to funeral expenses, the testatrix has not clearly expressed an intention to limit payment out of residue to funeral expenses.
*315 We hold that the court did not err in ordering all debts and claims to be paid out of residue.
The granddaughters argue that the court erred in finding that, by second codicil, testatrix devised to her grandson the Adams Street property, subject to mortgage thereon, with right in grandson's father to use until grandson reaches age of twenty-one years, provided that father must make all payments on said mortgage, and, if he fail so to do, the devise to the grandson shall fail.
Granddaughters contend that the second codicil was void and that Adams Street property became part of residuary estate. They contend that this is so because the words of the codicil, aided by material facts, are insufficient to show what testatrix intended; that no evidence is admissible to show what testatrix intended; that testatrix may not impose a condition which is indefinite or uncertain; and because the conditions of the codicil are too vague and uncertain to disclose the intent of testatrix, the conditions, and, indeed, the codicil itself should not be enforced.
The argument is that the requirement for the father "to keep up payments on place in event I am unable to do so," fails to disclose what payments testatrix intended, and that there are no payments which testatrix could keep up after death.
Further argument is directed to the condition that: ".... unless my son doesn't care to keep it for my grandson. In such event amount of sale of place will go into estate." Granddaughters say it is impossible to ascertain what the condition is.
We understand that it is undisputed that Adams Street property was subject to mortgage for about $10,000.00 at death of testatrix. It seems apparent to us, as it must have been to trial court, that the payments referred to in the codicil were the mortgage payments of $101.00 per month. If there were other "payments" due on the Adams Street property, it may be that testatrix intended those also, but the mortgage payments appear to be the only charges against this property which would ordinarily be referred to as payments. The term could include, perhaps, taxes. We doubt if it would ordinarily include the payment of income tax liens amounting to more than $17,000.00. We are of opinion that the codicil is not uncertain as to the payments to be made by the son of testatrix.
As to the vagueness of the condition, and as to what happens to the Adams Street property if the father stops making payments, that question is not presented at this time. It may well be that such a question can arise in the future and require decision; but for the question now before us, that is, whether the codicil makes a gift to the grandson, and to his father pending his minority, we are of opinion that the trial court correctly gave effect to the codicil and that the Adams Street property is not part of the residue.
Being of opinion that the cross-assignments are without merit, we pretermit consideration of motion to strike them.
The husband contends that the bequest to him is a demonstrative legacy because the thing or money is not specified and distinguished from all others of the same kind, but a particular fund is pointed out for its payment; that demonstrative legacies may be satisfied out of the general assets upon failure of the particular fund; and demonstrative legacies, unlike general legacies, will not abate upon the failure of the general assets but retain the right of satisfaction out of the particular fund. Myers' Executors v. Myers, 33 Ala. 85, 89. Husband contends that the demonstrative legacy to him is tantamount to a first lien on the proceeds of sale of Woodley property and payment to him takes priority over other bequests payable out of the proceeds of sale.
*316 In the decree on rehearing, the court ordered payment of $3,493.69 to one granddaughter, $3,467.44 to the other, $2,100.00 to the brother, and $7,250.00 in fees to executor, his counsel, and guardians ad litem. These payments total more than $16,000.00. The decree recites that a total of $19,021.70 constitutes the remaining assets of the estate. We have decided that the husband is entitled to be paid $14,432.40. It is obvious that all the payments cannot be made out of the remaining money.
We are not inclined to deny that the first codicil gave to the husband a demonstrative legacy entitled to priority of payment out of the proceeds of sale of Woodley property; that is, priority over gifts and charges that have a claim inferior to the husband's legacy.
We do not think it will be disputed that costs of administration have priority over the legacies. Costs of administration, including costs of this appeal, should first be paid out of the $19,021.70, or whatever the sum is that remains on hand. After these costs have been paid, the balance will not be enough to pay even the $14,432.40 to the husband. The questions are: does the husband get all the balance; do the granddaughters and brother get nothing; or do the husband, granddaughters, and brother share proportionately in the distribution of the balance?
The decree is that the sums awarded to the granddaughters are the value of their respective life interests in the Woodley property and that the $2,100.00 to the brother is the value of the lot he was authorized to select from the Woodley property. There is no argument that the court erred in making these three awards. They represent the share of the Woodley property given, by the will, to granddaughters and brother. These awards stand in place of a part of the Woodley property itself. The decree, in effect, gives to these awards the quality of a demonstrative legacy payable out of proceeds of sale of Woodley property.
How, then, does the bequest to the husband stand ahead of the awards to granddaughters and brother? The bequest to husband comes out of Woodley property. The awards come out of Woodley property. We are of opinion that the bequest and the awards stand on the same ground and have equal priority. On that holding, the bequest and awards should be paid proportionately out of any balance that may remain after costs of administration and appeal are paid.
To make our holding clear, we will use approximate numbers. On final distribution the trial court will use exact numbers. The bequest of $14,000.00 to husband, the award of $3,000.00 to one granddaughter, of $3,000.00 to the other granddaughter, and of $2,000.00 to the brother, should be paid in the following shares of the remaining balance: to husband fourteen twenty-seconds (14/22), to each granddaughter three twenty-seconds (3/22), and to brother two twenty-seconds (2/22).
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.
COLEMAN, Justice.
By the trial court's decree, the granddaughters and the brother are given sums of money payable out of proceeds of sale of Woodley property. By our decision, the husband also is awarded a sum payable out of proceeds of sale of Woodley property. The grandson is given the Adams Street property itself, subject to the condition that the son must "keep up the payments" on the property.
The husband and the granddaughters contend, on rehearing, that we erred in not declaring that the Adams Street property, *317 as well as the proceeds of the sale of the Woodley property, should bear the payment of debts and costs of administration.
Husband says in brief that the provision in the first codicil for payment to the husband should take precedence over provisions which might be defeated by sale of the Woodley property, and, on the other hand, if the foregoing statement be incorrect, ".... then the decree is erroneous in finding an intent on the part of testatrix to exempt the Adams Street property from its share of the necessary abatement."
The granddaughters agree with the husband's contention that the Adams Street property should share ratably in the abatement.
In response to this contention we have again examined the record and especially the will and codicils, keeping in mind the primary and controlling principle that the intent of the testatrix is to be ascertained and given effect.
What is the intent of testatrix with respect to priority of the gifts to these parties? What is the nature of the respective gifts?
Is it the intention of testatrix that the gift to grandson shall also abate if the Woodley property is insufficient to pay in full the debts and costs of administration and the gifts to granddaughters, brother, and husband?
We will not undertake to state in detail all the qualities or considerations which make up a specific devise. For the purposes of determining priority, we pretermit discussion of preference between gifts of personalty and realty and will regard the gift to the grandson as a specific devise which has at least the qualities of a specific legacy of personalty. The gifts out of Woodley property to granddaughters, brother, and husband we regard as of the nature of demonstrative legacies.
In the instant case, however, there are no general assets other than the proceeds of the sale of Woodley property, and those proceeds are the very fund from which the demonstrative gifts to granddaughters, brother, and husband are payable.
The broad statement is sometimes made that demonstrative legacies abate with specific ones where there is a deficiency of assets. 57 Am.Jur. 982, Wills, § 1459. It is also said, however,
"The cases are few in which the question of precedence in abatement has arisen between specific and demonstrative legacies, which is somewhat surprising in view of the numerous *318 cases where the abatement of general legacies is involved. No hard and fast rule can be formulated as to which of these two classes should abate first, since the courts strive to give effect to what they think would have been the intention of the testator could he have foreseen the contingency causing the difficulty. The question, therefore, is always one of the interpretation of the will. Recourse must be had to it and other proper circumstances to discover what preference the testator would probably have had with reference to his legatees in order to apply that preference to the abatement of the legacies. It is not a surprising matter, therefore, to find demonstrative legacies abating sometimes with specific legacies and sometimes before them." 4 L.R.A. (N.S.) 922, 923.
If costs and debts are charged against the specific devise of the Adams Street property, there will be an increase in the amount available to pay the demonstrative legacies to granddaughters, brother, and husband. The effect is to use a part of the Adams Street property to increase the demonstrative legacies. We come then to decide, in effect, whether demonstrative legacies, or a part of them, are payable out of a specific devise or a specific legacy under the circumstances of this case.
Suppose the mortgage debt on Woodley property had been equal to or greater than the price which sale of Woodley property would bring and that the value of the only remaining asset of the estate, Adams Street property, had been sufficient to pay all debts and costs of administration and to provide also a surplus after such debts and costs had been paid. Now, the Adams Street property is devised to the grandson. "He alone" is to receive it. Did testatrix intend that granddaughters, brother, and husband should be entitled, in such a case, to have all or a part of their respective demonstrative legacies paid out of Adams Street property? We think it is clear that the answer is no, and that granddaughters, brother, and husband should have no right to share in the property specifically devised to grandson. The demonstrative legacies are payable out of proceeds of sale of Woodley property. If there should be no proceeds from sale of Woodley property, the demonstrative legatees would not be entitled to any payment unless out of the residue, and the residue has been exhausted. If the demonstrative legatees be permitted to share in Adams Street property, then the grandson alone would not receive it.
There is one consideration which the parties have not argued. The second codicil recites that testatrix has ".... deemed it best .... for my new grandchild (the grandson) .... to share and share alike in the benefits of our home at 2566 Woodley Rd and the acreage and other propertyhe is to share this with .... his half sisters." (Par. Added.)
Now the court has adjudged that the granddaughters were given life estates in the garage apartment, together with a lot of 100 feet by 200 feet; and, acting on testimony as to the value of the garage apartment and lot, the court finds that the values of the life interests of the granddaughters are $3,493.69 and $3,467.44, respectively. No objection has been raised to this part of the decree. We do not raise objection to it now, but we do inquire whether the grandson was entitled "to share and share alike" with his half sisters in the Woodley property and to have awarded to him the value of his own life interest in the property.
The decree does not award to the grandson any interest in the proceeds of sale of Woodley property. That, we think, is a circumstance to be considered in deciding what testatrix intended in event of a deficiency of assets. If the decree carries out her intent in not awarding the grandson an interest in the Woodley property, then we think such a construction shows the further intent that the grandson should be required *319 to pay the $10,000.00 mortgage on Adams Street property but no other debt of testatrix or costs of administration of her estate.
In the decree on rehearing, the trial court decreed that all "debts and claims" be paid ".... out of the residue." We understand the decree to refer to the proceeds of sale of Woodley property as the residue. Debts and costs are ordered paid out of that residue. The effect of the decree on rehearing is to place, on the proceeds of sale of Woodley property, primary liability for costs of administration and for all debts except the mortgage on Adams Street property. We affirm the holding that, until after proceeds of sale of Woodley property have been exhausted, Adams Street property is not liable for costs of administration or for any debt other than the mortgage on Adams Street property.
We think we should write to some further features of our decision with respect to liability of parties for costs.
As stated on original deliverance, all appellees, except the executor, united against the husband in support of the decree wherein the court denied any payment to the husband. On the husband's appeal we reversed that holding.
We also said that the "Costs of administration, including costs of this appeal...." should be paid out of the money which remains in the hands of the executor. On further consideration, we are of opinion that the quoted directions as to payment of costs of appeal should be modified.
Since appellant is successful on this appeal and on the cross-appeal, all costs of appeal should be assessed against the following appellees: Maury D. Smith, as guardian ad litem for J. Ed Pepperman, Jr., Jean Pepperman, and Ed Pepperman Sealy, minors; John C. Godbold, as guardian ad litem for Candace Tartt Sealy and Cynthia Anne Sealy, minors; and Cornelia Sealy. Shaddix v. Bilbro, 220 Ala. 657, 127 So. 227.
A cross-appeal was taken on behalf of the two granddaughters. They were not successful on the cross-appeal, and, for that reason, we are of opinion that the costs of the cross-appeal should be assessed against the cross-appellants.
No part of the costs of appeal or cross-appeal is to be assessed in anywise against the estate of testatrix.
Appellant argues, on rehearing, that the fees allowed the guardians ad litem should be paid out of the estates given to their respective wards. The June 12, 1962, decree of the circuit court recites that $18,085.19 remained in the registry of the court and ordered the register to pay to the guardians ad litem the respective amounts allowed to them for services as guardians ad litem. We understand the decree to order that the guardian ad litem fees be paid out of the proceeds of sale of Woodley property. We have not found where appellant assigned those rulings of the circuit court as error or argued the point in original brief.
Where a question is not raised in brief at the submission of the cause or until after judgment has been rendered by this court, the question is not ordinarily due to be considered on application for rehearing. Robinson v. Allison, 97 Ala. 596, 12 So. 604; Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902. Under the rule, appellant's contention as to payment of guardian ad litem fees is not to be considered as a basis for granting a rehearing.
The husband requests us "to clarify" the opinion with respect to taxation of costs in the trial court. The opinion says "Costs of administration," should first be paid out of the sum remaining in the hands of the register. We think the opinion, in this respect, merely affirms the decree of June 12, 1962, which recites:
*320 We do not understand that the husband, on submission in this court, assigned the taxation of costs as error or argued the point in brief on original hearing. If our understanding is correct, the husband is not entitled to raise the point for the first time on rehearing. Robinson v. Allison, supra; Rudolph v. Rudolph, supra.
The opinion is modified with respect to taxation of costs of appeal and cross-appeal. In all other respects we adhere to our original decision.
Opinion modified and extended.
Application overruled.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | June 3, 1965 |
60c5181a-99da-4b06-b7d8-dbd6dc35bcd6 | Owen v. State | 51 So. 2d 541 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 541 (1951)
OWEN
v.
STATE.
8 Div. 580.
Supreme Court of Alabama.
February 22, 1951.
Rehearing Granted March 22, 1951.
*543 S. A. Lynne and Russell W. Lynne, of Decatur, for appellant.
Si Garrett, Atty. Gen., and Wallace L. Johnson, Asst. Atty. Gen., for the State.
BROWN, Justice.
The appellant, defendant in the circuit court, was indicted by a Grand Jury organized in the Circuit Court of Lawrence County for murder in the first degree, the indictment charging that he "unlawfully, and with malice aforethought, killed Grady Burt Terry, by shooting him with a gun or pistol, against the peace and dignity of the State of Alabama." On his trial he was convicted of murder in the first degree and sentenced to life imprisonment in the state penitentiary. From that judgment he has appealed.
The first contention made by appellant's learned counsel is that the record fails to show that defendant failed to plead to the indictment and that a plea of "not guilty" was not interposed for him. This contention is without merit. The record affirmatively shows that the indictment was endorsed: "Grand Jury No. 2. A True Bill", which indictment was endorsed by "Duke Bailey, Foreman Grand Jury. Filed in open Court on the 1st day of August, 1950, in the presence of the Grand Jury.", such filing being endorsed "Ernest Shelton, Clerk." And the minutes of the court recite:
"This, the 1st day of August, 1950, came the State of Alabama, by its Solicitor, George C. Johnson, who prosecutes for the State of Alabama, and came also the defendant in his own proper person, and by attorney, whereupon the defendant being in open Court and being duly arraigned in open Court upon an indictment charging him with the offense of murder, by having the indictment read over to him, for his plea thereto, says that he is not guilty, upon which plea the Solicitor joined issue.
"It is therefore considered, ordered and adjudged by the Court that this cause be, and the same is hereby set for trial on August 21, 1950.", followed by order of the court drawing a special venire for the defendant's trial in compliance with the statute.
The defendant thereupon filed a motion to quash the indictment on the grounds that: "(1) Said indictment is grounded upon an order of the court for the organization of said grand jury, which order was without any warrant in the statutes or was contrary to its provisions. (2) Said indictment is grounded upon an order of the court for the organization of said grand jury, which order was without any warrant in the statutes or was contrary to its provisions, for that, a grand jury was drawn for the Circuit Court of Lawrence County, Alabama and impaneled on, to-wit: March 27, 1950, and said grand jury has not been dissolved or discharged by any recorded order of this court. (3) The indictment in this cause was found and returned into court by a grand jury that was impaneled by this court on July 31, 1950 and was based upon an order of the court for the organization of the grand jury made and entered on a day subsequent to July 3, 1950, and which order was without any warrant, for that, a grand jury for this court was duly drawn, summoned and impaneled and entered upon its duties as such on, to-wit: March 27, 1950, and which said grand jury has not been dissolved or discharged by any recorded order of this court." This motion was made after the defendant was arraigned and pleaded not guilty and was overruled by the court without error. Code of 1940, Tit. 15, § 279; Hale v. State, 10 Ala.App. 22, 64 So. 530; Whitehead v. State, 206 Ala. 288, 90 So. 351.
Russell Coffey challenged for cause was a second cousin by affinity to the defendant and was, therefore, related to him within the fifth degree under the rules of the civil law applicable to this situation. Code of 1940, Tit. 30, § 55, subsec. 4; Danzey v. State, 126 Ala. 15, 28 So. 697. The action of the court in allowing said juror challenged for cause was free from error.
Defendant's refused written charge "A" pretermits gross negligence in handling the gun and is involved and argumentative and was properly refused. Austin v. State, 145 Ala. 37, 40 So. 989.
The foregoing covers the points argued. We have examined the record for reversible *544 error and find nothing that calls for further treatment.
Affirmed.
FOSTER, SIMPSON and STAKELY, JJ., concur.
On Rehearing.
On more mature consideration we have reached the conclusion that the juror Russell Coffey, who was challenged for cause, was not subject to challenge, that he was not within the 5th degree of kinship according to the rules of the civil law, and the court erred in sustaining the challenge made by the solicitor. As stated in Danzey v. State, 126 Ala. 15, 28 So. 697, 698, cited in the foregoing opinion, "When existing only by affinity, the relationship does not disqualify, unless it be within the fifth degree as computed by the civil-law rule. By that rule, as applied to collaterals, the count begins at one of the persons in question, and proceeds up to the common ancestor, and then down to the other person, calling it a degree for each person, both ascending and descending; and the number thus counted expresses the degree of kinship." As stated in the original opinion, the juror "was a second cousin by affinity to the defendant", and, therefore, was within the 6th degree, not the 5th.
In O'Rear's case, reported as O'Rear v. State, 188 Ala. 71, 66 So. 81, 82, the court stated: "It is equally clear, however, that the trial judge must determine, not only whether the veniremen possess the general qualifications prescribed by the jury law for jury service in general, but also whether they are competent jurors for the trial of the case in hand. This being the judge's duty, it is of no consequence whether he rejects an unfit venireman ex mero motu, or upon the suggestion of another. Justice is not concerned with the source of (or) form of the information which reveals incompetence, but only with its resulting elimination from the jury box. Nor is it material that incompetents are not discovered by the preliminary inquiry before the lists are made up. If they be discovered at any time, at least before striking is begun, they should be striken by the court. * * *"
In the instant case the juror was not incompetent nor subject to challenge and it was reversible error to allow the challenge for cause. Danzey v. State, 126 Ala. 15, 28 So. 697; Phillips v. State, 68 Ala. 469.
The reporter will set out in his report of the case "The Nolan Chart of Relationships and Degrees of Kindred According to the Civil Law", which is appended to this opinion.
The application for rehearing is therefore granted and the judgment of the circuit court is reversed and the cause is remanded for another trial. Let the defendant remain in custody until discharged by due course of law.
Application for rehearing granted. Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur. | March 22, 1951 |
6cb9a8a6-e93b-4719-b32b-1da5c1211c53 | Lightsey v. Stone | 52 So. 2d 376 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 376 (1951)
LIGHTSEY
v.
STONE et ux.
1 Div. 384.
Supreme Court of Alabama.
May 10, 1951.
*378 Outlaw, Seale & Kilborn, Mobile, for appellant.
Johnston, McCall & Johnston, Mobile, for appellees.
LAWSON, Justice.
This proceeding was instituted in the circuit court of Mobile County, in equity, by Edward S. Stone and wife, Laura M. Stone, against Leon E. Lightsey to establish and define a disputed boundary line between adjoining city property. Incidental to this relief, the bill prayed for an injunction restraining Lightsey from trespassing and for damages resulting from the removal of shrubbery and for general relief.
The appeal is by the respondent, Lightsey, from a decree fixing the boundary line as claimed by the Stones, ordering Lightsey to remove the fence he had constructed, and enjoining him from trespassing. The trial court did not award damages for the removal of the shrubbery, finding that any damages suffered were negligible.
The real question in the case is whether the complainants or the respondent is entitled to the possession of a strip of land off the east side of Lot 20 of Alexander *379 Heights addition to the City of Mobile, which strip is approximately thirteen feet wide and 150 feet long.
Lot 20 fronts on the north side of Woodruff Street, formerly called A Street, which street runs east and west. Lot 20 was owned by Lewis Cole and his wife, Etta Cole, each of whom owned an undivided one-half interest. Etta Cole died intestate in 1947 and was survived by her husband and two daughters, Mrs. Lanelle Hathorn and Mrs. Lavern Ford.
On May 1, 1948, Lewis Cole, his two daughters and their husbands, executed a deed conveying Lot 20 to Leon E. Lightsey, the respondent below. This deed purports to convey the fee simple title to all of Lot 20 and contains the following statement: "The grantors herein being the surviving husband and only children of Etta Cole, who died intestate in February, 1947." At the time this deed was executed, there was nothing on record to indicate that the grantors therein could not convey a fee simple title to all of Lot 20. As before indicated, Lewis Cole owned an undivided one-half interest. Upon the death of his wife Lewis Cole, by virtue of the provisions of § 12, Title 16, Code 1940, became vested with a life estate in the other undivided one-half interest, with the remainder or reversion in fee in his daughters.
Thus, it would appear that the respondent, Lightsey, would be entitled to the possession of all of Lot 20 which, as before shown, includes the strip off the east side thereof which is the subject of this controversy.
But the complainants claim that Lightsey was not a bona fide purchaser and that by virtue of events hereafter related, complainants and not Lightsey were entitled to possession of the said strip of land.
Lot 19 of Alexander Heights addition to the City of Mobile is situate immediately east of Lot 20 and is located at the northwest corner of the intersection of Woodruff Street and Florida Street. It has a frontage of fifty-two feet on Woodruff Street. Lot 19 was owned by Mrs. Lanell Hathorn and her husband. As before shown, Mrs. Lanell Hathorn is the daughter of Lewis Cole. On March 6, 1948, Mrs. Lanell Hathorn and husband executed a deed wherein they conveyed Lot 19 to Wiley D. Humphrey. A few days thereafter, on March 9, 1948, Lewis Cole and Wiley D. Humphrey entered into the following written contract:
"This Agreement between Louis Cole, a widower, and Wiley D. Humphrey, Witnesseth:
"That in consideration of the payment by the said Wiley D. Humphrey to the said Louis Cole of One and no/100 ($1.00) Dollar and for the purpose hereinafter set out, the said Louis Cole agrees as follows:
"That he will convey to the said Wiley D. Humphrey without any other consideration, a strip of land off the East edge of Lot Twenty (20) of Alexander Heights, which the said Louis Cole owns, wide enough to make when added to Lot Nineteen (19) of said Alexander Heights, a frontage on A Street of sixty-five (65) feet with equal width throughout the depth of said lot.
"This agreement will be carried out as soon as the said Wiley D. Humphrey can have Lot Nineteen (19) surveyed and determine the width of said strip to be conveyed by the said Louis Cole.
"This agreement is made to consumate the purchase by the said Wiley D. Humphrey, from the daughter of the said Louis Cole, namely, Mrs. Lanell Hathorn, who has agreed and contracted to convey to the said Wiley D. Humphrey said Lot Nineteen (19) of Alexander Heights, the same to have a width of sixty-five (65) feet.
"In Witness Whereof, we have hereto set out hands in duplicate this 9 day of March, 1948.
*380 "I, Laura Stone, a Notary Public in and for said State and County, do hereby certify that Louis Cole, a widower, whose name is signed to the foregoing agreement, and who is known to me, acknowledged before me on this day, that, being informed of the contents of said agreement, he executed the same voluntarily on the day the same bears date.
"Given under my hand and official seal this 9th day of March, 1948.
This contract was not placed on record until July 15, 1948, after Lightsey had secured his deed to Lot 20 and after he and his family began occupancy of the dwelling located on said lot.
On March 19, 1948, Edward S. Stone and wife, Laura M. Stone, complainants below, purchased Lot 19 from Wiley D. Humphrey. This purchase was under a written contract of sale, which made no mention of the contract between Humphrey and Cole as to Lot 20. It is contended by the Stones, and the evidence supports their contention, that at the time Humphrey conveyed Lot 19 to the Stones, and as a part of that transaction, he orally transferred to the Stones his interest in Lot 20 under his contract with Cole. The evidence was sufficient to support a finding that Cole knew of this transfer.
It is undisputed that on the day of the execution of the conveyance of Lot 19 by Humphrey to the Stones, they went into possession of that lot. The Stones also contended that on the same day, under their oral contract with Humphrey, they went into possession of the east thirteen feet of Lot 20, the strip of land here involved, although no survey had been made as provided by the written contract between Humphrey and Cole and no conveyance executed by Cole.
As before shown, the contract between Cole and Humphrey was in writing. This contract was sufficient under the statute of frauds. Dobson v. Deason, 248 Ala. 496, 28 So. 2d 418; Cotton v. Cotton, 75 Ala. 345; Wilkins v. Hardaway, 173 Ala. 57, 55 So. 817; Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363.
By virtue of this contract with Cole, Humphrey acquired an equitable interest in the land. Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 139 So. 342; J. A. Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35; Boozer v. Blake, 245 Ala. 389, 17 So. 2d 152; Lynch v. Partin, 250 Ala. 241, 34 So. 2d 2.
At the time Cole entered into the contract with Humphrey, he owned an undivided one-half interest in Lot 20 and had the use of the entire lot during his life, as the surviving husband of Etta Cole, who owned the other undivided one-half interest and who, as before shown, died intestate. § 12, Title 16, Code 1940. Hence Cole could convey the fee simple title to his one-half undivided interest and a life estate in the other undivided one-half interest, thus giving to his grantee the right of possession during the life of Lewis Cole. Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843. Though the contract between Cole and Humphrey purported to relate to the entire fee, it could only convey Cole's life estate as to the one-half undivided interest formerly owned by his wife, Etta Cole. Murphy v. Leatherwood, supra.
Since the statute of frauds has no application to the written contract of sale between Cole and Humphrey, the cases of Smith v. Thomas, 224 Ala. 41, 138 So. 542, and Barclift v. Peinhardt, 18 Ala.App. 340, 92 So. 208, have no bearing on the question here considered. Those cases are also distinguishable in that the grantors had only an undivided interest in the property, without any right of possession of the entire premises during the life of the grantor, as is the situation in the instant case.
As before indicated, the transfer by Humphrey to the Stones of his rights under the contract with Cole was by parol. Appellant, Lightsey, seeks to invoke the statute of frauds, Code 1940, Tit. 20, § 3, as to this transaction. But he cannot invoke the statute of frauds, for it applies only to persons who are parties to the parol *381 contract and their privies and those whose rights are directly controlled by it. Bradley v. Hall, 239 Ala. 544, 195 So. 883; Hooper v. Reed, 211 Ala. 451, 100 So. 875; Ex parte Banks, 185 Ala. 275, 64 So. 74. Neither Lightsey nor those under whom he claims, Cole and his daughters, are privies to the contract between Humphrey and the Stones.
We think the evidence warrants a finding that complainants had an equitable interest in the strip of land here involved.
But the mere establishment of an equity in the complainants in the strip of land here involved is not sufficient to entitle them to possession. They are not entitled to possession if Lightsey was a bona fide purchaser.
In order to constitute one a bona fide purchaser and entitle him to the protection of the rule, as against a prior equity or conveyance, it is essential: "* * * (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant's equity, either at the time of his purchase, or at, or before the time he paid the purchase-money, or otherwise parted with value * * *." Craft v. Russell, 67 Ala. 9, 12, and cases cited. Webb v. Elyton Land Co., 105 Ala. 471, 18 So. 178; Sherrod v. Hollywood Holding Corp., 233 Ala. 557, 173 So. 33; Gibson v. Gibson, 200 Ala. 591, 76 So. 949; Holly v. Dinkins, 202 Ala. 477, 80 So. 861; Larkins v. Howard, 252 Ala. 9, 39 So. 2d 224, 7 A.L.R.2d 541.
Since the respondent, Lightsey, proved the execution of a deed to him purporting to convey legal title to all of Lot 20 and further showed payment of a valuable consideration, there was a presumption that the purchase was in good faith and the burden was upon complainants of proceeding by evidence to show that respondent, Lightsey, took with notice of their equity. Stone v. Lacy, 245 Ala. 521, 17 So. 2d 865; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223.
Such notice, according to our cases, could be "actual or constructive, or knowledge of facts sufficient to put a reasonable person on inquiry, which, if followed up, would have discovered the title" asserted by complainants. Reeder v. Cox, 218 Ala. 182, 118 So. 338, 341; Stone v. Lacy, supra. See also Hatter v. Quina, 216 Ala. 225, 113 So. 47; Ely v. Pace, 139 Ala. 293, 35 So. 877.
Complainants asserted and sought to show that Lightsey was not a bona fide purchaser in that their possession of the strip of land was sufficient notice of their equity.
It is a familiar principle that a possession which contains all the required elements will operate as notice of the occupant's equitable rights. Munn v. Achey, 110 Ala. 628, 18 So. 299, and cases cited; King v. Paulk, 85 Ala. 186, 4 So. 825; Fowler v. Morrow, 245 Ala. 2, 15 So. 2d 629; Alexander v. Fountain, 195 Ala. 3, 70 So. 669; Rankin Mfg. Co. v. Bishop, 137 Ala. 271, 34 So. 991.
But for possession to operate as notice, it must be open, visible, exclusive and unambiguous, not liable to be misconstrued or misunderstood. Wells v. American Mortgage Co., 109 Ala. 430, 20 So. 136; Brunson v. Brooks, 68 Ala. 248; Rankin Mfg. Co. v. Bishop, supra. Consequently, it is uniformly held that where there is no open and visible change of possession, it does not operate as notice. Troy v. Walter Bros., 87 Ala. 233, 6 So. 54; Motley v. Jones, 98 Ala. 443, 13 So. 782; Scotch Lumber Co. v. Sage, 132 Ala. 598, 32 So. 607; McCullars v. Reaves, 162 Ala. 158, 50 So. 313.
Hence, we have held that where the possession of the vendor and vendee is joint at the time of the sale and conveyance, the rule does not apply. The joint possession does not operate as constructive notice, because there would be no visible act which is calculated to put a stranger on inquiry as to the changed attitude or status of the title, created by the secret conveyance by the vendor to the *382 vendee. McCarthy v. Nicrosi, 72 Ala. 332; Motley v. Jones, supra; Munn v. Achey, supra; Kindred v. New England Mortgage Security Co., 116 Ala. 192, 23 So. 56; O'Neal v. Prestwood, 153 Ala. 443, 45 So. 251; Langley v. Pulliam, 162 Ala. 142, 50 So. 365; Christopher v. Curtis-Attalla Lumber Co., 175 Ala. 484, 57 So. 837; Sloss-Sheffield Steel & Iron Co. v. Taff, 178 Ala. 382, 59 So. 658; Autauga Banking & Trust Co. v. Chambliss, 200 Ala. 87, 75 So. 463; Holly v. Dinkins, supra; Pake v. Lindsey Mill Co., 208 Ala. 569, 94 So. 573. Relevant in this connection is the observation of this court in Munn v. Achey, supra, where it is said that the court, in discussing possession or constructive notice, lays quite as much stress upon the fact that the vendor is out as that the claimants of the equity or unrecorded legal title are in possession.
Much evidence was adduced in the trial court as to the possession of the land both before and after the respondent, Lightsey, secured his deed to Lot 20. But in considering the question as to whether complainants' possession was such as to charge Lightsey with notice of their equity, we are limited to the evidence which relates to the nature of their possession at the time Lightsey secured his deed to Lot 20. Possession, to put a purchaser upon inquiry and operate as constructive notice, 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 charge the purchaser with notice. Holly v. Dinkins, supra; O'Neal v. Prestwood, supra; Scotch Lumber Co. v. Sage, supra.
However, the evidence as it relates to the manner in which Lots 19 and 20 were occupied prior to the time the complainants secured their conveyance and went into possession of Lot 19 does have some bearing on complainants' contention that they were in such possession of the strip of land here involved as to charge Lightsey with notice of their equity.
In this connection the evidence may be summarized as follows: Mr. and Mrs. Hathorn occupied the dwelling on Lot 19. Mrs. Hathorn's father, Lewis Cole, her brother-in-law and sister lived in the house on Lot 20. There was no fence, hedgerow or monument of any kind marking the western boundary of Lot 19 and the eastern boundary of Lot 20. There was a fence running east and west between the two houses, which is called the "cross-fence." This fence is from thirty to thirty-five feet north of Woodruff Street. Shrubbery was planted along this fence. A few feet west of the boundary line between Lots 19 and 20, and hence on the disputed strip, was a row of shrubbery which extended from Woodruff Street to a point approximately five feet north of the "cross-fence." The back yards of the two lots were not separated in any way. Some fig trees were growing on that portion of the disputed strip north of the cross-fence; in other words, in the back yard of Lot 20. Mr. Hathorn, the occupant of the house on Lot 19 and the son-in-law of Lewis Cole, always parked his car in what is termed the driveway on Lot 20, west of the row of shrubbery referred to above. This so-called driveway is on the disputed strip. The car could not be driven into Lot 20 for more than a distance of twenty or twenty-five feet, for there was an azalea bush located approximately ten feet south of the "cross-fence." It appears that Hathorn parked his car in the "driveway" with consent of the occupants of Lot 20 and without any claim of right.
Such was the condition of the premises and the use to which they were put at the time complainants moved into the house on Lot 19 on March 19, 1948. They moved in on the same day the Hathorns moved out. Lewis Cole, his daughter and son-in-law, Mr. and Mrs. Ford, continued to reside in the house on Lot 20 and were residing therein on May 1, 1948, when the respondent, Lightsey, secured his deed to Lot. 20.
Between March 19, 1948, the day on which complainants moved into the house on Lot 19, and May 1, 1948, the day on which the deed to Lot 20 was executed to Lightsey, no visible change was made as to the boundaries of the property claimed by complainants and that of Cole and his *383 daughters. No boundary fence was erected; the shrubbery was not moved; the cross-fence was not changed.
Mr. Stone did park his car in the so-called driveway on the eastern side of Lot 20 and the trial court could have found from the evidence that the Stones attended to the shrubbery on the strip of land here involved and cut the grass thereon. It also appears that they picked some figs from the trees in the back yard. Yet on the other hand, it appears from one of complainants' own witnesses that after the Stones moved in, Cole cut down the largest of the fig trees. This is the extent to which the evidence bears on the complainants' claim that they were in such possession of the strip of land as to deprive Lightsey of the status of a bona fide purchaser for value without notice of their equitable claim.
We do not think this evidence is sufficient to deprive Lightsey of being a bona fide purchaser. It falls far short of showing that complainants had the exclusive possession of the strip of land. Cole, who had the right to the use of all of Lot 20 during his life, was still living in the house on that lot. The most that can be said of the evidence is that it shows a joint possession between complainants and Cole which, as before shown, is insufficient because there is no visible act which is calculated to put a stranger on inquiry as to the changed attitude or status of the title. McCarthy v. Nicrosi, supra, and other cases cited above.
We hold, therefore, that the decree of the trial court cannot be sustained on the theory that the possession of the strip of land by complainants was sufficient to operate as notice of their equitable rights.
But complainants also contended and brought forth evidence tending to show that Lightsey had actual knowledge of the contract between Cole and Humphrey and of complainants' rights thereunder.
Stone testified that Lightsey had admitted to him that Cole had so advised him at the time he purchased the lot and that Lightsey said to Stone that "he would have bought Lot Twenty if the remainder of it wasn't but forty feet." Lightsey emphatically denied making any such statement.
On this issue of actual knowledge, we think the evidence as it relates to the conduct of the Stones and of Lightsey, after he moved into the house on Lot 20, is important.
The evidence is in sharp conflict as to who attended to the grass and shrubbery on the disputed strip and as to whether or not the complainants gathered the figs from the trees growing thereon.
But it is undisputed that after Lightsey moved in, Stone continued to park his automobile in the so-called driveway which is on Lot 20 until about Thanksgiving Day, 1948, when, in the absence of complainants, Lightsey built a fence approximately on the boundary line between the lots as platted.
Lightsey never made any inquiry of Stone as to why he was parking his car in the driveway or discussed their boundary line until the first part of August, 1948, when a survey was made. During all this time and until the time Lightsey built the fence, he had parked his automobile on the west side of his house on an adjoining lot owned by one Sheffield. When Sheffield in effect forbade such use of his lot and constructed a fence between his lot and that of Lightsey, he aided Lightsey in constructing the fence between Lot 20 on the west and Lot 19 on the east.
The fact that Lightsey permitted Stone to park his car on Lot 20 without even so much as mentioning the matter to Stone tends to support Stone's testimony to the effect that Lightsey had actual knowledge of Stone's right of possession.
Lightsey sought to explain his conduct in this respect and the trial court permitted Lightsey and his wife to testify that Cole, at the time they secured their deed to Lot 20, asked them to permit Stone to continue to park his car in the driveway until Stone could build a gate into the rear of Lot 19 from Florida Street.
Cole did not testify in the case. It appears that he was out of the state. After Lightsey and his wife had testified that Cole had asked them to permit Stone to use *384 the driveway for a while, the trial court, over the strenuous objection of counsel for Lightsey, permitted complainants to introduce in evidence an undated written instrument, which reads:
"This is to certify that I, Louis Cole, sold Wiley Humphrey a piece of land of lot 20 in Alexander Heights, when added to lot 19 made 65 ft frontage on Woodruff St. and that I informed Mr. Lightsey of my agreement with Mr. Humphrey.
It appears from statements made by the trial court at the time the writing was admitted in evidence, and from the decree, that the court's ruling was on the theory that the writing was admissible for the purpose of rebutting the testimony of Mr. and Mrs. Lightsey to the effect that Cole had asked them to permit Stone to park his car in the driveway.
Complainants below, appellees here, seek to sustain the action of the trial court in admitting this writing in evidence by the invocation of the principle that incompetent or illegal evidence may be admitted without error to rebut evidence of like character and by the assertion that the evidence given by Lightsey and his wife to the effect that they were asked by Cole to permit Stone to use the driveway until he could gain entrance to Lot 19 from Florida Street was incompetent and illegal. The principle which complainants seek to invoke is, of course, well established. Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264, and cases cited.
But we do not think that principle has application, for we cannot agree that the evidence of Lightsey and wife as to the statement made to them by Cole was incompetent or illegal. It seems clear to us that the statement of Cole was explanatory of his possession of Lot 20 during the time he lived in the house thereon and after complainants had entered upon the occupancy of the house on Lot 19, during which time Stone parked his car on a part of the disputed strip of land off the east side of Lot 20, "A party in possession of land may make declarations explanatory of his possession, and either claim or disclaim ownership, no matter who may be parties to the suit. Possession being the principal fact, such declarations are admissible as part of the res gestae of the possession itself and are admissible when made by a party on the land, or in possession thereof, whether actually on the land or not at the time of making same. Owen v. Moxon, 167 Ala. 615, 52 So. 527; Payne v. Crawford, 102 Ala. [387] 398, 14 So. 854." Shelton v. Stapler, 219 Ala. 15, 16, 121 So. 34, 35.
As before pointed out, the trial court indicated that it did not consider this writing as original or primary evidence of the fact that Cole did tell Lightsey of his contract with Humphrey, but limited the effect of the writing to contradition or impeachment of the witnesses Mr. and Mrs. Lightsey. In other words, the writing was considered as if Cole had been present in court and had testified that he made no such request as testified by the Lightseys. Of course, the Lightseys were subject to being contradicted, but we do not think it could be done in this manner. Vendetti v. United States, 9 Cir., 45 F.2d 543. We know of no exception to the hearsay rule that would make this unsworn ex parte statement admissible in evidence even for the purpose to which it was limited. If Cole had been produced as a witness or if he had given evidence by deposition, the respondent would have had the opportunity to cross-examine him. We hold, therefore, that the writing was erroneously admitted in evidence. State ex rel. Bailess, Solicitor, v. Guardian Realty Co., 237 Ala. 201, 186 So. 168.
Complainants below, appellees here, argue that even though it be held that the writing was erroneously admitted in evidence, such action of the trial court does not require a reversal of the decree.
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 *385 the judgment." Pfingstl v. Solomon, 240 Ala. 58, 64, 197 So. 12, 16. As to this rule, it is sufficient to say that it can have no application here, for the remaining evidence is decidedly in conflict.
We also apply Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, to equity cases and will not reverse a decree unless in the opinion of the court, after an examination of the entire cause, it should appear that the error complained of 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 Cole's ex parte statement has probably affected a substantial right. As before pointed out, the decree could only be sustained on the theory that Lightsey had actual knowledge of complainants' equitable rights. The evidence as to this issue was in sharp conflict and the ultimate question for decision hinged in a large measure on whether Lightsey and his wife or Stone was telling the truth. It affirmatively appears that the trial court considered this ex parte written statement as bearing on the credibility of the testimony of Lightsey and his wife. We feel constrained, therefore, to reverse the decree appealed from.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | May 10, 1951 |
364d8c53-7eba-4bb5-b591-dba61561984e | City of Prichard v. Hawkins | 53 So. 2d 378 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 378 (1951)
CITY OF PRICHARD
v.
HAWKINS.
1 Div. 372.
Supreme Court of Alabama.
May 10, 1951.
Rehearing Denied June 28, 1951.
*379 Geo. E. Stone, Jr., and Thos. A. Johnston, III, Mobile, for appellant.
Caffey, Gallalee & Caffey, Mobile, for appellee.
LAWSON, Justice.
This is a suit by M. F. Hawkins, doing business as Davis Service Station, against the City of Prichard for refund of license *380 money paid for the operation of a gasoline service or filling station, which was within the police jurisdiction of the City of Prichard but outside its corporate limits.
The suit is brought on the common counts and the amount claimed in the complaint is $2,520.90, with interest.
The theory of the right of recovery is that the ordinances exacting the payment of the license are unconstitutional and void, since they were in fact revenue measures. Under the provisions of the ordinances the so-called license tax was levied on the operator of the filling or service station.
Defendant, the City of Prichard, filed what is termed a plea in abatement wherein in various forms it is averred that plaintiff was not entitled to recover for the reason that the money was not paid by him, but by his customers, in that the ordinance "levied a license tax of one cent per gallon on all gasoline sold or delivered at drive-in gasoline filling stations in the Police Jurisdiction of defendant City; that such sums were paid by the plaintiff for and on behalf of the ultimate consumers of such gasoline and such sums were included in the retail price of such gasoline and charged to and collected from the said customers." Demurrers were interposed to this plea or pleas by the plaintiff, which demurrers were sustained.
Thereupon, the defendant filed special pleas averring in substance that the money paid by plaintiff to defendant and which plaintiff seeks to recover was paid by plaintiff voluntarily, without protest and with full knowledge of the law and facts. Plaintiff's demurrers to such pleas were sustained.
The case went to the jury on plaintiff's complaint, defendant's plea of the general issue and a special plea, numbered F, setting up that plaintiff could not recover because of the fact that his claim was not filed within two years from the time the payments were made or the amounts were due.
Plaintiff rested after introducing interrogatories and answers thereto propounded by plaintiff to the defendant, which interrogatories were answered by the mayor of the city, Mr. C. V. Dismukes. The only witnesses called by defendant were Mr. Dismukes and the plaintiff, Mr. Hawkins.
In its oral charge the trial court eliminated from the consideration of the jury payment made to the City in the sum of $81.11 on the ground that claim therefor had been filed too late.
The jury returned a verdict for the defendant. Plaintiff's motion for new trial having been overruled and denied, he appealed to this court. The opinion of this court rendered on that appeal is reported as Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659. In that case it was said:
"The principles of law controlling on this appeal have been fully settled in our cases beginning with the leading case of Van-Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85, and others may be cited as follows: City of Andalusia v. Fletcher, 240 Ala. 110, 198 So. 64; Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289; City of Prichard v. Richardson, 245 Ala. 365, 17 So. 2d 451; Alabama Gas Co. v. City of Montgomery, 249 Ala. 257, 30 So. 2d 651.
"The effect of those cases simply stated is that cities are not authorized under the Constitution to levy a license tax on business located wholly within its police jurisdiction and outside the city limits for the purpose of raising general revenue either directly or indirectly; but in levying such an assessment, the amount must be so fixed as to reflect reasonable compensation for the expense of municipal supervision over the particular business or vocation at the place where it is licensed. Van-Hook v. City of Selma, supra." 249 Ala. 238, 30 So. 2d 662.
Applying that principle to the facts presented in the record on appeal, we held, in effect, that the trial court erred in presenting to the jury the question of whether the ordinance was reasonable as applied to the plaintiff; that under the evidence the trial court should have found that the ordinance as applied to plaintiff was unreasonable and therefore void; that the trial court should have charged the jury *381 affirmatively for plaintiff as requested, the requested charge being as follows:
"The Court charges the jury that the ordinance, under which the plaintiff made the payments which he sues to recover, was an ordinance purporting to impose a gasoline license tax on the operators of drive-in filling stations, and that the plaintiff is entitled to recover the amounts paid under such ordinance within two years from the beginning of proceedings by him to recover such payments, and that he is so entitled to recover regardless of whether or not he included in his sales price of gasoline to his customers the amount of such tax." 249 Ala. 235, 30 So. 2d 660.
After remandment, defendant filed pleas "BB" through "HH." These were pleas of set-off and recoupment. On motion of plaintiff these pleas were struck.
At the trial after remandment, the cause was submitted to the jury on the same pleadings as on the former trial. The evidence which was admitted was substantially the same as on the former trial. At the conclusion of the evidence, the trial court gave the general affirmative charge as requested by plaintiff. There was verdict and judgment for plaintiff. Defendant's motion for new trial having been overruled, it has appealed to this court.
The suit is authorized under the provisions of §§ 332-334, Title 51, Code 1940. Suit on the common counts is an appropriate remedy. Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659; City of Prichard v. Richardson, 245 Ala. 365, 17 So. 2d 451. Recovery is not dependent upon payment having been made under compulsion or protest. § 332, Title 51, Code 1940; Hawkins v. City of Prichard, supra; L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So. 2d 924, and cases cited.
Section 334, Title 51, Code 1940, reads as follows: "The provisions of the two preceding sections shall apply to all persons and corporations who are justly and equitably entitled to have money erroneously paid for taxes refunded, such payment having been made within two years preceding the commencement of any action, suit, or proceedings for its recovery, and no action or suit or other procedure can be maintained unless brought or commenced within two years after such payment is made." (Emphasis supplied.)
Counsel for appellant argue that the trial court erred in sustaining appellee's demurrer to the so-called plea in abatement, which it is asserted set up that the appellee was not justly and equitably entitled to have the money refunded for the reason that appellee had added to the price of gasoline sold his customers the so-called license tax levied by the ordinances under attack.
We think the trial court correctly sustained demurrer to this so-called plea in abatement. Irrespective of the underscored provision of § 334, Title 51, supra, recovery could not be had under the common counts unless the plaintiff was equitably entitled to have the money refunded to him, for a recovery under common count for money had and received can be had only when it is shown that the defendant was in possession of money belonging in equity and good conscience to the plaintiff, which he is entitled to receive. Chandler v. Wilder, 215 Ala. 209, 110 So. 306. So that under the plea of the general issue, plaintiff could not recover in this form of action unless he was in equity and good conscience entitled to the refund.
The so-called license tax levied by the ordinances here under attack, as before pointed out, was levied against the operator of the filling or service station. The fact that the operator of the service station passed the tax on to the customer would not in and of itself deprive him of the right to recover, in an action for money had and received, payments made by him under a void ordinance. Such is the effect of our holdings in City of Prichard v. Richardson, supra, and in the opinion rendered on the former appeal in this case, to which we adhere. Hawkins v. City of Prichard, supra.
Appellant insists that the trial court erred to a reversal in sustaining the motion of appellee to strike appellant's pleas of set-off and recoupment. This suit was filed *382 on July 21, 1944. Service was had on defendant on the next day. The cause came on for trial on June 5, 1946. Judgment was rendered the following day and motion for new trial was denied September 12, 1946. We reversed the judgment of the trial court and remanded the cause on May 29, 1947. After remandment and on November 4, 1947, these pleas of set-off and recoupment were filed by defendant below, appellant here. On November 6, 1947, plaintiff, appellee here, filed his motion to strike such pleas on the ground, among others, that they were filed too late. Plaintiff's motion to strike was sustained on November 6, 1947. In briefs filed here on behalf of both parties to this appeal, reference is made to a trial of this cause between November 6, 1947, and November 10, 1947, but we find no entry of record disclosing that such a trial was had. On November 10, 1947, evidently after a second trial, defendant refiled its pleas of set-off and recoupment. On December 4, 1948, plaintiff filed his motion to strike the pleas of set-off and recoupment as refiled. The motion to strike was granted on January 4, 1949.
The filing of the pleas of set-off and recoupment at this late stage of the case was a matter addressed to the sound judicial discretion of the court. In view of the long delay in filing the pleas, we cannot affirm that the discretion lodged with the trial court was abused. St. Louis, S. F. Ry. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433, and cases there cited; Rasmus v. Schaffer, 230 Ala. 245, 160 So. 244. We hold, therefore, that reversible error is not made to appear in the action of the trial court in granting plaintiff's motion to strike defendant's pleas of set-off and recoupment.
The contention of appellant, the City of Prichard, defendant below, that since it is a municipal corporation it was not compelled to answer interrogatories and that, therefore, the trial court erred in admitting such answers in evidence, is without merit. In Ex parte Elmore County, 207 Ala. 68, 91 So. 876, the question was presented as to whether § 4052, Code 1907, § 480, Title 7, Code 1940, had application to causes in which a county is a party defendant. That section read: "When the party to whom the interrogatories are addressed is a corporation, the answer thereto must be made by such officer, agent, or servant of the corporation as may be cognizant of the facts." We held, in Ex parte Elmore County, supra: "This language is comprehensive, and no reason is perceived why it should not be held applicable to the case of a county when made a party defendant." The writer of the opinion in that case then proceeded to set out the reasons why such a conclusion was reached. The reasoning there set out seems to us to be as applicable to a city as to a county. However, where the State is plaintiff in a civil suit at law, the opposite party may not propound interrogatories to the State. State ex rel. Smith v. McCord, 203 Ala. 347, 83 So. 71. In a civil suit at law where the State is plaintiff, it cannot propound interrogatories to the defendant. Ex parte Loveman, Joseph & Loeb, 241 Ala. 379, 2 So. 2d 446.
Interrogatory 100 propounded by plaintiff to defendant was as follows: "Please state whether or not the City of Prichard, during said period, claimed and asserted that the said M. F. Hawkins, doing business as Davis Service Station, was obligated to pay to the City of Prichard a license tax for or on account of his operation of such drive-in filling station, without the city limits of the City of Prichard. If so, please state whether or not there was paid to the City of Prichard as a license tax for the operation of said drive-in filling station each of the sums set out and specified in Exhibit A attached to the plaintiff's claim filed with the City of Prichard on or about the 17th day of June, 1944."
Mayor Dismukes, on behalf of the City of Prichard, answered interrogatory 100 as follows: "Yes, the plaintiff did pay, in the name of Davis Service Station, the amounts set forth in the plaintiff's claim as a gasoline license tax on the said drive-in filling station operated by him."
After the first trial had been had, in which the interrogatories and answers thereto were introduced in evidence, and after remandment by this court on appeal, the defendant, without leave of the trial *383 court, on January 6, 1949, filed what is termed "Defendant's Supplementary Answer to Interrogatory 100." It reads:
"Now comes the defendant in the above entitled cause and files herewith the following supplementary answers to interrogatories heretofore propounded by plaintiff to defendant, namely:
"Interrogatory 100. Plaintiff having sworn under oath in open court upon a former trial of this cause on, to-wit, the 6 day of November, 1947, that he did not pay to defendant any of the monies sought to be recovered by plaintiff from defendant in this suit, defendant states in answer to this interrogatory that the plaintiff did not pay to defendant any of the monies sought to be recovered by plaintiff from defendant in this suit."
Plaintiff's motion to strike this so-called supplementary answer was granted. It is insisted by appellant here, defendant below, that this action of the trial court constitutes reversible error. We cannot agree. Defendant in effect sought to amend his answer to interrogatory 100 long after the time had expired for answering. § 483, Title 7, Code 1940. Without dealing with the question as to whether or not the amendment should have been allowed if timely filed, it is sufficient to say that it was within the trial court's discretion as to whether or not the defendant could amend his answers after the expiration of sixty days from service of the interrogatory. Pool v. Harrison, 18 Ala. 514; Sovereign Camp, W. O. W., v. Ward, 201 Ala. 446, 78 So. 824; Investment Co. v. Trueman, 63 Fla. 184, 57 So. 663; City Deposit Bank of Columbus v. Green, 138 Iowa 156, 115 N.W. 893; Paulausky v. Polish Roman Catholic Union of America, 219 Ind. 441, 39 N.E.2d 440; Spinney v. Boston Elevated Ry. Co., 188 Mass. 30, 73 N.E. 1021. No abuse of discretion is shown.
As before pointed out, the evidence at the trial here under review, as it relates to the question of the validity of the ordinances as applied to the plaintiff, is in material respects the same as that on the first trial. The evidence on this point is set out in much detail in the opinion written on former appeal and need not be repeated here. We adhere to the conclusion reached on the former appeal that as to the plaintiff, appellee here, said ordinances are void. Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659.
But the mere fact that the ordinances are void as applied to plaintiff does not entitle him to recover in this action unless he has paid the so-called license tax to the City of Prichard in accordance with the provisions of such ordinances.
As shown above, the answer of Mayor Dismukes to interrogatory 100 shows that plaintiff did make such payments on behalf of the Davis Service Station.
On the trial here under review, the City called Mayor Dismukes as its witness and sought to show by him that his answer to interrogatory 100 was incorrect; that he had ascertained that such answer was incorrect by examining the books and records of the defendant City; that plaintiff had not paid the so-called license tax.
Counsel for plaintiff objected strenuously to such proof and his objections were sustained by the trial court. Defendant duly noted exceptions.
It appears the trial court acted on the theory that defendant was bound by the answers of Mayor Dismukes to the interrogatories propounded by plaintiff; that such answers were judicial admissions, conclusive on the answering party and could not be explained or contradicted.
No decision of this court upon this exact question has been cited and our research has disclosed none.
It is provided by statute that the answers to interrogatories propounded to an adverse party under the statute are not conclusive on the interrogating party and may be contradicted. § 484, Title 7, Code 1940. Such has been the statutory law since the Code of 1852.
Counsel for appellee, in support of the ruling of the trial court, assert that since the legislature has expressly provided that the answers are not conclusive on the interrogating party, who alone can introduce them, it necessarily follows that it *384 was intended that such answers be conclusive on the answering party.
We cannot agree with this contention. We think the provisions of law now codified as § 484, Title 7, Code 1940, which first came into our statutory law as § 2335, Code of 1852, were enacted so as to perpetuate the rule enunciated in the case of Wilson v. Maria, 21 Ala. 359, which rule was based on certain provisions contained in an 1837 act, Clay's Digest 341, § 160, which were not carried into the Code of 1852.
In that case the court was dealing with the 1837 act which, according to our research, was the first statutory enactment providing for the propounding of interrogatories to the adverse party in aid of a suit. See Clay's Digest 341, § 160. The 1837 act contained no such provision as is now codified as § 484, Title 7, Code 1940. However, it did contain the provision that "* * * and the answers to such interrogatories being so given and filed, shall be evidence at the trial of the cause, in the same manner and to the same purpose and extent, and upon the same conditions, in all respects, as if they had been procured upon a bill in chancery for discovery, but no further, or otherwise; * * *" This provision was not brought forward into the Code of 1852. See §§ 2330-2336, Code of 1852. In Wilson v. Maria, supra, 21 Ala. at page 361, the plaintiff filed interrogatories under the 1837 act. Plaintiff sought to contradict the answer. The trial court refused. This court reversed, saying in part:
"* * * It is at the option of the party whether he will introduce the answer in chancery of the other party or not. If he does introduce it, he admits that it is worthy of credit. 2 Story's Eq. § 1528. The same rule of law would prevail in respect to answers to interrogatories. The party who introduces them admits that the respondent is worthy of credit, and cannot impeach him.
"But using the answer of the party does not make that conclusive evidence. It is to be treated like the testimony of any other witness, and is to prevail when it is not outweighed by other testimony, in whole or in part."
In other words, in Wilson v. Maria this court applied the same rule as applicable to an answer to a bill in chancery for discovery because of the express language of the 1837 act there under consideration. While the case of Wilson v. Maria makes no reference to the case of Cox v. Cox, 2 Port. 533, the holding in Wilson v. Maria is in accord with that of Cox v. Cox, supra, 2 Port. at page 538, where it was said: "* * * But when a bill is filed for discovery of testimony, in aid of a trial at Common Law, the party may either use the answers, or not, as he chooses, and if used, it stands upon no other or higher grounds than other testimony, and any other evidence not inconsistent with the issue, may be introduced, whether it contradicts the answer or not, and the jury will weigh the whole evidence, as in other cases * * *."
The question here presented has arisen in other states, under similar statutory provisions, and we have found no case which supports the ruling of the trial court.
In Smith v. Olsen, 92 Tex. 181, 46 S.W. 631, 632, the Supreme Court of Texas had before it the question as to whether or not the trial court erred in refusing to permit the answering party to explain and contradict his answers to interrogatories, which answers were introduced in evidence by the party propounding the interrogatories. It was held that the trial court erred to a reversal.
The statutory provisions there under consideration were as follows:
"Art. 2293. Either party to a suit may examine the opposing party as a witness, upon interrogatories filed in the cause, and shall have the same process to obtain his testimony as in the case of any other witness, and his examination shall be conducted and his testimony received in the same manner and according to the same rules which apply in the case of any other witness, subject to the provisions of the succeeding articles of this chapter.
"Art. 2296. The party interrogated may, in answer to questions propounded, state *385 any matter connected with the cause and pertinent to the issue to be tried; and the adverse party may contradict the answers by any other competent testimony in the same manner as he might contradict the testimony of any other witness.
"Art. 2297. If the party interrogated refuses to answer, the officer executing the commission shall certify such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, shall be taken as confessed." 46 S.W. 632, Vernon's Ann.Civ.St. art. 3769.
We quote a part of the opinion in the case of Smith v. Olsen, supra:
"* * * It seems that the court proceeded upon the theory that the plaintiff was bound by the admissions made in his deposition. The right of a party to a suit to take the deposition of his adversary is statutory, and the effect of the deposition when taken must be determined by the statute. * * *
"* * * Cases which have come to this court show that the procedure in question is frequently resorted to for the purpose of entrapping the opposite party into an unguarded admission; and it doubtless occurs in many instances that a party, in answering interrogatories, uses language against his own interest, which is capable of explanation, and which he ought to have the right to explain. Therefore, to make his answers conclusive would be to make the procedure a means of injustice, which would probably, in the long run, counteract the benefits which might be expected to follow from it. If the legislature had intended to preclude the party by his answers, we should gravely doubt the wisdom of the measure. But, in our opinion, such was not their purpose. The provision that the interrogatories are to be taken for confessed when the party refuses to answer is not at all inconsistent with the views here expressed. The purpose of that provision was merely to compel the party to answer by giving his adversary the benefit of an admission, upon his refusal to do so. It is a just requirement, and a most efficacious method of accomplishing the object in view. Neither does the provision which permits the party taking the deposition to contradict the answers as those of any other witness militate against our construction. * * * (Emphasis supplied.) 46 S.W. 632-633.
We recognize the fact that the Texas court puts some emphasis on the following excerpt from Art. 2293, heretofore quoted: "* * * and his examination shall be conducted and his testimony received in the same manner and according to the same rules which apply in the case of any other witness". We have no such provisions in our statute on the subject, but we think they are bound to be implied.
Other cases in accord with the holding in Smith v. Olsen, supra, are: Spalt v. Eaton, 118 N.J.L. 327, 192 A. 576; Spalt v. Eaton, 119 N.J.L. 343, 196 A. 736; Tighe v. Skillings, 297 Mass. 504, 9 N.E.2d 532; Hodges v. American National Ins. Co., Mo.App., 6 S.W.2d 72.
We hold that the trial court erred in refusing to permit defendant to have its witness Dismukes explain and contradict his answer to interrogatory 100.
The ruling of the trial court cannot be said to be error without injury, for if defendant had been permitted to prove that plaintiff had not paid the so-called license tax levied by the ordinances under attack, then a jury question would have been presented as to whether or not such payment had been made. It may be that all defendant could prove in this connection would be that plaintiff had not personally paid the tax, but that it had been paid by plaintiff to the wholesaler, who in turn had paid it to defendant. If this is the nature of defendant's proof on this point, it would not be sufficient to make a jury question. The plaintiff would be entitled to recover. However, we cannot assume that such is the proof which defendant could make. We are constrained, therefore, to hold that reversible error was committed by the trial court in refusing to permit *386 defendant to explain and contradict his answer to interrogatory 100.
For the error pointed out, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | May 10, 1951 |
b26dd9a1-da1b-4565-a232-d1b328375c07 | Whittle v. Nesmith | 51 So. 2d 6 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 6 (1951)
WHITTLE
v.
NESMITH et al.
6 Div. 112.
Supreme Court of Alabama.
February 22, 1951.
*7 W. Marvin Scott, Cullman, for appellant. Finis E. St. John, Cullman, for appellees.
STAKELY, Justice.
This is an appeal from a decree of the equity court sustaining the demurrer to a bill of complaint filed by W. A. Whittle (appellant) against the Mayor and Council and Chief of Police of the City of Cullman (appellees). The purpose of the bill is to restrain the respondents from enforcing an ordinance regulating taxicabs in the City of Cullman, Alabama.
The bill of complaint attacks the validity of the ordinance on two grounds, (1) that it is discriminatory and violative of the 14th Amendment of the Constitution of the United States and (2) that it contains an unwarranted delegation of power to the Council and Chief of Police as administrative officers in the enforcement of the ordinance in granting or withholding a license for taxicab operators in the City of Cullman.
The bill of complaint charges that sections 3, 4, 8, 9 and 10 of the ordinance are void in that these sections do not prescribe a general uniform rule, condition or regulation to which all taxi drivers similarly situated may conform, but on the contrary reserve to J. E. Pierce as Chief of Police a wide discretion and the right to grant or withhold the privilege of operating a taxi and allows the Chief of Police the opportunity to exercise an arbitrary discrimination, abuse or oppression, dependent upon his arbitrary will while acting for the city under color of law. The bill further attacks section 9 as being unconstitutional and void in that it affords an opportunity by appeal to the City Council which does not contain a general uniform rule, condition or regulation but reserves to the City Council the right to grant or withhold the privilege as may suit their pleasure and allows to them the opportunity for the exercise of arbitrary discrimination.
It is well to note at the outset that the bill of complaint does not charge any capricious or arbitrary discrimination in the granting or withholding of a taxicab license so far as the appellant is concerned. It is obvious that he has anticipated that the license would be withheld from him and has filed his bill without being denied a license under the ordinance. It results that in a consideration of the case the case is limited to the ordinance itself and does not include consideration of arbitrary action thereunder.
It is also well to point out at this time that the propriety of the remedy here sought is not questioned. The bill alleges that "Petitioner has for a number of years been engaged in the taxi business known as `Red Wing Taxi Station' and as such has a large investment in said business by means of which he earns his living and the support of his family and in addition thereto furnishes employment to a number of citizens." The bill further alleges that the ordinance is violative of the 14th Amendment to the Constitution of the United States in that "Petitioner must either go to a very considerable expense to comply with said ordinance, though void, or submit himself to the vexation of repeated persecutions and prosecution by the Chief of Police J. E. Pierce, without warrant, though under color of law."
It is settled that injunction will lie to enjoin the threatened enforcement of an invalid ordinance when the lawful use and enjoyment of private property will be injuriously affected by its enforcement or when the right of the person to conduct a lawful business will be injuriously affected thereby. Board of Commissioners City of Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A., N.S., 575.
*8 The ordinance here involved sets up the matters which are to control the chief of police in granting a license to operate a taxicab. It states that before any person shall drive a taxicab upon the streets of Cullman he shall first make a written and signed application to the Chief of Police of Cullman upon a form furnished by the Chief of Police. This shall contain the name and residence of the applicant, his age, height, weight and other named personal characteristics, the number of years experience in driving motor vehicles and whether ever convicted of a felony, misdemeanor or traffic ordinance violation and if so giving the dates and details. It is also required that the names of two persons be given who will vouch for applicant's good moral character and the application shall contain such other data as may be desired by the Chief of Police. If the applicant desires a permit to drive for a taxicab company, the application will also contain the name of such owner. The ordinance further provides that no person shall be granted a permit who makes a false statement in his application for a permit, no person shall drive a taxicab upon the streets of the city who is less than 18 years of age and no person shall drive a taxicab until he has had his fingerprints taken by the police department and he must submit himself and the taxicab driven by him to the inspection of the Chief of Police whenever so directed by such officer.
The ordinance further provides that after receipt of the application for permit the chief of police shall consider the same and if satisfied from such application and other evidence that the applicant is a fit and proper person safely to drive a taxicab upon the streets of Cullman and in other respects also complies with the provisions of this and other traffic ordinances of the city, a written permit to drive a taxicab upon the streets of the city shall be granted.
It is conceded that a municipality has the right and power to regulate taxicabs as relates to the use of the streets of a city. § 750, Title 37, Code of 1940. We do not think that the ordinance is void because it delegates legislative power to the Chief of Police. It is true that the legislative authority must declare the policy of the law and fix the legal principles which are to control in given cases but as pointed out in Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230, 239, 245, 35 S. Ct. 387, 392, 59 L. Ed. 552, "An administrative body may be invested with power to ascertain the facts and the conditions to which the policy and principles apply." It is further true that mere matter of detail within the policy and legal principles established by the ordinance may properly be left to administrative discretion. The determination of such matters of detail is more essentially ministerial than legislative. We think that it can be fairly said that the information required by the present ordinance tends to demonstrate one way or another the ability of an applicant safely and properly to operate a motor vehicle upon the streets of the city. Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. p. 604.
But it is argued that under the ordinance the applicant may be required to give "such other data as may be desired by said Chief of Police" and that this admits of whim and arbitrary and capricious action on the part of the Chief of Police. In this connection the ordinance clearly shows that it is adopted under the police power of the municipality. It is of course within the police power of a municipality to prescribe the conditions for transaction of business requiring the use of its streets. City of Mobile v. Farrell, 229 Ala. 582, 158 So. 539. It is well settled that it is not always necessary that ordinances pertaining to the granting and withholding of licenses must prescribe a specific rule of action. This is particularly true where the discretion relates to matters within police regulation and is necessary to protect the public health, safety, morals and general welfare. Walker v. City of Birmingham, 216 Ala, 206, 112 So. 823; People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26 S. Ct. 144, 50 L. Ed. 305; 38 Am.Jur. p. 27; 42 Am.Jur. p. 345; 92 A.L.R. p. 410; 54 A.L.R. p. 1110.
It is further argued that the permit may be granted or denied at the unbridled will of the City Council. What we have said sufficiently disposes of this contention.
*9 The court acted correctly in sustaining the demurrer. Affirmed.
BROWN, FOSTER and SIMPSON, JJ., concur. | February 22, 1951 |
4c6dd4d3-dcb3-40c3-9749-5875aaff0c88 | State v. Lane Bryant, Inc. | 171 So. 2d 91 | N/A | Alabama | Alabama Supreme Court | 171 So. 2d 91 (1965)
STATE of Alabama
v.
LANE BRYANT, INC.
3 Div. 148.
Supreme Court of Alabama.
January 21, 1965.
Richmond M. Flowers, Atty. Gen., Willard W. Livingston and Herbert I. Burson, Jr., Asst. Attys. Gen., for appellant.
M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, for appellee.
HARWOOD, Justice.
This is an appeal from a decree of the Circuit Court of Montgomery County in Equity, adjudging a final use tax assessment made by the State Department of Revenue against Lane Bryant, Inc., in the amount of $27,732.95, to be illegal and void, and setting aside and holding for naught the said final assessment.
No questions are raised as to the perfection of the appeal from the final assessment to the Circuit Court and the cause was there submitted upon Lane Bryant's bill in the nature of a bill of complaint, the Department of Revenue's answer, and a stipulation of facts.
The Department of Revenue contends that the final assessment was authorized by the provisions of Sections 790 and 792, Title 51, Code of Alabama 1940, and particularly by Subsection (d) of each Section. These code sections in pertinent parts read:
"§ 790. Every seller engaged in making retail sales of tangible personal property for storage, use or other consumption in this state, who: (a) Maintains a place of business, (b) qualified to do business, (c) solicits and receives purchases or orders by agent or salesman, or (d) distributes catalogs or *92 other advertising matter and by reason thereof receives and accepts orders from residents, within the state of Alabama. * * *
The stipulation of facts show that Lane Bryant is a Delaware Corporation having its principal place of business in New York, New York. It also conducts a mail order business from headquarters in Indianapolis, Indiana. It has never qualified to do business in Alabama or appointed an agent for service of process in Alabama.
Lane Bryant does no business in Alabama through agents, independent contractors, or otherwise and its sole business connection with this state is that it mails catalogs to Alabama residents from outside the state, and mails from Indianapolis any merchandise that may be ordered by Alabama residents. No delivery of such ordered merchandise is made by truck or common carrier.
Lane Bryant catalogs are printed in New Jersey, and are then mailed from New Jersey by United States mail throughout the United States, including Alabama, though occasionally the catalog may be mailed by Lane Bryant from Indianapolis when an individual writes directly to Lane Bryant requesting such catalog.
All orders from customers are processed in and mailed from Indianapolis. No merchandise is purchased or delivered in any other way than by use of the United States mails. Payment from Alabama residents is either made by check sent by the customer by mail to Lane Bryant at Indianapolis, or by C.O.D. orders made to the postal authorities in Alabama when merchandise is delivered in this state. Payment for merchandise purchased by residents of Alabama is never made to Lane Bryant in Alabama nor to any agents, salesmen, or representative of Lane Bryant in Alabama.
Lane Bryant has never engaged in any radio or television advertising directed to Alabama, and it has never advertised in any newspaper published in this state. Further, it has never owned, leased, or maintained, any office, store, branch, or place of business in Alabama, nor has it ever repossessed by legal proceedings any merchandise sold to Alabama residents. It has never had any telephone listing or bank account in this state.
Lane Bryant has never sold, or solicited or promoted sales by, or received purchases or orders from any employee, agent, salesman, or other person, firm, or corporation in Alabama.
In its decree the lower court entered a findings of fact consonant with the above stipulated facts.
The decree of the lower court after its findings of fact then continues:
"The Department, though relying on the provisions of Title 51, Sections 790 *93 and 792 in its attempt to make a use tax collector out of Lane Bryant, has conceded that Lane Bryant maintains no place of business in Alabama; has not qualified to do business in Alabama; and does not solicit or receive purchases or orders by agent or salesman, or, indeed, by independent contractor within the State of Alabama. The Department relies solely on subdivision (d) of those two sections which purport to impose obligations on `every seller engaged in making retail sales of tangible personal property for storage, use or other consumption in this State who: * * * distributes catalogs or other advertising matter and by reason thereof receives and accepts orders from residents, within the State of Alabama.' The Department contends that the mailing by Lane Bryant, from a City outside the State of Alabama, of a catalogue addressed to a resident of Alabama, followed by the receipt by Lane Bryant, in Indianapolis, Indiana, of an order from a resident of Alabama, brings Lane Bryant within the scope of subdivision (d).
"Quite apart from the constitutional barriers, it is inconceivable, moreover, that the legislature sought to make an out-of-state business contribute to the *94 support of the Government of Alabama when that business concern had no property, agent or independent contractor in Alabama and when the business received no protection or benefit whatever from any aspect of the government of the State of Alabama or any of its subdivisions. Surely such a strained construction of legislative intent should not be read into the statute with all of the concomitant contitutional infirmities inherent in such an interpretation.
"As General Trading, supra, 322 U.S. 335, 338 [64 S. Ct. 1028] and Scripto v. Carson, supra, 362 U.S. 207 at 212 [80 S. Ct. 619] take pains to point out, `no state can tax the privilege *95 of doing interstate business (citation). That is within the protection of the Commerce Clause and subject to the power of Congress.'
After careful consideration of the above decree and the briefs and arguments of respective counsel, we are convinced that the decree is correct in every respect and that any addition thereto by us would be redundant. We therefore adopt the opinion of the lower court as the decree of this court.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | January 21, 1965 |
545d5b35-230b-40b6-ac88-8be80bd9f43a | Cook v. Whitehead | 51 So. 2d 886 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 886 (1951)
COOK
v.
WHITEHEAD et al.
4 Div. 574.
Supreme Court of Alabama.
April 5, 1951.
*888 McMillan, Caffey & McMillan, of Brewton, and Ralph A. Clark, of Andalusia, for appellant.
Powell, Albritton & Albritton, of Andalusia, for appellees.
LAWSON, Justice.
The question here is whether or not reversible error is made to appear in the action of the trial court in overruling demurrer to a bill in equity.
This suit was instituted in the circuit court of Covington County, in equity, by James Whitehead and Charles Whitehead, minors, who sue by next friend, Mrs. Harold Gilberstadt. The respondents are Joe Z. Whitehead, Joseph Reynolds Whitehead, and I. G. Cook.
Two demurrers were interposed to the bill of complaint. One was a joint demurrer filed by the two Whitehead respondents; the other was filed by the respondent I. G. Cook. Both demurrers were overruled. The respondents Joe Z. and Joseph Reynolds Whitehead have not appealed. The appeal is by the respondent I. G. Cook from the decree overruling his demurrer.
*889 The bill of complaint is described therein as being an original bill in the nature of a bill of review. But the nature of a bill must be determined by its averments, its purpose and its substance, rather than the name given it by the parties. Jones v. Henderson et al., 228 Ala. 273, 153 So. 214; Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33; Averett et al. v. Averett et al., Ala.Sup., 52 So. 2d 371.
In so far as the respondent I. G. Cook, the sole appellant here, is concerned, the bill has two aspects.
In one aspect the complainants seek to have vacated: (a) a decree of the circuit court of Covington County, in equity, ordering that 400 acres of land, less the merchantable timber thereon, which the complainants James and Charles Whitehead had inherited from their father, James M. Whitehead, deceased, be sold for division of the proceeds between them; (b) the sale made under that decree; (c) the decree confirming the sale and ordering the register to execute a deed to the purchaser at the sale, Joseph Reynolds Whitehead; (d) the register's deed to Joseph Reynolds Whitehead; (e) a deed from Joseph Reynolds Whitehead and wife to Joe Z. Whitehead; and (f) a deed from Joe Z. Whitehead and wife to the respondent, I. G. Cook.
The averments of paragraphs 2, 3, 4, and 5 of the bill relate to this aspect.
In the other aspect of the bill which is directed at the respondent I. G. Cook, complainants seek (a) the cancellation of a timber deed signed by their father, James M. Whitehead, on July 4, 1942, purporting to convey the merchantable timber then standing on said 400 acres of land to Joe Z. Whitehead, wherein the grantee therein is given fifteen years to cut and remove the timber; (b) the cancellation of a timber deed from Joe Z. Whitehead and wife to the respondent I. G. Cook, executed on, to wit, December 15, 1945, purporting to convey to the said Cook the timber on said 400 acres of land, but limiting the period allowed for cutting and removing to five years; (c) an accounting from Joe Z. Whitehead and I. G. Cook as to the extent of timber cut and removed and payment for the amount so removed. The averments of paragraph 6 of the bill relate to this aspect.
Since the bill here under consideration is in more than one aspect as to the respondent I. G. Cook, consideration must be given to the form of the demurrer of Cook in passing on the question as to whether the trial court erred to a reversal in overruling such demurrer.
The demurrer begins: "Comes I. G. Cook and demurs to the bill of complaint in this cause filed, and for cause of demurrer shows:." Then follow four grounds of demurrer which are numbered. They are followed by five unnumbered grounds which, for convenience, we will designate as grounds 5, 6, 7, 8, and 9. Ground 5 is addressed to the second paragraph of the bill, ground 6 to the third paragraph, ground 7 to the fifth paragraph, ground 8 to the sixth paragraph, and ground 9 to the seventh paragraph of the bill. The demurrer then concludes: "Wherefore, respondent I. G. Cook demurs to the said bill as a whole and to certain paragraphs thereof as herein stated, and to all matters and things therein contained, and prays the judgment of this Honorable Court whether he shall be compelled to make any further answer thereto, and prays to be dismissed with his reasonable costs in this behalf sustained."
The first four grounds of demurrer clearly go to the bill as a whole. Smith v. Smith, 251 Ala. 694, 39 So. 2d 230; Wells v. Wells, 249 Ala. 649, 32 So. 2d 697. If a respondent wishes to test the sufficiency of an aspect of the bill separately, the demurrer should be addressed to that aspect sufficiently described, and point out specifically the defects in the allegations with respect to it. First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So. 2d 348; Wells v. Wells, supra.
As to those grounds of demurrer which go to the bill as a whole, the question for our decision is whether or not either aspect of the bill was good as against those grounds of the demurrer. If one of the aspects asserts matter of equitable cognizance as against the respondent *890 I. G. Cook, then such grounds of demurrer were correctly overruled. See Sellers v. Valenzuela et al., 249 Ala. 627, 32 So. 2d 517, wherein some of our former cases dealing with this question are reviewed.
A ground of demurrer which is specially assigned to a "paragraph" of a bill is inapt, unless such paragraph sets forth some aspect of the bill on which relief is prayed. Thus, grounds 5, 6, and 7 of the demurrer which are assigned severally to paragraphs 2, 3 and 5 of the bill, which paragraphs merely set forth various features of the transaction upon which, in connection with other averments, relief is sought, are inapt and were properly overruled. Michie et al. v. Bradshaw et al., 227 Ala. 302, 149 So. 809; Qualls v. Union Cent. Life Ins. Co., 242 Ala. 619, 7 So. 2d 558.
Ground 8 of the demurrer is not subject to this defect, for it is addressed to the sixth paragraph of the bill of complaint, which paragraph alone sets forth that aspect of the bill seeking cancellation of the timber deeds, an accounting and payment for the timber cut and removed. Michie et al. v. Bradshaw et al., supra.
Ground 9 of the demurrer was correctly overruled in that it was addressed to the seventh paragraph of the bill, which does not affect the respondent I. G. Cook. A demurrer is limited to questions in which the demurrant is interested. Pickens County v. Williams, 229 Ala. 250, 156 So. 548.
The third and fourth grounds of demurrer which, as before indicated, were directed to the bill as a whole and which took the point that the bill was multifarious, are not argued in brief filed here. We have said in many cases that grounds of demurrer not argued are treated as waived. Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107, and cases cited; Lucas v. Lucas, 252 Ala. 626, 42 So. 2d 457.
Our review, therefore, is limited to the consideration of the first and second grounds of the demurrer, which go to the bill as a whole, and to the eighth ground, which goes to that aspect of the bill seeking cancellation of the timber deeds, etc.
The first ground of demurrer is as follows: "That the complainants have not in their bill stated such a case as entitles them in a court of equity to any relief from this respondent touching the matters in said bill." Such a ground of demurrer is equivalent to the general demurrer, "there is no equity in the bill." Alabama Lime & Stone Co. v. Adams, 222 Ala. 538, 133 So. 580, 581; McNeal v. Patterson et al., 236 Ala. 50, 180 So. 773; Equity Rule 14, Code 1940, Tit. 7 Appendix. The same is true as to the second ground of demurrer, which reads: "That the said bill of complaint is without equity as against this respondent."
We will first treat that aspect of the bill seeking to vacate the decree ordering the 400 acres of land sold for division, the sale, the decree confirming the sale and ordering the execution of a deed to the purchaser, Joseph Reynolds Whitehead, and the subsequent conveyances. Certain of the records in the proceedings to sell the land for division are made a part of this bill. It appears therefrom as follows:
On July 30, 1945, a bill of complaint was filed in the circuit court of Covington County, in equity, in which Joe Z. Whitehead, as administrator of the estate of James M. Whitehead, deceased, and Jimmy (James) Whitehead and Charles Whitehead, minors suing by Joe Z. Whitehead as next friend, were the complainants and Jessie Whitehead was the sole party respondent. This bill in substance alleged that the administration of the estate of James M. Whitehead, deceased, is pending in the probate court of Covington County; that the only heirs and distributees of that estate are the two minor sons, Jimmy (James) and Charles, whose mother is also dead and who have no legal guardian; that it is the judgment and opinion of the administrator of the estate that it can best be, administered in the circuit court of Covington County, in equity; that of the assets of the estate of James M. Whitehead, deceased, there are 400 acres of land situate in Covington County, which *891 is owned jointly by the said minor sons, in equal shares, excepting and excluding the merchantable timber standing and growing thereon; that the said 400 acres of land cannot be equitably divided in kind between the two said minor sons of James M. Whitehead; that the respondent Jessie Whitehead "claims or is reputed to claim, some right, title, lien, or interests, in the lands involved in this cause; and she is called upon to appear and propound, file or otherwise assert her claim, title, lien or incumbrance, if any, which the complainants does (sic) not admit but refutes; to the end that the title be cleared, and that the lands sell for the best price obtainable in the event of a sale of the same by and through this court." As here pertinent, the bill prayed, in substance, that the administration of the estate of James M. Whitehead, deceased, be removed from the probate to the equity court; that it be declared that the respondent, Jessie Whitehead, has no interest in the land; that the land be sold for division of the proceeds between the said minor sons.
Jessie Whitehead, the respondent in that proceeding, testified by deposition, saying, in substance, that the minor sons of James M. Whitehead, deceased, are the owners of the land; that the land cannot be equitably divided in kind and that it would be to the best interests of the said minors that the land be sold for division.
On February 13, 1946, the circuit court of Covington County, in equity, rendered a decree, finding that complainants were entitled to the relief prayed and ordering that the land, exclusive of the merchantable timber thereon, be sold for division as prayed, and that the sale of the land be conducted by the register in the manner set out in the decree. No reference was made to that prayer of the bill seeking the removal of the administration of the estate of James M. Whitehead, deceased, from the probate to the equity court.
The land was sold on March 4, 1946, to Joseph Reynolds Whitehead for the sum of $1600. On the date of the sale, the register made his report. No objections or exceptions were filed thereto. On March 11, 1946, a decree was rendered by the circuit court of Covington County, in equity, ratifying the report, confirming the sale and ordering the register to execute a deed to Joseph Reynolds Whitehead. On the same day such decree was rendered, to wit, March 11, 1946, the register made a deed conveying the property to the said Joseph Reynolds Whitehead. The deed recited that the purchase price had been paid in full.
Thereafter, on to wit, May 9, 1946, Joseph Reynolds Whitehead and wife executed a deed conveying to Joe Z. Whitehead the land which Joseph Reynolds Whitehead purchased at the register's sale, together with an additional 120 acres, less the merchantable timber thereon. The consideration expressed in this deed was $5.00 and other good and valuable consideration.
On, to wit, January 11, 1947, Joe Z. Whitehead and wife, Jessie Whitehead, executed a deed to I. G. Cook, the appellant here, conveying to the latter the property covered by the deed of March 9, 1946, from Joseph Reynolds Whitehead to Joe Z. Whitehead. The consideration expressed in this deed of January 11, 1947, from Joe Z. Whitehead and wife to I. G. Cook was $3,120.
As to such transactions, the bill here under consideration alleges that Jessie Whitehead, who was the respondent in the proceedings to have the land sold for division, was the wife of Joe Z. Whitehead, who sued as next friend of these minor complainants, and that the allegation that the respondent Jessie Whitehead claimed an interest in the 400 acres of land was entirely fictional and was fraudulently made by the next friend, Joe Z. Whitehead; that the respondent to that proceeding, Jessie Whitehead, filed an answer therein disclaiming any interest in the lands; that although the proceedings show that the land was purchased at the sale by Joseph Reynolds Whitehead, in fact the sole bidder at the sale was the next friend, Joe Z. Whitehead, to whom the register, as auctioneer, made the sale, and that the said Joe Z. Whitehead then paid the register the sum of $1600 by his *892 personal check on his account in the bank in Red Level; that at the time of payment, however, the said Joe Z. Whitehead, the next friend, requested that the register prepare the deed showing that his son, Joseph Reynolds Whitehead, was grantee therein and stated to the register that he had made the purchase for the son, although the son was not present at the sale.
It is further alleged in the instant bill that the minor complainants were not represented in the proceedings for the sale of the land for division by a guardian ad litem, nor by counsel nor by any other person other than Joe Z. Whitehead, posing as their next friend.
It is further alleged in the instant bill that the interest of Joseph Reynolds Whitehead in the property purchased at the register's sale was fictional only and that the deed which he later executed to his father, Joe Z. Whitehead, was for the purpose of restoring record title to the true purchaser, Joe Z. Whitehead; that the said Joseph Reynolds Whitehead was merely a "straw" purchaser.
It is further alleged in the instant bill that it was not to the best interest of the minor complainants that such lands be sold for division; that it was not necessary that there be a division. The instant bill alleges that the proceeds of the sale were paid into the register and upon order of the court, the register paid therefrom the costs of court, certain other charges, and as attorney's fee the sum of $160 to the solicitor of record for complainants in that proceeding; that the balance of $1,335 remained from the proceeds of the sale, which was ordered distributed equally to the minor complainants, but has never been accepted by them and said sum still remains on deposit with the register.
The instant bill contains the following allegations:
"Wherefore, complainants charge the said Joe Z. Whitehead with fraud in his conduct as the purported next friend of these minor complainants; and they further charge him with the perpetration of a fraud against the Court in obtaining the decree ordering the sale of said lands and in obtaining the decree confirming said sale; and they further charge him with the perpetration of a fraud against his solicitor of record in said Equity Cause No. 6387; and complainants allege, as set forth in detail in this and the preceding paragraphs, that the said Joe Z. Whitehead committed fraud against the complainants, against the court and against an officer of the Court, their solicitor of record.
"Complainants further allege and show that the said I. G. Cook purchased said lands from Joe Z. Whitehead with notice of the defect in the said Joe Z. Whitehead's title in that the above defective proceedings for the sale of minor's lands was a matter of public record and was thus notice to future purchasers of any defect reflected; complainants further allege and show that the said I. G. Cook had knowledge and notice of the fiduciary relationship existing between Joe Z. Whitehead and these minor complainants and was thus on notice as to any breach of said fiduciary relationship on the part of Joe Z. Whitehead."
The bill in so far as it seeks to vacate the decree ordering the land sold for division is without equity as to the respondent I. G. Cook. The bill in this respect seems to be an original bill in the nature of a bill of review and predicates relief on the averments of fraud in the procurement of the decree rather than for error apparent on the record. There are no averments in the bill charging that I. G. Cook was in any wise connected with the proceedings leading up to the decree ordering the land sold for division. As a bill of review for error apparent upon the record, the bill is inadequate. In the first place, it does not appear from the bill here under consideration that the entire record of the proceedings to sell the land for division was made exhibits to this bill. From such of the records as are exhibited, it appears that the court had jurisdiction of the subject matter and acquired jurisdiction of the parties. The *893 bill showed a cause of action sufficient to justify a decree ordering the land sold for division. Barrow v. Lindsey, 230 Ala. 45, 159 So. 232.
The fact that the bill for sale of the lands was by next friend rather than by guardian did not affect the validity of the decree rendered in that proceeding. Higdon v. Higdon, 243 Ala. 571, 11 So. 2d 140; Trucks v. Sessions, 189 Ala. 149, 66 So. 79.
The principal theory of the bill in so far as it seeks relief against the respondent I. G. Cook is that the sale to Joseph Reynolds Whitehead was voidable in that he was acting for and on behalf of the respondent Joe Z. Whitehead, who stood in a fiduciary relationship to the complainants, and that the respondent I. G. Cook was not a bona fide purchaser without notice of the fact that the register's sale was voidable. There is no averment to the effect that the respondent I. G. Cook had actual knowledge of the fact that Joseph Reynolds Whitehead was the son of Joe Z. Whitehead or that Joe Z. Whitehead was the actual purchaser at the register's sale and had the deed made to his son, the said Joseph Reynolds Whitehead.
Joe Z. Whitehead stood in a fiduciary relationship to these complainants and their rights as to a purchase by him are the same as a cestui que trust has against a trustee who purchases for his own benefit at a sale of the trust property. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315; Smith et al. v. Strickland et al., 139 Miss. 1, 103 So. 782. See Carroll v. Draughon, 152 Ala. 418, 44 So. 553.
It has long been well settled by the decisions of this court that a purchase by a trustee for his own benefit at a sale of the trust property is voidable at the option of the cestui que trust, and will be set aside on application duly made for that purpose; and in the application of this rule it is unimportant whether the purchase be made directly or indirectly, in person or through an intermediary, who subsequently reconveys to the trustee, and without regard to the fairness of the purchase. Bank of Wetumpka v. Walkley, 169 Ala. 648, 53 So. 830, and cases cited; Warrick et al. v. Woodham et al., 243 Ala. 585, 11 So. 2d 150, 144 A.L.R. 1223. The authorities recognize and sanction but a single exception to this rulethat is, that executors and administrators who have an interest in the property sold may purchase at a sale of the property of the estate, provided there is no unfairness and the property is exposed for sale under the ordinary mode, and under such circumstances as will command the best price. Bank of Wetumpka v. Walkley, supra; Warrick et al. v. Woodham et al., supra. However, we are not here concerned with this exception. True, Joe Z. Whitehead was the administrator of the estate of James M. Whitehead and sued in that capacity as well as in the capacity of next friend to the minor complainants. But the sale was not sought on the ground that the proceeds thereof were needed to pay the debts of the estate. It appears that the administrator was a party for the purpose of having the estate removed to the equity court.
The cases make a distinction between a void and a voidable sale in the application of the doctrine of an innocent purchaser for value, and hold that a bona fide purchaser for value under a voidable sale is protected. Shook v. Southern Building & Loan Ass'n, 140 Ala. 575, 37 So. 409. But whether the sale is void or voidable matters not if the purchaser is not a bona fide one without notice.
If the averments of the bill here under consideration had shown that Joe Z. Whitehead was the purchaser at the register's sale, then the bill in so far as it seeks to void that sale and the subsequent conveyances made thereunder would clearly have equity under the holding of this court in Bank of Wetumpka v. Walkley, supra. However, it appears that Joe Z. Whitehead was not the purchaser at the register's sale. There is nothing in the chain of title of the respondent I. G. Cook *894 which gave him constructive notice of any infirmity in the title of his vendor, Joe Z. Whitehead. Whatever arrangement may have been made between Joe Z. Whitehead and Joseph Reynolds Whitehead concerning the purchase of the property by the latter and the subsequent reconveyance to the former, there is nothing in the proceedings or the subsequent conveyances to give the respondent I. G. Cook notice of any defect in the title of his vendor, Joe Z. Whitehead. No error appearing upon the face of the proceedings or conveyances, it was not incumbent upon Cook to make inquiry as to the manner in which the sale was conducted.
We hold that under the averments of the bill, the respondent I. G. Cook was a bona fide purchaser without notice and that in so far as the bill seeks to vacate the deed from Joe Z. Whitehead to the respondent I. G. Cook it is without equity.
That aspect of the bill which seeks cancellation of the timber deeds is likewise without equity. Cancellation is sought on two grounds, nondelivery and no consideration.
Delivery is essential to the complete execution of a deed, but in so far as this bill discloses complainants have an adequate remedy at law, there being no allegation that they are in possession. Tarwater v. Going et al., 140 Ala. 273, 37 So. 330.
The averment, "Complainants further allege and show that there was no good or valuable consideration passing from Joe Z. Whitehead to James M. Whitehead in return for such conveyance," does not justify the cancellation as here sought. Wells v. Wells, supra.
As to the respondent I. G. Cook, the bill is without equity in all of its aspects and his demurrer thereto should have been sustained.
The decree appealed from is reversed and one will be rendered here sustaining the demurrer. The cause is remanded for further proceedings therein, and the complainants are allowed thirty (30) days within which to amend their bill of complaint.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | April 5, 1951 |
0b9cfbe3-b8d5-4a20-bd06-362f9a44ebda | Ex Parte State Ex Rel. Attorney General | 52 So. 2d 158 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 158 (1951)
Ex parte STATE ex rel. ATTORNEY GENERAL.
6 Div. 212.
Supreme Court of Alabama.
April 19, 1951.
*159 Si Garrett, Atty. Gen., A. A. Carmichael, Asst. Atty. Gen., and Emmett Perry, Circuit Sol., of Birmingham, for petitioner.
Gibson & Hewitt, of Birmingham, for respondent.
FOSTER, Justice.
The question in this proceeding is whether Cecil Flummer is subject to trial at this time on indictments returned into court on December 9, 1938. At that time he was in the penitentiary of Alabama under a judgment of conviction in the same court and sentenced to thirty-five years in the penitentiary. That judgment was rendered on November 1, 1938. On the indictments returned December 9, 1938, capiases were issued which have never been served, and no further action was taken on them until December 12, 1950. The sheriff of Jefferson County, where the defendant was indicted on both occasions, mailed capiases issued on the indictments to the warden at Kilby Prison, where defendant is now and has been incarcerated since November 11, 1938. No attempt has been made to serve the indictments upon him or to have them docketed or to give him a trial. He made no agreement for the trial on said indictments to be deferred, and claims that he was irreparably injured by the failure to bring said indictments to trial, and is not now in a position to adequately defend himself by procurement of witnesses and otherwise, and that such delay was through no fault of his. He claims that because he was not given a speedy trial as required by the Constitution of Alabama, there has been a discontinuance of said indictments and he is entitled to be discharged from liability on them. He petitioned the Circuit Court of Jefferson County to dismiss the indictments and to order the clerk to notify the State Department of Corrections and Institutions that same had been done and to return the capiases referred to.
Upon the hearing of said petition there was an agreed statement of facts between the attorneys for petitioner and the solicitor for the State. Those facts as agreed upon were substantially the same as those alleged in the petition, except as hereinafter noted. The Hon. J. Russell McElroy, sitting as circuit judge in Jefferson County, heard said petition on said agreed statement of facts and ordered that the same be granted and that the indictments returned against the petitioner on December 9, 1938, mentioned above, be stricken and dismissed and that petitioner be discharged from liability under the same, and that the clerk so notify the State Department of Corrections and Institutions.
Thereupon the Attorney General of the State presented to this Court a petition for writ of mandamus directed to the Hon. J. Russell McElroy, as circuit judge of Jefferson County who granted said petition to vacate, commanding him to set aside his said order and directing that the Circuit Court of Jefferson County disregard said order of said J. Russell McElroy, and that said indictments be restored to the proper place in the office of the circuit court clerk of Jefferson County, and that the clerk be ordered and directed not to notify the Department of Corrections and Institutions to return the capiases which had been sent *160 to it by said clerk. Upon presentation of said petition to this Court a rule nisi was issued and the Hon. J. Russell McElroy has made return to said rule wherein he admitted the averments of the facts contained in the petition, but denies the conclusions of law therein asserted.
The question presented to the circuit judge on the motion of said Flummer, and now to this Court on petition of the Attorney General, involves much difficulty. Reliance is had upon two principles, one being that the said Flummer was denied the right guaranteed to him under section 6 of the Constitution of Alabama, which provides that "in all prosecutions by indictment, a speedy public trial, by an impartial jury of the county or district in which the offense was committed" shall be had.
It is also contended that, by reason of the long delay intervening between the return of the indictments and the proceeding now begun to bring said indictments to trial, prosecution under said indictments has been discontinued and that the petitioner is not now subject to such prosecution by reason thereof as well as by reason of the failure to accord him a speedy trial, as required by the Constitution.
We admit of course that for the period of practically twelve years, when nothing was done to bring the indictments to trial, there had not been a speedy trial of the petitioner. In this connection it is apparent that no effort was made by either the State, through its prosecuting officers or a judge with jurisdiction, or the defendant himself, to bring said case to trial. There was no motion made by defendant for a trial. We refer to certain principles of law which seem to have application. We think it is true that the requirement of the Constitution for a speedy trial is to a certain extent self-executing. 16 Corpus Juris Secundum, Constitutional Law, § 59, p. 119.
That theory does not conflict with the statement made in the opinion of this Court in the case of Ex parte State, in re Tate, 76 Ala. 482, wherein it is said that the provision in question contemplates legislative enactment so as to provide adequate machinery for the administration of the criminal law. "When there have been legislative enactments reasonably adapted to secure a speedy trial, the constitutional guaranty cannot operate to discharge the accused because of mistaken legislation, or because of a failure to foresee and provide for every contingency which may occasion delay." See, also, Sample v. State, 138 Ala. 259, 36 So. 367, 368.
We do not consider that such declaration made by this Court means that when the legislature has made adequate provision, the constitutional guaranty has been satisfied. It is true such legislation is required as mandatory by the Constitution. Although there may be such legislation, the party indicted is entitled to a speedy trial and the failure to accord it will give occasion for just complaint on his part.
We pass now to the question of its application to this petitioner. In that connection we note that, although it has been held that the right to a speedy trial does not apply to a convict, the weight of authority is to the contrary. 16 Corpus Juris 442; 22 Corpus Juris Secundum Criminal Law, § 467, p. 715; People v. Corrado, 150 Misc. 787, 270 N.Y.S. 235; Frankel v. Woodrough, 8 Cir., 7 F.2d 796; State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L.R.A.,N.S. 896; Pietch v. United States, 110 F.2d 817, 129 A.L.R. 563.
We believe that it is in accord with out interpretation of the Constitution to hold that because a person under indictment may be serving a term in the penitentiary, he is still subject to trial on the outstanding indictment. His presence in court to be put upon such trial could be easily obtained by pursuing a simple course. We also think there is another principle which has important effect.
It is said in 16 Corpus Juris 442, and 22 Corpus Juris Secundum, Criminal Law, § 469, p. 719, that in some states it has been held not to be incumbent upon the defendant to demand a trial at any time in order to entitle him to be discharged on account of failure to accord a speedy *161 trial. But the majority view is that a demand for a trial or objection to the postponement of the trial, or some other effort to secure a speedy trial on the part of the accused, ordinarily must be affirmatively shown to entitle him to a discharge on the ground of delay. Frankel v. Woodrough, supra; Phillips v. United States, 8 Cir., 201 F. 259, 262; Worthington v. United States, 7 Cir., 1 F.2d 154.
There has been much discussion of the question here involved by the various state courts. Many of them are with reference to statutes supplementing their constitution, but which often refer to the effect of the constitution without such a statute. There is an interesting analysis of that situation in the annotations found in 118 A.L.R. beginning at page 1037.
We think a just interpretation of it would be that a prisoner in the penitentiary or in jail, who stands indicted on another charge, cannot be said to have waived his right to a speedy trial by failure to demand trial unless he has knowledge of the indictment and is called upon directly or indirectly to make an election, and he voluntarily acquiesces in a delay, and that when he has no opportunity to acquiesce in the delay he should not be regarded as having waived his right. Fulton v. State, 178 Ark. 841, 12 S.W.2d 777; Worthington v. United States 7 Cir., 1 F.2d 154; People v. Klinger, 319 Ill. 275, 149 N.E. 799, 42 A.L.R. 581; People v. Foster, 261 Mich. 247, 246 N.W. 60. This principle does not meet universal approval, State v. McTague, 173 Minn. 153, 216 N.W. 787; Shafer v. State, 43 Ohio.App. 493, 183 N.E. 774, nor when the defendant is at large on bond or otherwise.
The petition for the defendant's discharge, to the extent that its facts are admitted, is sufficient to show that he has not acquiesced in the delay. It fairly appears that during that time he had no knowledge of such indictments and was not called upon directly or indirectly to make an election whether he should be speedily tried. He has been incarcerated continuously in the penitentiary in Alabama.
Irrespective of the constitutional requirement, and on general principles, the law is well settled in Alabama that a criminal prosecution is not discontinued on account of inaction with respect to it by the court or the officer prosecuting for the State. Drinkard v. State, 20 Ala. 9; Scott v. State, 94 Ala. 80, 10 So. 505; Smith v. State, 149 Ala. 53, 43 So. 129; 6 Alabama Digest, Criminal Law,
We are not here confronted with the situation which is referred to in section 251, Title 15, Code. When the facts do not call into being the authority there conferred, and the constitutional right is not available, the cause may remain on the docket or in the files of the court, and the failure to take action with reference to it for any length of time is not a discontinuance. Drinkard v. State, supra; Scott v. State, supra; Smith v. State, supra. That principle does not interfere with a person's right to a speedy trial, unless he has waived it by a failure to demand it, after an opportunity is given him to make such demand, or when he is at large.
Writ denied.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur. | April 19, 1951 |
3944baaa-6804-49e0-8392-5b254424c504 | Liberty Nat. Life Ins. Co. v. Trammell | 51 So. 2d 176 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 176 (1951)
LIBERTY NATIONAL LIFE INS. CO.
v.
Ethel C. TRAMMELL.
6 Div. 72.
Supreme Court of Alabama.
March 1, 1951.
Lipscomb & Brobston, Bessemer, and D. G. Ewing, Birmingham, opposed.
LIVINGSTON, Chief Justice.
This is a petition for writ of certiorari to the Court of Appeals filed by the Liberty National Life Insurance Company to review and revise the judgment and decision of that court after remandment in the case of Liberty National Life Ins. Co. v. Trammell, 51 So. 2d 167.
After a careful consideration of the opinion and all matters before us for review, we are persuaded the petition must be denied.
Writ denied.
BROWN, FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. | March 1, 1951 |
3b6da52e-7b22-483a-9bb1-31150cf70782 | Darling Shop of Birmingham v. Nelson Realty Co. | 52 So. 2d 211 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 211 (1951)
DARLING SHOP OF BIRMINGHAM, Inc., et al.
v.
NELSON REALTY CO., Inc., et al.
6 Div. 128.
Supreme Court of Alabama.
March 15, 1951.
Rehearing Denied May 10, 1951.
*212 Cabaniss & Johnston, Meade Whitaker and K. E. Cooper, all of Birmingham, for appellants.
Leader, Tenenbaum, Perrine & Swedlaw and Kenneth Perrine, all of Birmingham, for appellees.
STAKELY, Justice.
On March 10, 1943 a lease was executed by and between Nelson Realty Co. Inc., a corp., as lessor (one of the appellees), and The Darling Shop of Birmingham, Inc., a corp. (one of the appellants) as lessee, covering premises located at the northwest corner of 18th Street and Third Avenue in Birmingham, Alabama, known as The Darling Shop. The obligations of the tenant under the lease were guaranteed by The Darling Stores, Inc., a corporation (the other appellant).
The lease ran for a period of six years for a term beginning on the first day of February, 1943 and ending on the 31st day of January, 1949. The lease contains the following renewal clause: "Twenty-ninth: The Tenant shall have the option to renew this lease for a further term of five (5) years upon the same terms and conditions, except that the annual minimum rental during such additional term shall be the sum of Thirty Thousand ($30,000) Dollars per annum, payable in installments on the first day of each and every month of said term in the sum of Two Thousand Five Hundred ($2,500) Dollars. Such option of renewal shall be exercised by notice in writing by registered mail addressed to the Landlord on or before August 1st, 1948."
The agreed rental was to be six per cent of the gross sales called overage rental, payable annually, with a fixed minimum sum payable monthly.
The case comes here on appeal from a decree of the equity court overruling demurrers to appellees' cross-bill. The cross-bill seeks to have the court declare a forfeiture of the tenant's right of renewal as contained in the lease.
The present litigation began with an original bill for a declaratory judgment filed by appellants seeking an interpretation *213 of paragraphs 25th and 26th which provide for contribution by the landlord toward the cost of alterations and improvements according to a formula. A copy of the lease is attached to the original bill and made a part thereof. The bill for a declaratory judgment was filed on June 11, 1948. On July 23, 1948 the tenant gave the landlord written notice of its election to renew the lease as of February 1st, 1949 for a further term of five years. Nelson Realty Co., Inc., the landlord, by way of reply declared the renewal option forfeited for various alleged defaults on the part of the tenant and thereafter filed the cross-bill in this case seeking to have the renewal right declared forfeited and the lease terminated as of the expiration of the original term viz., January 31, 1949.
In the fourth paragraph of the lease, for the purpose of ascertaining the amount of percentage rentals payable under the lease, the tenant covenants that it will keep records which shall show the daily sales made by the tenant in, on or from the demised premises and further agrees to deliver to the landlord statements of the total sales for each annual period of the term of the lease. In this connection the tenant represents that it maintains a system by which is recorded the receipts from all sales and covenants that it will keep the record of such sales on file for a period of not less than three months following the date upon which it delivers to the landlord a statement of its gross annual sales at the end of each lease year. Paragraph four also provides that the landlord or its representative shall have access to the books, records, accounts and reports of gross sales made upon the premises and will permit inspection by the landlord and also permit the landlord to have an audit made by accountants appointed by the landlord at its own expense.
The following are the allegations in the cross-bill as warranting forfeiture of the right of renewal: "10(a). Respondent avers that The Darling Shop, Inc., of Birmingham, has violated the covenants of the lease as to the payment of rent on the dates required in said lease and has violated the covenants of the lease in failing to give the reports as required in said lease duly authenticated by the officers on the dates required in said lease and that such acts or failure to act on behalf of The Darling Shop of Birmingham, Inc., was made with such frequency as to make it a general course of conduct. Respondent avers that it has considered that complainant has forfeited its right to renewal of the lease under the terms and conditions thereof and that the tenancy of the complainant is terminated at the expiration of the present term on to-wit, January 31, 1949. Respondent avers that it did notify the complainant that the term of its lease did expire on said date by registered letter dated July 30, 1948, a copy of which is hereto attached and marked Exhibit `1' and made a part hereof as fully as if set out herein."
By amendment Nelson Realty Co. Inc. sought to set up as additional grounds of forfeiture of the right of renewal alleged breaches by the tenant of various parol agreements claimed to have been made at or prior to the execution of the lease and also certain charges of fraud arising therefrom.
In the decree from which this appeal was taken the court sustained demurrers to these aspects of the cross-bill set forth in the amendment. Accordingly these matters are not before the court on this appeal.
By further amendment there was added to the cross-bill a prayer seeking a money judgment for rent accruing subsequent to January 31, 1949, the basis being the alleged unlawful holding over after the expiration of the lease.
Subsequent to the filing of the original cross-bill and subsequent to the expiration of the term of the original lease Frank Nelson, Jr., his sister Margaret Nelson DeBardeleben and their mother Mrs. Olive L. Nelson, the principal beneficial owners of the leased premises and other real property in the City of Birmingham, determined upon a division of their holdings. An agreement was accordingly entered into on August 27, 1949 between the various interested parties including Nelson Realty Co. Inc., *214 a corporation, Frank Nelson Estates, Inc., a corporation, and the foregoing individuals. This agreement provided for a conveyance by Nelson Realty Company Inc. to its parent company Frank Nelson Estates Inc. of the leased premises and the dissolution and liquidation of the Nelson Realty Company Inc.
It was also agreed that Frank Nelson, Jr. would be given an option to purchase the leased premises at a fixed price which option he exercised on October 24, 1949. On August 31, 1949 in accordance with the dissolution agreement Nelson Realty Company, Inc. conveyed the leased premises to Frank Nelson Estates Inc. without warranty of title and subject to "all existing leases." Nelson Realty Company Inc. on the same date was dissolved. Thereafter on October 24, 1949 in accordance with the dissolution agreement the leased premises were conveyed to Frank Nelson, Jr. subject to a life estate in a one-third interest contemporaneously conveyed to Olive L. Nelson. Frank Nelson Estates, Inc. received back a purchase money mortgage which was, however, subordinate to outstanding mortgages to Prudential Insurance Company of America, to Bank for Savings and Trusts and to H. M. Davis. These mortgages constituted first, second and third liens, respectively, on the leased premises. Each of these conveyances recognized the existence of the lease to The Darling Shop of Birmingham, Inc. In the conveyance to Frank Nelson Estates, Inc., were these words: "* * * and further subject to all existing leases thereon or affecting the same, * * *." In the conveyances to Frank Nelson, Jr. and to Olive L. Nelson by Frank Nelson Estates, Inc., were these words: "This conveyance is also made subject expressly to existing leases and litigation herein referred to by, or against, said Nelson Realty Company, Inc., and any successor thereof, in interest, or by, or against, the grantor as such successor, in interest, and to the entire burden of said litigation whatsoever * *."
When the foregoing transfers of title to the leased premises were made the original bill of appellants was amended so as to bring in as parties Frank Nelson, Jr., the executor of the estate of Olive L. Nelson, then deceased, and the various mortgagees including Prudential Insurance Company of America. The cross-bill was then amended and Frank Nelson, Jr., the executors of the estate of Olive L. Nelson, deceased, and Frank Nelson Estates, Inc., joined in the relief prayed for by Nelson Realty Company, Inc. The various mortgagees answered the amended bill of complaint but have not joined in the cross-bill.
The cross-bill seeks to have the court declare a forfeiture of the tenant's right of renewal which is contained in the lease. This court has said that, "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." City of Bessemer v. Bessemer Theatres, Inc., 252 Ala. 117, 39 So. 2d 658, 660; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So. 2d 11; White v. Manassa, 252 Ala. 396, 41 So. 2d 395. In other words "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 theories and contentions but whether he is entitled to a declaration of rights at all." Authorities supra. But where a situation is presented where both parties assert rights dependent on a specific construction and a question of law is presented, a declaration of rights will be made where the question is raised by demurrer. Blackwell v. Burketts, 251 Ala. 233, 36 So. 2d 326; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835.
It does appear that a question of law is now presented on demurrer to the cross bill "in that it affirmatively appears therein that the landlord has no right to declare forfeited tenant's right to renewal of the lease." Since the parties argue the case and appear to consider the question as presented at this stage of the litigation, it seems to us that we should proceed to *215 render a decision on the question in order to expedite the case.
Generally where a covenant to renew a lease is not by its terms made expressly dependent upon performance by the lessee of other covenants and conditions in the lease, a breach of such other covenants will not in and of itself affect the right of lessee to insist upon his renewal privilege. 51 C.J.S. Landlord and Tenant, § 62, p. 608; 32 Am.Jur. p. 817. Furthermore dependence of covenants will not be implied unless that be the intent of the parties as expressed in the instrument. Hill v. Bishop, 2 Ala. 320; Tyson v. Weil, 169 Ala. 558, 53 So. 912, Ann.Cas.1912B, 350. In case of doubt a provision will be construed as a covenant rather than as a condition precedent. Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427; 51 C.J.S., Landlord and Tenant, § 62, p. 608; 32 Am.Jur. p. 143. Covenants in leases especially are generally independent in the absence of clear indications to the contrary. Barry v. Frankini, 287 Mass. 196, 191 N.E. 651, 93 A.L.R. 1240; Williston on Contracts (rev.ed.) Vol. 3, § 890; Restatement of Contracts, § 290.
The lease in the case at bar makes no reference to any other term or condition in the lease as a condition precedent to the right of exercising the option to renew. There is only one requirement which is that the tenant shall give notice of its election to exercise the option on or before August 1, 1948. It affirmatively appears that such notice was given on July 23, 1948. In the absence of a clause in the lease making performance of the terms and conditions of the lease a condition precedent to the right of renewal, can it be said that there is any ground for implying such a condition precedent? It should be kept in mind that the court must construe a contract as it is written. The court cannot under the guise of construction make a new or different contract for the parties nor add to the terms of the contract words, terms or conditions not contained in it. John Hancock Mutual Life Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327. Furthermore in the absence of ambiguity the court cannot interpret the contract but must take it as it is written. Dunlap v. Macke, 233 Ala. 297, 171 So. 721.
In the present case it does not appear to us that two cases relied on by the appellee are applicable. In the case of Gadsden Bowling Center v. Frank, 249 Ala. 435, 31 So. 2d 648, 172 A.L.R. 1430, there was a renewal provision in the lease which expressly made the performance of all the terms and conditions of the lease a condition precedent to the right of renewal. As stated there is no such clause in the present lease. In the case of Shell Petroleum Corp. v. Gowan, 240 Ala. 497, 199 So. 849, it was held that a lease containing a renewal provision was subject to cancellation because of the presence of vitiating fraud. There is, however, no question of fraud now before the court on this appeal. The present case must be narrowed to a consideration of the question as to whether or not dependence of the covenants with reference to renewal on the various other covenants in the lease can be implied.
The burden is of course on the pleader to show that under the provisions of the lease dependence of covenants will be implied. The cross-bill in the present case does not present such a situation. It is true that in the case at bar the right of renewal is given "upon the same terms and conditions," which means that provisions for the payment of rent and the furnishing of reports would be for the additional term as had been required for the original term. But this does not imply that the right of renewal is conditioned on payment of rent or furnishing of reports as required in the original lease but simply that the provisions of the lease itself would be the same. The allegations of a general course of conduct on the part of the tenant in not paying rent and making reports as required by the lease do not aid the landlord in this connection because breach of the lease in these respects is not tied in with renewal of the lease even though breach of the lease may be aggravated. See 172 A.L.R. p. 1439. To illustrate *216 what is meant by renewal on the same terms and conditions, in Burge v. Purser, 141 Miss. 163, 106 So. 770, the right of renewal was not allowed because the tenant did not tender rent notes for the additional term where rent notes had been executed in connection with the original lease. This was held necessary where the renewal was on the same terms and conditions as the original lease.
In the case of Behrman v. Barto, 54 Cal. 131, cited in the foregoing annotation at p. 1438, the option to extend the lease was allowed "provided the tenant was not in default." As we have shown there is no such provision in the present lease, the only requirement being giving of notice to renew. Except for the notice provision the option to renew is unconditional. Where there is no ambiguity the court will not imply a meaning not expressed.
In view of the foregoing we deem discussion of other propositions on the right of renewal as unnecessary.
The question has been raised as to the right of Nelson Realty Company to proceed due to the fact that it has been dissolved and the right of Frank Nelson, Jr., individually, and Frank Nelson, Jr. and Margaret Nelson DeBardeleben, as coexecutors of the estate of Olive L. Nelson, Deceased, and Frank Nelson Estate, Inc., to be added as cross-complainants by amendment. The court correctly held that all of these parties are proper parties. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Gipson v. Hyatt, 243 Ala. 118, 8 So. 2d 926; Gulf Electric Co. v. Fried, 220 Ala. 464, 125 So. 804; § 247, Title 7, Code of 1940; Equity Rule 28(d), Title 7, Appendix, Code of 1940, p. 1070; § 110, Title 10, Code of 1940.
We conclude that under the allegations of the cross-bill the cross-complainants have no right to declare a forfeiture of the tenant's right of renewal as contained in the lease.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER, J., concur.
LAWSON, J., concurs in the result. | March 15, 1951 |
a385f725-57b7-4cba-9512-82cb592957d6 | Moss v. Davitt | 52 So. 2d 515 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 515 (1951)
MOSS et al.
v.
DAVITT et al.
6 Div. 32.
Supreme Court of Alabama.
May 10, 1951.
*516 David R. Solomon and Ellis V. Cruse, Jr., Birmingham, for appellant.
Jackson, Rives & Pettus, Birmingham, for appellee.
STAKELY, Justice.
The original bill in this cause was filed on October 31, 1946 by Howard Moss and others as executors and trustees under the will of C. L. Moss, deceased, against Mrs. Ida Davitt, Mrs. Louis Davitt Swanson, John E. Davitt and Morris Improvement Company, a corporation. The purpose of the suit is for an accounting in connection with certain property formerly owned by the Morris Improvement Company, a corporation, and in connection therewith to set aside what is claimed to be an invalid foreclosure of a mortgage made by that company on its property. Mrs. Ida Davitt is the former wife of A. E. Davitt. They were divorced. Mrs. Louis Davitt Swanson and John E. Davitt are their children. They constitute the majority stockholders in the Morris Improvement Company and the complainants, who claim through C. L. Moss, deceased, are minority stockholders. C. L. Moss, deceased, was a brother of Mrs. Ida Davitt.
The case was tried orally before the court. At the conclusion of the evidence the court rendered a final decree denying relief to the complainants. In its final decree the court, among other things, said: "There is doubt whether the facts testified to justify relief sought by the complainants, even if their claims were not stale. The court is fully convinced that after a lapse of more than 20 years since the original alleged wrong occurred, and in view of other facts and circumstances in the case, that complainants should not be entitled to recover."
The testimony is voluminous and given in considerable detail. It is not practicable to set it all out. The following will sufficiently outline in substance the salient facts in the case.
*517 The Morris Improvement Company was incorporated September 27, 1904. On December 30, 1916 the corporation made a mortgage on the real estate belonging to the corporation to Jacob Marx to secure an indebtedness of $6,750. The mortgage was recorded in the probate office of Jefferson County on the 5th day of January, 1917. Mrs. Ida Davitt became the president of the corporation on January 5, 1920. She, together with her former husband, her son and her daughter, constituted the Board of Directors of the corporation. While never formally dissolved the corporation has not functioned since 1933. Prior to November 6, 1922 the corporation paid upon the principal of the mortgage indebtedness the sum of $2,000, leaving an unpaid balance on the principal indebtedness of $4,750. On November 6, 1922 the mortgage indebtedness being past due and unpaid Mrs. Ida Davitt used her own funds to purchase the mortgage which together with the indebtedness thereby secured was transferred and assigned to her. This transfer and assignment was recorded in the office of the Probate Court of Jefferson County on November 22, 1922. The mortgage covered approximately 450 acres of coal and mining land in Jefferson County, Alabama, and this property with the improvements thereon constituted all of the assets of the corporation.
On December 8, 1930 the aforesaid mortgage and the indebtedness secured thereby were transferred and assigned by Mrs. Ida Davitt for a valuable consideration to Louis Davitt and John E. Davitt. The transfer and assignment of the mortgage were effected by transfer and assignment made upon the margin of the record where the mortgage is recorded. The aforesaid mortgage was foreclosed and Louis Davitt and John E. Davitt became the purchasers of the property embraced therein at the foreclosure sale. A foreclosure deed was executed on March 10, 1933 and filed for record in the office of the Judge of Probate of Jefferson County on June 29, 1933.
Walter Brower, who was a practicing attorney in Birmingham, Alabama, from June 1911 to July 1934, testified that he was familiar with the transaction whereby the mortgage executed by the Morris Improvement Company had been purchased by Mrs. Ida Davitt and had by her been sold, assigned and transferred to John E. Davitt and Louis Davitt (now Mrs. Louis Davitt Swanson). He showed that he represented the Morris Improvement Company for ten or twelve years, that the mortgage to Jacob Marx was executed in 1916 and long prior to the time Mrs. Ida Davitt became President of the Morris Improvement Company in 1920, that he also represented Mrs. Ida Davitt personally during and prior to the time he represented the Morris Improvement Company, that at the time he was employed by Mrs. Ida Davitt the corporation had no funds. He further testified that he did not recall who prepared the transfer of the mortgage to John E. Davitt and Mrs. Louis Davitt Swanson but that he held the mortgage as collateral to a loan made by John E. Davitt and Louis Davitt. He further testified: "The mortgage was in default as to both principal and interest. The property covered by it was the only asset the company had and at the time it would, in my judgment, have been impossible to have re-financed the mortgage."
The testimony of Walter Brower further shows that the mortgage to Jacob Marx was duly and legally sold and assigned to Mrs. Ida Davitt about 1922 and paid for by her individual money. He further testified and the evidence shows that the mortgage was owned and held by Mrs. Ida Davitt until 1933 at which time for a valuable consideration she sold and transferred the same to John E. Davitt and Louis Davitt and that thereafter it was duly and legally foreclosed and a foreclosure deed duly acknowledged dated the 10th day of June 1933 and filed for record in the Probate Office of Jefferson County, Alabama on June 29, 1933.
There is testimony tending to show that John E. Davitt and Louis Davitt at the time of the foreclosure in 1933 went into the actual, open, notorious, adverse possession of the property and since that time either in person or through agents have been in possession.
There is testimony tending to show that Howard Moss was put on actual notice of the transactions now complained of a number *518 of years before the filing of this suit. Mr. George P. Bondurant, attorney at law, testified that he was formerly Referee in Bankruptcy and practiced law in Birmingham, Alabama for many years, that he was one of the attorneys who represented the trustee Shaeffer, as trustee, in the matter of bankruptcy of Mrs. Ida Davitt, that there were claims against her including a judgment of $7,000 and claims of the Woodlawn Bank, that he remembered the occasion when she was examined in the bankruptcy court by the attorneys for the trustees and he also remembered the bill which was filed to subject the Morris Improvement Company property to the payment of the debts of the bankrupt. In the examination of Mrs. Ida Davitt, the bankrupt, before the bankruptcy court the facts in connection with the transfer were developed. Tendencies of the evidence show that Howard Moss learned of these things as early as 1942 or 1943. No testimony was taken on the bill. There was introduced in evidence a lis pendens notice with reference to the foregoing bill which was filed for record on June 9, 1943.
There is testimony that John E. Davitt left the State of Alabama in 1934 and has continuously remained absent from the state since that time, that Louis Davitt Swanson left the State of Alabama in 1934 and has continuously remained absent from the State of Alabama since that time and that Mrs. Ida Davitt left the State of Alabama in 1943 and has continuously remained absent from the state since that time.
The theory of the complainants is that Mrs. Ida Davitt and her family, who comprise the majority stockholders of Morris Improvement Company, purchased an outstanding mortgage on all the assets of the company and through its foreclosure claim to have secured the assets of the company in their individual right and in such way received the money and assets of the Morris Improvement Company to the detriment of the minority stockholders.
The position of the respondents, however, is that the purchase of the mortgage by Mrs. Ida Davitt and the subsequent transfer thereof to her children were bona fide transactions and necessary to protect their interests, that the income of the company was small and was received and disbursed in a regular manner, that the complainants have no rights but that whatever rights the complainants may have, if any, have long been barred by laches and prescription.
After hearing the case orally before it, the court held that lapse of time together with the other circumstances in the case were sufficient to deny relief to the complainants. This holding will not be disturbed unless we consider it palpably wrong. Randolph v. Randolph, 245 Ala. 689, 18 So. 2d 555.
The train of events on which the complainants rely began more than 20 years prior to the institution of this suit. This court has often held that claims of property rights which have been permitted to slumber without assertion or recognition for 20 years are presumed to have no legal existence. Jellerson v. Pettus, 132 Ala. 671, 32 So. 663; Black v. Pratt Coal & Coke Co., 85 Ala. 504, 5 So. 89; Kidd v. Borum, 181 Ala. 144, 61 So. 100; Oxford v. Estes, 229 Ala. 606, 158 So. 534. But some of the events in the train of events occurred less than 20 years before the institution of this suit. In such a situation laches in the sound discretion of the court can take up where prescription leaves off. Cook v. Castleberry, 233 Ala. 650, 173 So. 1; Courson v. Tollison, 226 Ala. 530, 147 So. 635. See 30 C.J.S., Equity, § 114, page 526.
But it is argued that under § 42, Title 7, Code of 1940, there is no bar until one year after the discovery of the fraud. It is true that absence of notice affects laches. Norwood v. American Trust & Savings Bank, 216 Ala. 602, 114 So. 220. But facts constituting fraud are deemed discovered when they should have been discovered in determining whether the action therefor is barred. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286. In Butler v. Guaranty Savings & Loan Ass'n, 251 Ala. 449, 37 So. 2d 638, 639, this court said: "`Fraud is deemed to have been discovered when it ought to have been discovered. Facts which provoke inquiry in the mind of a man of reasonable prudence, and which, if followed *519 up, would have led to a discovery of the fraud, constitute sufficient evidence of discovery.' * * *"
It is without dispute that the mortgage in favor of Jacob L. Marx was recorded in 1917. Its transfer to Mrs. Ida Davitt was recorded in 1922. It was foreclosed in 1933 and a foreclosure deed filed for record on June 29, 1933. There is evidence tending to show that after the foreclosure John E. Davitt and Louis Davitt went into possession of the property and were in possession in person for at least two years and since that time their agents have been in possession. The testimony tends to show that Howard Moss in 1942 or 1943 was apprised of the facts in the case when bankruptcy proceedings were instituted against Mrs. Ida Davitt. He handled all business affairs for the estate since the death of C. L. Moss.
It is claimed that the respondents John E. Davitt and Louis Davitt Swanson have been out of the State of Alabama continuously since 1934 and that Mrs. Ida Davitt left the State of Alabama in 1943 and has continuously remained absent from the state since that time. It is therefore contended that under § 34, Title 7, Code of 1940 the statute of limitations cannot be tolled for the period of time during which they have been out of the state. It will be noticed that by the terms of § 34 when a person is absent from the state the time of such absence must not be computed as a portion of the time necessary to create a bar under this chapter. Section 34 is expressly confined to limitations provided for in Chapter 2. Willis v. Rice, 157 Ala. 252, 48 So. 397, 131 Am.St.Rep. 55. While § 34 should be considered in computing the time involved in a statute of limitations, it is not applicable where prescription is involved. Oxford v. Estes, 229 Ala. 606, 158 So. 534; Willis v. Rice, supra. Furthermore laches is not controlled by statute but is a creature of equity. Wise v. Helms, 252 Ala. 227, 40 So. 2d 700. While absence from the state of the parties claimed to be the wrongdoers can be considered in determining the question of laches, absence from the state is not necessarily controlling because, as pointed out, laches is not controlled by statute. Authorities supra.
On the question of laches in addition to what has been said the evidence tends to show this situation. The Morris Improvement Company is a corporation. It is still undissolved. The complainants are minority stockholders of the corporation. The Morris Improvement Company is an Alabama corporation. There appears to be no good reason why these minority stockholders should not have made inquiry of the Morris Improvement Company with respect to the lands described in the bill and embraced in the mortgage acquired by Mrs. Ida Davitt. These lands lie in Alabama. It appears without question that from 1933, when these lands passed to the possession and control of John E. Davitt and Mrs. Louis Davitt Swanson, the corporation had no income and had ceased to function for lack of assets. We do not see how it is possible for the complainants to contend that in this situation they were exercising such vigilance in connection with their rights as stockholders as to excuse them now of the charge of laches. It may be that the respondents would have been hostile to their claims. If so, this was added reason for them to inquire about the affairs of the corporation in which they were stockholders. It may be true that it would have been futile to take appropriate action within the corporation, Decatur Mineral Land Co. v. Palm, 113 Ala. 531, 21 So. 315, 59 Am.St.Rep. 140, but this is beside the point. We are here dealing with the laches of the complainants in respect to their failure to take action in court to enforce their rights, if any, when they should have known from the absence of stockholders' meetings, directors' reports and other corporate procedure, as well as other circumstances, that their rights were being jeopardized and action was needed. Tendencies of the evidence show that from the time of foreclosure in 1933 John E. Davitt and Louis Davitt Swanson were in the open possession of the lands claiming them as their own. They did nothing to beguile the complainants as to their rights, if any, and openly showed by their action that any relationship that might have existed between them and the complainants was terminated. Under the circumstances it does not seem reasonable *520 to us that complainants can claim themselves to be free of the charge of laches.
But it is seriously argued that the respondents during much of the time were outside of the State of Alabama so that service could not be had on them or on the Morris Improvement Company. This is no answer to the charge of laches. The suit could have been instituted and service on the individuals procured at some later date. Or if personal decree against the individuals was desired, suit could have been instituted in the state where they were living. Or suit at least could have been instituted in the jurisdiction where the lands lie in order to seize the lands through receivership or other process and attack therein made on the transfers relating to the land claimed to be fraudulent. It was necessary to set aside these transfers before any right to the lands or their income could be established in complainants. As a practical matter the present suit was instituted and no personal service effected, but only service through registered mail.
It is our view that Mrs. Ida Davitt advanced her own funds when the mortgage of Jacob Marx was due and unpaid and when refinancing of the mortgage could not be arranged or would have been difficult to say the least. It was necessary for her to do this to protect her own interest and that of her family. We see nothing wrongful in this nor in the subsequent foreclosure. Certainly neither C. L. Moss nor his trustees or personal representatives ever appeared to take any interest in the matter or advance any money of their own. The instruments involved were put on the public record.
C. L. Moss is now dead. Corporate books and records have been misplaced or lost. We agree with the court that lapse of time is on the side of Mrs. Ida Davitt, John E. Davitt and Mrs. Louis Davitt Swanson. When all the facts and circumstances are considered, we consider the decree of the court to be correct. It will not be disturbed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | May 10, 1951 |
37d30678-2223-49ea-99ac-c64ebed13478 | Triplett v. Daniel | 52 So. 2d 184 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 184 (1951)
TRIPLETT
v.
DANIEL.
7 Div. 70.
Supreme Court of Alabama.
March 15, 1951.
Rehearing Denied May 10, 1951.
Ellis & Fowler, of Columbiana, for appellant.
Knox, Dixon & Wooten, of Talladega, for appellee.
STAKELY, Justice.
Mrs. Della Triplett (appellant) brought suit against L. M. Daniel for damages on account of alleged personal injuries sustained by her in a traffic accident on January 1, 1948 on Broad Street in the City of Sylacauga, Alabama. The case was tried on a count alleging simple negligence to which the defendant pleaded in short by consent the general issue with leave to give in evidence any matter which would be admissible in evidence if well pleaded. Trial of the case resulted in a verdict and judgment in favor of the defendant. Hence this appeal.
*185 Reversal is sought on the rulings of the court made in connection with certain charges given by the court at the request of the defendant.
On January 1, 1948 the plaintiff was driving her automobile along Broad Street, a public street or highway in the City of Sylacauga. She was proceeding in a northerly direction approaching 8th Street. Three blocks south of the intersection a railroad crosses Broad Street. A train blocked the street and this stopped traffic. There were some three, four or five cars immediately ahead of the plaintiff's car and the defendant's truck was immediately behind her. After the train cleared the street crossing the traffic proceeded north. The defendant's truck ran into the plaintiff's car from the rear.
Testimony for the plaintiff tended to show that when she was approaching the 8th street crossing the red traffic light came on. The cars in front of her were slowing down gradually and coming to a stop. She likewise slowed down gradually and came to a stop behind the other three or four automobiles. The defendant's truck was considerably behind her after leaving the railroad crossing. It was about a half minute behind her when she came to a stop. After her car came to a complete standstill and after it had been in that position about a half minute the defendant's truck crashed into her car from the rear. She testified that when the defendant's truck struck her car she was thrown forward against the steering wheel from which she received injuries to her breast and other personal injuries.
Testimony for the defendant tended to show that the truck of the defendant after leaving the railroad crossing was moving in the line of cars at a speed from 15 to 20 miles per hour, the truck being within 15 to 20 feet of plaintiff's car. In this situation the plaintiff's car came to a stop without warning of any kind. The driver of defendant's truck did not see the cars in front of plaintiff stopping and the traffic light was green.
It is undisputed that the plaintiff was fully aware that the defendant's truck was the next vehicle behind her car in the line of traffic. On the morning of January 1, 1948 it was cold, a rather hazy day. All the windows of her car were up with the exception of a small opening in the front window for ventilation. The heater was on in the car. She gave no signal preceding the impact other than holding up her right hand inside the car in the center of the automobile. At no time did she lower the lefthand front window of her automobile or indicate her intention to stop by giving any other signal to stop. At no time did she hold out her hand horizontally beyond the left side of her automobile.
We have concluded that the giving of charge C requested by the defendant constitutes error. Testimony for the plaintiff tended to show that the defendant's truck was considerably behind her after leaving the railroad crossing and that after her car had come to a complete standstill and had been in that position for about one-half minute, it was then that the defendant's truck crashed into her car from the rear. According to § 17, Title 36, Code of 1940, as it was in effect on the day of the accident which was January 1, 1948, the driver of any vehicle upon a highway before stopping shall first see that such movement can be made in safety and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required by the statute. It is undisputed that the plaintiff did not give the signal as provided by the statute. The testimony of the defendant showed that at that time the truck was moving at a rate of about 15 miles per hour.
The intent of the statute is to provide that the signal must be given if it appears that the movement or operation of another's car might reasonably be affected by the stopping. Marsee v. Bates, 235 Ky. 60, 29 S.W.2d 632. In other words there is no positive rule of the statute that requires a motorist on the highway always to give the statutory signal before stopping his car but only when, in the language of the statute, the operation of "any vehicle * * * may be affected". Under the circumstances in this case we do not think *186 that the court should charge as a matter of law that the defendant's truck would be affected by the stopping. This was a question for the jury. Hence the charge in this respect is an invasion of the province of the jury and is erroneous. Rogers v. Crow, 244 Ala. 533, 14 So. 2d 157.
There was no exception to the oral charge but in view of the discussion in briefs with reference to the oral charge we think it would be helpful as a guide to further proceedings to comment briefly on the oral charge. It is not correct, as contended by appellant, to say that the entire question of contributory negligence should be submitted to the jury. If under the undisputed proof in the case there is a violation of § 17, Title 36, Code of 1940, then such violation constitutes negligence on the part of the plaintiff as a matter of law but it would still remain a question for the jury as to whether violation of the statute proximately contributed to her injury. Newman v. Lee, 222 Ala. 499, 133 So. 10; Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870.
The case of Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355, is not contrary to the principle here stated. In that case there was testimony tending to show that both the plaintiff and the defendant had violated statutory rules of the road. In that case it was a question for the jury as to whether the plaintiff's violation of the statute proximately contributed to his injuries or whether the defendant's violation of either one or both of two other statutes was the proximate cause of the accident.
Holman v. Brady, 241 Ala. 487, 3 So. 2d 30, involved the same principle, it being necessary that before any rights grew out of the violation of the statute, it was necessary for the jury to find from the evidence that such violation proximately contributed to the injuries which were claimed.
Since the case must be reversed further discussion of other assignments of error appears to be unnecessary.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | March 15, 1951 |
d03b3cc8-da36-4596-9241-e74537d33f2f | Edwardson v. State | 51 So. 2d 233 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 233 (1951)
EDWARDSON
v.
STATE.
1 Div. 415.
Supreme Court of Alabama.
March 1, 1951.
Douglas Stanard and Robt. T. Cunningham, of Mobile, for appellant.
Si Garrett, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
BROWN, Justice.
This is the appeal of Lexie Lugenia Edwardson who was indicted by a Grand Jury in the Circuit Court of Mobile County for murder in the first degree, the indictment charging that "before the finding of this indictment Lexie Lugenia Edwardson, whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought, killed Chester Tullous by shooting him with a gun, against the peace and dignity of the State of Alabama." On her trial she was convicted of murder in the first degree and sentenced to suffer death by electrocution. The appeal comes here under the Automatic Appeal Statute. Code of 1940, Tit. 15, § 382(1), Pocket Part.
The defendant before arraignment made motion to quash the indictment on the following grounds, among others: "(7) The defendant was compelled to be a witness against herself before the Grand Jury returning this indictment."
The state did not take issue upon this motion but demurred thereto on sundry grounds, among others, that said indictment is legal and proper in all respect; that the said grounds assigned are not *234 grounds upon which this indictment may be quashed; that this indictment cannot be tested by motion to quash on the ground there was no sufficient evidence before the Grand Jury which returned said indictment; because this indictment cannot be tested by motion to quash on the ground there was no legal evidence produced before the Grand Jury which returned this indictment; because this indictment cannot be tested by a motion to quash on the ground there was no legal evidence to authorize the finding of this indictment; because this indictment cannot be tested by a motion to quash on the ground that the evidence upon which the indictment was based was incompetent and because this indictment cannot be tested by a motion to quash on the ground there was no legal evidence to support the indictment.
The court sustained the demurrer to the motion to quash and the defendant excepted. The effect of the demurrer was to confess as true the facts stated in the motion to quash and the court erred in sustaining the demurrer thereto. The state should not have demurred and if the facts alleged were not true, issue should have been joined and evidence adduced to prove the facts. Hart v. State, 117 Ala. 183, 23 So. 43; Allen v. State, 162 Ala. 74, 50 So. 279; Sparronberger v. State, 53 Ala. 481, 25 Am.Rep. 643. The motion to quash was the proper way to raise the question. Franklin v. State, 233 Ala. 203, 171 So. 245; Thompson v. State, 24 Ala.App. 300, 134 So. 679.
Aside from the alleged "voluntary" confessions procured from the defendant, the evidence against her is entirely circumstantial and tends to show that on the morning of December 27, 1949, the body of the deceased, the fourteen year old son of the defendant, was found in the back room of the house where he usually slept. The house on Monroe Street in the City of Mobile was the home occupied by the defendant and the deceased. It appeared that his death had resulted from a gun shot wound entering the breast. The wound, as testified by Dr. Grubbs, the Toxicologist, was "two and a half inches from the midline of the body at the nipple level, ranging down into the body through the lower lung, the upper end of the stomach into the backbone. This wound was five-eights of an inch in diameter and had about it a powder stain which was two and a half inches in diameter. This stain was determined to be a powder stain by chemical analysis of some of the material from the skin. The wound was in the upper edge of this powder stain, entered the body and ranged downward at an angle of thirty degrees, from the vertical and forty-five degrees from the horizontal and struck the backbone. A portion of the shot remained under the skin at the backbone and three shot went through the tissues to the outer side. This wound was through the major vessels of the liver and the lungs and sufficient to cause death."
The evidence tends to show that the shot was fired from a shot gun loaded with no. 6 shot, three of which passed through his body and were on the inside of his underwear or clothes but the major part of the charge appeared under the skin next to his spine constituting what the toxicologist characterized as a "pone of shot."
The evidence shows that the defendant spent the night of the 26th of December with a friend, a Mrs. Hare, who lives a few blocks away from the defendant's residence and defendant had stated to Mrs. Hare when she went to her house that she was afraid to stay in the house with the deceased, who had threatened to kill her and himself, and shortly before she left the house she discovered the gas in the bathroom had been turned on in full force, that she had heard deceased going in and out of the bathroom several times.
The evidence goes to show that when the defendant returned to her home next morning about nine o'clock the house was closed and locked from the inside and defendant procured the help of the landlady's son Billie Peavy to aid her in getting into the house. He opened a screen of a side window on the back so he could climb through and open the house from the inside. After the doors were opened by Billie, defendant went to the living room in the front of the house, took off her wraps and then went back to the back *235 bedroom where the deceased was found. She then began to scream and she and the boy went on out the front door and back to the home of Mrs. Peavy who lived next door and Mrs. Peavy called the police who soon arrived and began the investigation. The body was lying diagonally across the cot, backside down with feet on the floor. Blood had run down on the cot and on to the floor and on the deceased's clothes. The muzzle of the gun was resting on the cot beside deceased's body with the butt on the floor and the "forearm" was off and on the floor. The police officers took the defendant into custody, carried her to the police station where she made a statement. (This statement was not adduced in evidence.) They released her to arrange for the funeral of the deceased and to attend his burial. The police however kept her under strict surveillance until after the funeral on the 29th of December, when they arrested her and committed her to jail after "docketing" a case against her. Some six days later, after the defendant had been questioned day and night by a number of detectives persistently, they procured from her a full confession, which not only related the circumstances attending the death of the deceased, but gave in detail the history of defendant's life. The confession was procured on the afternoon of January 3rd after a narcotic had been administered to her by the City Physician, Dr. "Hope." The alleged confession was taken by the Administrative Assistant to the Solicitor, William Kerns. Among other things, he testified as follows:
"On the 3rd of January I went over to the Police Department to check the docket for the next morning and I had to see Captain Rollings and there were several cases set and I had to get reports on it, and about three-thirty when I got him out and talked to him he told me to stick around for a few minutes that he wanted me to do something for him, so I went ahead and picked up my reports and checked into them, and about quarter to five Captain Rollings came out and asked me to step in his office, which I did. He and Detective Burch and Mrs. Edwardson were sitting at the desk. He introduced me to Mrs. Edwardson and told her who I was, that I was connected with the Solicitor's Office, and told her that he was preparing to turn his investigation report over to us on the investigation he had made on her, and asked her if she would like to tell anything for her side of it, said I would be glad to take it down, and she said she would, so we started off talking to her and I just sat there and listened and did all the writing and then come on over here and typed it out and brought it back over there and gave it to Captain Rollings. * * *
"Q. And did they threaten her in anyway to get her to say anything, hold out any inducement to her or offer her any reward to get her to state what she did state and you took down and typed and which she signed? A. No sir.
"What were they doing in there?
"A. Mrs. Edwardson was sitting at Chief McFayden's desk, it was in his office, and Captain Rollings was facing her on the other side and I heard him reading it and then I saw the lady check it.
"Q. What time was that? A. That was about three-thirty or quarter of four when I was talking to him."
Police Captain Rollings, testified that he sent the defendant "back there to be given some medicine but he didn't know what it was." Dr. Hope, the City Physician, testified:
"Q. And you treated her on one occasion you testified, what was the trouble with her? A. Well, my recollection is that she was complaining, said she hadn't been able to sleep all night, and I think she said that they sent her to the City Hospital, but that they didn't do anything for her, and she was suffering with cramps, and said she did that every month and she needed something to relieve her so she could sleep a little, she was just all upset, she was in trouble.
"Q. And did you prescribe for her? A. Yes, I think I gave her a quarter of *236 a grain of codeine; I think that is what it was, but I am not sure about that, just gave her a sedative.
"Q. And you gave her two of those, is that correct? A. Yes sir; and
"Q. And did you have any conversation with her? A. Yes, she talked and told me, said something about her troubles, she just couldn't stand it any longer, she was suffering and couldn't sleep.
"Q. How long did you stay with her? A. I wouldn't, four or five minutes, I reckon, something like that.
"Q. And she got to talking after she got A. She was talking then and discussing her case and she had trouble every month with these cramps.
"Q. And after you got through with her did you see Captain Rollings. A. No then she, she was talking and started to tell me and talking about her trouble and I said talk to the officers about that, and so I went down and told them to tell Captain Rollings to go up there and talk with the lady.
"Q. Yes sir; you gave her the codeine and went down and told Captain Rollings to go up and talk with her? A. I told her, I don't remember, I don't believe Rollings was there, I told somebody, I don't recall now who it was.
"Q. Did you tell anyone you had given her those tablets? A. Yes, I think I, whoever I told there, that she was nervous and all and I had given her something to relieve the pain, and she was talkative and they might go up there and talk with her.
"Q. The man you told was Chief Dudley McFayden, wasn't it? A. I don't remember who it was; I think I called, I am not sure, but I called Captain Rollings when I, after I left there
"Q. Yes sir? A. And called him to the phone, I think, now that is my recollection, and told him he might go by there and talk with her.
"Q. Yes, sir; and do you know whether they went by there and talked with her then? A. No, I didn't know until after that, I believe I asked that afternoon; he had sent some of the men there to talk to her. * * *." [Italics supplied.]
During defendant's incarceration she was repeatedly and strenuously questioned by detectives Barclay, Powers, Burch, Captain Rollings and Ralph Jordan. She was carried into the office of the Chief of Police during the questioning and then into the court room where the policemen gathered to answer roll call and Burch questioned her in the court room and while they were in there the entire police force appeared for roll call and he explained to her what their functions were and how the police operated.
Before the alleged confession was made Burch carried her out to a cafe, purchased a meal for her and himself and they sat down and ate at the same table on terms of apparent confidence and social equality. During the time intervening between her incarceration and confession they carried her to the hospital, to the house where the body was found, pointed out to her the gun, made her handle the gun and pull the trigger, showed her a picture of the boy, showing the wound with the blood stains, telling her she was guilty and she might as well confess and get it off of her chest, that they had a strong case against her. On another occasion one of the detectives sent out and got for her a coca cola and sandwich, which they gave her. But not until she was treated by Dr. Hope on the 3rd day of January, the sixth day after her arrest, did she make the alleged confession.
During the course of her interrogation and before such alleged confession was made, she was confronted by one Simpkins, an old man who was in jail for drunkenness, who accused her of offering him $200.00 to kill this boy, which she emphatically denied and denied ever knowing or seeing Simpkins.
In the case of Kelly v. State, 72 Ala. 244, 245-246, decided by this court constituted of Brickell, Chief Justice, Stone and Somerville, JJ., the court observed:
"The confession made by the prisoner to the witnesses Cornutt and Lawler, should, *237 in our opinion, have been excluded as evidence. True, it is stated by these witnesses, that they made no threats, or promises, by which to educe such confessions. This, however, is but the statement of a mere opinion, and not of a fact, as the evidence imports otherwise. The witness Lawler testifies as follows: `I said to him (defendant), "You have got your foot in it, and somebody else was with you. Now, if you did break open the door, the best thing you can do is to tell all about it, and to tell who was with you, and to tell the truth, the whole truth, and nothing but the truth." I wanted to produce the impression on his mind, that it was best for him to tell us about it [and] I did produce that impression before he would tell me.' This was said in presence of the witness Cornutt, who, as constable, held the defendant under arrest at the time.
"It is no doubt the sounder doctrine, that a mere adjuration to speak the truth, addressed to a prisoner, will not authorize a confession induced by it to be excluded, where no threats or promises are applied. Whart.Cr.Ev. §§ 647, 652, 654; Aaron v. State, 37 Ala. 106. Nor can a promise, or inducement, be implied from the exhortation that it is best or better to tell the truth, it having been frequently so adjudged.King v. State, 40 Ala. 314; Aaron's case, 37 Ala. 106; Whart.Cr.Ev. § 647; 2 Lead.Cr.Cases, 189. But the rule is otherwise, where the party has been told, by a person in authority, that it is better for him to confess, or that he will be bettered by saying a particular thing. I Phil.Ev. 4th Amer.Ed. 542-3; Whart.Cr.Ev. §§ 651, 654; 1 Whart.Amer.L. § 686.
"The exhortation to the prisoner did not stop with adjuring him to tell the truth, or only with telling him that the best thing he could do was to tell all about it, in the event he was guilty of the breaking. It goes further, by assuming his guilt, and by assuming also that the prisoner was accompanied by one or more accomplices; and he is told, in effect, that it would be best for him to tell all about these assumed facts. The manifest impression produced on the prisoner's mind must have been, that he would, in some unknown manner, fare better by confessing his guilt of the crime of burglary; and this inducement vitiates any confession evoked under its influence. Whart.Ev. § 651; State v. York, 37 N.H. 175; Vaughan v. Com., 17 Grat. 576; Clark's Man.Cr.L. § 2948.
"If we are to understand from the bill of exceptions, that the confessions testified to by the witness Lawler, in detail of the alleged burglary, followed the above inducement, or were elicited by it, as we think is its correct construction, these confessions were improperly admitted to go before the jury."
In Jackson v. State, 226 Ala. 72, 145 So. 656, 662, it was observed:
"While the law abhors murder, and provides every legitimate means humanly possible to bring the manslayer to justice, it does not tolerate questionable practices by persons in authority of procuring evidence, and excludes as evidence extrajudicial confessions of guilt made under the pressure of fear or hope in respect to the alleged crime. The true grounds upon which the rule rests `is, not because any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.' Commonwealth v. Morey, 1 Gray (Mass.) 461; Wilson v. State, 110 Ala. 1, 20 So. 415, 55 Am.St. Rep. 17; Bullock v. State of New Jersey, 65 N.J.Law, 557, 47 A. 62, 86 Am.St.Rep. 668; Commonwealth v. Cuffee, 108 Mass. 285; People v. Wolcott, 51 Mich. 612, 17 N.W. 78; Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A.(N.S.) 768, and note page 772, 92 Am.St.Rep. 607.
"And the rule of our decisions is that confessions are presumed to be involuntary, and are prima facie inadmissible, and the burden is on the state to show that they are voluntary. Redd v. State, 69 Ala. 255; Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am.St.Rep. 682; Campbell v. State, 150 *238 Ala. 70, 43 So. 743; Cook v. State, 16 Ala.App. 390, 78 So. 306."
In Watts v. Indiana, 338 U.S. 49, 69 S. Ct. 1347, 1350, 93 L. Ed. 1801, the Supreme Court of the United States, speaking through Justice Frankfurter, said:
"A confession by which life becomes forfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure which is his constitutional right. To turn the detention of an accused in to a process of wrenching from him evidence which could not be extorted in open court with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.
"This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial as opposed to the inquisitorial system. * *"
And in Ward v. State of Texas, 316 U.S. 547, 62 S. Ct. 1139, 1143, 86 L. Ed. 1663, the court, speaking through Justice Byrnes, observed: "This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subject to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. (Citing authorities.) Any one of these grounds would be sufficient cause for reversal. All of them are to be found in this case."
After careful and thorough examination of the testimony given on the voir dire, we are at the conclusion that the state failed to overcome the presumption that said alleged confessions received in evidence over repeated objections of the defendant's counsel, were involuntary and that the circuit court committed reversible error in admitting the same. We are convinced that said confessions were caused by the constant, coercive and repeated interrogation of the defendant while she was ill, under pressure and under the influence of narcotics. 22 C.J.S., Criminal Law, § 817, subsec. (3), P. 1435.
It was not permissible for the witness Dr. Grubbs, though qualified as an expert, to testify that if the gun was held in a certain position when fired the shots would or would not have taken the course they did take in the body of the deceased. Under the evidence adduced this was a question for the jury. Landham v. Lloyd, 223 Ala. 487, 489, 136 So. 815; Roan v. State, 225 Ala. 428, 432, 143 So. 454; Blackburn v. State, 22 Ala.App. 561, 117 So. 614; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Louisville & Nashville R. R. Co. v. Manning, Ala., 50 So. 2d 153.
The court, therefore, erred in overruling the defendant's objections to questions eliciting such testimony from said witnesses.
For the errors pointed out the judgment of conviction rendered against the defendant is reversed and the cause is remanded.
In view of this result and the trial to follow this reversal, we deem it not improper to observe that much evidence was offered touching the excellent qualities, conduct and habits of the deceased in the neighborhood where he lived and his pleasant associations with his neighbors and friends, which was wholly immaterial to the issues of the case. Likewise, evidence was received reflecting on the defendant and her habits of frequenting beer drinking *239 places and associating with seamen, which was not relevant to any issue raised. Much of this testimony was received without objection and should not be allowed on another trial.
For the errors noted the judgment of the circuit court is reversed and the cause is remanded. The defendant will remain in custody until lawfully discharged.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER, SIMPSON and STAKELY, JJ., concur.
LAWSON, J., concurs in the result. | March 1, 1951 |
e98d18df-be5b-4fc7-9377-d40ec0f2f190 | Thomas v. State | 53 So. 2d 340 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 340 (1951)
THOMAS
v.
STATE.
6 Div. 177.
Supreme Court of Alabama.
June 14, 1951.
*341 Jack McGuire, Tuscaloosa, for appellant.
Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.
BROWN, Justice.
Neither the statute, § 1, Gen.Acts 1943, p. 423, Code 1940, Tit. 7, § 827(1), nor Rule 48 of Supreme Court Practice supplementing the statute, contemplate that the original transcript of the testimony and incidents of the trial made by the court reporter from the stenographic notes shall be embodied in the record on appeal. That transcription serves its purpose when it is completed and filed with the clerk of the court within the time prescribed, "within a period of 70 days from the date of trial or date on which motion for new trial shall have been acted upon by the court", duly authenticated by the reporter's certificate as to its correctness and that notice thereof has been given by the reporter to the parties or their attorneys of record. Code of 1940, Tit. 7, p. 137, Pocket Part; Rule 48, Supreme Court Practice.
The rule and the statute contemplate that the clerk of the court shall copy said original transcription, the verification thereof and any objections made thereto and the ruling of the Judge thereon and all other original papers filed in said case, together with the minutes and judgment, and verify the same by his certificate under the seal of the court, and as so verified such transcript constitutes the record on appeal. Code of 1940, Tit. 7, §§ 767, 768, 769.
The contention of the attorney general that the transcript of the record in this case is irregular and can be considered only to review "the record proper" because the certificate of the court reporter appears in the record as transcribed by the clerk and is not the genuine signature of the court reporter, is without merit. Chapman v. State, 249 Ala. 30, 29 So. 2d 286; West v. Givens, 246 Ala. 395, 20 So. 2d 710. In the cases cited there was noncompliance with the rule and the statute by failure of the reporter to place his certificate on the original transcription of the testimony and file it with the clerk. Hence it did not become a part of the files to be transcribed by the clerk of the court as a part of the record on appeal.
This appeal is by the defendant from a judgment of conviction of murder in the *342 second degree and a sentence to the penitentiary for life entered following his second trial under the indictment for murder in the first degree. Such punishment, if the facts in the case warranted the defendant's conviction, was within the discretion of the jury. Miller v. State, 54 Ala. 155; Scott v. State, 211 Ala. 270, 272-273, 100 So. 211.
The judgment entry recites: "This day comes J. Monroe Ward, as Solicitor who prosecutes for the State, and comes also the defendant in his own proper person and by attorney in open court. The Solicitor, who prosecutes for the State, and the defendant's attorney in open court having agreed that the defendant was heretofore tried under the indictment herein and a verdict of conviction of Murder in the Second Degree rendered, the verdict having been set aside and a new trial granted that by operation of the law the defendant has been acquitted of Murder in the First Degree; that the defendant is now being put to trial for Murder in the Second Degree under the indictment herein, and the defendant having heretofore been duly arraigned on March 14, 1949, and having on that day plead not guilty and not guilty by reason of insanity comes now also in his own proper person and by attorney. Thereupon came a jury of twelve good and lawful men, towit: * * *."
The second trial was entered upon without following the usual and correct practice of rearraignment of the defendant, explaining to him the effect of the verdict on the first trial and his right to plead acquittal of murder in the first degree. Stephens v. State, 254 Ala. 50, 46 So. 2d 820; Howard v. State, 165 Ala. 18, 29, 50 So. 954; Crawford v. State, 112 Ala. 1, 17, 21 So. 214; 8 R.C.L. p. 107, § 70; 8 R.C.L. p. 108, §§ 72-74. "When the defendant in a felony case is arraigned he is brought to the bar to plead in person, and it is quite generally held that a plea by his attorney will be considered a mere nullity, except a plea of not guiltywhich plea cannot injure his client. * * *." 8 R.C.L. p. 109, § 74; Note: 13 L.R.A.,N.S., 814; 14 Am.Jur. p. 939, §§ 249, 259.
If the scope of the indictment has been changed by amendment or otherwise, the defendant should not be put on trial without rearraignment. 14 Am.Jur. p. 941, § 253. If the accused fails to plead autrefois acquit as to murder in the first degree, he waives his immunity from a second prosecution for the higher offense. 14 Am. Jur. p. 945, § 261; Stephens v. State, 254 Ala. 50, 46 So. 2d 820.
While there is apparent conflict in our cases as to the effect of granting a motion for new trial by the trial court, see Reynolds v. State, 1 Ala.App. 24, 55 So. 1016; Savage v. State, 12 Ala.App. 116, 68 So. 498, the weight of authority and the best considered opinions hold that where there is a trial on the merits under a valid indictment for murder in the first degree and a new trial is granted on appeal or on motion for new trial, the conviction for a lesser offense embraced in the indictment furnishes the basis for a plea ofautrefois acquit of the higher offenses, if pleaded on a subsequent trial. Stephens v. State, supra; Berry v. State, 65 Ala. 117; Ex parte Spivey, 175 Ala. 43, 57 So. 491; Fields v. State, 52 Ala. 348; Mitchell v. State, 60 Ala. 26; Smith v. State, 68 Ala. 424; De Arman v. State, 71 Ala. 351; Sylvester v. State, 72 Ala. 201; State v. Standifer, 5 Port. 523; 6 Alabama Digest, Criminal Law.
The statute provides and the law contemplates that all pleas in criminal cases, except pleas of guilty, not guilty, and not guilty by reason of insanity be in writing and filed by the clerk of the court. Pleas of guilty and not guilty and not guilty by reason of insanity may be pleaded orally or in writing. Code of 1940, Tit. 15, § 278 et seq.; Crawford v. State, 112 Ala. 1, 21 So. 214.
The statute requires that the defendant be arraigned and be advised by the court as to the nature and substance of the charge against him and, in cases of indictment for charges of felony, that the defendant be called on to plead in person. Howard v. State, 165 Ala. 18, 28, 29, 50 So. 954; Code of 1940, Tit. 15, §§ 278-288.
Where, as here, the legal effect of the indictment has undergone a change by reason of the defendant's previous *343 trial, the better practice would be to rearraign the defendant and call on him to plead before the selection of a jury for his trial under the indictment. Linnehan v. State, 116 Ala. 471, 22 So. 662. The statute does not except a plea of not guilty by reason of insanity for which provision is made by §§ 423, 424, Tit. 15, Code of 1940; Tit. 15, §§ 278-288, p. 461, Form 10. The general practice of the nisi prius courts has long been to allow such plea to be interposed orally and entered of record with the plea of not guilty on arraignment. Garrett v. State, 248 Ala. 612, 29 So. 2d 8.
The evidence is without dispute that appellant was regularly employed by Johnnie Wheat, a lumberman, a person other than Jack Wheat alleged in the indictment to have been killed by the appellant. The appellant had a room in the home of Georgia Crim at 1415 15th Street in Tuscaloosa, Ala., in the sawmill district, where he had lived for four years. The evidence shows that the house was what is ordinarily referred to as a "shotgun house", in the Negro residential district, consisting of three small rooms of about the same size, in juxtaposition one after the other. The appellant's bedroom was the first room, with a single door which faced 15th Street, in which were two beds, one occupied by appellant, at the side of which was a dresser which the defendant used. The other bed on the morning of December 6, 1948, was occupied by some of the children of the family of Georgia Crim. The next and middle room was occupied by Georgia Crim and the back room was used for kitchen and dining room. The evidence shows that the defendant Thomas, who had been on the road with a load of lumber or timber, reached his bedroom about 2 A.M., December 6, 1948, had retired and was asleep when the deceased appeared on the scene, before daylight.
The deceased, as the evidence shows, was and had been for a number of years in the short loan business and had made a loan to the defendant of twenty dollars on which, as the evidence goes to show, he had made no payments, and Wheat, the deceased, had been searching for him and had made threats to kill the "black s. o. b. when he found him." These threats had been communicated to the defendant.
On the morning of the rencounter at the home of Georgia Crim the deceased left his home in the early morning with a number of accounts of like character, among others one against Annie May Crim, whose residence was endorsed on her card as 1415 15th Street. Deceased went to the address, as above stated, before daylight, armed with a pistol, rapped on the door, aroused Georgia Crim and asked if Alfred Thomas was in, or was there. Georgia asked who was making the inquiry and was informed by the deceased, that it was "Mr. Wheat." Georgia woke the defendant and told him that Mr. Wheat wanted to speak to him and Thomas got up in his night clothes and went to the door and "just kind of half cracked the wooden door open, and Wheat said to Alfred, `Come out. I want to talk to you.' So Alfred spoke, he said, `I can't come out. I am in my night clothes. I can't come out.' He said, `Well, what do you want?' He said, `When are you going to bring my money up there,' like that. He said, `Some time this morning. After the office opens I will get it and bring it up there.' He said, `Is you right sure you will bring my money up there?' He said, `Yes, sir, if I don't bring it I will send it by my boss man', like that. He said, `You could have done paid that little money, but you just laying around telling a God damn lie, you God damn black son of a bitch. I am a good mind to kill you.' And he shot twice (through the wooden door shutter into the house). After he shot twice, Alfred, then he walked towards the dresser, and he walked back towards the fireplace, and then he shot, made two shots, and then he (Wheat) made two more shots, and the fire, I could just see the fire spring from the pistol shot. Then I commenced screaming and hollering. I said, `White folks, don't kill me in here. There ain't anybody here but me and my children. Don't kill me and my children.' Well, I was hollering and screaming so loud, then everything quietened down, and then Alfred started out the door, and when he started out the door, I said, `Alfred, Alfred, please don't *344 go out there.' I said, `Alfred, he will kill you out there.' So he walked right on out the door. By that time I got up, but I was so scared and nervous. I got up and kind of made it to the door. When I made it to the door, I cracked the door and looked out, but I didn't see Alfred nowhere, and this black car, what I took to be his (Wheat's car), it was turning around right in front of the house, and drove on back this way, like he was coming to Queen City, kind of slow, driving along slow. * * *." [Italics and parenthesis supplied.)
The defendant's evidence further goes to show that after deceased fired the last two shots into the house, deceased walked to his automobile which had been parked nearby, and drove it through the City of Tuscaloosa, a distance of more than a mile, to the police station. The hospital was near the place where he was shot and on the same street. He entered the police station, gave his pistol to the officers and there stated in the presence of three officers that Alfred Thomas, the defendant, had shot him and that he, deceased, had shot four times. The deceased made other statements at the police station as to how the shooting occurred, the address, and his purpose in going there. All of the conversation of the deceased was admitted in evidence, although the defendant was not present at the time the deceased made the statements to the officers. The deceased remained at the police station 15 or 20 minutes and was taken to the hospital. It was not yet daylight at this time and he lived on into the following day. He made no statement to his wife or to the doctor indicating his belief that he was about to die, although he talked with them, and he made no further statement with reference to the facts of the shooting, other than the statements made at the police station. Deceased lived about 20 hours after the shooting. At the police station the deceased was bleeding freely and was perspiring. He made no complaint of suffering pain but appeared to be shocked.
The trial court permitted all the conversation of deceased with the police officers to be offered in evidence on the theory that it was a dying declaration. The court permitted the police officers to testify that the deceased stated that the defendant shot deceased and shot first. There were no statements made by the deceased that indicated he was in "extremis" or that death was impending or that he had no hope of life or hope of recovery. The deceased, while discussing with officers the details and identity of his assailant stated, "I believe he got me." There were no further words to indicate what deceased meant by that statement and that statement was the only statement in the way of a predicate that the state was able to show.
The testimony of the defendant was in substance the same as that of Georgia Crim and was corroborated by other witnesses examined by the defendant and the photographs of the front door of the house opening into the defendant's bedroom showing bullet holes through the screen door and the door shutter and the only material conflict in the evidence was the statement in the declaration of the deceased made at the police headquarters to the three officers at headquarters when deceased drove up and got out of his car and walked in and told the officers about the shooting, in which he is alleged to have stated that defendant fired the first shot, was admitted in evidence over timely objections of the defendant and to which he reserved exceptions.
One of the major questions presented is as to the sufficiency of the predicate on which the statement was admitted as a dying declaration by the deceased. The substance of the testimony offered to show that said statement was made by the deceased under a consciousness of impending death goes to show that deceased arrived at headquarters about 5:30 o'clock in the morning on December 6, 1948 and when he walked in the station one of the officers, Mr. Morrison, noted blood running down his left side, that deceased made a statement as to what had happened and as to how it happened and said, "I believe he got me." The testimony shows that he was wounded at the time and that deceased said he had been shot. At the time these *345 statements were made deceased was standing up, leaning on the counter and the witness testified, "You could tell he was weak; that the perspiration was popping out over his forehead and face * * * he was a little pale or white."
Witness was asked, "Did he appear to be suffering at the time, Mr. Morrison?
"A. Yes, sir.
"Q. Did he make that statement shortly after he entered police headquarters door there? A. Yes, he hadn't been there long but just a short time when he made the statement, `I believe he has got me.'
"Q. Now tell us what he said, then, there on that occasion if he said anything with reference to having been shot, what did he say about that? A. Now you better ask me the question again. Let me get it clear.
"Q. Just tell us what he said there on that occasion, if anything, with reference to having been shot, or how he got shot, or who shot him? Just what did he have to say about that? A. He told who shot him.
"Q. Who did he say shot him? A. Alfred Thomas.
"Q. Alfred Thomas? A. Yes, sir.
"Q. Did he tell you where the shooting took place? A. Yes, sir.
"Q. Do you recall the address he gave you? A. I am pretty sure, 1415 15th Street. I know it was on 15th Street.
"Q. Did he say how the shooting occurred, Mr. Morrison? A. Yes.
"Q. What did he say about how the shooting occurred? A. He said he knocked on the door, and I can't remember the name of the woman that lived there * * *
"Q. It was Annie May? A. And he said she started to answer the door and he told us that Alfred said he would answer the door.
"Q. She started to answer the door, and then he heard Alfred say, `I will answer the door?' A. I will answer the door, and when he opened the door he opened fire.
"Q. What else did he say on that occasion? A. He said he was hit and then returned the fire."
On cross examination Morrison testified that the deceased didn't know, to be exact, how many times he shot, and that when deceased was placed on the stretcher brought by the ambulance he "told me to raise him up, he couldn't lie down," and repeated, "I believe he got me."
The testimony of the other witnesses offered by the state to show the declaration of the deceased was in all things in substance the same as the witness Morrison. One of the police officers at the station when Wheat came in called for the ambulance and he did not hear all of the deceased's statement. Deceased made no objection or protest about being carried to the hospital and made no request for medical aid. The evidence shows that deceased lived until the next morning and died between two and three o'clock; that he remained conscious until a short time before his death and did not complain of suffering and made no further statement about the shooting to either the doctor in attendance or to his wife, who were with him until death.
While said statement, "I believe he has got me," considered in the light of the circumstances shown by the evidence connotes that deceased probably considered the wound serious, it falls far short of showing that the statements testified to were made under a consciousness of approaching death, impending at the time, "sufficient to dispel from the mind all motive for making a false statement, in view of the fact that the party recognized the fact that he should soon appear in the presence of his Maker." Parker v. State, 165 Ala. 1, 8, 51 So. 260, a fact essential to the admissibility of such statement as a dying declaration, to bring it within the exceptions to the rule against hearsay testimony. The following authorities illustrate the necessity that the declarant must be conscious of impending death: Justice v. State, 99 Ala. 180, 13 So. 658; Titus v. State, 117 Ala. 16, 23 So. 77; Blackburn v. State, 98 Ala. 63, 13 So. 274; Pulliam v. State, 88 Ala. 1, 6 So. 839; *346 Young v. State, 95 Ala. 4, 10 So. 913; Hammil v. State, 90 Ala. 577, 8 So. 380; Kilgore v. State, 74 Ala. 1; Sims v. State, 139 Ala. 74, 36 So. 138; Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560; Culberson v. State, 22 Ala.App. 493, 117 So. 397; Parker v. State, 165 Ala. 1, 8, 51 So. 260; Shikles v. State, 31 Ala. App. 423, 18 So. 2d 412; Cole v. State, 105 Ala. 76, 16 So. 762; Phillips v. State, 3 Ala.App. 218, 57 So. 1033; Patillo v. State, 245 Ala. 192, 16 So. 2d 303; Moomaw v. State, 23 Ala.App. 125, 121 So. 904; Parker v. State, 24 Ala.App. 72, 130 So. 525; Ratliff v. State, 19 Ala.App. 505, 98 So. 493; Gissendanner v. State, 18 Ala.App. 199, 89 So. 835; Fonville v. State, 91 Ala. 39, 8 So. 688; Evans v. State, 209 Ala. 563, 96 So. 923; Dumas v. State, 159 Ala. 42, 49 So. 224; Johnson v. State, 102 Ala. 1, 16 So. 99; State v. Meyer, 86 Am.St.Rep. 638 for annotation.
The evidence goes to show that deceased was more interested in reporting the rencounter and having Thomas apprehended that he was for medical aid on account of his wounds.
The state relies on Marshall v. State, 219 Ala. 83, 121 So. 72, 73, 63 A.L.R. 560. We note in that case the doctor was called to administer medical aid to the deceased. In that case the doctor testified: "When I went in he (deceased) said, `Doctor, she has got me.' I said, `Who got you, Mr. Marshall?' He said, `My wifeI was lying on the cot asleep, with my face to the wall: I heard the report of the gun and I turned over, and felt something hot running down my backwhen I turned over I fell off the cot.' I said, `Mr. Marshall, I can do nothing for you here, I will have to take you to the hospital.' He said, `I think it is unnecessary.' I said, `It is the thing to do.' He said, `Yes, take me to the hospital.'" This testimony showed that at the time the statement was made the deceased was under conscious belief of impending death and that hospitalization was unnecessary. The mere fact of the insistence of the doctor that the thing to do was to take deceased to the hospital, may have inspired some hope in deceased's mind, did not change the fact that when the deceased made the statement he had the conscious belief that treatment was useless. Not so in this case. The facts above stated differentiate the Marshall case from this.
We are, therefore, of opinion that the court committed reversible error in permitting the statement of the deceased in evidence as a dying declaration. The statement was objectionable as hearsay, which objections were specifically and strenuously made, accompanied by motion to exclude, all of which were overruled by the court and exceptions reserved by the defendant.
The evidence is without dispute that the defendant was in his own bedroom, rented by him for occupancy as such, and said room for the purpose of self defense was his castle. The law regards with jealousy the peace and security of the dwelling. A trespass upon it is more than a trespass on property. It is a trespass upon the person. Crawford v. State, 112 Ala. 1, 21 So. 214; Harris v. State, 96 Ala. 24, 11 So. 255. One who intrudes or trespasses upon a dwelling with felonious intent or in such manner as to create a reasonable belief in the mind of the occupant that such is his purpose, may be killed, and the homicide will be in self defense. Crawford v. State, 112 Ala. 1, 21 So. 214; Christian v. State, 96 Ala. 89, 11 So. 338; Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am.St.Rep. 17.
Therefore, after full and careful consideration of the testimony in this case, including the declaration of the deceased admitted in evidence as a dying declaration, we are of opinion that the verdict of the jury is against the great weight of the evidence and should not be allowed to stand.
We are further of the opinion that so much of the observation of Chief Justice Anderson in Goldsmith v. State, 232 Ala. 436, 168 So. 547, 548, as follows, is here pertinent and applicable:
"* * * Had all these parties been of the same race, or if conditions had been reversed, we feel sure that there would *347 have been a different verdict and that the present one was actuated by passion or race prejudice; not perhaps from corrupt motives, but from an inborn and uncontrollable antagonism between the two races, when a negro kills a white man or when a white man kills a negro; an antagonism which seldom exists in the administration of justice by the strong to the weak for the commission of most other offenses."
We are, therefore, of opinion that the court erred in overruling the defendant's motion for new trial and for this and the other errors noted, the judgment of conviction and sentence is reversed and the cause will be remanded.
Reversed and remanded.
FOSTER, J., concurs.
LIVINGSTON, C. J., and SIMPSON, J., concur in so much of the opinion as holds that the predicate for the admission of the alleged dying declaration of the deceased was insufficient to warrant its admission in evidence, that the verdict of the jury was contrary to the great weight of the evidence, that the court erred in overruling the motion for new trial and that for these errors the judgment of conviction and sentence should be and is reversed and the cause remanded. | June 14, 1951 |
0150f52b-935b-48ab-b428-512026ca1344 | State v. Brooks | 53 So. 2d 329 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 329 (1951)
STATE
v.
BROOKS et al.
7 Div. 95.
Supreme Court of Alabama.
May 24, 1951.
Rehearing Denied June 28, 1951.
*330 Si Garrett, Atty. Gen., and H. Grady Tiller and Wm. H. Burton, Jr., Asst. Attys. Gen., for appellant.
Merrill, Merrill & Vardaman, Anniston, for appellees.
STAKELY, Justice.
This case involves the power of the Board of Compromise under § 12, Title 55, Code of 1940. The case comes here on appeal from a decree of the equity court sustaining the demurrer of Virgil Brooks and others, appellees, to a bill of complaint as last amended filed by the State of Alabama, appellant.
The bill was filed by the State of Alabama to foreclose and enforce against the property of Virgil H. Brooks a tax lien in favor of the State of Alabama. A certificate thereof was duly filed by the State of Alabama on June 21, 1945, in the office of the judge of probate of Calhoun County, Alabama. The amount secured by the tax lien was fixed and became determined in six final assessments of sales taxes which were made by the State Department of Revenue against Virgil H. Brooks on *331 March 21, 1944. The total amount of the lien in favor of the State as fixed and determined by the aforesaid final assessments of sales taxes aggregated the sum of $4,555.37 with interest.
The appellees W. M. Pippin, F. D. Norman, H. D. Holland, O. M. Casey, and the Commercial National Bank of Anniston are alleged to be the apparent owners and holders of certain mortgages and liens on the property of Virgil Brooks. All of these mortgages and liens are described in detail in the bill of complaint and all of them are recorded in the office of the judge of probate of Calhoun County, Alabama. It is alleged that most if not all of these mortgages and liens or the indebtedness secured thereby have now been paid in full and in cases where they have not been paid in full they have at least been paid in substantial part. It is alleged that entries should be made on the records where these instruments are respectively recorded showing that the mortgage or lien has been paid in full or showing the partial payments thereon. It is further alleged that Virgil H. Brooks and his wife, Gladys Brooks, and some of the lien holders and mortgagees have schemed together to defeat the State of Alabama in foreclosing its tax lien by not satisfying the same on the record where the same have been paid or by not making entries of partial payments where such partial payments have been made.
It is further alleged that the appellant on September 10, 1945, and on subsequent dates has had issued writs of execution on said final assessments which were directed to the sheriff of Calhoun County, Alabama, and which ordered him to levy on the property of Virgil H. Brooks in order to satisfy the aforesaid final assessments and that on all of said occasions the sheriff has returned the executions "no property found," with the explanation that he could not carry out the writs of execution because of the liens and mortgages against the property of Virgil H. Brooks held by the aforesaid parties and because, as appeared from the record, they constituted liens on the property of Virgil H. Brooks superior to the tax liens of the State.
It is further alleged that the Board of Compromise, purporting to act as authorized by § 12, Title 55, Code 1940, on a petition filed by Virgil H. Brooks, entered an order January 13, 1947, containing among other things the following:
"That on, towit, April 15, 1944, the petitioner filed notice of appeal from said final assessment in the Circuit Court of Calhoun County, Alabama, in equity, but was unable to raise the required supersedeas bond in order for him to perfect his appeal, and upon motion of the State Department of Revenue said appeal was dismissed and petitioner was denied a hearing on the merits of his appeal in the Circuit Court of his residence.
"It further appears from said petition that the petitioner conducted a retail as well as a wholesale business, and that for sales tax records he kept separate records on his wholesale and retail transactions, and that on, to-wit, the 18th day of February, 1943, petitioner's place of business was destroyed by fire and all his records were destroyed.
"It appears that petitioner now offers the sum of $250.00 in full and complete settlement of this sales tax assessment.
"The Board is of the opinion that this claim is doubtful of collection, and is of the further opinion that this offer of settlement of $250.00 should be accepted.
"It is therefore, ordered, adjudged and decreed by the Board that the State Department of Revenue be and it hereby is authorized and directed to compromise and accept this sum of $250.00 in full and complete settlement of all sales tax claims which it has against the said Virgil H. Brooks accruing between the period of January 1, 1939, and December 31, 1942."
The petition which Virgil H. Brooks filed to the Board of Compromise and pursuant to which the foregoing order was entered, shows that he filed notice of appeal from the final assessments in the circuit court of Calhoun County, in equity, and in view of the provisions of § 140, Title 51, Code 1940, he was required to make a supersedeas bond in double the amount of the assessments, to wit, $9,200. *332 The petition also contains the following: "Your petitioner further avers that he was unable to make such a bond or to pay the amount of the assessments, and for this cause his appeal to the Circuit Court of Calhoun County was, upon motion of the State Department of Revenue, dismissed and your petitioner was denied a hearing on the merits of his appeal in the Circuit Court of his residence."
The petition also contains allegations in substance that he had a meritorious defense to the assessments; that during the period covered by the assessments he kept his wholesale and retail records separately; that on February 18, 1943, his place of business caught on fire and his records were destroyed and that but for such fire he would be able to show conclusively the exact amount of his wholesale sales and to show that he had paid all sales taxes due by him; and that in truth and in fact he is not indebted to the State of Alabama for sales taxes.
It is alleged in the bill of complaint that the order of the Board of Compromise is beyond the powers of the Board of Compromise and is void; that Virgil H. Brooks was solvent at the time of the alleged determination of the Board of Compromise and has sufficient assets to satisfy the claim due the State of Alabama; and further that the attempted compromise by the Board is void under § 100 of the Constitution of Alabama of 1901.
Under § 883, Title 51, Code of 1940, it is provided that if any person liable to pay any tax, other than ad valorem taxes, neglects or refuses to pay the same, the amount of the tax including any interest and the other items set forth in the statute, shall be a lien in favor of the State of Alabama upon all property and the rights to property, real or personal, belonging to such person. It is further provided that such a lien shall not be valid against any mortgagees, purchaser or judgment creditor until after the time a notice thereof has been filed by the department of revenue or other agency of the state or county in the office of the judge of probate of the county in which such property, real or personal, is located. It is further provided that the department of revenue or other agency of the state or county with whom the assessment list, return or to whom the payment of the tax was due to be made or paid may file in the office of the judge of probate of any county in the state a certificate which shall show, among other things, the amount and nature of the tax for which a lien was claimed, the names of all persons against whose property a lien for such tax is claimed and the date thereof. Under § 1, Title 33, Code of 1940, it is provided that any lien may be enforced in the manner provided by statute, if so provided, or in equity or by attachment for enforcing liens or by any similar mode or remedy existing at common law. In Wise v. State, 208 Ala. 58, 62, 93 So. 886, 889, it was pointed out that the remedy provided by statute for the sale of property for taxes through the probate court was not exclusive and that in a proper case there is no reason why the statutory tax lien should not be enforced in equity, the court observing: "* * * though a court of chancery is given the concurrent jurisdiction generally to enforce liens under the statute * * *, yet it will not be done if shown to that court that the exercise of jurisdiction would result in a conflict of jurisdiction with the probate court, or court of county commissioners or board of revenue of the county * * *."
The bill in the present case shows a need for the intervention of a court of equity. Other existing liens on the property are alleged or are alleged apparently to exist and according to the allegations of the bill at least some of these liens appear to be liens prior to the lien which the state may have under § 883, supra. The power of the equity court is needed to declare and adjust the priorities alleged to exist among conflicting lien holders. Wise v. State, supra; Wade v. Kay, 210 Ala. 122, 97 So. 129; Griel Brothers Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692.
The original bill filed by the State of Alabama contained no mention of the order made by the Board of Compromise which has been hereinabove referred to. Virgil *333 Brooks demurred to the original bill and without waiving the demurrer answered the original bill by setting up the order of the Board of Compromise showing that the claim of the State had been reduced by the order of the Board of Compromise to $250.00 and alleging that the State was without authority to collect or recover from him any sum in excess of $250.00, the amount fixed by the Board of Compromise in settlement of the claim of the state. The answer contains the following: "Said respondent Virgil H. Brooks hereby offers to do equity by paying said sum of $250.00 into court and tenders the same as the full amount due under said judgment, order and decree of the State Board of Compromise."
The State of Alabama amended its original bill by allegations alleging in effect that the order of the Board of Compromise was void and beyond the powers of the Board of Compromise under § 100 of the Constitution of Alabama of 1901, as has been hereinabove set forth. The state attached to its amended bill the order of the Board of Compromise.
Virgil H. Brooks thereupon demurred to the bill of complaint as last amended and the court sustained the demurrer.
The bill of complaint as last amended contains no allegations showing payment of $250.00 into court or the tender thereof and so the question presented is not whether the State has a lien against the property of Virgil H. Brooks, but whether the amount of such lien has been reduced from the original amount to the sum of $250.00. It is the contention of the appellees that the order of the Board of Compromise is valid while on the other hand the State insists that the order of the Board is beyond the power of that Board under § 100 of the Constitution of Alabama of 1901.
In Re Opinion of the Justices, 251 Ala. 96, 36 So. 2d 480, the Justices of this court gave as their opinion that where there is a final tax assessment made by the Department of Revenue against a solvent taxpayer for a tax duly authorized and after proper notice, such final tax assessment is not a doubtful claim within the meaning of § 100 of the Constitution and cannot be released, diminished or compromised. On the other hand, the Justices pointed out that the Board of Compromise does have the authority to compromise a final tax assessment against an insolvent taxpayer where the assessment thereof is doubtful of collection. In other words, if there is doubt as to its collectibility by reason of the financial condition of the taxpayer or his lack of assets sufficient to discharge the lien of the State, the claim can be compromised; but if the doubt lies in the ability of the State to establish its claim because of meritorious defenses which the taxpayer may have against the claim, then the claim cannot be compromised, released or diminished.
This brings us to the pivotal point in this case. How far can this court now go in considering the order of the Board of Compromise and what meaning or effect should now be given no its order?
Section 12, Title 55, Code 1940, authorizes the Governor, Attorney General, and Auditor to adjust, compromise, and settle on such terms as to them may seem just and reasonable any claim of the State as described in the statute. This includes claims arising under the revenue laws. Opinion of the Justices, supra. This so-called Board of Compromise is an administrative body with quasi judicial powers. It is obviously a board of special and limited jurisdiction and therefore its records must affirmatively show every fact which is necessary to confer jurisdiction. Bowden v. State, 19 Ala.App. 377, 97 So. 467.
It is an accepted principle that "The rule which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers." 50 C.J.S., Judgments, § 690, page 148. Furthermore, "When the record discloses that the fact on which the jurisdiction depends has been ascertained the determination is res adjudicata and *334 cannot be questioned." Bowden v. State, supra, 19 Ala.App. 379, 97 So. 467, 469. Of course, we are not considering the right of review as where certiorari has issued to make a limited review of the quasi judicial acts of an administrative board. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So. 2d 148. Nor is the effort here to impeach for fraud the order of the Board of Compromise by a bill in the nature of a bill of review. Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33.
Turning now to the order of the Board of Compromise, it seems that at best, from the standpoint of the State, there are contradictory statements in the order with reference to the jurisdiction of the Board of Compromise. The order states that "the Board is of the opinion that this claim is doubtful of collection." These words in the order mean that the claim is doubtful because of uncollectibility and not because the claim may not be established. The contradiction, if any, in the order arises out of the fact that it contains recitals indicating, perhaps by inference, that the taxpayer has a meritorious defense on the merits of the claim. But where there is a finding of fact which confers jurisdiction, then such a recital should be given effect unless the contradiction in the order is direct, explicit or irreconcilable. 31 Am.Jur. 201.
The State argues that we should look to the petition on which the order is based. The statute makes no provision for a petition. So the order is the only part of the record to which we are authorized to look. Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903. But even if the petition is taken into consideration, somewhat the same situation is encountered to which we have referred. While there are allegations tending to show a meritorious defense, there is also an allegation that the taxpayer is unable to pay the amount of the assessments.
The order of the Board of Compromise is not void upon its face and will be upheld because it shows that the Board of Compromise ascertained the existence of the necessary jurisdictional fact to support the order. Authorities, supra. The demurrers were directed to the allegations of the bill of complaint as a whole as last amended. In sustaining the demurrer the court was in error because while the order of the Board of Compromise is valid, the bill nevertheless has equity to enforce the lien of the State to the extent of $250.00
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | May 24, 1951 |
bee85d28-7e59-49c2-906d-91e4252ebedd | Averett v. Averett | 52 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 371 (1951)
AVERETT et al.
v.
AVERETT et al.
3 Div. 537.
Supreme Court of Alabama.
March 29, 1951.
Rehearing Denied May 24, 1951.
*373 Edwin C. Page, Jr., of Evergreen, for appellants.
B. E. Jones, of Evergreen, for appellees.
LAWSON, Justice.
This is an appeal from a decree of the circuit court of Conecuh County, in equity, sustaining demurrer to a bill in equity.
The bill to which the demurrer was sustained was filed by appellants against appellees, seeking to annul and vacate a decree dismissing for want of prosecution a bill filed by appellants against appellees to cancel a deed of conveyance to real estate.
The nature of a bill of this character must be determined by its averments, its purpose and its substance, rather than the names given it by the parties. Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33. The rule is stated in Jones v. Henderson et al., 228 Ala. 273, 153 So. 214, as follows: "The character of the bill is determined by its substantive averments and the relief sought. There is no reason why it may not at the same time be one to accomplish such relief as is not properly within the purview of a bill of review, and also to have that relief which may be granted only in a bill thus styled. When so, each aspect should be separately considered, if sought in the alternative in those aspects." 228 Ala. 277, 153 So. 218.
Bills of review have been the subject of frequent consideration of this court. Of them in a general way it will be enough to say at this time that the error to be reviewed must be error in substance, of prejudice to the party complainant, apparent on the face of the pleadings, proceedings, or decree. Snead v. Lee, 218 Ala. 44, 117 So. 469. Comparing the decree with the pleadings and other proceedings, it must be apparent that the court has reached and declared an erroneous conclusion of law as to the rights of the parties. McCall v. McCurdy, 69 Ala. 65. We must indulge every reasonable presumption which the record does not effectively repel in favor of the correct ruling of the trial court. Goldsby v. Goldsby, 67 Ala. 560.
Appellants' original bill to cancel the deed was filed in the circuit court of Conecuh County, in equity, on October 27, 1939. Demurrer interposed thereto was sustained. Appellants' bill was amended and demurrer filed to the bill as amended was overruled. Respondents appealed to this court from the decree overruling demurrer to the bill as amended. On October 8, 1942, we affirmed the decree of the trial court overruling the demurrer to the bill as amended. Averett et al. v. Averett et al., 243 Ala. 357, 10 So. 2d 16.
Thereafter, on November 19, 1942, the appellees filed their answer, which they made a cross bill. Appellants never answered the cross bill. On February 14, 1944, the trial court rendered the decree which is here sought to be vacated, dismissing appellants' amended bill. The decree of February 14, 1944, is as follows:
"This being the day for the regular call of the equity docket of this court and this cause being called, no one appeared for the complainants, and, it appearing to the court that an answer to the original bill, as amended, together with a cross bill, was filed in this cause on November 19, 1942, and that no answer has been filed to said cross bill, and no further proceedings has been had in said cause, and the solicitor for the adult respondents and the guardian ad litem for the minor respondents having moved in open court that the original bill, as amended, be dismissed for want of prosecution, and it appearing to the court that said motion should be granted, it is therefore,
*374 "ORDERED, ADJUDGED AND DECREED by the court that the original bill in this cause, as amended, be and the same hereby is, dismissed out of court for want of prosecution.
"Thereupon the solicitor for the adult respondents and the guardian ad litem for minor respondents moved in open court that their cross bill be dismissed without prejudice. It is, therefore,
"Ordered, adjudged and decreed by the court that the cross bill filed in this cause be, and it hereby is dismissed without prejudice.
"This the 14th day of February, 1944."
It is the contention of appellants that the decree of February 14, 1944, here sought to be vacated, shows error on its face in that it appears therefrom that it was rendered on the first day of the session of the court, in violation of the provisions of § 6638, Code of 1923. Appellants rely upon Hall et al. v. Proctor et al., 239 Ala. 211, 194 So. 675, 676.
In Hall et al. v. Proctor et al., supra, it was said:
"Appeal from decree dismissing bill in equity for want of prosecution. Such decree is reviewable on appeal. Tierce v. Knox, 207 Ala. 121, 92 So. 263; Stuckey v. Murphy, 224 Ala. 8, 138 So. 289.
"It appears that pursuant to Code, § 6637, the Circuit Judge had, by order entered on the minutes, designated the first Mondays in March, June, September, and December as the times for equity sessions of the court.
"However, a regular session was by special order set for April 3, 1939, and notice thereof duly given to counsel for parties in pending causes. This order was within the authority of the judge, and orders taken after such notice in accordance with other rules of practice were not erroneous because not at a session fixed by general order.
"But, on the first day of the session, on oral motion of respondents, reduced to writing at the time, and without further notice to complainants, or their counsel, the cause was then and there dismissed for want of prosecution.
"Applying the same rule which would have obtained if the session of the court had been held at a regular time fixed by order under § 6637, this was error.
"By Code, § 6638, the docket is not to be called peremptorily on the first day of the session, but for special orders and submissions by consent, or as therein specified.
"When the cause comes up on peremptory call, the same may be dismissed for want of prosecution on the court's own motion or on motion of a party.
"But notice of holding a regular session is not notice that causes will be called peremptorily on the first day of the session.
"Hence, the order of dismissal must stand, if at all, on the motion made by respondents, of which one day's notice in writing was required by Chancery Rule 97."
Section 6638, Code of 1923, read as follows: "On the first day of such equity sessions of the court, or as soon thereafter as practicable, the chancery or equity docket must be called, not peremptorily, but for orders which may be taken by consent, or for the submission of causes which stand on decrees pro confesso. The call of the docket thereafter may be peremptory, but the parties may, by agreement between themselves, and consent of the judge, set down causes for hearing on such day as they may select."
But the provisions of § 6638, Code 1923, were not carried forward into the Code of 1940, which was in effect at the time of the rendition of the decree here sought to be vacated. We can find no statutory provision in the Code of 1940 nor any equity rule which embodies the provisions of § 6638, Code 1923. True, the proceedings to vacate the deed were pending at the time the 1940 Code went into effect, but that fact does not make the provisions of § 6638, Code 1923, applicable. Nor does Equity Rule 120, Code 1940, Tit. 7 Appendix, have any application to statutory provisions not brought forward into the Code of 1940.
In so far as we are able to determine, the trial court was not prohibited by any statutory provision or equity rule from calling the equity docket peremptorily on February 14, 1944.
*375 We hold, therefore, that the bill in the instant proceeding was insufficient as a bill of review.
A court of equity may, in a proper case, upon proper averment and proof, grant relief from a decree rendered in an equity court to the same extent, and upon the same grounds, that relief could be had from a judgment at law obtained by fraud, accident or mistake, unmixed with negligence on the part of the party complaining. Barrow v. Lindsay, 230 Ala. 45, 159 So. 232.
It appears from the averments of the bill that the leading counsel for appellants in the bill filed to vacate the deed lived in a county other than Conecuh, in which county the proceeding was instituted. This lawyer associated with him a member of the bar of Conecuh County. Service of the answer and cross bill filed by the appellees was had upon the associate counsel. Approximately a year after service was had upon him, he entered the armed services and was in the service on February 14, 1944, when the decree dismissing appellants' bill to vacate the deed was rendered.
It is contended by appellants that since the associate counsel was in the service and the leading counsel lived in another county, the trial court mistakenly rendered the decree of February 14, 1944, in that the register of the circuit court of Conecuh County, in equity, did not notify the leading counsel of the day on which the case was set for trial. It is contended that such a notice was required by the provisions of § 249, Title 7, Code 1940, which in pertinent part reads as follows: "* * * In civil cases, the clerk of the court shall notify attorneys of record who reside outside of the county of the day their case or cases are set for trial, which notice may be given either by letter or by mailing a copy of the docket of the court." We think it manifest that the above-quoted provisions relate only to civil cases on the law side of the docket and have no application to equity cases. No case has been cited to us wherein such provisions have ever been applied in an equity case and our research has disclosed none.
In the absence of some such provision as is contained in § 249, Title 7, Code 1940, all parties litigant, once in court, either for themselves or through their attorneys must keep track of their case, know their status and ascertain for themselves when the same will be tried. Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816. In Faust v. Faust et al., 251 Ala. 60, 61, 36 So. 2d 229, 231, it was said: "A litigant by his attorney must keep up with the progress of his case in court, and he is not due to have notice, except as prescribed by law." And in Wetzel v. Birmingham Electric Co., 250 Ala. 267, 268, 33 So. 2d 882, we observed: "As the aggressive party in the case it was plaintiff's duty to follow his case in all of its steps until finally disposed of and no duty rested upon the court or its officers or the adverse party to advise plaintiff of the setting of the case for trial."
It is next insisted that the trial court mistakenly rendered the decree of February 14, 1944, in that one day's notice in writing of the intention to move to dismiss appellants' bill to vacate the deed for want of prosecution was not given, as required by old Equity Rule 97. It is contended that old Equity Rule 97 has application rather than new Equity Rule 94, Code 1940, Tit. 7 Appendix, by virtue of the provisions of present Equity Rule 120, Code 1940, Tit. 7 Appendix.
But even if we assume that old Equity Rule 97 did have application, we cannot agree that under the circumstances here prevailing one day's notice in writing was required. It is apparent from the decree itself that the motion was made in open court at a time when the trial court was not prohibited by statutory provision or rule of court from calling the docket peremptorily and dismissing the bill for want of prosecution. The case of Hall et al. v. Proctor et al., supra, does not hold to the contrary. The effect of the decision in that case was that since the dismissal came at a time when the court was not empowered to dismiss the bill, the court's action could only be justified by showing that notice was given in compliance with old Equity Rule 97. We did not intend to hold in that case that Equity Rule 97 required one day's notice of a motion to dismiss for want of prosecution *376 when made in open court at a regular session of the court and at a time when the court was not prohibited by statute or otherwise from taking such action. Compare Caudle v. Cotton, Sheriff et al., 234 Ala. 126, 173 So. 847.
It is also alleged in the bill that the trial court mistakenly dismissed appellants' bill of complaint because of the fact that on March 19, 1943, one of complainants, Thomas Averett, was inducted into the armed forces of the United States, where he remained until his discharge on January 12, 1946. Reliance is had upon the provisions of Title 50, Appendix, § 521, U.S.C.A., which reads as follows: "At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service."
We think it sufficient to say that, although Thomas Averett had been represented by counsel of his own choosing, since the proceeding was instituted in 1939, it is not made to appear from the averments of the bill here under consideration that either the attorney or Thomas Averett ever duly made any request of the trial court to stay the proceedings pending the return of Thomas Averett from the armed services.
We cannot hold that the averments of the bill show the rendition of the decree of February 14, 1944, dismissing appellants' amended bill to vacate the deed was obtained through surprise, accident or mistake such as to warrant a court of equity vacating that decree.
The bill being insufficient as a bill of review and as an original bill in the nature of a bill of review, the demurrer thereto was correctly sustained.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | March 29, 1951 |
fd5d01c8-6b07-4462-a1c6-1f8895ad090a | Ex Parte Driver | 50 So. 2d 413 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 413 (1951)
Ex parte DRIVER.
2 Div. 285.
Supreme Court of Alabama.
February 1, 1951.
*417 W. R. Withers, of Greensboro, for petitioner.
G. E. Sledge and Walter P. Gewin, of Greensboro, for respondent.
STAKELY, Justice.
J. E. Driver, petitioner here, has an action pending in the Circuit Court of Hale County, Alabama, for damages for his alleged unlawful arrest on the 28th day of January 1950 on a charge of grand larceny. It is alleged in substance that before the commencement of the suit the charge was judicially investigated, the prosecution terminated favorably to the plaintiff and the plaintiff discharged. It is also alleged in substance that the warrant was issued and the arrest was made maliciously and without probable cause. The suit is against J. C. Beech and also against Mrs. Ruby Beech, W. E. Grubbs, Mrs. W. E. Grubbs, Selwyn Turner, Good Housekeeping Appliance Co., a corporation, Mobile Butane Gas Co., Beech Transport, Beech Transport Company and Beech Transport Gas, individually, and doing business as partners under the name of Mobile Butane Gas Co., Beech Transport, Beech Transport Co. and Beech Transport Gas.
On the same day J. E. Driver filed his aforesaid complaint he also filed interrogatories to all the persons named as defendants. The defendants filed in court their respective answers to the interrogatories propounded to them. The plaintiff being dissatisfied with the refusal of the several defendants to answer the interrogatories or to answer fully the questions asked, filed in court certain motions directed to Hon. L. S. Moore, Presiding Judge of the aforesaid court, praying that the named defendants be required to answer or to answer more fully the questions shown in the motions. At the hearing the attorney for the plaintiff disclosed to the trial judge that he proposed to add counts in unlawful arrest and false imprisonment to the complaint and also stated that the relations between the several defendants being unknown to the plaintiff, many of the questions called for answers that would be evidential in proving agency, partnership or acts of an employee acting *418 within the line and scope of his employment. The attorney also stated that many of the questions would have a direct bearing to prove a course of conduct on the part of the named defendants which would be material testimony in proving agency, partnership or acts of employees or servants acting in the line and scope of their employment as to the separate and several defendants. The court refused to require certain interrogatories to be answered or answered more fully. J. E. Driver, petitioner here, has sought a review of these rulings in this proceeding.
The case is submitted on the original petition for mandamus filed here by J. E. Driver, the demurrer thereto and the answer of Hon. L. S. Moore, the Presiding Judge in the aforesaid court.
The answer of the Judge shows that from the pleadings, the statements of attorneys and answers made to the other interrogatories, which answers are not here presented, that J. E. Driver was employed as a driver of a truck with tank trailer to transport butane gas in bulk and plaintiff did transport a load of this gas from a refinery in Louisiana to Greensboro, Alabama, where he was arrested on January 28, 1950, for larceny of the aforesaid gas under a warrant sworn out on January 28, 1950 by the defendant J. C. Beech. According to the answer it also appears that the defendant W. E. Grubbs claims to have leased to J. C. Beech certain trucks and equipment to transport the gas. The Judge further shows in his answer that the basis of plaintiff's suit is that the defendant J. C. Beech allegedly maliciously or falsely caused the arrest of plaintiff on the aforesaid date and the plaintiff seeks to fasten liability therefor on the other defendants in the cause by virtue of an alleged master and servant relationship, partnership or joint adventure arrangement existing between the defendants at the time of the alleged tort of the defendant J. C. Beech. It also appears from the answer of the Judge that the defendants filed in the cause verified denials of the alleged partnership under which they were sued.
There is no doubt that mandamus is the appropriate remedy for a review of the rulings here made. Ex parte Bahakel, 246 Ala. 527, 21 So. 2d 619. It is also true in cases of this character that where the trial court denies the motion to require an answer, mandamus will be awarded to compel him to do so, unless it appears that the evidence sought is patently objectionable and inadmissible. Ex parte Bahakel, supra; Ex parte Farrell, 234 Ala. 498, 175 So. 277.
It is also settled that the right to propound interrogatories to an adverse party in civil actions at law is purely statutory. The interrogatories must seek to elicit facts which shall be material, competent, legal evidence, pertinent to the issues in the case. Interrogatories which serve as a mere fishing expedition are not required to be answered. Ex parte Pollard, 233 Ala. 335, 171 So. 628; Ex parte Nolen, 223 Ala. 213, 135 So. 337. Nor is an answer required to an interrogatory which is too general. Ex parte Nolen, supra. This court has also said that the purpose of such interrogatories must be the discovery of evidential matter known to the adverse party and not to the propounder and a party will not be required to disclose the names of his witnesses or his evidence. Ex parte Wood, 253 Ala. 375, 44 So. 2d 560; Ex parte Nolen, supra; Montgomery Light & Traction Co. v. Harris, 197 Ala. 358, 72 So. 619.
The court correctly refused to require answer to interrogatories 11 and 12. The questions seek information as of the time when the interrogatories were propounded and not as of January 28, 1950, when the alleged arrest was made. The fact, if true, that some of the equipment of the defendant W. E. Grubbs bore the name "Good Housekeeping Appliance Company" at the time the interrogatories were propounded would not be admissible to show that this concern had any interest in the equipment on January 28, 1950. If the idea is to predicate liability on a master and servant relationship between the parties *419 it is necessary to show such relationship at the time and in respect to the very transaction out of which the injury arose. Powers v. Williamson, 189 Ala. 600, 66 So. 585; Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6; 57 C.J.S., Master and Servant, § 562, page 273.
The answer to interrogatory 13 is sufficient. It shows that the payment was a leasing arrangement and not a division of profits and losses.
In respect to interrogatory 15 the answer is sufficient with reference to J. C. Beech, but the question should be answered as to the other alleged associates. The time is fixed in January, 1950. If a partnership relationship prior to the 28th is shown on which liability might be predicated, that relationship would be presumed to continue to the 28th, nothing to the contrary appearing. Guin v. Grasselli Chemical Co., 197 Ala. 117, 72 So. 413; Patterson v. Mobile Steel Co., 202 Ala. 471, 80 So. 855; Letson v. Hall, 1 Ala. App. 619, 55 So. 944.
As to interrogatories 18 and 19 it is sufficient to say as to the time involved what we have said with reference to interrogatories 11 and 12.
In interrogatory 22 the first two questions call for testimony relating to a present situation, that is who pays at the present time for equipment previously operated in January 1950. The last question, however, should be fully answered.
We think interrogatory 26 should be answered.
Interrogatory No. 27 is too general and would require information as to matters subsequent to January 28, 1950.
It is sufficient to say as to interrogatory 29 that the plaintiff would have as much knowledge relating thereto as the defendant W. E. Grubbs would have.
As to interrogatory 34 it is sufficient to say that it calls for an explanation of the mental process of the defendant W. E. Grubbs.
Interrogatories to J. C. Beech.
Interrogatories 27 and 28 are too general in nature. These questions also relate to the present and not to matters as of January 28, 1950.
Interrogatory 31 has been answered. It denies a sharing of profits and losses such as would indicate a partnership or joint adventure arrangement.
Answer to interrogatory 38 was properly refused. See Ex parte Wood, supra.
Interrogatory 39 is too general and is not limited to the issues in this case.
It is sufficient to say as to interrogatory 41 that the plaintiff would have as much knowledge relating thereto as the defendant J. C. Beech.
Interrogatory 42 is fully answered. While a yes or no answer was not given, the facts are stated according to the version of J. C. Beech.
Interrogatory 46 calls for testimony of a mental process and should not be answered.
The court correctly refused to require answer to interrogatory 49. It is too general in nature, not limited to any time whatever in the future or in the past or in any capacity as to whether defendant appeared as attorney, witness, claim agent involving an isolated transaction at some remote, indefinite and unconnected time. If the defendant should answer the question in the affirmative, then such answer would lead into side issues and away from the issues involved in this case.
Interrogatories to Good Housekeeping Appliance Co.
Interrogatory 2 was sufficiently answered.
Interrogatory 5 should be answered. As has been pointed out, if there was a partnership relationship between the parties prior to January 28, 1950, the date of the alleged arrest, then there will be a presumption that such relationship continued to the time of the trial, nothing to the contrary appearing.
The court ruled correctly in not requiring answer to interrogatory 6. This *420 called for testimony as to a present situation and not for testimony as of the time of the alleged unlawful arrest.
The court ruled correctly in not requiring answer to interrogatory 8 because of its prejudicial tendencies and irrelevancy.
Interrogatories to Mrs. W. E. Grubbs.
Both interrogatories 6 and 22 were sufficiently answered.
It results that as to the several interrogatories hereinabove pointed out which should have been answered, the court was in error, and to that extent the writ of mandamus will issue as prayed.
Writ awarded.
FOSTER, LAWSON and SIMPSON, JJ., concur. | February 1, 1951 |
86bb65dc-f3fc-4d9a-a5b3-1507cc851c48 | Holman v. Williams | 53 So. 2d 751 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 751 (1951)
HOLMAN
v.
WILLIAMS, Sheriff, et al.
4 Div. 659.
Supreme Court of Alabama.
July 12, 1951.
Clayton & LeMaistre, Eufaula, P. C. Clayton, Clayton and Sam A. LeMaistre, Eufaula, and S. B. Lippitt, Albany, Ga., for appellant.
Si. Garrett, Atty. Gen., for appellee.
PER CURIAM.
The appeal is from an order of the judge of the Circuit Court of Barbour County, Alabama, denying appellant bail in a habeas corpus proceeding.
The appellant is now under indictment returned by the grand jury of Barbour County charging appellant with the offense of kidnapping, and kidnapping with intent of obtaining money or property for release of person kidnapped. §§ 6 and 7 of Title 14, Code of 1940.
The Bill of Rights, section 16 of the Constitution of Alabama of 1901, reads: "That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great, and that excessive bail shall not in any case be required." And section 17 of the Constitution of 1901 provides, "That the privilege of the writ of habeas corpus shall not be suspended by the authorities of this state."
Section 195, Title 15, Code of 1940, directs that "A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death, if the court or magistrate is of the opinion, on the evidence adduced, that he is guilty of the offense [charged] in the degree punishable capitally * * *."
Conviction for the offense charged in counts one and two of the indictment, under section 7, supra, carries the death penalty or imprisonment in the penitentiary for not less than five years, at the discretion of the jury trying the case. Conviction for the offense charged in count three of the indictment carries the penalty of not less than two or more than ten years in the penitentiary.
Elemental legal principles of course prohibit an interpretation of section 195, supra, as limiting the right guaranteed by section 16 of the Constitution that an accused is entitled to bail "except for capital offenses, when the proof is evident or the presumption great".
*752 In Ex parte McCrary, 22 Ala. 65, it was said: "The question, in contemplation of law, to be tried by the magistrates, on an application for bail, was not whether the accused must necessarily be punished with deathbecause this they could not know until after the trialbut whether he might be so punished, and probably would be under the proof."
And in Ex parte McAnally, 53 Ala. 495, Brickell, J., stated the rule which has been followed in numerous cases, as follows: "* * * The question, in legal contemplation, is on an application for bail, therefore, whether the offense is of the character which may be punished capitally. Ex parte McCrary, 22 Ala. 65. Ascertaining that to be the character of the offense imputed to the accused, the next inquiry is, is `the proof evident, or the presumption great,' of the defendant's guilt. If it be not, whatever may be the probable cause to detain him to answer before a tribunal competent finally to adjudge the inquiry, he is entitled not to a discharge, but to bail. If the proof is evident, or the presumption greatif the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right."
Our jurisdiction in the instant cause is appellate only, and our consideration therefore is confined to the record before us containing the evidence that was before the lower court on the trial of the habeas corpus proceeding. For perfectly obvious reasons we deem it unwise to discuss the evidence. Suffice it to say, we have carefully examined the evidence and are clear to the conclusion that, upon that evidence and under our authorities, the appellant is entitled to bail.
We may also add that the Attorney General, who represents the state on this appeal, has, with commendable candor, after a study of the evidence and the applicable legal principles, expressed the view that in his opinion appellant is entitled to bail.
The judgment of the lower court denying appellant bail is therefore reversed, and it is here ordered that appellant be released from custody upon his furnishing bail in the sum of $10,000.00 to be approved by the judge of the Circuit Court of Barbour County, Alabama, or by the sheriff of said county, in compliance with section 194, Title 15, Code of 1940.
Reversed and remanded with instructions.
LIVINGSTON, C. J., and LAWSON, SIMPSON and STAKELY, JJ., concur. | July 12, 1951 |
68b7b5ee-229f-4b6f-a13c-68eff2cb1fa1 | Wilson v. Thompson | 51 So. 2d 20 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 20 (1951)
WILSON
v.
THOMPSON.
4 Div. 621.
Supreme Court of Alabama.
February 15, 1951.
*21 L. A. Farmer, of Dothan, for appellant.
Lewis & Lewis, C. R. Lewis and P. S. Lewis, all of Dothan, for appellee.
LIVINGSTON, Justice.
This appeal is from a decree of the Circuit Court, in Equity, of Houston County, overruling demurrers to a cross bill.
The original bill in the cause was filed by Mrs. W. J. Wilson and W. J. Wilson against Mrs. John A. Thompson, and sought specific performance of an oral agreement for the sale of a certain described house and lot in the city of Dothan, Houston County, Alabama: Mrs. Thompson being the alleged vendor and the Wilsons the vendees.
In substance the original bill alleged that, on June 2, 1949, the Wilsons and Mrs. Thompson entered into an oral agreement, under the terms of which the Wilsons agreed to purchase and Mrs. Thompson agreed to sell the said house and lot at and for the sum of $12,000. $250 of the purchase price was paid in cash, the balance to be paid in monthly installments of $150 each for the first year after the contract was entered into, and $125 per month thereafter until the balance of the purchase price, together with interest, had been paid in full, and at which time Mrs. Thompson would execute and deliver to the Wilsons a warranty deed conveying the property to them: that Mrs. Thompson put the Wilsons in possession of the property, and they had so remained ever since. It was further alleged that, as a part of said agreement, Mrs. Thompson agreed that after the Wilsons had paid $500 of the purchase price Mrs. Thompson would execute and deliver to them a bond for title; that after $500 of the purchase price had been paid, the Wilsons requested and demanded of Mrs. Thompson the execution and delivery of the bond for title, but that Mrs. Thompson refused, but did promise at that time that when $1,000 had been paid on the purchase price she would execute and deliver a warranty deed conveying the house and lot to the Wilsons, and would take a mortgage back for the balance due on the purchase price; that after $1,000 had been paid on the purchase price the Wilsons called on Mrs. Thompson to execute and deliver said deed and offered to execute said mortgage, but that Mrs. Thompson refused. That since the agreement between the parties on June 2, 1949, Mrs. Thompson had, without the consent of the Wilsons, advanced the purchase price of the property to $15,000 and later to $20,000; that on the 17th day of March, 1950, Mrs. Thompson served written notice on Mrs. Wilson that her possessory interest in the property was terminated and to quit and surrender possession of the house and lot within ten days from the service of said notice. In the bill of complaint complainants offer to do equity, and pray for the specific performance of the oral agreement of June 2, 1949.
The answer of Mrs. Thompson to the original bill denies in substance the allegations thereof.
Omitting its formal parts, the cross bill filed by Mrs. Thompson against Mrs. Wilson (Mr. Wilson is not made a party to the cross bill) is in words and figures as follows:
"(B) That on, to wit, June 2, 1949, cross complainant entered into an oral agreement with cross respondent wherein cross complainant agreed to sell to cross respondent the following described real estate situated in Houston County, Alabama, to wit:
"Beginning at inner edge of sidewalk at northwest intersection of Foster and Newton Streets; thence north along Foster Street 98 feet to southeast corner of A. L. Faulk lot; thence west parallel with Newton Street 180 feet to fence; thence north parallel with Foster Street 96 feet; thence east 180 feet to Foster Street; thence south along street to southeast corner of A. L. Faulk lot; said lot being a part of the SE¼ of SW¼ section 13, Township 3, Range 26, together with all improvements thereon, at and for the sum of $20,000, *22 with interest thereon at 6% per annum payable annually, said purchase price to be paid cross complainant by cross respondent as follows: $400 of said purchase price to be paid cross complainant by cross respondent on June 2, 1949, and $200 per month to be paid thereafter on the first of each month until said purchase price was paid in full, together with interest on said purchase price at 6% per annum to be paid each year, cross respondent to pay all taxes, insurance and the cost of upkeep and maintaining said property; that cross complainant agreed with cross respondent that if she complied with the terms of said agreement, cross complainant would execute to cross respondent a written bond for title agreeing to convey said property to said Mrs. W. J. Wilson upon said verbal terms and conditions so agreed upon, after cross respondent had paid cross complainant the sum of $1,000 on the purchase price, provided cross respondent complied with the terms of said agreement; and in said verbal agreement cross complainant agreed to convey to cross respondent aforesaid property upon the payment by cross respondent of said sum of $20,000 with interest thereon each year at 6% per annum, in installments as agreed and provided cross respondent paid the taxes, insurance and cost of upkeep and maintenance of said property.
"(C) That cross respondent has failed to comply with the terms of aforesaid agreement and has gotten further and further behind in said monthly installments which she agreed to pay; that she has failed to pay for the cost of the proper maintenance and upkeep of said property; that she has failed to pay the cost of insuring said property; that she paid cross complainant only $105 in February, 1950, and in March, 1950, she paid cross complainant only $45 on March 6, 1950, and $50 on March 15, 1950; that for and on account of cross respondent's failure to comply with the terms of aforesaid verbal bond for title agreement, cross complainant, on March 17, 1950, served written notice on cross respondent that because of her failure to comply with the terms of aforesaid verbal bond for title agreement that cross complainant had cancelled and annulled said agreement, and notified cross respondent that any possessory interest she had in said property was terminated and notified her to quit and surrender possession of said real estate to cross complainant within ten days from the service of said notice, and that suit for possession of said real estate would be filed against her if she failed to do so.
"(D) That on March 22, 1950, cross respondent and W. J. Wilson filed their complaint in this court seeking specific performance of an alleged verbal bond for title agreement as set out in said complaint; that the alleged bond for title agreement set out in said complaint never existed.
"(E) That cross respondent went into possession of said property on to wit, June 2, 1949, and has been in possession thereof ever since, occupying the same and receiving large amounts of money from roomers and boarders thereat; that cross respondent has paid to cross complainant under aforesaid verbal bond for title agreement through March 15, 1950, only the total sum of, to wit: $1,261, whereas, under said agreement cross respondent, had she complied with the terms thereof, should have paid cross complainant the sum of $2,400, plus the pro rata cost of insurance and taxes for 1949; that notwithstanding that cross respondent has failed to comply with the terms of said verbal agreement, and notwithstanding that cross complainant did on March 17, 1950, exercise her right to cancel and annual said agreement on account of cross respondent's aforesaid non-compliance, cross respondent has failed or refused to deliver possession of said property to cross complainant, and continues in possession thereof and enjoying said property and realizing a large income therefrom.
"(F) That the fair and reasonable rental value of said property since cross complainant has been in possession thereof has been, and is, to wit, $250 per month; that cross complainant is entitled to be paid by cross respondent the sum of, to wit, $250 per month for the use and rental of said property to the date on which cross respondent surrenders to cross complainant the possession thereof, less a credit to cross respondent *23 of all sums paid cross complainant by her under aforesaid agreement. That cross complainant is entitled to a lien on all property owned by cross respondent which has been, or is, on said real estate for the reasonable use and rental thereof; and that the following property is owned by cross respondent and has been, or is, on said real estate and subject to said lien: `Electric washing machine; electric stove; electric refrigerator deep freeze combined; three piece bedroom suite; ten beds, three-quarter and one-half size, springs and mattresses, seven small oil circulating heaters; three porch chairs.'
"The premises considered, cross complainant makes the said Mrs. W. J. Wilson cross respondent to this cross bill and prays that proper process issue out of this court directed to the said Mrs. W. J. Wilson commending her to plead, answer or demur to this cross bill within the time and under the penalties prescribed by law; that on a final hearing of this cross bill, your honor will make and enter a decree granting cross complainant relief, adjudging and decreeing aforesaid verbal bond for title between cross complainant and cross respondent null and void because of cross respondent's failure to comply therewith, and ordering that a reference be held by the register to determine the fair and reasonable rental of aforesaid property to be paid cross complainant by cross respondent during the entire time cross respondent has been in possession of said property since, to wit, June 2, 1949, after crediting cross respondent with all payments made by her to cross complainant under aforesaid verbal bond for title agreement; that upon a coming in of the report of said reference, your honor will render a judgment in favor of cross complainant against cross respondent for the difference between the fair and reasonable rental value of said property and the amount paid cross complainant by cross respondent under said verbal bond for title agreement and will order and decree said judgment to be a lien on said property, to wit: `Electric washing machine; electric stove; electric refrigerator deep freeze combined; three piece bedroom suite; ten beds, three-quarter and one-half size, springs and mattresses; seven small oil circulating heaters; three porch chairs,' and order said property sold for the satisfaction of said judgment, or so much of said judgment as said property will satisfy; and make and enter a deficiency judgment if necessary; and if cross complainant has in anywise mistaken the relief to which she is entitled, she prays for such other, further and different relief as to the court may seem meet and proper, and she will ever pray."
Demurrers were interposed to the cross-bill as a whole, and separately, to that aspect of the cross-bill which seeks to charge Mrs. Wilson with rent of the house and lot from the time she took possession under the agreement of June 2, 1949, and to that aspect which seeks to establish and enforce a lien on the property of Mrs. Wilson which has enjoyed the protection of the premises.
The demurrer to the cross-bill as a whole was properly overruled, but it should have been sustained to that aspect of the cross-bill which seeks to hold Mrs. Wilson responsible for rent of the premises during her occupancy under the contract, whatever may be proven to be its true terms and conditions, and to that aspect of the cross-bill claiming a lien on the property of Mrs. Wilson which had enjoyed the protection of the premises and seeking its enforcement.
The cross-bill alleges that Mrs. Wilson went into possession of the property involved on June 2, 1949. And from aught appearing that possession is referable to the contract of that date. We take it then, that Mrs. Wilson went into possession of the premises with the consent of Mrs. Thompson. But we are not to be understood as saying that possession by the vendee with the consent of the vendor is essential to relieve the vendee from rent obligations.
Although the rule may be otherwise in other jurisdictions, our cases are clear to the effect that under an executory contract for the sale of lands, with no stipulation to the contrary, the contract of itself operates as a transmutation to the *24 vendee of the possession, entitling him to the right of entry and enjoyment. In such case the vendee is entitled to the rents and profits, as a mortgagee in possession is accountable therefor. The execution by the vendor of an executory contract to sell lands, without provision therein excluding the vendee's right thereunder to the possession, or the rents and profits, operates to divest the vendor of any right to the rents and profits pending the executory contract to convey. Ashurst v. Peck, 101 Ala. 499, 14 So. 541; Able v. Gunter, 174 Ala. 389, 57 So. 464; Forrester v. Granberry, 211 Ala. 402, 100 So. 551, and cases therein cited; Sims v. City of Birmingham, 254 Ala. 598, 49 So. 2d 302.
But Mrs. Thompson, the appellee, argues that the cross-bill alleges a termination of all of Mrs. Wilson's rights under the sale contract on March 17, 1950. The allegations in that regard are set out above.
The general rule is that in equity time is not regarded as of the essence of the contract. Isom v. Johnson, 205 Ala. 157, 87 So. 543; Forrester v. Granberry, supra; Sims v. City of Birmingham, supra. Clearly there is nothing alleged in the instant bill which manifests an intent of the parties to the contract that time should be of its essence. It is well settled that to rescind a land sale contract for the failure of the other party, the party complaining of such failure must call upon the other to perform and give him a reasonable time after notice in which to comply or be foreclosed. Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 139 So. 342; Elliott v. Howison, 146 Ala. 568, 40 So. 1018; J. M. Ackley & Co. v. Hunter-Benn & Co.'s Co., 166 Ala. 295, 51 So. 964; Stafford v. Colonial Mortgage & Bond Co., 221 Ala. 636, 130 So. 383; Sims v. City of Birmingham, supra.
The cross-bill admits the making of a valid executory contract of sale. For aught appearing from the cross-bill, that contract is still in full force and effect and, as a consequence, Mrs. Thompson was not entitled to possession of the premises nor to any rents or profits therefrom.
It will be observed that the cross-bill does not seek a cancellation, rescission or forfeiture of the land sale contract, but instead a decree adjudging that the contract between the parties was null and void because of the cross-respondent's failure to comply therewith.
The contract between the parties being still in full force and effect, in so far as the cross-bill is concerned, it is apparent that section 46, Title 31, Code of 1940, is in no way applicable or operative here.
For the errors pointed out the cause must be reversed and remanded. The appellee is given thirty days in which to amend the cross bill if she be so advised.
Reversed and remanded.
FOSTER, LAWSON and STAKELY, JJ., concur. | February 15, 1951 |
0e492367-ecb6-4aea-8a58-0c8c70291606 | Moore v. Moore | 51 So. 2d 683 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 683 (1951)
MOORE
v.
MOORE et al.
6 Div. 175.
Supreme Court of Alabama.
March 29, 1951.
*684 Drennen & Drennen, of Birmingham, for appellant.
Gibson & Gibson, of Birmingham, for appellee.
STAKELY, Justice.
The appeal in this case is from a decree of the equity court overruling the demurrer of Joseph G. Moore (appellant) to the bill of complaint as last amended filed by Annie Pettus Moore, individually and as executrix of the estate of David S. Moore, deceased (appellee). The original bill filed by Annie Pettus Moore individually and as executrix of the estate of David S. Moore, deceased, showed that Annie Pettus Moore as such executrix was granted letters testamentary by the Probate Court of Jefferson County, Alabama, on June 21, 1947, that the administration of the aforesaid estate is still pending in the Probate Court of Jefferson County and that Annie Pettus Moore was acting as such executrix at the time of the filing of the bill of complaint.
*685 The original bill further alleged that Annie P. Moore and Joseph G. Moore are the joint owners of a number of separate tracts of land located in Blount County, Alabama, the tracts being respectively described in an exhibit attached to the bill, that Annie Pettus Moore is the owner of an undivided one-half interest in the real estate and that Joseph G. Moore is the owner of an undivided one-half interest in the real estate, and that the real estate cannot be equitably divided or partitioned without a sale thereof.
Lucille Moore, the wife of respondent Joseph G. Moore, was also made a respondent to the original bill there being allegations as to her ownership of dower and homestead rights in the interest of her husband Joseph G. Moore. Her separate demurrer to the bill, as last amended, was sustained and she is no longer a party to the suit.
There was no demurrer to the original bill but by answer the respondents admitted the allegations of the bill except the allegation that the property cannot be equitably divided or partitioned without a sale and by way of cross-bill alleged that they are the joint and equal owners with complainants of certain cattle, mules and farm implements located upon the land which they allege cannot be equitably divided without a sale thereof.
Thereafter a number of amendments were filed to the original bill, it being sufficient to show the allegations of the bill as last amended, because it is from the decree overruling the demurrers of Joseph G. Moore to the bill as last amended that this appeal has been taken.
The bill as last amended shows in brief that David S. Moore died on the 8th day of June, 1947, leaving a last will and testament which was admitted to probate in the Probate Court of Jefferson County, Alabama, on June 21, 1947. A copy of the will is attached as an exhibit to the bill as amended and shows that after the payment of funeral expenses and other debts all the property of the testator was bequeathed to his wife Annie Pettus Moore. She was named as sole executrix of the will without bond.
The bill as last amended further shows that on the 20th day of January, 1945, David S. Moore and the respondent Joseph G. Moore, who were then engaged as partners or joint adventurers in a farming enterprise upon lands contiguous to part of the lands which have been described, entered into an oral agreement for the purchase by them jointly as individuals of a tract of land known as the Daly Land or Dailey Land, this tract of land being one of the tracts described in the original bill. Under the terms of the agreement title to the tract of land was to be taken in the names of David S. Moore and Joseph G. Moore, as joint owners and tenants in common, and each was to pay one-half of the purchase price thereof. Pursuant to the agreement David S. Moore, acting for himself and for Joseph G. Moore, purchased the real estate at public auction and procured from the commissioner appointed to conduct the sale a commissioner's deed thereto in which David S. Moore and Joseph G. Moore were named as grantees, the consideration paid by David S. Moore being in the sum of $2800.
It is further alleged that notwithstanding the prior agreement, Joseph G. Moore did thereafter upon demand fail and refuse to pay and refund to David S. Moore his `half of the purchase price of said lands and has continued to fail and refuse to pay and to refund to David S. Moore or to Annie Pettus Moore, as executrix of the estate of David S. Moore, deceased, his agreed half of the purchase price, to wit $1400.
It is further alleged in the amended bill that on the first day of January, 1932, David S. Moore, the deceased husband of Annie Pettus Moore, entered into an oral partnership agreement with respondent Joseph G. Moore, whereby the parties agreed to engage in a farming and livestock raising enterprise and business for profit on certain lands situated in Blount County, Alabama, known as the Clarence Farm, this being in whole or in part the real estate described in the original bill of complaint. Under the terms of the agreement the parties agreed to contribute to the business an equal share of the money *686 and personal property required to be used in and about the operation thereof and to share equally in the profits and losses arising from the business, that thereafter under and by virtue of the agreement the parties engaged together in said farming and livestock business and enterprise on said lands continuously from the day of the agreement until the death of David S. Moore on June 8, 1947, that during the period from the first day of January 1932 up to and Including the 8th day of June 1947, inclusive, there resulted substantial losses the total amount of which the complainants do not at this time know, but they do allege for the years 1939 to 1947, inclusive, the further capital investment over operating profit exceeded the sum of to wit $42,000.
The bill further alleges that throughout the period from the beginning of the said business until the death of David S. Moore the capital investment in machinery, equipment, livestock and improvements utilized by the parties for and on account of the aforesaid business, was provided by David S. Moore from his personal funds but despite the agreement to share equally in the investment in capital goods and capital funds for the business, Joseph G. Moore contributed nothing.
It is further alleged that during the period from to wit January 1st, 1939 to June 8th, 1947 the farming and livestock business operated annually at a substantial loss or excess of operating expenses over gross operating revenue, all of which loss was paid by David S. Moore from his personal funds and to none of which Joseph G. Moore contributed and for none of which did he reimburse David S. Moore, despite the agreement to share equally the losses of the business. During said period as a result of the operation of said business David S. Moore paid from his personal funds on account of said losses, the sum of to wit $42,000.
It is further alleged that in addition to the sum paid by David S. Moore as operating losses, he paid during the period from January 1, 1932 through December 31, 1946 the sum of to wit $11,822.18 from his personal funds for farm machinery and equipment for and on account of said business, and despite his agreement to contribute one-half thereof, Joseph G. Moore contributed nothing and has in no amount reimbursed David S. Moore for his expenditures.
It is further alleged that during the year 1947 from the first day of January until the date of the death of David S. Moore on June 8, 1947 David S. Moore expended from his personal funds for and on account of said business the further sum of $5,467.71 for improvements, capital assets and operating deficit, of which sum Joseph G. Moore, despite his said agreement, has contributed nothing and for which he has made no reimbursement to David S. Moore.
It is further alleged that from the 8th day of June, 1947 to and including the 27th day of February, 1948, respondent Joseph G. Moore as surviving partner, assumed sole management and control of the assets and operation of the business; but did not proceed to convert the assets into money or to pay the debts thereof, but on the other hand continued to operate the same, making numerous purchases, sales and exchanges of personal property and incurring further operating losses in to wit the amount of $1828.19, all of which losses were paid by Annie Pettus Moore, as executrix of the estate of David S. Moore, deceased.
It is further alleged that during this period Joseph G. Moore received and collected certain moneys from the sale of crops and livestock all of which he retained and converted to his individual use and none of which he contributed to the operating losses and for none of which he has accounted as to source or amount despite frequent requests from Annie Pettus Moore as executrix.
It is further alleged that complainants are not informed of the exact amount of money so retained and converted but are informed and believe and upon such information and belief aver that the same exceeded the sum of to wit $7,000.
It is further alleged that complainants are not informed of the details, character and amount of the various transactions of Joseph G. Moore in and about the continued operation of the business, which information *687 upon request of Annie P. Moore, as executrix, he has failed or refused to reveal.
It is further alleged that the personal property, which is the subject matter of the respondents' cross bill, is the property of the farming and livestock business which David S. Moore, deceased, and Joseph G. Moore conducted upon the lands described in the original bill known as the Clarence Farm, it being alleged that because of the complicated nature of the affairs of the business and because of the failures of Joseph G. Moore to contribute to the business his proportionate share of capital investment and operating losses and his failure to divulge the details of its affairs since the death of David S. Moore, it is impossible to determine with accuracy the amount of the debt of the business adventure and the relative interests of the parties in and to the personal property located on the said Clarence Farm, which is the subject-matter of complainants' cross-bill, without a full and complete accounting of all the affairs and transactions of said business.
It is further alleged upon information and belief that neither of the respondents or either of them in equity own any interest in said personal property which comprises all the unliquidated assets of the business.
In the bill as amended in addition to the relief prayed for in the original bill, it is further prayed that the court declare any interest of Joseph G. Moore in the real property known as the Dailey Land to be subject to an equitable lien in favor of complainant Annie Pettus Moore, as sole devisee under the will of David S. Moore, deceased, to the extent of the agreed part of the purchase price thereof unpaid by Joseph G. Moore with interest and lawful charges; that a decree be entered directing the register to hold a reference for the purpose of determining the respective interests of the parties in and to the assets and liabilities of the business enterprise known as the Clarence Farm and stating the account between them, taking such testimony, examining such books of records, etc., pertaining to the business as are necessary and proper for the purpose of such determination and accounting and reporting to the court as to whether the complainants or either of them are indebted to respondents or either of them on account of the capital expenditures or operation of the farming and livestock business known as the Clarence Farm or whether the respondents or either of them are indebted to complainants or either of them for and account of capital expended in the operation of the business known as Clarence Farm or whether respondents or either of them are indebted in equity to the complainants or either of them on account of the purchase of the real estate described as the Dailey Land and whether or not the complainants or either of them is entitled to a lien upon the property known as the Dailey Land for and on account of the purchase of said real property by David S. Moore, as aforesaid, and whether or not the complainants or either of them are entitled to any lien or other interest in the real property which is the subject matter of the original bill, or upon the proceeds of any sale thereof for and on account of the payment of taxes, maintenance, capital expenditures or otherwise upon the property known as Clarence Farm in and about the development thereof for the purpose of livestock and for the farming business conducted upon the said property pursuant to the said agreement from the first day of January 1932 up to and including the time of the termination of the agreement. The bill as last amended includes a prayer for general relief.
I. The proposition is advanced that Annie Pettus Moore, as executrix, is not alleged to have an interest in the land and, therefore, as such executrix is not a proper party complainant. This position however fails to take account of the situation which developed in the present case. Assuming for the sake or argument that this ground of demurrer would have had merit had it been presented to the original bill seeking the sale of lands for division, the filing of the cross-bill changed the entire situation. The respondents' answer admitted all the averments of the bill except that which alleged that the real property could not be equitably divided or partitioned without a sale. Not only did the *688 answer come before and without objection to the alleged misjoinder of parties complainant, but it also included a cross-bill. The cross-bill alleged that the respondents and complainants were joint owners of certain personal property all located upon the land and prayed the sale of same for division. Whatever may have been the interest or lack of interest of the executrix in the real property, which was the subject of the original bill, clearly the executrix was a necessary party to any sale of personal property for division among the joint owners. As the personal representative she would be entitled to any sum received from the sale of personal assets. Upon the filing of the cross-bill the cause took on a dual aspect. It became one for the sale of real property for division to which the devisee Annie Pettus Moore was an essential party. And it also became one for the sale of personalty alleged to be jointly owned, among others, by Annie Pettus Moore, as executrix of the estate of David S. Moore, deceased. Thereafter followed various amendments to the original bill, setting up that the personal property involved constituted partnership assets. The result is that the bill as last amended involves the sale of real estate with an adjustment of the equities therein, the sale of the personal property, together with the settlement of the affairs of a partnership involving David S. Moore, deceased. We think it clear that Annie Pettus Moore was a proper party both as an individual and in her capacity as executrix. Dickens v. Dickens, 154 Ala. 440, 45 So. 630; McGowin v. Robinson, 251 Ala. 690, 39 So. 2d 237.
It is well to point out here that any matter which tends to give complainants additional right to relief or to defeat any counter claim of respondents may be properly introduced by amendment to the bill. Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Templeton v. Scruggs, 234 Ala. 146, 174 So. 237; Equity Rule 27, Code of 1940, Tit. 7, Appendix, p. 1069.
II. It is further contended that the bill as amended is a departure from the original bill in that it seeks declaration of an equitable lien upon that portion of the original subject matter of the suit called the "Dailey Land". Obviously the claim for the lien is one involving the same parties and the same subject matter as involved in the original bill. There is no inconsistency between the averments of the original bill that the parties are joint owners of the real property described as the Dailey Land. On the other hand there is the express averment that the record title to this portion of the Clarence Farm Lands (described in the original bill) stands in the name of respondent and of decedent but alleges that in equity the title of respondent is subject to a lien for his failure to pay his agreed half of the purchase price, all paid by decedent. An adjudication of the question of the existence vel non of such equitable lien is necessary for the granting of full and complete relief with respect to sale of the real property described in the original bill. Having assumed jurisdiction of the subject matter, it is not only the right but the duty of the court to settle all equities and adjust all claims arising out of or affecting the interests of the parties in the subject matter involved or relating to the same property. Garrett v. First National Bank of Montgomery, 233 Ala. 467, 172 So. 611; Bean v. Northcutt, 240 Ala. 289, 199 So. 7; Jarrett v. Hagedorn, 237 Ala. 66, 185 So. 401; § 189, Title 47, Code of 1940.
III. Appellant takes the view that he has the right as well as the duty as surviving partner to wind up the affairs of the "Clarence Farm" and that he cannot be deprived of this right under the allegations of the bill. There is no doubt that the surviving partner has the primary right to possession and management of the partnership assets, but his status with relation to it is a special and limited one, granted to him for a specific purpose. Davis v. Sowell, 77 Ala. 262. In this case it is said: `"The death of a partner invests the surviving partners with the exclusive right of possession and management of the whole partnership property and business; but only for the purpose of selling and closing the same * * *. The survivors have possession, and keep possession of every thing. Until a settlement, the representatives of the deceased can not claim or take any one chattel, *689 or any portion of the merchandise. The survivors are, from the death, trustees for all concerned in the partnership; for the representatives of the deceased, for the creditors of the firm, and for themselves. Their trust is to wind up the concern in the best manner for all interest, and, therefore, without unnecessary delay; and their powers are such as enable them most effectually to execute that trust. * * *.'" Parsons on Partnership (4th Ed.) § 345. See also Didlake v. Roden Grocery Co., 160 Ala. 484, 49 So. 384, 22 L.R.A.,N.S., 907, 18 Ann.Cas. 430.
But the bill in the present case alleges that the respondent after assuming sole management and control of the operation and assets of the business failed in his duty as surviving partner (1) by not proceeding to convert the assets into money and pay the debts of the estate, (2) by continuing operation of the business including the making or purchases, sales and exchanges with resulting operating losses, (3) by converting to his individual use proceeds from the sales of partnership assets. We think that these allegations are sufficient to raise the issue as to whether under the circumstances the respondent is proceeding "to wind up the business as soon as possible." Furthermore these allegations, if true, constitute a breach of the trust relationship with which the title of the surviving partner to the assets is impressed within the rule stated above. Conversion of the assets of the partnership to his own use by a surviving partner entitles the personal representative of the deceased partner to maintain a bill in equity for an accounting. McGowin v. Robinson, supra; Clements v. Lavender, 209 Ala. 615, 96 So. 785.
IV. It is urged that the respondent cannot be required to account in connection with partnership transactions because of lapse of time and because one of the partners, David S. Moore, is now deceased. It should be kept in mind that the only question now before the court is as to the sufficiency of the bill against demurrer. Upon a trial of the cause upon the merits the burden of proof of unreimbursed losses occurring during the years alleged and the amount thereof would be on the complainants. But it does not appear from the allegations of the bill that the lapse of time has so obscured the affairs of the partnership as to preclude an accurate casting up of accounts during the years 1932 to 1938 inclusive. It is not apparent from any allegation now before the court that there are not full and ample books or records or other sources of information to establish the facts and figures. Nor can it be said that the surviving partner is less well armed with documentary evidence and oral testimony than is the personal representative. Upon demurrer laches must affirmatively appear on the face of the bill in order to amount to a bar. Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779; Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141; Wells v. Wells, 249 Ala. 649, 32 So. 2d 697.
It appears that all matters relating to the affairs of the partnership were presented within three years of the death of the deceased partner. So the bill so far as it concerns the aspect of an accounting by the personal representative against the surviving partner shows upon its face that it was brought well within the period of six years after the last partnership transaction. Wells v. Brown, 83 Ala. 161, 3 So. 439. The relation of partners with each other with respect to the assets and liabilities and the profits and losses of the firm is a confidential one. Each is in a measure a trustee so long as the business continues and the partnership relation obtains. The statute of limitations does not run in favor of one or against the other. In the case of Haynes v. Short, 88 Ala. 562, 7 So. 157, the personal representative of a deceased partner filed a bill for an accounting against the surviving partner. The first item of indebtedness concerned in that case was the amount of $3500 contributed by the deceased as capital and claimed not to have been repaid. The capital sum was contributed in 1870 and the firm continued business until 1884 or 1885 when it was dissolved. The overruling of the demurrer invoking the three year and six year statutes of limitations and the staleness of the demand was held by the *690 court to have been proper. In the case of Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779, 787, this court said: "Mere delay which has resulted in no disadvantage to another or that has not operated to bring about changes in conditions or circumstances, in consequence of which `there can be no longer a safe determination of the controversy,' will not [amount to laches so as] to bar complainant's right or remedy."
We think the court was correct in overruling the demurrer on the point now under consideration.
In conclusion it can be said that all the relief prayed for in this case is with the object of settling and bringing to an equitable determination the business known as the Clarence Farm. The bill seeks an equitable disposal of the jointly owned lands on which David S. Moore and Joe G. Moore engaged in operating the Clarence Farm and an adjustment of the equities therein between the widow of the deceased and the surviving brother. The cross-bill and the amended bill have as their object the settlement of title of personal property located on the lands and the affairs of the partnership, whereby such personal property was acquired and came to be placed thereon.
It is a familiar principle that equity grants full relief when it has jurisdiction on any equitable ground to grant any relief. Having assumed jurisdiction of a part the court will determine all the interrelated equities of the whole. "Equity delights to do justice, and not by halves." The bill in the instant case is based upon these fundamentals and will avoid multiplicity of suits. Hence it is not multifarious. Brantley v. Brantley, 251 Ala. 493, 38 So. 2d 8; McGowin v. Robinson, 251 Ala. 690, 39 So. 2d 237.
We think the Court acted correctly in overruling the demurrer to the bill as last amended.
Affirmed.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur. | March 29, 1951 |
63ce1bae-a9a8-4267-85bb-6522503fe46f | Waters v. Weintraub | 52 So. 2d 510 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 510 (1951)
WATERS et al.
v.
WEINTRAUB.
6 Div. 121.
Supreme Court of Alabama.
May 10, 1951.
*511 Wm. S. Pritchard, Victor H. Smith and Pritchard & McCall, all of Birmingham, for appellants.
Berkowitz, Fleisher & Miller, Birmingham, for appellees.
STAKELY, Justice.
This is a suit brought by Max Weintraub (appellee) against N. H. Waters and Anna Lois Waters individually and as partners doing business under the firm name of Waters Theater Company (appellants). The complaint consists of five counts. The first two counts are for breach of an alleged contract in writing made between the plaintiff and the defendants. The last three counts are the common counts for money had and received, for money paid and on account respectively. There was verdict and judgment for the plaintiff for $2400.00. On motion for new trial the plaintiff consented to a reduction of the verdict and judgment to $1369.01.
Waters Theater Company by N. H. Waters, designated as sellers and Max Weintraub, designated as purchaser, executed a written contract whereby in substance (1) the sellers agreed to convey to purchaser certain real estate located at the southeast corner of 3rd Avenue North and 24th Street in Birmingham, Alabama, more particularly described in the contract, subject to the existing mortgage thereon which the purchaser agreed to assume as a part of the purchase price and (2) whereby the purchaser agreed to transfer to sellers "property located at 1617-2nd Avenue South known as Dunbrik Products Co., said property consisting of all machinery, inventory and equipment used in the manufacture of brick by purchaser located at the above address. Purchaser to transfer to seller lease on property being occupied by Dunbrik Products Co. Also one dump truck and spare parts, etc., one car of cement (just arrived)." The contract contained the following provision: "Agreement to exchange these properties based on figures given to Mr. J. F. Ford, Jr." and further provided "If trade is accepted, the Waters Theater Co. is to take over plant on Monday, April 19, *512 1948. Pro rations are to be made as of that date. All income at plant to be held in escrow until satisfactory title is passed on 3rd Avenue property."
The contract acknowledged receipt of $1000.00 deposit as earnest money and provided for a cash payment on closing of the trade by purchaser to sellers of the sum of $10417.00. The contract provided that both parties were to pay to W. O. Wood Realty Company as their agent as compensation the sales commission adopted by the Birmingham Real Estate Board.
The contract was executed on April 17, 1948. As provided in the contract two days later on April 19, 1948 the sellers were "to take over the plant" and did in fact take possession of the same. From that date until May 4th sellers operated the brick plant, purchased supplies, used its inventory, manufactured and sold its products. On May 4, 1948 Waters Theater Co. wrote a letter to Max Weintraub and to W. O. Wood Realty Co., agent for Max Weintraub, cancelling the contract on the ground of alleged misrepresentations claimed to have been made by the appellee. Among other things the letter stated:
"We have heretofore tendered the keys back to you to your property and business, and you are responsible for your property and business.
"We hereby again tender back to you all things of value which belong to you, referred to in said contract. The contract is cancelled insofar as the undersigned is concerned on account of said misrepresentations as herein stated."
Despite the aforesaid letter to appellee, appellee's attorney advised the appellants in writing of a time and place fixed for the closing of the transaction. At this time the appellee and his counsel were present with certified check and all transfers necessary to consummate the transaction and offered to do so. The appellants did not attend.
Tendencies of evidence show that the appellee pursuant to the contract paid the real estate broker a commission of $500.00. For the examination of the abstract of title to the real estate owned by the appellants and to be conveyed to appellee under the contract, the appellee paid the sum of $50.00 to an attorney. At the time of filing of the suit and the time of the trial appellants had in their possession the sum of $135.00 derived from the operation of the brick plant which had not been returned to the appellee. The appellants admitted that there had been shipped from the brick plant to the Fairfield Theater Company a quantity of brick having a fair market value in the amount of $542.90, the Fairfield Theater Company being a company in which appellant N. H. Waters' son had an interest or was the owner. This amount was not paid by the Fairfield Theater Company.
Tendencies of the evidence showed that the rent for which appellee was liable for the period during which the appellants were in possession of the premises occupied by Dunbrik Products Co. was not paid by them and was in the amount of $100.00. Tendencies of the evidence also show the consumption by appellants of various supplies, materials and other property on hand at the time appellants took possession but not replaced at the time possession was surrendered. Tendencies of the evidence also showed damage or injury to a fence and to machinery in the plant during the time the appellants had possession of Dunbrik Products Co.
Tendencies of evidence showed that a salesman, Edgar Cantrell, of the Wood Realty Company undertook to bring the appellee and N. H. Waters, one of the appellants, together and negotiations were begun several days before the contract sued on was executed. The salesman went with N. H. Waters and his auditor, J. F. Ford, Jr., to the brick plant and discussions with regard to the machinery and equipment, cost of manufacture and amount of business that had been done by the plant and the unfilled orders for the product which were on hand and other similar matters were had between N. H. Waters and J. F. Ford, Jr. on the one hand with the appellee and his brother Joe Weintraub, who was a stockholder and director of Dunbrik Products Co. and supervised the keeping of the books thereof, on the *513 other. Waters left it to his auditor Ford to obtain the information about the business of the concern and executed a contract on what Ford reported to him. In fact, as shown, the contract provided that, "Agreement to exchange these properties based on figures given to J. F. Ford, Jr." was placed in the contract on the insistence of Waters.
Tendencies of the evidence further showed that Edgar Cantrell, the real estate salesman employed by W. O. Wood Realty Company, went with N. H. Waters and appellee to the Dunbrik Products Co. and went over the plant and examined it, checked all the equipment and watched the making of bricks. Tendencies of the evidence showed that Max Weintraub told them what the cost per thousand was to make the bricks and what the net profit was. Mr. Ford was not present on this occasion. Two or three days later Cantrell went with Ford and they then checked with Max Weintraub on how many bricks they made per hour, the price on different kinds of bricks and got an analysis of what was put in different kinds of bricks and the full details on the cost of making bricks. Tendencies of the evidence showed that Ford looked at the machinery and asked lots of questions about it and went to the office and examined their records and orders and took figures off the records.
Tendencies of evidence showed misrepresentations made by appellee to the appellants in connection with orders for brick on hand with the Dunbrik Product Co. and in connection with inventories on hand by the company and accounts due the company. There was evidence however tending to show that such misrepresentations were not made.
I. It is earnestly insisted by the appellants that the appellee has no right to recover because the damages, if any, were damages suffered by the Dunbrik Products Company, which was at the time a corporation. The proof tended to show losses suffered by reason of differences between conditions existing when the business and assets of Dunbrik Products Company were turned over to appellants and when they were turned back to appellee on repudiation of the contract by appellants. These differences were in the amount and value of supplies on hand, conditions resulting from injuries to the machinery and plant during the period when the appellants had charge and possession, failure to account for accounts collected and obligations incurred by the appellants in the operation of the business during the period which appellee was forced to pay.
It is true that Dunbrik Products Company was a corporation at the time when the contract was made and was not dissolved until some months after the institution of this suit. The corporation had three stockholders, Max Weintraub, the appellee, his brother who testified in the case in behalf of appellee and their father. The contract sued on provides for the transfer to the appellants of the machinery, inventory, equipment and accounts of the Dunbrik Products Company. The proof shows that at the time and place set by appellee for closing the transaction appellee appeared with all transfers necessary for closing the contract. It is without dispute that the appellants took possession and charge of the business and assets of the company. Appellants retained possession for two weeks and during that time operated the business. There was no protest on the part of Dunbrik Products Company or any one else when appellants had possession. It is in this two weeks period that the damage is claimed by appellee to have been done. The letter of repudiation written by appellants refers to the business and property as being that of Max Weintraub.
Under the circumstances, so far as the appellants are concerned, the appellee must be regarded as the seller and the damage, if any, must be considered as sustained by him. In accordance with the statute the items which appellee was to acquire and sell to appellants are known as "future goods" and "Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods." Section 11, Title 57, Code of *514 1940; Williston on Sales, Vol. 1, p. 367. See Central of Georgia Ry. Co. v. Isbell, 198 Ala. 469, 73 So. 648; 55 C.J. p. 1065.
II. It is argued that the course followed by the appellee in the present case amounts to a rescission of the contract on his part and assuming that this be true, he cannot at the same time recover damages under a contract which he has not performed. This is not correct. The principle here applicable has been stated by the Supreme Court of the United States in Anvil Mining Co. v. Humble, 153 U.S. 540, 14 S. Ct. 876, 880, 38 L. Ed. 814, as follows: "Whenever one party thereto is guilty of such a breach as is here attributed to the defendant, the other party is at liberty to treat the contract as broken, and desist from any further effort on his part to perform; in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrong doing of the other party has brought about." See Williston on Sales, Vol. III, pp. 276-277.
The theory of the appellee is that there was a wrongful repudiation of the contract by appellants and although the appellee was at all times, ready, able and willing to comply with the contract, the appellants refused to comply with its terms. This is correct. Long v. Addix, 184 Ala. 236, 63 So. 982. The appellee under the circumstances can maintain an action on the contract for damages which so far as possible may put him in as good position as if the contract had been performed. Authorities supra.
III. In Lambert v. Jefferson, 251 Ala. 5, 36 So. 2d 594, 596, this court quoting from King Land & Improvement Co. v. Bowen, 7 Ala.App. 462, at page 480, 61 So. 22, 28, said: `* * * that `general damages are such as naturally and necessarily flow from the wrong act; while special damages are such as naturally, but do not necessarily flow from it. The former do not have to be pleaded in order to give defendant notice that they will be proved at the trial; for they are implied by law, and he is supposed to know, and can prepare to defend as to, all damages that necessarily result from the wrong done. Special damages, however, do have to be set out and claimed in the complaint to the end that the defendant, who could not possibly in all cases anticipate them, may have proper notice of them, and thereby have opportunity to prepare to meet at the trial the proof as to them.'"
The general damages which the appellee would be entitled to recover in the present case would be the difference between the contract price and the value of the real property at the time of the breach of the contract. Greenberg v. Ray, 214 Ala. 481, 108 S. 385. But there does not appear to us to be any effort in the case to recover general damages but only special damages. Recovery was allowed of special damages such as has been heretofore pointed out. Some of these items of special damage are not claimed in the complaint and therefore are not recoverable. Count one of the complaint merely claims damages for the breach of the contract to convey the real estate and alleges in effect that although the plaintiff has complied or offered to comply with all the terms of the agreement on his part the defendants breached the said agreement in this respect,the defendants failed and refused to convey to plaintiff said real estate on the terms set forth in the agreement.
Count two contains the following allegations: "* * * that, thereafter, though plaintiff was at all times ready, willing and able to perform the contract and to comply with all its terms on his part, defendants failed and refused to sell and convey the said real property to plaintiff in accordance with the terms of said agreement; and that as a proximate consequence of the aforesaid wrongful breach of the agreement on the part of the defendants, the plaintiff was greatly damaged; plaintiff was wrongfully deprived of his business, Dunbrik Products Company, the credit standing and good will of said business was impaired, plaintiff lost the profits he would have had in the normal course of said business, plaintiff was caused to expend large sums in replenishing his inventory *515 which had been depleted by defendants, plaintiff was forced to expend much time, effort and money in reestablishing his said business; and plaintiff claims $10,000 as damages."
It is obvious from the foregoing that there is no claim in the complaint for damages to the machinery of the business, to a fence on the premises of Dunbrik Products Company, for failure to account for collections or damages resulting from the creating of obligations in the operation of the business which the appellee was forced to pay. Furthermore there is no claim in the complaint for damages for the expense to which the appellee was put in carrying out his part of the trade, namely, the payment of the fee to the real estate brokers or the charge made by his attorney. All these items are clearly special damages, if any, and cannot be recovered in the absence of a claim therefor in the complaint. Lambert v. Jefferson, supra; Blankenship v. Lanier, 212 Ala. 60, 101 So. 763; Columbia Motors Co. v. Williams, 209 Ala. 640, 96 So. 900.
The court gave written charges requested by the appellants to the effect that the plaintiff could not recover any damages on account of impairment of the credit and good will of the business of Dunbrik Products Company and also that the plaintiff could not recover any damages on account of expenditure of time, effort and money in reestablishing his business. But even if these items were eliminated this still leaves in the case items of special damages which were not claimed in the complaint. The verdict of the jury for $2400.00 was on motion for new trial reduced by the court to the sum of $1369.01. While it may be true that in making this reduction the court acted to purge the verdict of nonrecoverable items, we are furnished no guide by which we can reach this conclusion. We have examined the record very carefully in this regard but cannot say that the figures speak for themselves.
IV. Since the case must be tried again there is one other matter to which we should refer as a guide to further proceedings. It is claimed by the appellants that the contract to convey the property located at the Southeast corner of 3rd Avenue and 24th Street in Birmingham was not signed by Lois Waters and since she owned an interest in the property the contract is not binding on her by virtue of the statute of frauds. This is correct. A parol, executory agreement for the purchase of land is invalid under the statute of frauds and this applies to partnership property. Talley v. Talley, 248 Ala. 84, 26 So. 2d 586; Butts v. Cooper, 152 Ala. 375, 44 So. 616. This however would not affect the validity of the contract so far as N. H. Waters is concerned.
For the errors indicated the judgment of the lower court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | May 10, 1951 |
7e71b44a-cbbf-48e0-a082-37d8f0f9c929 | Tyler v. Drennen | 51 So. 2d 516 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 516 (1951)
TYLER
v.
DRENNEN.
6 Div. 81.
Supreme Court of Alabama.
March 1, 1951.
Rehearing Denied March 29, 1951.
*520 Gibson & Hewitt, of Birmingham, for appellant.
Davies & Williams, of Birmingham, for appellee.
*518 The following charges were given for defendant.
"5. If you are reasonably satisfied from all the evidence in this case that the defendant was driving his automobile in a reasonably careful and prudent manner at the time of the accident, then your verdict should be for the defendant.
"6. If you are reasonably satisfied from all the evidence in this case that at the time of the accident the defendant was driving his automobile in a careful and prudent manner and in the manner in which a reasonably prudent man would have driven his automobile under the same or similar circumstances, then your verdict should be for the defendant.
"8. If you are reasonably satisfied from all the evidence in this case that the defendant at and immediately prior to the time of the accident drove his car as a *519 reasonably prudent man would have driven his car under the same or similar circumstances, then your verdict should be for the defendant.
"10. I charge you, gentlemen of the jury, that if you are reasonably satisfied from all the evidence in this case that the damages complained of were the results of an unavoidable accident, then you cannot find for the plaintiff.
"12. I charge you, Gentlemen of the jury, that the statute setting out the recommended speed for residential districts in Alabama does not make such speed an unlawful act under all circumstances, but whether or not such speed is lawful depends upon the conditions then existing so that the speed shall not be dangerous or unsafe.
"13. The burden of proof is upon the plaintiff to show that the proximate cause of the plaintiff's damages were the direct result of the negligence of the defendant; if you are not reasonably satisfied from the evidence in this case that the plaintiff has proven such negligence on the part of the defendant as being the proximate cause of the plaintiff's damages, your verdict should be for the defendant.
"14. If you are reasonably satisfied from all the evidence in this case that the plaintiff was guilty of negligence which proximately contributed to the collision complained of, then you cannot find for the plaintiff under count one of this complaint.
"18. I charge you, gentlemen of the jury, that the driver of a car, desiring to make a left hand turn between intersections, should exercise extra precautions before attempting the left turn in order to see that such turn may be made in safety.
"20. If you are reasonably satisfied from all the evidence in this case that the plaintiff saw the defendant prior to making a left turn across the highway in front of the defendant, and you are further satisfied from all the evidence in this case that the plaintiff consciously made a left turn across the highway with reckless indifference to the consequences of such turn and with knowledge that her conduct would probably result in injury or damage to the defendant then you should find for the defendant on count two of his plea of recoupment.
"A. If you are reasonably satisfied from all the evidence in this case, that the plaintiff had a clear and uninterrupted view in the direction from which the defendant was coming, and you are further reasonably satisfied from all the evidence in this case that the plaintiff looked in the direction from which the defendant was coming prior to making her left turn, the plaintiff will be deemed to have seen the approach of the defendant for a distance within the scope of the plaintiff's vision in said direction.
"B. I charge you, Gentlemen of the jury, that before the plaintiff will be entitled to recover for any damages or injuries suffered in the accident complained of for negligence based on a violation of a statute or ordinance with reference to speed in a residential section, such speed must have been the proximate cause of the collision.
"F. If you are reasonably satisfied from the evidence that the speed at which the defendant's automobile was being operated on the occasion complained of was that speed at which a reasonably prudent person would have operated the automobile under the same or similar circumstances, then you cannot find that defendant was traveling at an unlawful speed on said occasion.
"X. I charge you, gentlemen, that under the law of Alabama there was no absolute speed limit at the point where this accident occurred at the time of the accident complained of and it is for you to say under all the facts and circumstances whether or nor the speed at which the defendant's car was being driven on said occasion was unlawful.
"B.B. I charge you gentlemen, that the fact, if it be a fact, that defendant was driving his vehicle at a speed greater than 25 miles per hour, does not mean that said speed was unlawful, but it would be for you to say under all the facts and circumstances whether or not such speed was unlawful."
STAKELY, Justice.
Mrs. Bertha Calhoun Tyler (appellant) brought this action against Charles Edward Drennen (appellee) for damages growing out of an automobile collision. The complaint contained a count in simple negligence and a count alleging wantonness. The defendant filed two pleas seeking damages by way of recoupment, one plea alleging simple negligence and the other averring wantonness. Both defendant and the plaintiff respectively filed a plea of the general issue in short by consent with leave to give in evidence any matter which would be admissible if specially pleaded. Upon submission of the case to the jury the jury returned a verdict for the defendant. The plaintiff filed a motion for a new trial which was overruled by the court.
On Sunday, January 2, 1949, about 11 A.M. the appellant was driving her automobile to church. This was at or near Mt. Pinson on highway 38. At the point of the accident there is an unpaved or chert driveway leading to a church located on the east side of highway 38. This chert driveway is approximately 12 feet wide and is about 21 feet north of the intersection of highway 38 with the Silver Lake Road, which was also unpaved at the time of the accident. Just prior to the accident appellant was driving south on highway 38. She testified that she only saw appellee's automobile, which was driving north on highway 38, for a distance of 100 feet before it reached the point of impact and that she was frightened and excited and didn't recall whether her foot was on the gas pedal or brake.
The defendant testified that just prior to the accident he was traveling north on the east side of highway 38 and saw appellant's car several hundred feet away but when he was only about 70 or 80 feet from appellant's car without signal so far as he saw, she suddenly cut across the highway to the left and stopped immediately in front of his car, blocking the highway. The defendant testified that when he saw the plaintiff turn he immediately applied his brakes. The point of impact was approximately 3 feet and 6 inches east of the center line of the highway and the skid marks made by defendant's car leading up to the defendant's vehicle were wholly on the east side of the center line of the highway. The left front of the defendant's car collided with the right front of appellant's car. There is testimony tending to show that after the impact the defendant's car stopped approximately at the point of the impact traveling at that time not over 8 or 10 miles per hour while the plaintiff's car rolled slowly backwards down the hill for a distance of 15 feet.
The plaintiff testified that she was driving approximately 15 miles per hour before reaching the point where she wanted to make a left turn in order to turn into the driveway leading to the church. According to her she gave a signal before turning and looked in both directions but did not see anything. Further according to her she slowed down and started across the highway and her left wheel was about the middle line when she first saw the defendant's car. She was either almost stopped or was going mighty slow when the defendant came over the top of the hill and she first saw him. According to her the front of the defendant's car struck the front of her car on the right front and knocked it all the way across the road back in the driveway.
The plaintiff testified that the defendant was going about 70 miles per hour after he topped the little hill 100 feet from the point of impact. In the neighborhood along the highway where the impact took place there was a church, school, school annex and filling station as well as many dwelling houses immediately fronting on the highway. Bobby Montgomery, witness for the plaintiff, testified that the defendant's car was going at least 50 miles an hour. Highway 38 is a muchly traveled highway, but at the time of the accident the two cars here involved were the only cars on the highway at or near the place of the accident. It is undisputed that the *521 visibility where a car could be seen from the direction from whence the defendant's car came to the point of the impact was approximately 700 feet. J. H. Hagood, a state highway patrolman, testified that he measured the skid marks behind Mr. Drennen's car at the time of the accident and they measured 63 feet. They were black marks on the highway. From where he found the mud and debris of the impact, it was 12 feet to where the plaintiff's car was located on the west side of the highway. From where the skid marks first started behind the defendant's car it was about 150 feet back to the top of the hill. When the plaintiff's car was hit, the hood flared up.
The defendant testified that he was going 40 to 45 miles per hour. He had been along the highway at the point of the accident from six to perhaps ten times before the accident.
Substantially all of the assignments of error are based upon rulings of the court with respect to written charges requested by the defendant. In considering at least some of these charges it will be necessary to determine whether there is evidence from which a jury could find for the plaintiff on the wanton count, because if there is no evidence to support the wanton count, the giving of charges which apply only to the count in simple negligence, if error, is error without injury. Lambert v. Birmingham Electric Company, 244 Ala. 333, 13 So. 2d 579. In this connection we should, of course, review tendencies of the evidence most favorable to the plaintiff. Duke v. Gaines, 224 Ala. 519, 140 So. 600.
Photographs introduced in evidence by the plaintiff together with the oral testimony show that the place on the public highway where the accident occurred was a community with buildings for about a mile along the highway, including a church, school, school annex, filling station and dwellings "just one right after the other."Running into the highway from the east was the Silver Lake Road and the road leading to the driveway to the church. Many of the homes along the highway had driveways leading into the highway. Appellee had been over the highway 6 to 10 times.
There is testimony that appellee applied his brakes 25 yards before the accident. There is testimony that he was traveling 70 miles per hour when he topped the little hill and that a car could be seen from the direction from which the appellee came to the point of impact for about 700 feet. There is testimony that appellee skidded his car 30 to 40 feet before striking appellant's car and from where the skid marks first started behind appellee's car it was 151 feet back to the top of the hill. When appellant's car was hit the hood flared up.
According to appellant she was driving about 15 miles per hour before reaching the point where she wanted to make a left turn into the road leading to the church and gave a signal before turning and looked in both directions, but did not see anything. She slowed down and started across the highway and her left wheel was across the middle line when she first saw appellee's car. She was either almost stopped or going mighty slow when appellee came over the top of the hill. The front of appellee's car struck the front of appellant's car and knocked it across the road back into a driveway.
We think that the wantonness vel non of the defendant was a question for the jury. Sims v. Birmingham Electric Company, 238 Ala. 83, 189 So. 547.
We also add that under tendencies of the evidence the question of wantonness vel non of the plaintiff under count 2 of the plea in recoupment was also for the jury. According to tendencies of the evidence the appellant made a left turn across the highway and stopped immediately in front of the appellee's approaching car when that vehicle was only 70 to 80 feet away. The evidence is undisputed that the collision between the cars was on the defendant's side of the highway. We think the jury was warranted under the tendencies of evidence in concluding that appellant recklessly and with indifference to consequences turned her car to the *522 left across the highway and thereby caused the accident. Roberts v. McCall, 245 Ala. 359, 17 So. 2d 159.
Assignment 2. There was no error in giving charge 18. This charge is not at variance, as contended by appellant, with the general rule that a person's action must be such as a reasonably prudent person would exercise under the same or similar circumstances. The charge is a definition of the care required to be exercised by a reasonably prudent person under the circumstances involved in this case. Due care is relative always and much depends upon the facts of the particular case. Adler v. Martin, 179 Ala. 97, 59 So. 597; W. & W. Pickle & Canning Co. v. Baskin, 236 Ala. 168, 181 So. 765. Due care often requires extraordinary or highest care. Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729.
It is proper for the court when a statute prescribes actions of persons driving an automobile over the highway to instruct the jury as to the duties thus imposed with respect to the safety of others. Wise v. Schneider, 205 Ala. 537, 88 So. 662. The statute itself, § 17, Title 36, Code of 1940, imposes a duty of extra precaution upon a person making a left-hand turn. We quote the pertinent part of the statute as follows: "The driver of any vehicle upon a highway before starting, stopping, backing or turning from a direct line shall first see that such movement'can be made in safety and if any pedestrian may be affected by such movement, shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in this section, plainly visible to the driver of such other vehicle of the intention to make such movement."
While this court does not appear to have passed directly upon the proposition here involved, other jurisdictions having the same or similar statutes impose a duty to use extra precaution upon a person making a left-hand turn between intersections. In the case of Phoenix Baking Co. v. Vaught, 62 Ariz. 222, 156 P.2d 725, 728, the Supreme Court of Arizona had before it a statute apparently identical with the Alabama statute. The court among other things said:
"* * * We think the `extra precaution' rule is a moderate construction of the law. It infers a duty on the driver of a care less than absolute, perhaps even less than `extraordinary care', adopted as the rule in Washington. It seems to us that the term would be understood to mean something more than ordinary but less than extraordinary care. We do not believe that the extra precaution instruction was or could be misleading to the jury.
"When a driver on a road where traffic is heavy makes a left-hand turn between intersections common sense requires that he should exercise more than ordinary care. This has been the law of Arizona since the Mclver decision. The trial court, therefore, properly modified defendants' instruction three by eliminating the latter portion thereof.It is true that the driver was only required to use such care in the circumstances as an ordinarily prudent person would exercise in the same situation in making such turn. But it must be borne in mind that such an ordinarily prudent person would exercise a higher degree of care than ordinary care."
In Blashfield's Cyclopedia of Automobile Law and Practice, 2 Blashfield 283, § 1121, it is said: "The driver of a car, desiring to make a left-hand turn between intersections, should usually exercise extra precaution before attempting it." See 60 C.J. §75.
The following authorities set forth varying degrees of care from "extra precaution" and "very high degree of care" to "extraordinary care" as being required in making turns between intersections. Hildebrand v. Peterson, La.App., 7 So. 2d 378; Shirley v. Caldwell Bros. & Hart, La.App. 183 So. 581; Payne v. Prestridge, 16 La.App. 479, 133 So. 512; Bayer v. Whitley, 18 La.App. 443, 138 So. 702; Esponette v. Wiseman, 130 Me. 297, 155 A. 650; Ceasar v. Phillips Petroleum Co., 187 Okl. 559, 104 P.2d 429; Mclver v. Allen, 33 Ariz. 28, 262 P. 5; Onkles v. Stogsdill, 151 Wash. *523 194, 275 P. 692; Bennett v. DeLeonardo, 109 Conn. 602, 145 A. 61.
But it is claimed that the court was in error in giving charge 18 because it pretermits consideration of the wanton count. We do not think this is correct. The charge simply states the law correctly as to the duty of a driver of a car desiring to make a left-hand turn between intersections as is claimed plaintiff did on the occasion in question. It merely states the substance of a rule of the road enacted by the legislature. True it ignores wantonness, but it also ignores negligence. It gives no direction as to its effect. It thereby ignores all issues. It could well have been refused on that account. It would have been error, since it was given, to refuse a charge limiting its effect to the simple negligence count. But as given there was no error on any legal principle.
Assignment 3. There was no error in giving charge 5 requested by the appellee. It is contended that it was error to give this charge because it was not limited "to the count in simple negligence. It is true that the charge defines the act of a person who is free from negligence but it also includes a person who is free from wantonness or subsequent negligence. A person who is acting as a reasonably prudent man will not do a wanton act nor one that is negligent. But a man who is not negligent may be wanton. Therefore a charge to find for defendant if he was not negligent when there is a wanton count supported by the evidence is erroneous. Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547.
Assignments 4 and 5. There was no error in giving either charge 6 or charge 8 at the request of the defendant. What we have said with reference to charge 5, assignment 3, is equally applicable to charges 6 and 8.
Assignment 6. As we have pointed out under the plaintiff's theory of the case the wanton count was for the jury's consideration. This assignment deals with the action of the court in giving charge 13. This charge ignores the wanton count. Under our authorities this requires a reversal of the cause. Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547. The term negligence is not synonymous with wantonness nor does it include wantonness as contended by appellee. Sims v. Birmingham Electric Co., supra; Louisville & Nashville R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511, 41 Am.St.Rep. 21; Clark v. Birmingham Electric Co., 236 Ala. 108, 181 So. 294.
Assignment 7. It is insisted that the court was in error in giving charge 20 because it pretermits consideration of appellee's wanton conduct. We agree. While it is true that the appellee's wanton conduct did not preclude recovery for injuries caused by the appellant's wantonness, nevertheless the question of the wantonness of each, if any, under the issues in this cause should have been submitted to the jury under the following Alabama authorities. A. B. C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So. 2d 511; Alabama Power Co. v. Kendrick, 219 Ala. 692, 123 So. 215; Davis v. Smitherman, 209 Ala. 244, 96 So. 208. It is true that the court in its oral charge correctly stated the law as set forth in the foregoing authorities, but this does not help the situation because where the oral charge and the written charge are at variance, the jury is left in uncertainty as to the rule which it should follow. Montgomery City Lines v. Scott, 248 Ala. 27, 26 So. 2d 200.
Assignment 8. This assignment relates to charge A given at the request of appellee. It is argued that this charge invades the province of the jury and hence its giving is error. It seems to us however that the charge is directed at a legal conclusion. In the case of Central of Georgia Ry. Co. v. Graham, 218 Ala. 624, 119 So. 654, 655, it was held: "We agree that, if she saw the approach of the train in time to avoid the accident, she cannot predicate recovery on failure to give the signals. Alabama Power Co. v. Bradley, 18 Ala. App. 533, 93 So. 73. We also agree that, if the evidence shows as a legal conclusion that she could certainly have seen the train when she looked, she is chargeable with *524 having seen it. Peters v. So. Ry. Co., 135 Ala. 533, 33 So. 332; So[uthern] Ry. Co. v. Irvin, 191 Ala. 622, 68 So. 139."
Assignment 9. There was no error in giving charge B at the request of the appellee. It confines itself to count 1 by its own language. The charge does not ignore the issue of subsequent negligence. This charge predicates a recovery for negligence in the fact that it was the proximate cause of the collision. This includes subsequent negligence. If the negligence is the proximate cause of the collision, it is so whether it is primary or subsequent negligence which is shown by the evidence. Birmingham Electric Co. v. Carver, Ala. Sup., 52 So. 2d 200.
Assignment 10. There was no error in giving charge F. The charge is equally applicable to both counts of the complaint. In answer to the contention that the charge contradicts the prima facie speed limits as set forth in § 5, Title 36, Code of 1940, it is sufficient to quote from McCaleb v. Reed, 225 Ala. 564, 144 So. 28, as follows: "It will be observed that this statute does not make such speed an unlawful act under all circumstances at a place stated in the statute; but that if he drives at a speed not exceeding the rate named it is prima facie lawful. The statute also makes it prima facie unlawful to exceed that speed. But whether it is lawful or not, as stated in section 51(a) and (b), depends upon the conditions then existing, so that the speed shall not be dangerous or unsafe."
Assignments 11, 12 and 14. There was no error in giving charges BB, X and 12. What we have said with reference to charge F under assignment 10 is sufficient to say here.
Assignment 13. While we do not hold that there was reversible error in giving charge 10, which is an unavoidable accident charge, the better practice is to refuse such a charge because of its tendency to mislead and confuse. Cosby v. Flowers, 249 Ala. 227, 30 So. 2d 694.
Assignment 15. There was no error in giving charge 14 requested by the appellee. In Newman v. Lee, 222 Ala. 499, 133 So. 10, the charge was held bad because it omitted mention of the necessary element of proximate cause. It is not authority for the position that "contributed to the collision" rather than contributed "to the injury" is reversible error. As to the contention that the charge ignores subsequent negligence, it is sufficient to say what was said in this connection in relation to charge B.
We have examined other assignments of error and find no merit in them.
For the errors pointed out the judgment of the lower court is reversed and the cause is remanded.
Reversed and remanded.
FOSTER and LAWSON, JJ., concur.
BROWN, J., concurs except that he thinks the court was in error in giving charges A and 14. | March 1, 1951 |
56dbdf84-323b-4fb2-9875-d5cedba09139 | State v. Travelers Ins. Co. | 53 So. 2d 745 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 745 (1951)
STATE
v.
TRAVELERS INS. CO.
3 Div. 586.
Supreme Court of Alabama.
March 8, 1951.
Rehearing Denied June 28, 1951.
A. A. Carmichael, Atty. Gen., and Willard W. Livingston and M. Roland Nachman, Jr., Asst. Attys. Gen., for appellant.
Spain, Gillon, Grooms & Young, Frank E. Spain, and Ralph B. Tate, all of Birmingham, for appellee.
*746 SIMPSON, Justice.
The State has appealed from a decree overruling its demurrer to the bill of appellee filed in the circuit court, in equity, to challenge an assessment made by the Department of Revenue for its annual franchise tax.
The assessment was for the year 1949 and under the law the appellee was required to pay an annual franchise tax of $2.00 on "each one thousand dollars of the actual amount of capital employed in this state." Code 1940, Title 51, § 348; Constitution 1901, § 232.
The constitutional provision relating to the subject is: "* * * The legislature shall, by general law, provide for the payment to the State of Alabama of a franchise tax by such corporation [foreign], but such franchise tax shall be based on the actual amount of capital employed in this state. * * *" Constitution 1901, § 232.
The statute implementing this constitutional provision reads as pertinent: "Every corporation organized under the laws of any other state, nation or territory and doing business in this state, except strictly benevolent, educational or religious corporations, shall pay annually to the state an annual franchise tax of two dollars on each one thousand dollars of the actual amount of capital employed in this state. * * *" § 348, supra.
The bill shows that the appellee insurance company is a foreign corporation with its home office in Connecticut and was engaged in an interstate business by and through independent contractors called agents, who were residents of Alabama; that it was a stock insurance company, the principal business of which was the writing of life and accident insurance; that the authority of these agents was limited to soliciting applications for insurance, submitting these applications for acceptance or rejection and collecting and remitting to appellee the premiums collected on the policies of insurance, less the agent's commission; usually the premiums collected by appellee's agent were deposited in Alabama banks in the name of the agent and at stated intervals the agent would draw checks on the bank in appellee's favor in payment of the amount due appellee for the premiums collected, less the agent's commission thereon; no salary or wage was paid the agent, the only compensation being the agreed percentage commissions on the individual premiums collected; the agent paid all expenses of maintaining an office and all other expenses incident to the securing of the policy; appellee exercised no control whatsoever over when, how and where its agent should secure an application for himself; that each of appellee's so-called agents in Alabama during the year 1949 was an independent contractor engaged in building and operating his own business in the manner aforesaid.
The bill also shows that the State Department of Revenue, purporting to act under these provisions, assessed appellee's franchise tax for 1949 on the basis of the proportionate total assets of the company by the use of a so-called "allocation formula," which we will attempt to thus briefly describe: The department determined from the records of the corporation the total assets of the corporation to be $1,775,026,769.03. From these total assets there was deducted the "total amount of all liabilities except capital," as shown by the records of the company, to produce a capital figure of $182,376,634.27; this total capital figure was divided into two parts, the physical property used in the business amounting to $13,310,454.51 and the "other capital" amounting to $169,066,179.76; the physical property used in the business was allocated to Alabama upon a so-called situs basis, producing for the state $1050.68; Alabama's part of the "other capital" was apportioned to the state by means of an allocation fraction and the result added to the $1050.68 to produce the actual amount of capital employed in Alabama of $478,662.68. The assessment seems to show that the allocation fraction was developed by the use of two criteria of Alabama business activity, premiums received by the company from Alabama and commissions allegedly *747 paid by the company to its Alabama agents. The Alabama premium income of the company was divided by the total premium income of the company to get the Alabama percentage of premium income, and the figure representing the Alabama commissions was divided by the figure representing the total commissions of the company to get the Alabama payroll percentage. The Alabama premium percentage was averaged with the Alabama payroll percentage to get the allocation fraction.
The formula devised is a rather complicated theory and the chart is here reproduced as it was applied to the instant assessment and as exhibited with the bill.
The essence of the bill's allegations makes the contention that the theory of the State's assessment is erroneous; that the only capital actually employed in Alabama amounted to the aforesaid $1050.68, consisting of office furniture and fixtures, typewriters, stationery, and other office equipment used in the office of appellee's claim adjustor in Birmingham; that the basis of taxation as interpreted by our court is upon the capital of which the state had actual possession; that it employed no other capital in Alabama; that it owned no property of any kind in Alabama; *748 it had no property subject to legal execution and levy in Alabama; it had no loans of money secured by existing mortgages to it on real estate in Alabama; had no investments of any kind in Alabama; and had no money on deposit in Alabama banks.
No issue of fact is up for consideration on this appeal, but only the determination of the sufficiency vel non of the allegations of the bill, the court assuming as true all well-pleaded facts stated therein. State v. Alabama Power Co., 254 Ala. 327, 48 So. 2d 445.
Solution of the question necessarily entails the determination of just what constitutes "actual amount of capital employed" in the state within the meaning of these statutory and constitutional mandates, as applied to appellee's business.
To restate the State's contention, it is that the term "actual amount of capital employed" in the state includes a relative proportion of assets of a foreign corporation (tangible and intangible) used in the conduct of its business, regardless of where situated, and that regardless of the lack of statutory authorization to use the "formula method" of proportion, the department was authorized to devise the formula as establishing the correct admeasurement in apportioning to Alabama the proportionate amount of its total capital or assets as the actual amount of capital employed.
We do not think the position of the State can be sustained under the decisions governing. We have said the words "actual amount of capital employed" are used in their natural and ordinary signification and in the generally accepted sense they have application to the properties and monies set apart from other uses and invested or employed in the operation of the business in the state with the view to income or profit therefrom. State v. Burchfield Bros., 211 Ala. 30, 99 So. 198. We think "actual" must be given some significance in construing the provision. The word is defined in Webster's New International Dictionary to be: "Existing in act or reality; * * * in fact; * * * opposed to potential, possible, ostensible, virtual, speculative, conceivable, ideal, theoretical, hypothetical or nominal * * *." It seems to us then that the actual amount of capital is the antithesis of "allocated capital." The method of arriving at the formula is entirely theoretical. This same idea was given expression in Gorham Mfg. Co. v. Travis, 274 F. 975, where the district court was considering the New York allocation formula for determining a foreign corporation's privilege tax. Judge Learned Hand observed: "With all deference when applied to corporations having business in several states, any effort at allocation must be more or less arbitrary and fictitious, as is indeed shown by the record at bar." (Emphasis supplied.) 274 F. 978.
In Louisville & N. R. Co. v. State, 201 Ala. 317, 78 So. 93, Mr. Chief Justice Anderson, writing for the court, quoted from the remarks of Judge Kyle in the proceedings of the 1901 Constitutional Convention when the constitutional section of instant concern was under consideration, which strongly indicated that the court then thought the term meant capital actually situated in Alabama. Approved quotations in that case from St. Louis Southwestern R. Co. v. State of Arkansas ex rel. Norwood, 235 U.S. 350, 35 S. Ct. 99, 59 L. Ed. 265, and Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 15 S. Ct. 268, 360, 39 L. Ed. 311, here reproduced with the italics of our own court, seem to emphasize that view:
"We therefore accept the construction of Act No. 112, that we have quoted from the opinion of the state court, which is, in short, that it imposes an annual franchise tax upon the right to exist as a corporation or to exercise corporate powers within the state, the amount of the tax being fixed solely by reference to the property of the corporation that is within the state, and used in business transacted within the state, and excluding any imposition upon or interference with interstate commerce." St. Louis Southwestern R. Co. v. State of Arkansas ex rel. Norwood, supra.
"It is settled that where by way of duties laid on the transportation of the subjects *749 of interstate commerce, or on receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained. But property in a state belonging to a corporation, whether foreign or domestic, engaged in foreign or interstate commerce, may be taxed, or a tax may be imposed on the corporation on account of its property within a state, and may take the form of a tax for the privilege of exercising its franchises within the state, if the ascertainment of the amount is made dependent in fact on the value of its property situated within the state, the exaction, therefor, not being susceptible of exceeding the sum which might be leviable thereon, and if payment be not made a condition precedent to the right to carry on the business, but its enforcement left to the ordinary means devised for the collection of taxes." Postal Telegraph Co. Cable v. Adams, supra.
We think it manifest the italicized portions evinced the opinion of our court as then constituted that the actual amount of capital employed in the state by a foreign corporation was to be based on the property of the corporation that is within the state and used in business transacted within the state. Subsequent decisions point to the same conclusion.
In Consolidated Coal Co. v. State, 236 Ala. 489, 491, 183 So. 650, 651, it was stated: "The franchise tax upon foreign corporations authorized by Section 232 of the Constitution of Alabama `based on the actual amount of capital employed in this state,' and levied by the General Revenue Law of 1935 (Acts of 1935, p. 387, Sec. 318) upon foreign corporations `doing business in this State,' is an excise tax for the privilege of exercising corporate functions in Alabama, measured by the actual amount of capital employed in Alabama in the exercise of such corporate functions, capital employed in a business for which the corporation was created and has its existence as a corporate entity."
And, as noticed in Hollingsworth & Whitney Co. v. State, 241 Ala. 96, 1 So. 2d 387, 389, "Employment [of capital], however, is not the same as investment, or ownership of property."
For the same interpretation see State v. Seals Piano Co., 209 Ala. 93, 95 So. 451, and State v. Jackson Securities & Investment Co., 243 Ala. 83, 8 So. 2d 573; Ellis v. W. A. Handley Mfg. Co., 214 Ala. 539, 108 So. 343; Dowling v. Texas Co., 248 Ala. 96, 26 So. 2d 590.
A pertinent statement of like import is found in State v. Pullman Standard Car Mfg. Co., 235 Ala. 493, 498, 179 So. 541, 544, 117 A.L.R. 498, where the court made the following observation: "We think that the lawmakers meant that the difference between the basis of the calculation between domestic and foreign corporations was that as to the former it should be computed on all its capital stock, and as to the latter it should be on so much of its capital or other funds as is used in operating its business in Alabama."
On the basis of the foregoing interpretation, the court has held that the following items are to be included in the computation of the actual amount of capital employed: The value of the plant, regardless of the mortgage on same, Ellis v. W. A. Handley Mfg. Co., supra; the tangible property employed in its office in the State of Alabama, Penn Mutual Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346; nitrate (commodity of sale) imported into Alabama by corporation and stored there, State v. Anglo-Chilean Nitrate Sales Corp., 225 Ala. 141, 142 So. 87; a sum represented by one half of the total annual rent for a building, and capital represented by bills receivable which arose from its Alabama operations, State v. Pullman-Standard Car Mfg. Co., supra; real estate, plant and equipment used by taxpayer regardless of ownership, Consolidated Coal Co. v. State, supra; sums expended in erecting a plant in Alabama, Hollingsworth & Whitney Co. v. State, supra.
And the following items are to be excluded: Notes for premiums due by Alabama residents to an insurance company, Penn Mutual Life Ins. Co. v. State, supra; policy loans made by an insurance company *750 to its Alabama policyholders, Penn Mutual Life Ins. Co. v. State, supra; Alabama bonds owned by a foreign insurance company and not allocated to its business in Alabama, Penn Mutual Life Ins. Co. v. State, supra; government and other bonds owned by a foreign insurance company, Penn Mutual Ins. Co. v. State, supra; loans made to Alabama owners of investment certificates representing withdrawals of part of surrender value, Investors' Syndicate v. State, 227 Ala, 216, 149 So. 83; cash on deposit in Alabama banks in transit to company's home office representing installment payments on Alabama real estate mortgages, Investors' Syndicate v. State, supra.
While admittedly these decisions have not set up a complete index to all items which are to be included as actual amount of capital employed in Alabama, the holdings do present a pattern which indicates that the governing principle of law is to the effect that all assets which have at least a legal situs in Alabama, which are used in Alabama by the foreign corporation in the exercise of its corporate functions, are to be considered as the determining factor. Certainly, to stay within the concepts of our decisions, the assets must be "used" or "employed" in the Alabama operations, and not merely "affect" the Alabama operations.
The Department of Revenue has based its assessment on a formula which in effect says that the Alabama payrolls and premiums bear the same average relationship to the total payrolls and premiums of the corporation as the actual amount of capital employed in Alabama bears to the total capital of the corporation. Such a formula, we believe, shows little more than what the words import, namely, the relation of the Alabama payrolls and premiums to the total payrolls and premiums. We fail to find any reasonable or just relationship between these percentages and the actual amount of capital employed in Alabama, when considered from the standpoint of the precise definitions given to it by our decisions.
Admittedly, the Department of Revenue has power and discretion to fix the amount of this tax within the ambit of the taxable area defined by the statute, and absolute exactness is not required. Butler Bros. v. McColgan, 315 U.S. 501, 62 S. Ct. 701, 86 L. Ed. 991; International Harvester Co. v. Evatt, 329 U.S. 416, 67 S. Ct. 444, 91 L. Ed. 390. But the Department must stay within the confines of the constitutional and statutory mandates. International Paper Co. v. Curry, 243 Ala. 228, 9 So. 2d 8; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446. The basis of this tax is therein clearly defined to be the "actual amount of capital employed in Alabama," and our decisions have given that definition a fixed interpretation. The use of an illusory formula by the Department, which has no tendency to show the amount of this basis, results in an unconstitutional delegationor more accurately, usurpationof legislative authority. This would be but allowing the Department to fix its own standards different from those of the statute, which might have the result of operating differently in fixing the tax as regards each subject corporation. This is not constitutionally permissible. Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894; Panama Refining Co. v. Ryan, supra.
We find no error in the ruling below.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur. | March 8, 1951 |
b83a9ee8-5b3b-4341-a025-753e14a9ffa0 | Schmale v. Bolte | 50 So. 2d 262 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 262 (1951)
SCHMALE
v.
BOLTE.
6 Div. 62.
Supreme Court of Alabama.
February 1, 1951.
Wm. E. James, of Cullman, for appellant.
H. A. Entrekin, of Cullman, for appellee.
FOSTER, Justice.
This is an appeal from a decree of the circuit court, in equity, to which the *263 administration of a decedent's estate had been removed, wherein that court allowed a claim in part in favor of a sister of deceased for services rendered to her during the last two years of her life when she was quite ill. The proceedings were had under authority of section 216, Title 61, Code, Pocket Part, as amended by the Act of July 1, 1943, General Acts 1943, page 308. An appeal lies from such a decree by virtue of that statute to this Court. Willingham v. Starnes, 247 Ala. 30, 22 So. 2d 424.
The contentions made by appellant, as stated in brief, are: (1) no evidence was noted by appellee on the submission of the cause for final decree; (2) appellee failed to prove a contract either express or implied for payment of the alleged personal services, and (3) appellee failed to prove that her account was past due and unpaid.
With reference to the first contention, noted above, we observe that Rule 57 of Equity Practice, Code 1940, Tit. 7, Appendix, makes a note of testimony unnecessary as to any testimony given orally before the judge in open court. All of the evidence was thus given.
Appellant argues that the verified claim of appellee should have been introduced and noted. But we cannot agree. Such claim is in the nature of pleading, not evidence. It is not necessary to note pleading. Cox v. Dunn, 243 Ala. 176, 9 So. 2d 1.
Appellant's brief contains no recital whatsoever of the evidence in any sort of form. Appellee's brief contains much matter of evidence, but does not purport to contain it all. The court heard the evidence given orally under Rule 56, Equity Practice, Code 1940, Tit. 7, Appendix, and recited his finding of facts upon which his decree was based.
In the case of New York Life Ins. Co. v. Mason, 236 Ala. 44, 180 So. 775, 780, this Court made observation with reference to Supreme Court Rule 10 to the effect that it was "to enable this court to determine from the briefs of counsel whether there was error in proceedings in the court below, without making it necessary to explore the entire record." We have also referred to the fact that Supreme Court Rules 10 and 11, Code 1940, Tit. 7, Appendix, are directory and that this Court can exercise its discretion in the consideration of briefs although not drafted in accordance with the requirements of the rules generally. Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579. We have read the evidence as set out in the record in the exercise of that discretion.
The question presented is one of fact only, and that is whether or not the deceased was bound by contract, either express or implied, to pay to appellee anything for her care and services while she was attending upon her. Our decisions are to the effect that it is not necessary for such a contract to be expressed, but may be implied. The burden of proof rests upon the claimant and her testimony as to transactions with and statements by the deceased are not competent evidence. Box v. Box, 247 Ala. 291, 24 So. 2d 28; Patterson v. Rehfuss, 250 Ala. 508, 35 So. 2d 330; Coleman v. Adkins, 232 Ala. 351, 168 So. 184; Lowery v. Pritchett, 204 Ala. 328, 85 So. 531; Duncan v. Johnson, 239 Ala. 183, 194 So. 528. But she may testify to transactions and conversations between deceased and other parties which she heard. Homewood Dairy Products Co. v. Robinson, Ala. Sup., 48 So. 2d 28. She may also testify to occurrences which are not transactions with or statements by her. Richards v. Williams, 231 Ala. 450, 165 So. 820.
It appears from the evidence that the decedent had been a widow for several years and was feeble in mind and body, and her sister, the appellee, was an unmarried school teacher when they began to live together in 1929. They were both possessed of substantial property. Mrs. Hampel, the deceased, lived alone and so did appellee. Appellee moved into the home of Mrs. Hampel some twenty years before Mrs. Hampel's death for the purpose of caring for her. They were companionable and each was helpful to the other. In doing so, appellee reluctantly gave up her teaching profession. She was not seeking a home nor acting for her personal benefit. She owned a home of her own. Approximately two years before *264 Mrs. Hampel died, in May 1949, she had a stroke, and thereafter she required special care and attention. This was rendered by appellee except during seven months of that time when such service was rendered by a nephew who was paid therefor the sum of $495.00 before Mrs. Hampel's death. For services during that period of time the court made no allowance to the appellee, and made no allowance to her for services rendered prior to Mrs. Hampel's stroke in February 1947.
The evidence shows that Mrs. Hampel expressed a desire to bequeath to appellee her home in consideration of the services rendered her, and wrote an instrument in the nature of a will to that effect, but it was not signed nor witnessed or effective as a will. It also appears that she later wanted another sister to have a half interest in the home, but she never completed such disposition. That circumstance tends to show an intent to reimburse appellee for such services. That and other evidence is sufficient to support an inference that such was the intent of Mrs. Hampel but that it was never performed, and that there was an implied contract to that effect which was never carried out. The trial judge heard all the evidence and saw all the witnesses, and recited in his decree his conclusions and the substance of the controlling features of the evidence. It amply supports his finding.
We think it sufficiently shows that such a claim was unpaid and therefore not controlled by Winter v. Pollak, 188 Ala. 153, 66 So. 11, as reported in that and several other appeals. Hunt v. Murdock, 229 Ala. 277, 156 So. 841.
The same reasoning applies to the cross assignments of error. Appellee seeks a modification of the decree so as to include compensation for services rendered prior to the time when Mrs. Hampel had a stroke. But it is not clear that the court was in error in denying this claim, thereby finding that for such period it was not contemplated by them that appellee should receive compensation.
Affirmed.
LAWSON, SIMPSON and STAKELY, JJ., concur. | February 1, 1951 |
cf704140-f1e7-4944-afa6-6513ffbd3d06 | Cox v. Goldstein | 53 So. 2d 354 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 354 (1951)
COX
v.
GOLDSTEIN et al.
6 Div. 931.
Supreme Court of Alabama.
March 29, 1951.
Rehearing Denied June 28, 1951.
Ray & Giles, of Birmingham, for appellant.
J. P. Mudd, of Birmingham, for appellees.
LIVINGSTON, Chief Justice.
The record shows an action on the case charging negligence resulting in personal injuries, brought by the appellant, Mrs. Thomas E. Cox, against appellees, Joe Goldstein and The New Williams, a corporation, operating a ladies' ready-to-wear store in Birmingham, Alabama.
The complaint, in its one count, charges simple negligence in the maintenance of the floor of the entrance-way of defendants' store in an unsafe condition for the use of customers entering the store, proximately resulting in plaintiff's sustaining a fall while entering the store for the purpose of making a purchase.
The single error assigned is the action of the trial court in giving, at the written request of defendants, the affirmative charge, with hypothesis.
To sustain the assignment of error, appellant, in brief, states the evidence as follows:
*355 "The evidentiary facts presented by the record are few and simple, and substantially without dispute.
"About the middle of the afternoon on New Year's Eve, 1947, the plaintiff, a widow of middle age, accompanied by another lady, entered the outer lobby or vestibule of the defendants' ladies' ready-to-wear store in Birmingham for the purpose of purchasing a dress. It was raining at the time and had been raining since 11:42 in the morning, the rainfall being described as from `light' to `moderate'. The plaintiff was wearing shoes with leather soles and medium heels.
"After traversing a few steps into the entrance-way, the plaintiff's feet slipped forward and out from under her, and she fell upon the floor of the vestibule in a sitting position. When she arose from her fall her hose and clothing were found to be wet and muddy.
"The flooring of the vestibule or entrance-way where plaintiff sustained her fall consisted of a composition called `terrazzo', which is made of marble chips imbedded in white cement mortar, and nothing more. The defendants' architect-witness described it as not being an `approved' type floor.
"A sample of this terrazzo flooring was introduced in evidence for the inspection of the jury, and will be available for the inspection of this Court under certificate of the Clerk. It will be readily apparent from examination of this sample that the floor of the vestibule upon which plaintiff "fell was, even in the absence of water, extremely hard, impervious to water, smooth, and slick.
"As will be apparent from the photograph of the entrance-way introduced in evidence and transmitted to this Court the floor of the vestibule was exposed without protection to the weather. In addition to the rainfall at and preceding the plaintiff's injury, gusts of brisk wind were blowing at a velocity of twenty-eight (28) miles per hour.
"This hard and slick-surfaced floor of the vestibule led directly to the door from the public sidewalk, was wet and very slippery, and its entire area was `awfully' wet with muddy water.
"In entering the store, the plaintiff was proceeding at an `average' walkshe was `in no rush'.
"As a result of her fall, the plaintiff sustained severe back injury, and was compelled to wear a steel brace, which she was still required to wear at the time of the trial some eighteen months later."
While we do not disagree with appellant's foregoing statement of the evidence, we do think that for the purpose of clarity we may quote the record on the question as to whether the floor was an `approved' type floor, and, as to whether the water on the floor was `muddy'.
Mr. James A. Lewis, an architect in the city of Birmingham, Alabama, a witness for defendants, testified, in part, as follows:
"Q. And did you design the present floor and the present front of the building on Third Avenue, known as The New Williams? A. Yes, my firm had that job.
"Q. Yes, sir. And are you familiar with the type and kind of floor that is in the vestibule or the outer entrance leading into the store proper? A. Yes, sir.
"Q. And how would you describe that floor? What type and kind of floor is it? A. Well, that is called a terrazzo floor, and it isit consists of marble chips imbedded in cement mortar.
"Q. And is that an approved type and kind of floor for use in that particular situation as it was used there? A. No, that floor has been used since the days of the Romans.
"Q. Well, I say, is it standard and approved? A. Oh, yes, sir, yes. I would say most of the stores, commercial stores
"Q. You said `no' a moment ago; I didn't know whether you understood my question or not. A. What I meant was, it is not an approved type; it is a very old floor, dating back to
"Q. Well, it is standard orA. It is standard; it is a standard floor, yes, sir.
*356 "Q. Do you know of any other buildings up and down Third Avenue there that use that type of floor for an entrance to their stores? A. Well, I think on that side of the street that most of them do. I know Odom, Bowers & White, and next to them is Bond Clothing Company, The Vanity Boot Shop and the Guarantee Shoe Store, I know they all have that same type of floor in the vestibules.
"Q. Is there any such floors here in the Court House? A. All your corridor floors, your lobby floors and your entrance floors on the first floor down there are terrazzo floors.
"Q. When you say `terrazzo', will you just tell the jury what terrazzo means in the ordinary, every-day language of a layman? A. Well, I just said a minute ago it is nothing more than marble chips imbedded in cement or mixed with cement mortar.
"Q. And wasin the construction of the floor, was it so laid and arranged and designed that there would be drainage from the floor, or not? A. Yes. We have to have slight drainage, otherwise water would run into the building.
"Q. Well, is the drainage from the store to the gutter or the sidewalk? A. Yes.
"Q. And that was adequate to drain any standing water off of that floor? A. Yes."
Mrs. Joe R. Parker, a witness for appellant, and who was with appellant when she fell, testified in part as follows:
"Q. Now, describe to the court and jury the condition of the surface at the point where you say she sat down. A. Well, it wasit had been raining and was raining, and it was slippery. The water had been tracked back and forth in there, and it was very slippery, because it seemed like it was muddy like, not mud, but, you know, how streets and walks are when it has been dragged back and forth, and it was wet and slippery.
"Q. Now, did you observe her clothing after she sat down? A. Yes, sir; I helped her clean her clothes off.
"Q. Maam? A. Yes, sir; I helped her clean her clothes off.
"Q. What was itwhat did you observe on her clothing? A. Well, she had this muddy water all on the side of her skirt and her hose, and I helped her clean her skirt off and helped her get it off her clothes and legs.
"Q. Now, did you observe any area therecan you tell the court and jury the extent of the surface that had the substance that you have described? A. Well, I didn't look along the edges where the windows are, but the whole thing seemed wet; it was awfully wet, I am sure, because, well it was wet all around there where we were. Now, it was slippery and wet."
The evidence is without dispute that appellant went into appellees' store for the purpose of buying a dress. She was an invitee and it was the duty of defendants to exercise reasonable care to keep the premises in a reasonably safe condition. Defendants were no insurers of her safety, but were under a duty to observe reasonable care to see that the premises were reasonably safe for her as she came in to make her purchase. F. W. Woolworth v. Ney, 239 Ala. 233, 194 So. 667, and authorities therein cited. Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So. 2d 29.
In support of her insistence that the evidence presented a case for the jury appellant cites our cases of Standard Oil Co. v. Gentry, supra; F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534, and several cases decided in other jurisdictions.
We do not think that either of the cited decisions of this court are controlling here. In the Gentry case the
"Plaintiff testified that as he came out of the station office, where he had gone to sign the ticket for his gasoline purchase, and as he stepped down off the stepthe first or second step he took after coming downhe struck a spot in `the pavement that was covered with grease', which caused his fall and rather severe injury resulted. He saw the place after his fall, he states and it was about two feet, `seemed to be a depression in the concrete where one of the *357 sections had been knocked off and this grease seems to have accumulated in the corner * * * accumulated in the corner of the block * * * It was grease. I say grease; might have been oil originally, and had dirt and dust collected in it, and you could call it grease. * * * It was black, and certainly it was a greasy place.'
"Plaintiff further stated it was `caked' and appeared to be grease." [241 Ala. 62, 1 So. 2d 32.]
In the Erickson case the evidence tended to show that floor cleaning where customer fell was so neglected as to permit accumulation of oil and dust and that such condition had continued for a considerable time. The court said: "It was the custom to oil the floors the last Saturday night in each month, and the accident occurred Tuesday following the last Saturday in May. The condition of this place, `greasy and oily' and dark colored, on the date of the accident, was shown to have existed for some months previously, and on Saturday preceding the accident another customer appears to have slipped at or about this same locality, though without resulting in a fall." [221 Ala. 5, 127 So. 537.]
Some of the cases cited by appellant are distinguishable from the case at bar in that they are predicated upon the negligent construction of floors which caused persons to slip and fall, others, because the injuries sustained were inside places of business rather than out of doors or within the entrances of building structures. We will not attempt an analysis of all the cases cited. They are helpful only because of their analogous tendencies and are not decisive.
We agree with counsel for appellant that the evidentiary facts presented by the record are few and simple.
There were no defects in the floor of the entrance-way to appellees' store. No claim is made that it was not level other than necessary for proper drainage toward the sidewalk, or that it was improperly constructed or surfaced in any manner. There was no soap, grease or other foreign slippery substance on the floor except rain water which got there in the manner stated. There was no evidence in the case that appellees did anything or omitted to do anything which storekeepers of ordinary care and prudence generally, under similar circumstances, do or omit to do for the protection of the customers.
It is a fact known to all that many stores in all branches of trade have passageway into the store, usually in the middle of the front, on each side of this passageway is a display window. The passageway extends back to the entrance door of the store, usually with a slight slope from the door to the sidewalk to carry away the rain that may blow into the entrance-way. The evidence is without conflict that many stores in Birmingham are similarly situated, have the same type floor and entranceways, and that such floors are in common use and have been for years.
It is not the duty of persons in control of such passageways to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail.
There was no evidence in this case that appellees did anything or omitted to do anything which storekeepers, of ordinary care and prudence, under similar circumstances do or omit to do for the protection of their patrons. See Kresge v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Englehardt v. Phillips, 136 Ohio St. 73, 23 N.E.2d 829; Kraus v. W. T. Grant & Co., 84 Ohio App. 213, 82 N.E.2d 544.
The trial court did not err in giving the affirmative charge for the defendants in the court below.
Affirmed.
FOSTER, LAWSON and STAKELY, JJ., concur. | March 29, 1951 |
d56c1627-ed9d-46a4-b94f-85f037190d40 | Brown v. Southeastern Greyhound Lines | 51 So. 2d 524 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 524 (1951)
BROWN
v.
SOUTHEASTERN GREYHOUND LINES, Inc., et al.
6 Div. 124.
Supreme Court of Alabama.
March 15, 1951.
*527 Gibson & Hewitt, of Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, of Birmingham, for appellees.
LAWSON, Justice.
This is a suit by Lillian Davy Brown, as administratrix of the estate of her father, Clarence Vincent (Jack) Davy, against Southeastern Greyhound Lines, a corporation, and David Eugene Ross.
There were four counts in the complaint. Counts A and B sought to recover damages under the homicide statute, § 123, Title 7, Code 1940, for the death of plaintiff's intestate. Count A charged simple negligence and Count B charged wantonness. Counts C and D sought to recover for damage to the automobile of plaintiff's intestate. Count C was based on simple negligence and Count D charged wantonness.
The defendants pleaded the general issue in short by consent in the usual form.
The verdict of the jury was in favor of both defendants. Judgment was in accord with the verdict. Plaintiff's motion for a new trial having been overruled, she has appealed to this court.
The only assignments of error sufficiently argued in brief relate to the action of the trial court in giving to the jury certain written instructions requested by the defendants.
Plaintiff's intestate lost his life as a result of injuries received in a collison between an automobile owned by him but driven by a Miss Cantrell and a passenger bus owned by the corporate defendant and driven by the defendant David Eugene Ross. The collision occurred on the Birmingham-Montgomery highway a short distance north of Verbena in Chilton County. Intestate's car was being driven in a southerly direction and the passenger bus was travelling north.
The evidence shows that intestate was a widower and had been going with Miss Cantrell for about a year. Miss Cantrell always drove when she and intestate were riding together in intestate's car. On the day of the collision, September 3, 1949, intestate and Miss Cantrell were en route to either Pensacola or Panama City, Florida.
Proof of the ownership of the car by intestate raised a presumption that Miss Cantrell was operating it as the owner's agent and was acting within the line and scope of her authority. Cox v. Roberts, 248 Ala. 372, 27 So. 2d 617, and cases cited. This presumption is, of course, rebuttable. It is a procedural expedient and takes the place of evidence respecting matter peculiarly known to the owner. The presumption is not evidence and in practice and effect merely imposes upon the owner the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment. When ownership of the car is shown, no proof need be made that the operator of the car was the agent of the owner and was acting within the line and scope of his employment, until and unless the owner has offered proof that the driver was not acting for the owner in the line and scope of his authority. Tullis v. Blue, 216 Ala. 577, 114 So. 185; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Craft v. Koonce, 237 Ala. 552, 187 So. 730.
There is absolutely no evidence in this case which even remotely tends to rebut that presumption. Hence, the defendant was entitled to the general affirmative charge with hypothesis on the question of the agency of the driver of the car, Miss Cantrell. Slaughter v. Murphy, 239 Ala. 260, 194 So. 649. It results that on the case presented by this record, the owner was chargeable with the contributory negligence of the driver. Hence the trial court did not err in giving charge No. 34 at the request of the defendant. Thomas v. Carter, 218 Ala. 55, 117 So. 634.
*528 It was not error to give defendant's requested charge No. 21. Randle v. Birmingham Ry., Light & Power Co., 169 Ala. 314, 53 So. 918. But even if the trial court had erred in giving the charge, we would not reverse, for where the verdict establishes that plaintiff is not entitled to recover at all, errors relating to the measure of damages are not available to reverse the judgment. Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; Wilson Bros. v. Mobile & O. R. Co., 208 Ala. 581, 94 So. 721; Brothers v. Norris, 209 Ala. 426, 96 So. 328; Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473.
Plaintiff, appellant here, insists that the trial court erred to a reversal in giving Charges 27 and 28 at the request of defendant, appellee here. It is asserted that these charges should not have been given for the reason that they pretermit a consideration of the issues of subsequent negligence and wantonness. These charges are in material respects the same as Charges 5, 6, and 8, which we held the trial court gave without error at the request of the defendant in the case of Tyler v. Drennen, Ala.Sup., 51 So. 2d 516. In that case it was held that the issues of subsequent negligence and wantonness were for the jury. On the authority of the holding in Tyler v. Drennen, supra, we hold that Charges 27 and 28 were not bad on the ground that they pretermitted a consideration of the issues of subsequent negligence and wantonness. The giving of said charges was not reversible error because they call for a verdict for "defendant" instead of "defendants." Nelson v. Belcher Lumber Co., 232 Ala. 116, 166 So. 808.
There are several criticisms in brief of counsel for appellant of Charges numbered 38 and 39. Each of these will be noted. The first is that the charges are bad because they assume that intestate was chargeable with the contributory negligence of the driver of his car. Our treatment of Charge 34 above disposes of this contention. The second criticism is that the charges use the words "defendant" rather than "defendants." We have heretofore pointed out that this fact does not make the giving of the charges reversible error. Nelson v. Belcher Lumber Co., supra. The other criticism of Charges 38 and 39 is that they take from the jury a consideration of subsequent negligence. Under the pleadings in this case, the giving of these charges does not constitute reversible error. This question was dealt with at length in the recent case of Birmingham Electric Co. v. Carver, Ala.Sup., 52 So. 2d 200.
We think that Charge 41 given at defendant's request might well have been refused without error on the ground that it is involved and confusing. But we do not think the giving of that charge could have been prejudicial to the plaintiff so as to work a reversal. Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312; Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 211 Ala. 192, 100 So. 132.
We have considered all assignments of error which have been sufficiently argued in brief and, finding no error calling for a reversal, we must affirm the judgment below.
Affirmed.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | March 15, 1951 |
3bd08c78-02d9-49f0-af3a-9b69cb3c56b3 | Ashley v. Ashley | 51 So. 2d 239 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 239 (1951)
ASHLEY
v.
ASHLEY et al.
6 Div. 35.
Supreme Court of Alabama.
March 15, 1951.
*240 Jackson, Rives & Pettus, of Birmingham, for appellant.
Finis E. St. John, of Cullman, and Spain, Gillon, Grooms & Young and H. H. Grooms, all of Birmingham, for appellees.
FOSTER, Justice.
This is an appeal from a final decree denying relief to complainant in a suit in equity filed by authority of section 145, Title 13, Code. This statute authorizes a suit in equity by an injured party to correct any error of law or fact in the settlement of an estate. The nature of the error which is thus subject to correction is discussed in Evans v. Evans, 200 Ala. 329, 76 So. 95; Morgan v. Gaiter, 182 Ala. 322, 62 So. 731; Adams v. Walsh, 190 Ala. 516, 67 So. 432. No question is here raised as to the sufficiency of the bill in that respect.
The decree sought to be reviewed was rendered on the final settlement of the estate of Lewis J. Ashley, dated November 9, 1940. The bill was filed July 1, 1941, within the statutory period of two years. Lewis J. Ashley died March 25, 1940. On April 23, 1940, Grover C. Ashley was appointed administrator on his petition alleging that he was the only child and heir at law of the deceased. After other proceedings, to which we will refer, Grover C. Ashley filed in the probate court a petition alleging that he was the only child and heir at law of deceased, and there are no debts unpaid; that he was appointed administrator April 23, 1940, and further administration is unnecessary, and prayed that the administration be dismissed and his surety released and discharged. No notice was given by reason of the allegation that he was the only child and heir at law. The probate court on that day made an order and decree as prayed for. That is the decree sought to be corrected by the instant suit.
The complainant is a sister of Lewis J. Ashley and was a non compos mentis, and was not a party to any of the proceedings and had no notice of them. The sole contention made is that Grover C. Ashley was not a legitimate child of Lewis J. Ashley because Lewis and Myrtle, his parents, were not lawfully man and wife at the time Grover was born of their union for the reason Myrtle had previously been married and not divorced, and that both she and her former husband are even now still living; and that Lewis had no lawful descendants. The bill seeks to have Grover account for the funds of the estate which he received.
Issue was joined on the only contested matter, and the court found and decreed *241 that Grover was the only heir and legitimate child of Lewis J. Ashley and denied relief. The complainant has appealed from that decree.
A summary of the facts in chronological order is here undertaken to be set out, repeating some of the matters already alleged so as to show their historical setting. These facts are as follows.
Myrtle Tucker at the age of fourteen married Samuel Till Colley on June 30, 1907 in Blount County. They lived together about three months when he "went across the river" to work. They did not live together after that. He enlisted in the Army October 19, 1907, and was discharged October 18, 1910, having served his term of enlistment. There was no communication between them, although he testified that he wrote her several times but received no answer. Colley re-enlisted on the day he was discharged for another three year term and was again discharged October 18, 1913.
Colley married Viola Hallmark on October 16, 1916, according to his testimony. He has three boys and two girls by that marriage: all of whom are grown. He says he did not obtain a divorce from Myrtle, having heard she was dead.
Myrtle testified to the effect that she married Colley on June 30, 1907, when she was fourteen years of age, and that they lived together "one" month, when he left and did not return. She was informed by her father that Colley was dead; that he had been killed on the train. On December 7, 1909, she married Doss and had two children: one of whom is now a grown man, married and has four children. Doss died in 1913. After Doss died, she married Lewis J. Ashley on February 7, 1915, and had one child, Grover C. Ashley, as to whose legitimacy the result of this cause depends. She was divorced from Ashley December 2, 1918. He died March 25, 1940. He was a soldier in World War 1 and came back demented and was in the hospital for the insane. A birth certificate was offered in evidence showing that Grover C. Ashley was born December 20, 1915 in Walker County, and that his parents were Myrtle Ashley and Lewis J. Ashley. A. E. Ashley was appointed guardian of Lewis J. Ashley on November 21, 1921. Myrtle married Miller in 1918, and has been living with him to the present time. She has three children by him, the oldest being twenty-four years of age and the youngest sixteen years.
On December 2, 1931, Myrtle filed a petition in the Probate Court of Cullman County, in which she sought an allowance to be made for Grover C. Ashley out of the estate of Lewis J. Ashley, alleging that said Grover C. Ashley is the only heir at law and child of Lewis J. Ashley. Grover was then sixteen years of age. Said petition was heard by the judge of probate on December 8, 1931, when the court made an allowance of $30 a month to be paid by the guardian of Lewis J. Ashley to the guardian of said minor child, Grover C. Ashley, for his maintenance, support and education. The record shows that J. S. Hyatt, as guardian of Grover C. Ashley, received from the Veterans Bureau on account of Lewis J. Ashley, the total sum of $4,456.21 covering a period from January 26, 1929 to August 1933.
On July 20, 1936, the guardianship of A. E. Ashley was transferred from the probate court to the circuit court in equity. On January 6, 1937, A. E. Ashley filed his accounts and vouchers and a hearing on the settlement was had on January 29, 1937. On that day John Chapman was appointed guardian of Lewis J. Ashley.
Lewis J. Ashley died March 25, 1940. On April 23, 1940, Grover C. Ashley was appointed administrator of the estate of Lewis J. Ashley with the United States Fidelity and Guaranty Company as surety on his bond. On November 9, 1940 he was discharged on final settlement in the Probate Court of Cullman County.
On April 13, 1940, a decree of the probate court found that the will of Lewis J. Ashley was void because of his unsound mind, and the contest of the will by Grover C. Ashley was sustained. It was decreed that Grover C. Ashley is the son and only heir at law of Lewis J. Ashley and is entitled to all of his property of every kind in *242 the hands of Ruth Wilbanks as the guardian of Lewis J. Ashley. There appears an agreement dated April 13, 1940 between the solicitor for Ruth Wilbanks, as guardian of Lewis J. Ashley, on the one part, and Grover C. Ashley on the other, where he signed as the only child and heir at law of Lewis J. Ashley. Said agreement directs the guardian to pay over and deliver to Grover C. Ashley all the assets belonging to the estate of Lewis J. Ashley, and recites that Grover C. Ashley is the only child and heir at law of Lewis J. Ashley. It was ratified by decree on April 13, 1940.
On April 22, 1940, a petition was filed in the Circuit Court, in Equity, of Cullman County by J. A. Ashley and C. A. Ashley, alleging that they are nephews of Lewis J. Ashley and praying said court to set aside and annul the decree on final settlement of the guardianship of Lewis J. Ashley made on the 13th day of April, 1940, alleging principally that Grover C. Ashley is not the child and heir at law of said Lewis J. Ashley, and not entitled to inherit his estate. Said petition was heard on May 22, 1940, and was denied and overruled upon the ground that the evidence was insufficient to sustain it.
On November 9, 1940, Grover C. Ashley filed a petition in the probate court alleging that on April 23, 1940 he was appointed administrator of the estate of Lewis J. Ashley; that he is the only child and heir at law of Lewis J. Ashley, which has been judicially ascertained in the Circuit Court, in Equity, of Cullman County, and also in the will contest: the same having been transferred from the probate court to the circuit court for trial and judicially ascertained. The petition alleges that Lewis J. Ashley left no widow and owes no debts, and that further administration is unnecessary. That no notice of final settlement is necessary, because he is the only heir and waives all notice and prays that the administration be dismissed and that the surety on his bond be released and discharged. On the same day, November 9, 1940, the judge of probate made an order granting the petition and decreed that the administration be dismissed out of court and the bond of the administrator be discharged.
On February 19, 1941, Thelma Hearn filed a petition in the probate court claiming to be a niece of Lewis J. Ashley and an heir at law, and praying that the order of November 9, 1940 be vacated and set aside upon the ground that Grover C. Ashley was not an heir at law and child of Lewis J. Ashley, but that his heirs were as set out in said petition; that she is one of them, and that she had no notice of the proceedings and settlement and did not have the privilege of contesting the same. On April 5, 1941, said petition was heard in the probate court, in which oral testimony was given, and the court found that Grover C. Ashley is the son and only heir at law of Lewis J. Ashley, and the only person interested or entitled to share in his estate and, therefore, said petition was denied.
Myrtle married Miller in 1918 and has been living with him since then, to wit, twenty-eight years in 1946 when she testified (twenty-three years when this suit was filed). She has three children by him, the oldest being twenty-four or twenty-five years of age and the youngest sixteen. It has been thirty-eight years since she saw Colley. She also testified that she knew of no divorce having been granted from Colley. She married again because she thought Colley was dead. It appears that Myrtle and Miller have been married and have lived together, as we have stated, about twenty-eight years (now thirty-three years) and that marriage still continues. To hold that Myrtle was not divorced from Colley before she married Doss, then' Ashley and then Miller would bastardize the two children by Doss, the one child by Ashley and the four children by Miller.In the meantime, in October 1916, Colley married and has three boys and two girls, all of whom would likewise be bastardized. The evidence does not show that an investigation has been made into the court records at any place where Myrtle and Colley lived together or where they lived since they separated, for the purpose of ascertaining whether or not a divorce was granted.
*243 We think the effect of the divorce decree of December 2, 1918, in favor of Myrtle Ashley granting a divorce from Lewis J. Ashley, is controlling as to the parties to that suit that prior to and at the time the decree was rendered there was a legal marriage existing between Myrtle and Lewis. That was more than twenty years before Lewis died in 1940. Myrtle is still living. That decree was never challenged by Lewis before he died, nor by anyone claiming to be an heir since his death. As between Myrtle and Lewis and their privies, the decree of divorce was conclusive of the existence of a legal marriage which was thereby dissolved. 17 Am.Jur. 396, note 7; 27 Corpus Juris Secundum, Divorce § 174, page 832, note 17; In re Lee's Estate, 200 Cal. 310, 253 P. 145; Godfrey v. Godfrey, 30 Cal. App. 2d 370, 86 P.2d 357; Borg v. Borg, 25 Cal. App. 2d 25, 76 P.2d 218. Our search has not disclosed any conflicting opinions.
But it is well settled that one not a party to the divorce suit nor in privity with such a party is not concluded by the decree of divorce as to the legal status of the marriage before divorce. In re Holmes' Estate, 291 N.Y. 261, 52 N.E.2d 424, 150 A.L.R. 447, annotation page 465; 2 Freeman on Judgments, section 910; Routledge v. Githens, 118 Or. 70, 245 P. 1072, 45 A.L.R. 922. The holding in Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166, is not. in conflict because it was a controversy with a stranger to the divorce proceedings.
In the case of In re Lee's Estate, supra, the child of the marriage, which was dissolved by divorce, was treated as having the status of her mother in the effect of the divorce as a determination that the marriage was valid.
When a proceeding results in fixing the status of a child as a bastard, he is sometimes made a party to the proceeding. Taylor v. Taylor, 249 Ala. 419, 31 So. 2d 579. He certainly stands in the shoes of his mother to support his claim of legitimacy effected by the estoppel in that respect in favor of the mother against her alleged husband and his privies.
The decree of divorce is an exhibit in the record and in every way appears to be regular. The other proceedings in the divorce suit are not set out. There was no objection made to the decree on account of the absence of such proceedings. As a general rule it would be necessary to introduce them to sustain the jurisdiction of the court. But their absence is not fatal unless objection was made on that ground, for without objection and to sustain the court, we will presume that they conferred jurisdiction. The decree likewise became unimpeachable at the expiration of twenty years from its date, with no effort being successfully made or begun within said period. Throughout said period both parties to it were alive. The fact that Lewis J. Ashley was non compos mentis does not prevent the binding force of the principle of prescription, nor does the fact he was demented when the decree was rendered and his condition not brought to the attention of the court. As to that we are not informed by the record. Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820; Hendley v. First National Bank of Huntsville, 235 Ala. 664, 180 So. 667.
This Court has gone to the limit in upholding the legality of a marriage after it has continued for twenty years without legal steps to dissolve it. Bass v. Bass, 165 Ala. 223, 51 So. 753; Rawdon v. Rawdon, 28 Ala. 565; Price v. Price, 142 Ala. 631, 38 So. 802, 4 A.L.R.2d 1328, note.
Myrtle has been married to Miller and living with him as his wife since 1918, and they have three grown children. As stated above, Colley has married and has five grown children. To hold that Grover C. Ashley is not the legitimate child of Lewis J. Ashley because his mother, Myrtle, was not divorced from Colley would upset Colley's marriage, which occurred in 1916 and still continues, and would bastardize his children. It would upset the marriage of Myrtle with Doss in 1909 and bastardize their two children, as well as her marriage with Miller. Such result alone is not controlling, but it is a strong incentive to apply the principle of prescription so as to bind Myrtle and Lewis to the consequences of the decree of divorce in *244 1918, thereby establishing the validity of their marriage, which neither of them ever questioned for more than twenty years. The decree of divorce between the Ashleys having become unimpeachable during their lifetime, cannot be impeached by anyone claiming in succession to their rights. That would effectually cut off the complainant in this case.
For like reasons, the presumption as to the validity of all those marriages after the separation of the Colley relation is so strong that it requires very satisfactory evidence to overcome it, even if the divorce decree of the Ashleys were not binding in that respect. The testimony of the parties, not properly supported by evidence as to the divorce records in the various jurisdictions in which a decree could be rendered, is usually treated as not sufficient to overcome the presumption. Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166.
The long delay is supplemented by the fact that in several proceedings where the question was raised and contested as to whether Grover C. Ashley was the lawful son of Lewis J. Ashley, the record shows a decree and finding that he was such lawful son and the only rightful heir. This began in 1931, when allowance was ordered paid out of the estate of Lewis J. Ashley, then a non compos mentis for the support of Grover. This continued from then until 1933, making a total allowance of $4456.21. When Lewis J. Ashley died, Grover was appointed administrator of his estate upon a finding that he was the only heir. A will was propounded for probate and Grover contested it as the only heir at law. The contest was successful and the will was not probated. The court decreed that Grover was the only heir of Lewis J. Ashley and ordered the entire estate paid over to him as such, and discharged the administrator and surety. That is the decree sought to be reviewed.
Several petitions were filed by various collateral kin seeking a finding that Grover was not the lawful heir of Lewis J. Ashley. After the final decree was rendered another collateral relation filed a petition to vacate it on the same ground. These petitions were heard and denied.
It is true that this complainant, a collateral relative, was not a party to those proceedings. She was a non compos mentis and was not bound by them, and they are not controlling on her. But claiming in succession to Lewis after his death, she is bound by the same estoppel which applies to him as to the effect of the divorce decree between Myrtle and Lewis.
It results that the decree of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 15, 1951 |
8ac285d0-53e3-4981-8bee-24347916c3ee | Williams v. State | 51 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 250 (1951)
WILLIAMS
v.
STATE.
7 Div. 89.
Supreme Court of Alabama.
March 1, 1951.
*251 Beddow & Jones and G. Ernest Jones, Jr., Birmingham, and Ellis & Fowler, Columbiana, for appellant.
Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appellant, Charles W. Williams, was tried in the circuit court of Shelby County under an indictment charging that he unlawfully and with malice aforethought killed Frank Swalley, alias John Franklin Swalley, alias John Frank Swalley, by shooting him with a gun or pistol. The jury returned a verdict of murder in the first degree and fixed punishment at life imprisonment in the penitentiary. Judgment was in accord with the verdict. His motion for a new trial having been denied and overruled, Williams appealed to this court.
The deceased lived with his wife and four children about three miles from Wilsonville, in Shelby County. On the night of October 13, 1949, the entire Swalley family left their home in an automobile at approximately 6:40 p. m. to go to a picture show in Childersburg, a town not far distant. They returned home about 9:30 p. m. Upon returning home, the deceased, who was driving, stopped the automobile near the back steps which led to the back porch. No lights were on at the rear of the home, so the deceased remained in the automobile with its lights on. The wife and three young daughters were the first to leave the automobile. They were followed a short distance by the thirteen-year-old son, Frankie. At about the time Frankie reached the bottom step, the lights on the automobile went off. After reaching the back porch, Frankie entered the kitchen where he paused long enough to get a drink of water. He then proceeded toward the front of the house, and had almost entered one of the front rooms when he heard the sound of a gunshot. He ran toward the rear of the house, from where the sound came. Just before he reached the door leading from the kitchen to the back porch he heard another shot. Frankie flipped a light switch in the kitchen, which switch was wired so as to turn on a light on the back porch and one located over the steps leading from the porch to the ground. The light bulb on the back porch was illuminated, but the evidence does not show whether or not the outside light came on.
Frankie went on the back porch and found the body of his father lying at the top of the steps, with one half of the body lying on the porch and the lower half resting on the steps. His father was dead. He had been shot twice at close range with a twelve-gauge shotgun, the shells being loaded with number four shot. The load of one shell entered the left side of deceased; that of the other entered just under the right jaw. Powder burns surrounded both wounds.
*252 The defendant was arrested and charged with the slaying. At a preliminary hearing held on or about November 17, 1949, he was bound over to await the action of the grand jury. He was indicted in December, 1949, and brought to trial in January, 1950. During the course of that trial a mistrial was declared for some reason not shown in this record. The judgment from which this appeal is taken was rendered on the second trial held in April, 1950.
The defendant has been a successful business man. For a number of years he served as chief appraiser for the Federal Land Bank of New Orleans. In 1937 he moved to Wilsonville and went into the retail business. He owned this business at the time of the trial, although he had moved his place of residence to Winterboro, Talladega County, in the spring of 1949, where he operated a farm and dairy. On or about June 1, 1949, he opened a farm implement business in the city of Talladega.
Mrs. Swalley, the wife of deceased, began to work for defendant at his store in Wilsonville in the fall of 1945. She worked in the office and did some of the buying. Shortly after June 1, 1949, when the farm implement business was opened in Talladega, Mrs. Swalley began to work there, but retained her connection with the Wilsonville business, dividing her working hours between the two establishments. On or about May 1, 1949, the deceased went into the employ of defendant at the letter's dairy in Talladega County. Defendant was a frequent visitor to the Swalley home and was well known by all the members of the family.
On the preliminary hearing and at the subsequent trials young Frankie Swalley testified that when he went on the back porch of his home after he heard the shots, he saw the defendant running away from the scene of the homicide. The defendant had on a dark hat, light or white shirt and dark trousers. He admitted, however, that on the night of the homicide and on the following morning he told several people that while he saw a man running away from the scene, he did not recognize him. The defendant proved by several persons who talked to Frankie within a few hours of the killing that he told them he did not recognize the man and couldn't tell whether he was a white man or a Negro. Frankie gave as his reason for not telling the name of the man he saw leaving the scene the fact that he was nervous, scared and excited. There was testimony for the defendant to the effect that Frankie was calm and displayed no signs of being emotionally upset.
Frankie also testified that the defendant was in the Swalley home frequently; that defendant and his mother took out-of-town automobile trips together; that on three occasions he heard the defendant threaten to take his father's life.
The defendant owned a new Studebaker truck equipped with Firestone tires. There was evidence for the State to the effect that at about 7:30 p. m. on the night of the homicide the defendant drove this truck onto a seldom-used logging road which eventually lead to a point approximately one-third of a mile behind the Swalley home. On the morning after the homicide the imprints of Firestone tires were found on the logging road leading to and from a point approximately one-third of a mile behind the home of deceased. Tracks of a man intersected the tire tracks and led through sagebrush and patches of"beggar-lice" to a point a short distance from the home of deceased, where the tracks could no longer be observed because of the nature of the earth. The man tracks led to a point at a fence where the wire had been pulled apart.
There was evidence for the State tending to show that on Friday night, October 7, 1949, the defendant was seen to drive his Studebaker truck onto this same old logging road and that on that night Frankie Swalley was awakened by noises coming from the "turkey lot," which was an enclosure located at the rear of the Swalley home.
The State proved that a few minutes after 3 a. m., Eastern Standard Time, or 2 a. m., Central Standard Time, on the morning of Friday, October 14, 1949, defendant drove his Studebaker truck into a *253 storage garage in the city of Atlanta, Georgia. "Broom sage" was caught in the car. The defendant was wearing a dark hat, light shirt and dark trousers. His trousers were practically covered with "beggar-lice." A few minutes thereafter he registered at the Robert Fulton Hotel.
The theory of the State is that defendant committed the homicide because of his infatuation for the wife of deceased. There is other evidence, aside from that of Frankie Swalley, to the effect that defendant and Mrs. Swalley were seen together frequently at places other than the business establishments where they worked and that they took trips together to Birmingham and Sylacauga in defendant's automobile. The State also proved that the wife of defendant obtained a divorce from him on the ground of voluntary abandonment about six months prior to the homicide.
The defendant testified in his own behalf. He denied that he killed deceased, with whom he claimed to be on very friendly terms. He denied being at the Swalley home or on the logging road on the night of the homicide or on the night of Friday, October 7, 1949. He admitted that he was on friendly terms with the wife of deceased, but denied that he had ever had any illicit relationship with her or that he was interested in her in any way other than as a friend or employee. He admitted that he and Mrs. Swalley had been on out-of-town automobile trips together, but claimed that such trips were solely for business purposes and were always taken with the knowledge of deceased.
The defendant testified that he left his place of business in Talladega at about 6:00 p. m. en route to Atlanta, a distance of approximately 130 miles. His reason for going to Atlanta was to transact business in that city and then continue to Griffin, Georgia, to witness a demonstration of a piece of farm machinery. According to defendant, he drove from Talladega to Anniston, a distance of approximately thirty miles. He ate supper in Anniston at a cafe on Noble Street, but had forgotten the name of the cafe. He finished supper at about 8:00 p. m. Although he drove at night, he preferred not to be on a highway at night when there was heavy traffic, so he did not immediately leave Anniston for Atlanta. From 8:00 p. m. until 10:00 p. m. he was in the lobby of the Jefferson Davis Hotel reading a newspaper and listening to the radio. He left Anniston at approximately 10 o'clock and arrived in Atlanta, a distance of 100 miles, "sometime" after 1:00 a. m., Central Standard Time, or 2:00 a. m., Eastern Standard Time.
Defendant did not deny that "beggar-lice" were on his trousers and that "broom sage" was stuck in his truck when he arrived at the storage garage in Atlanta. His evidence and that of other witnesses who testified in his behalf tended to show that the broom sage became stuck in the car and the "beggar-lice" got on his trousers a day or two prior to his trip to Atlanta while he was engaged in some work on farms in connection with his farm machinery business.
Several witnesses who were present in Griffin, Georgia, on October 14th and 15th, 1949, testified that defendant was present at the demonstration of a new cotton picker held in or near that city and that defendant appeared calm and gave some valuable advice as to improvements which needed to be made on the equipment. Defendant had been interested in the cotton picker for several months and had corresponded with the inventors and manufacturers in regard thereto.
Defendant denied that he was on the logging road or in the vicinity of the Swalley home on the night of October 7, 1949, as the State's testimony tended to show. According to defendant, he spent the night of October 7, 1949, in the room assigned to him at the Robert Fulton Hotel in Atlanta. The records of that hotel show that defendant registered there on Thursday, October 6th, and did not check out until Monday, October 10th. But the hotel records also showed that the room assigned to defendant was not occupied by him on the night of October 7, 1949.
The record in this case is very voluminous and the foregoing recital of evidence *254 is far from being a complete statement of all the evidence, but we think it sufficient for the consideration of the questions presented on this appeal.
The affirmative charge was not requested. There were several grounds of the motion for new trial taking the point, in substance, that the verdict was contrary to the great weight of the evidence. In brief filed here on behalf of appellant, it is not insisted that the verdict was contrary to the great weight of the evidence. But in accordance with our duty in such a case as this, we have carefully considered all the evidence and are clear to the conclusion that this court would not be justified in pronouncing the verdict palpably wrong and unjust. We are unwilling, therefore, to declare the action of the trial court in denying the motion for a new trial error to reverse. DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183; Caldwell v. State, 203 Ala. 412, 84 So. 272; Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Defendant insists that the trial court erred in permitting the State to show the association of defendant with the wife of deceased, since the evidence produced by the State in that connection failed to show an improper or illicit relationship. As before indicated, the State's evidence showed that defendant's wife divorced him about six months prior to the date of the homicide and that defendant was a frequent visitor to the home of deceased and he and deceased's wife on several occasions took automobile trips away from home. As we understand it, the argument of counsel for defendant is that evidence as to the relationship between a defendant and the wife of deceased is not admissible for the purpose of showing motive unless the evidence actually shows an adulterous relationship. The case of Beard v. State, 19 Ala.App. 102, 95 So. 333, seems to support that contention, but we cannot agree with that holding.
In Patton v. State, 197 Ala. 180, 183, 72 So. 401, 402, this court said: "The fact that deceased and his wife had separated, and the further fact that defendant was often seen with her, tended to shed some light on the relation that existed between deceased and defendant, and on the question of motive." In Bush v. State, 168 Ala. 77, 53 So. 266, the State was permitted to show that the defendant, a woman, had followed the husband of deceased to another city prior to the homicide.
The following authorities from other jurisdictions are to the effect that the defendant's undue intimacy, infatuation and frequent association with the spouse of the deceased is admissible for the purpose of showing motive for the crime, even in the absence of proof that defendant and the spouse of deceased had an illicit relationship. Blankenship v. Commonwealth, 228 Ky. 830, 16 S.W.2d 478; Frost v. Commonwealth, 258 Ky. 709, 81 S.W.2d 583; Webb v. Commonwealth, 154 Va. 866, 152 S.E. 366; People v. Selknes, 309 Ill. 113, 140 N.E. 852; Story v. State, 107 Tex.Cr.R. 293, 296 S.W. 516; State v. Fine, 90 Mont. 311, 2 P.2d 1016.
Appellant next insists that the trial court erred to a reversal in permitting the State to show that on Friday night, October 7, 1949, six days prior to the homicide, the defendant was seen entering the seldom-used logging road which led behind the home of deceased. We cannot agree with this insistence. Evidence showing preparation to commit crime and acts and circumstances in pursuance of its accomplishment is admissible. Pope v. State, 188 Ala. 50, 66 So. 25; People v. Arnold, 199 Cal. 471, 250 P. 168.
Photographs showing the scene of the homicide were introduced by the State. It was shown by witnesses who were thoroughly familiar with the premises that the photographs depicted the physical condition of the scene of the homicide on the night it occurred. These photographs were admitted without error. Pilley v. State, 247 Ala. 523, 25 So. 2d 57; Blue v. State, 246 Ala. 73, 19 So. 2d 11; Green v. State, 252 Ala. 513, 41 So. 2d 566.
The photographs showing the wounds on the body of deceased were properly admitted in evidence. Grant v. State, 250 Ala. 164, 33 So. 2d 466, and cases cited.
*255 Defendant insists that the trial court erred in permitting State witness Homer Walton to testify over defendant's objection that in his opinion the wounds which he observed on the body of deceased were sufficient to result in death. Walton had been an undertaker for approximately twenty years and had served as coroner of Shelby County for about twelve years. In view of this predicate, together with Walton's statement as to his experience in observing and examining wounds and the effect thereof, similar to the wounds he observed on deceased, we cannot say that the trial court abused its discretion in permitting Walton to express his opinion as to the cause of the death of Swalley. Phillips v. State, 248 Ala. 510, 28 So. 2d 542; Thomas v. State, 249 Ala. 358, 31 So. 2d 71.
Numerous written charges were requested by the defendant. The trial court gave all of them except two, which were refused without error.
Charge 17 would hinge the conclusion of guilt upon a portion of the testimony of one witness examined on the trial, whereas there was other evidence tending to establish guilt. McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629.
There is nothing in this record to indicate that during the argument to the jury Mr. Luck, one of counsel for the State, remarked that he was convinced that the defendant was guilty. So even if it be assumed that such an argument is bad and should be excluded by a written charge, defendant's requested Charge 1-A was refused without error.
Duly mindful of our duty in cases of this character, the record has been examined for any error, whether pressed upon our attention by counsel or not. We find, however, that defendant's counsel have argued all questions calling for serious treatment.
It results that we find no error to reverse, and that the judgment of the court below should be affirmed.
Affirmed.
BROWN, FOSTER, and STAKELY, JJ., concur. | March 1, 1951 |
9913f630-51b0-4833-9cb1-dc4388bb7136 | State v. Pure Oil Co. | 55 So. 2d 843 | N/A | Alabama | Alabama Supreme Court | 55 So. 2d 843 (1951)
STATE
v.
PURE OIL CO.
6 Div. 86.
Supreme Court of Alabama.
March 8, 1951.
Rehearing Denied June 28, 1951.
Further Rehearing Denied January 10, 1952.
*844 A. A. Carmichael, Atty. Gen., and Wm. H. Burton, Jr., Asst. Atty. Gen., for appellant.
Lange, Simpson, Robinson & Somerville and Reid B. Barnes, of Birmingham, and Vinson Elkins & Weems, Houston, Tex. and Allen C. Hutcheson, Jr., of Chicago, Ill., for appellee.
BROWN, Justice.
The statute, § 634, Title 51, Code of 1940, levies a privilege tax on "Each person, firm, corporation, or agency selling illuminating, lubricating, or fuel oils at wholesale, that is to say in quantities of twenty-five gallons or more," in the amount of one-half of one percent "on his gross sales for the preceding fiscal year," and provides that such payment shall be made "within two weeks from the beginning of the fiscal year" to the state department of revenue. Pure Oil Co. v. State, 244 Ala. 258, 12 So. 2d 861, 148 A.L.R. 260; State v. Anglo-Chilean Nitrate Sales Corp., 225 Ala. 141, 142 So. 87.
Said department on December 20th, 1948, ascertained and fixed the amount of said tax to be paid by the appellee taxpayer to be $15,396.19, to which the taxpayer protested and said protest being overruled the assessment was made final from which the taxpayer appealed to the circuit court, in equity, and filed its bill challenging the validity of said assessment on the ground that said section of the code contravenes the Constitution of the State and of the United States, in that it denies to the taxpayer equal protection of the law under the Fourteenth Amendment of the Constitution and that the classification set up in the statute is arbitrary and unreasonable and levies said tax in an unequal and discriminatory manner as to persons in the same classification or business.
The bill further alleges in support of said stated contentions that the taxpayer "is engaged in the business of selling, within the State of Alabama, petroleum, products, including illuminating, lubricating and fuel oils. Said products are sold to two general classes of customers. One such class is persons who purchase the same for resale, commonly termed wholesale sales. The other class is persons who purchase the same for their own use and not for resale either in the same form or as a component part of a manufactured product, commonly termed retail sales. The types of products and customers dealt with by Taxpayer are similar to those of other oil companies doing business in the State of Alabama. During the period in question in this proceeding, namely October 1, 1945 to September 30, 1946, Taxpayer made sales to purchasers for resale in the State of Alabama totaling $875,457.85, of which sales $350,464.16 were sales in quantities of less than twenty-five gallons and $524,993.69 were sales in quantities of twenty-five gallons or more. During said period Taxpayer made sales to purchasers for their own use and not for resale totaling $1,884,004.80, *845 of which sales $67,939.25 were sales in quantities of less than twenty-five gallons and $1,816,065.55 were sales in quantities of twenty-five gallons or more. The assessment above referred to is levied on all such sales regardless of the type of purchaser involved and regardless of whether such sales were in quantities of more or less than twenty-five gallons, although said Section expressly exempts from the tax sales in quantities of less than twenty-five gallons. The said assessment is based on total sales during the period in question, both under and over twenty-five gallons, of $2,763,108.00, and the taxpayer does not deny that its total sales amounted to such figure. The breakdown of figures, above made and hereafter made, is based on an audit of invoices for the period totaling $2,759,462.65. The discrepancy amounting to $3,645.35 arises from invoices which have been lost or mislaid so that same could not be analyzed and segregated, and in the event the tax in question is upheld in whole or in part, Taxpayer will be willing that the amount of this discrepancy be included in taxable sales.
"The determining factor in whether the products here involved are sold in quantities of more or less than twenty-five gallons is one of chance and the nature of the product rather than any classification of the business involved.
"Lubricating oils are sold principally to customers who purchase for resale. When sold for resale, the sales are principally in quantities under twenty-five gallons. When lubricating oils are sold for the customer's own use, the sales are principally in quantities over twenty-five gallons. Lubricating oils are sold to customers who purchase for resale; are largely sold in one quart cans, purchased in case lots of twenty-four quarts or six gallons. It is entirely a matter of chance whether such a customer orders more than four cases at once or makes successive purchases of four cases or less; therefore, the imposition of the tax on such sales depends on chance and a method of doing business. Customers who purchase lubricating oils from Taxpayer at retail for their own use, do so largely in drums containing more than twenty-five gallons. During the period here in question Taxpayer made sales of lubricating oils to customers for resale totaling $446,065.00, of which sales $288,569.32 were in quantities of less than twenty-five gallons and $157,495.68 were in quantities of twenty-five gallons or more. Sales of lubricating oils to customers for their own use during the same period totaled $195,274.83, of which sales $44,554.22 were in quantities of less than twenty-five gallons and $150,720.61 were in quantities of twenty-five gallons or more.
"Fuel oil is sold by Taxpayer largely to customers who purchase the same for their own use for heating or power. The nature of the use and the product is such that such sales are almost entirely in quantities of more than twenty-five gallons. During the period in question Taxpayer's sales of fuel oil to purchasers for resale totaled only $117,407.85, of which $51.48 were sales in quantities of less than twenty-five gallons and $117,356.37 were in quantities of twenty-five gallons or more. On the other hand, during this period Taxpayer's sales of fuel oil to customers for their own use totaled $1,585,348.94, of which sales $503.00 were in quantities of twenty-five gallons or less and $1,584,845.94 were in quantities of twenty-five gallons or more. All such sales to customers for their own use were subjected to the Retail Sales Tax of Alabama and such taxes were paid thereon.
"Greases, like lubricating oils, are sold by Taxpayer both in small lots and in bulk, the size of the purchase depending largely on chance. During the period in question Taxpayer made sales of greases to customers for resale totaling $67,166.12, of which $47,659.05 were in quantities of less than twenty-five gallons and $19,507.07 were in quantities of twenty-five gallons or more. During the same period Taxpayer's sales of greases to ultimate consumers totaled $70,996.14, of which sales $21,546.70 were in quantities of less than twenty-five gallons and $49,449.44 were in quantities of twenty-five gallons or more.
*846 "Kerosene, being principally a domestic illuminating oil, is sold largely by Taxpayer to purchasers who purchase for resale and in quantities of more than twenty-five gallons. During the period in question Taxpayer made sales of kerosene to purchasers for resale totaling $244,818.88, of which $14,184.31 were in quantities of less than twenty-five gallons and $230,634.57 were in quantities of twenty-five gallons or more. During the same period Taxpayer's sales of kerosene to consumers for their own use totaled only $32,384.89, of which sales $1,335.33 were in quantities of less than twenty-five gallons and $31,049.56 were in quantities of twenty-five gallons or more. * * *"
The bill prays in short that the ascertainment of the amount of the tax should be voided in toto or limited to such oils sold in quantities of twenty-five gallons or more.
In the course of the proceedings in the circuit court the original bill was finally abandoned and a substituted bill filed to which the state demurred on the grounds that the bill was wanting in equity and numerous other specific grounds addressed to said substituted bill. The court overruled the demurrer and the state has appealed.
The appellee renewed the contentions stated in said substituted bill but the state contends that said statute is a valid exercise of legislative power under both the Constitution of Alabama and the Fourteenth Amendment of the Federal Constitution and that the levy is sound. The appellee's objection to the levy assumes that the tax imposed by said statute is a tax on the sales of fuel oils. That assumption is not true. As stated at the outset of this opinion the tax is a privilege tax and not a sales tax.
It has been repeatedly held that "In levying a privilege or license tax as to trades, businesses or occupations, the legislature may not discriminate between members of the same class, and the tax must not be so exorbitant as to prohibit or unreasonably restrain or oppress legitimate and useful trades, businesses or occupations, that are not productive of disorder or injurious to the public. In applying the tax the classification or reclassification cannot be arbitrary, fanciful or capricious, but must have a substantial basis as distinguished from a mere fictitious or fanciful basis. Aside from these restrictions, the legislative power is unrestrained. Republic Iron & Steel Co. v. State, 204 Ala. 469, 86 So. 65, 69; State v. Downs, 240 Ala. 74, 197 So. 382." Adams v. Curry, 243 Ala. 90, 8 So. 2d 578, 579.
"Tests for the determination of the operation or administration of a law or ordinance as to a classification contained therein within the Constitutions, state and federal, are that the class (1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive. Gamble v. City Council of Montgomery, 147 Ala. 682, 39 So. 353; Republic I[ron] & S[teel] Co. v. State, 204 Ala. 469, 86 So. 65; [Consolidated Coal Co. of] St. Louis v. [People of State of] Illinois, 185 U.S. 203, 22 S. Ct. 616, 46 L. Ed. 872; State v. W[estern] U[nion] T[el.] Co., 208 Ala. 228, 94 So. 466. This is necessary to secure uniformity in the operation, administration, and proper distribution of the burden of government. Ex parte Smith, 212 Ala. 262, 102 So. 122; Republic I. & S. Co. v. State, 204 Ala. 469, 86 So. 65." Woco Pop Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214, 218.
Statutory discrimination between classes must be presumed to be relevant to a permissible legislative purpose and will not be deemed to be a denial of equal protection if any state of facts could be conceived *847 which would support it. Asbury Hospital v. Cass County, 326 U.S. 207, 66 S. Ct. 61, 90 L. Ed. 6; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S. Ct. 370, 60 L. Ed. 679; Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S. Ct. 868, 81 L. Ed. 1245; State ex rel. Woodward v. Skeggs, 154 Ala. 249, 46 So. 268; State ex rel. Austin v. Black, 224 Ala. 200, 139 So. 431; Jefferson County v. Busby, 226 Ala. 293, 148 So. 411.
As pointed out in Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S. Ct. 868, 872, 81 L. Ed. 1245, "A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function."
The court in the Carmichael case, supra, further observed: "Distinctions in degree, stated in terms of differences in number, have often been the target of attack. See Booth v. [State of] Indiana, 237 U.S. 391, 397, 35 S. Ct. 617, 59 L. Ed. 1011. It is argued here, and it was ruled by the court below, that there can be no reason for a distinction, for purposes of taxation, between those who have only seven employees and those who have eight. Yet, this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not."
Appellee contends that there is no reasonable difference between a dealer who sells in lots of 24 gallons and one who sells in lots of 26 gallons. This is simply to beg the question. There is admittedly a vast difference in a wholesale dealer who sells in large quantities and a retail dealer who sells in small quantities. The legislature has simply set the dividing line between large and small conveniently at the 25 gallon mark. This is exactly the type of distinction pointed out and approved in Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S. Ct. 868, 81 L. Ed. 1245, and cases cited.
Appellee argues that the true distinction between "wholesale" and "retail" rests upon a consideration of whether or not the goods are purchased for resale or for direct consumption. While some of the cases do draw such a distinction as here suggested, we find that the decided weight of authority is to the effect that the primary consideration is whether the purchases are in large or small quantities. Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481; Florida Packing & Ice Co. v. Carney, 51 Fla. 190, 41 So. 190; Casebolt v. Kentucky-West Virginia Gas Co., 293 Ky. 178, 168 S.W.2d 773; Pa. Power & Light Co. v. Public Service Comm. of Pennsylvania, 112 Pa.Super. 500, 171 A. 412; Fleming v. American Stores Co., D.C.Pa., 42 F. Supp. 511; Wood v. Central Sand & Gravel Co., D.C.Tenn., 33 F. Supp. 40; 45 Words and Phrases 107. Even if this were not true, we believe that this question is set at rest by the very wording of the statute itself, which gives in explicit terms its own definition of "wholesale sales." State v. Coastal Petroleum Corp., 240 Ala. 254, 198 So. 610.
Our conclusion, therefore, is that the statute does not offend either the State or the Federal Constitutions and that the fixation of the tax is valid.
It results that the decree of the circuit court is reversed and a decree here entered sustaining the demurrer to the substituted *848 bill and the cause is remanded to the circuit court with leave to the complainant to amend its bill as it may be advised.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur.
BROWN, Justice.
The appellee in its application for rehearing correctly construes the opinion as holding that the amount of its gross sales for the preceding year is by the statute made the basis for computing the tax, such gross sales including all sales,those made in quantities of less than twenty-five gallons as well as those in quantities of more than twenty-five gallons.
The provision of the statute is that such taxpayer "shall pay to the department of revenue for the use of the state, within two weeks from the beginning of the fiscal year, the sum of one half of one percent on his gross sales for the preceding fiscal year, and such payment to the department of revenue shall be accompanied by a sworn statement verified by the person having knowledge of the facts showing the amount of the gross sales of such oils sold in the state during the preceding fiscal year." Code 1940, Tit. 51, § 634. [Italics supplied.]
This is the only basis fixed by the statute for computing the tax and there can be and is no doubt as to what it means. For the court to substitute any other basis for such computation would be judicial legislation, not judicial interpretation.
The legislature in enacting the statute had in mind big distributors of such oils, such as appellee, and in levying the tax on the privilege of engaging in business in this state used the terms "that is to say in quantities of twenty-five gallons or more" in setting up a constitutional classification, distinguishing the "proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not." Carmichael, Attorney General of Alabama, et al. v. Southern Coal & Coke Co., 301 U.S. 495, 57 S. Ct. 868, 873, 81 L. Ed. 1245. And as observed in that case, "Yet, this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not." 301 U.S. 510-511, 57 S. Ct. 873, 81 L. Ed. 1245.
Yet is is suggested here that the little filling station operator sometimes sells more than twenty-five gallons in one lot. He is not taxed by this statute. He operates under the sales tax act and purchases at wholesale for resale to the consumer, who is taxed, and the seller collects the tax from him and accounts to the state therefore. Texas Co. v. Harold, 228 Ala. 350, 153 So. 442, 92 A.L.R. 523. In such instances the tax is fixed on the gallonage basis. But under the provisions of § 634, Title 51, Code of 1940, the basis of computation is the gross sales for the preceding year. All such sales are wholesale sales, and that is what the court said in Pure Oil Co. v. State, 244 Ala. 258, 12 So. 2d 861, 148 A.L.R. 260. In short, the statute levies the tax against the person for the privilege of engaging in the business of a wholesaler and the tax is exacted as the quid pro quo for the protection given by law to the taxpayer in the conduct of such business.
The application for rehearing is without merit and will be overruled.
Application for rehearing overruled.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur. | March 8, 1951 |
00d60228-9153-41fd-938e-6ccd97afa8ef | Mead v. Eagerton | 50 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 253 (1951)
MEAD
v.
EAGERTON, State Public Accounts et al.
3 Div. 581.
Supreme Court of Alabama.
January 25, 1951.
*255 Henry C. Meader, of Montgomery, Frank E. Spain, of Birmingham, Willis V. Bell, Jr., of Montgomery, and John P. Ansley, of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for appellees.
FOSTER, Justice.
This bill was filed by a taxpayer seeking an injunction, temporary and permanent, against appellees who are the chief examiner of public accounts, the state treasurer, the state comptroller and the state auditor. The prayer for the injunction is as follows: "Restraining and enjoining the respondents, Ralph P. Eagerton, as chief examiner of public accounts of the State of Alabama, John Brandon, as treasurer of the State of Alabama, John Graves, as comptroller of the State of Alabama, and Dan Thomas, as auditor of the State of Alabama, and each of them from using or attempting to use, paying or attempting to pay, any money that has accrued to or that is in the funds of the department of examiners of public accounts in the treasury of the State of Alabama for the purpose of acquiring the official bond of Ralph P. Eagerton as chief examiner of public accounts, from the state surety insurance fund, or for using or for paying out any other money in their possession or under their control for such purpose, or issuing any warrants therefor."
A demurrer to the bill and the prayer for temporary injunction were set down for hearing on August 2, 1950. A decree was rendered on that submission August 3, 1950, in which the demurrer was sustained, and another decree or order denying the motion for a temporary injunction was rendered. An appeal was taken from both decrees: both being appealable. Title 7, sections 755, 1057.
The equity of the bill goes to the validity and effect of the Alabama statute contained in Article 2, Title 28, sections 329 to 338, Code. The substance of that statute may be stated as follows: section 329 sets up a fund in the state treasury to be known as the state surety insurance fund, for the purpose of insuring the state or any and all counties or municipalities in said state against loss of moneys belonging to the state, counties or municipalities on account of certain conduct of such officers.
Section 330 requires the director of finance to determine the total amount of the bonds required to be given by state and county officers, including all officers named in section 329, and the amount of premiums charged for the same.
Section 331 makes the premium charged to be based on commercial rates as of August 1, 1935 by surety companies; and that all such premiums shall be paid to the department of finance at the time of executing the bond by the appropriate state department and by the county treasurers, respectively.
Section 332 directs the disposition of the premium money, and that it "shall constitute a sinking fund and surplus, which shall be subject to the requisition of the director of finance, with the approval of the governor, for the payment of the losses herein provided".
Section 333 provides that "The fund of one hundred thousand dollars transferred from the state insurance fund to the state security insurance fund shall be available only" in case the losses shall exceed the premiums collected. The original Act approved September 7, 1935, General Acts 1935, page 782, carried an appropriation of $100,000.00 from the state insurance fund to the state insurance fund.
Section 334 provides that in event such sinking fund shall reach $500,000.00, the surplus shall be used to reimburse the state insurance fund on account of said appropriation.
Section 335 gives authority to the director of finance and governor to make rules *256 and regulations necessary for the proper and full performance of the Act.
Section 336 provides that the department of finance shall be provided the form of the bonds for execution and shall execute the bonds for the state of Alabama.
Section 337 provides that any person or governmental agency may sue the officer in the county of the officer's residence, and if a judgment is rendered for plaintiff, the state comptroller shall issue a warrant for the same on the certificate of the clerk of the court, which shall be paid by the treasurer from said fund so created.
Section 338 provides that article of the Code shall not be effective except upon a proclamation by the governor so declaring. That was also a feature of the original act.
The bill alleges that the governor made such proclamation on November 25, 1949. That up to that date the Act of 1935, supra, and Code sections, supra, remained suspended and inoperative on the statute books from September 1935 to November 1949 (fourteen years), and that four governors served in that period. That the governor so proclaiming in November 1949 acted solely in his discretion and found and recited no facts upon which it was based.
The bill does not allege that any rules and regulations have been made as required by section 335, supra. That Eagerton, as chief examiner of public accounts, is proposing and arranging to cancel his official bond on or before October 1, 1950, and to execute his official bond with the state surety insurance fund. That the Act is in violation of the Constitution in the respects which we will discuss; also that section 331 is vague, uncertain and its intent cannot be ascertained and given effect, and that it is unenforceable and void.
The first matter called to our attention on this appeal is the motion to dismiss the appeal because the question involved is alleged to have become moot. The situation which it is claimed renders the question moot is as follows: The motion to dismiss alleges that application was made to this Court to restrain the conduct sought to be enjoined pending the appeal. This Court denied said motion. It then alleges that thereafter appellee Eagerton, as chief examiner of public accounts, acquired an official bond with the state surety insurance fund; that Graves, as comptroller, drew a warrant for $62.50, the amount of the premium payable to the department of finance and the state surety insurance fund and charged it to the department of examiner of public accounts. Thereafter that appellees have performed the acts sought to be enjoined, and no further controversy exists between the parties to this cause.
This contention needs separate consideration in respect to the appeal from the separate decrees of the trial court. But there are certain principles of law which should be noted as applicable to them both.
The principle is thoroughly well settled, apparently without conflicting authority, that after service of notice of a bill in equity, which seeks a prohibitive injunction against respondents, but no temporary injunction is issued, and the respondents do the act sought to be enjoined, they do so at the peril of an injunction being ordered on the final hearing, for it is within the power of the court, finally holding that an injunction was proper, to compel a restoration of the status quo.
In Jones v. Securities and Exchange Comm., 298 U.S. 1, 56 S. Ct. 654, 658, 80 L. Ed. 1015, the court observed: "The conclusion to be drawn from all the cases is that after a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided. 1 High on Injunctions (4th Ed.) § 5(a)."
It was held in Texas & New Orleans R. Co. v. Northside Belt Rwy. Co., 276 U.S. 475, 48 S. Ct. 361, 72 L. Ed. 661, where a defendant, with notice of filing of a bill for injunction, proceeds to complete the act sought to be enjoined, the court may by mandatory injunction compel a restoration *257 of the status quo. See, also, Tucker v. Howard, 128 Mass. 361, 363; Town of Platteville v. Galena & So. Wis. R. R. Co., 43 Wis. 493, 506-507.
"Although injunction ordinarily issues to prevent future acts rather than to remedy what is past, a defendant who proceeds to do the things complained of after suit to enjoin them has been filed and notice thereof given to him cannot defeat the injunction on the ground that the acts sought to be restrained have already been done, for he acts at his peril in such case, and subject to the power of the court to restore the status. The court may award complainant damages or compensation for acts done by defendant pending suit to restrain them." 28 Am.Jur. section 6, page 200. See to the same effect section 6, page 200. See to the same effect: 43 C.J.S. Injunctions, § 5, page 411, note 37; 32 Corpus Juris 24, Section 6; Turney v. Shriver, 269 Ill. 164, 109 N.E. 708; New Haven Clock Co. v. Kochersperger, 175 Ill. 383, 51 N.E. 629; Thornton v. Schobe, 79 Colo. 25, 243 P. 617; Werner v. Norden, 87 Colo. 339, 287 P. 644; State of Oklahoma ex rel. Tharel v. Board of Com'rs, 188 Okl. 184, 107 P.2d 542; Smith v. Graham, 161 App.Div. 803, 147 N.Y.S. 773.
The principle has been applied to analogous situations. In Walling, Adm'r, v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S. Ct. 1242, 89 L. Ed. 1705, it was held while voluntary discontinuance of alleged illegal activity does not operate to remove a case from the ambit of judicial power, it may justify the court's refusal to enjoin future activity of such nature when it is combined with a bona fide intention to comply with the law and not to resume the wrongful acts. See, Hecht v. Bowles, Price Adm'r, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754.
In our case of Vaughn v. Brue, 245 Ala. 107, 16 So. 2d 17, 19, 150 A.L.R. 668, we held that though title of a stranger purchasing at judicial sale under erroneous judgment will not be defeated or impaired by subsequent reversal of judgment, a party to the suit who purchases at such sale does so subject to risk that the judgment will be reversed and one who purchases from such party litigant is not a bona fide purchaser, observing: "this case should be determined on principles which are established in this state and which are not based on the doctrine of lis pendens." In Union Central Life Ins. Co. v. Thompson, 229 Ala. 433, 157 So. 852, the foreclosure of the mortgage after filing of a bill to enjoin foreclosure did not oust the court of jurisdiction, but remained subject to equity of the bill and may be ignored or set aside by the court, if complainant is awarded relief. See, McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Patillo v. Tucker, 216 Ala. 572, 113 So. 1; Brown v. Bell, 206 Ala. 182, 89 So. 659; Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412(25).
In the case of Alabama Power Co. v. Sheffield, 232 Ala. 53, 166 So. 797, cited by appellees, a bill was filed by appellant seeking to enjoin the performance of a certain contract between it and the United States. The court refused to issue the injunction and sustained demurrers to the bill. An appeal was then taken and thereafter said agreement, the sole basis of the suit, terminated. There was then made a new contract which was no part of the record and was not considered by the trial court.
That is clearly different from the instant case. In our case, instead of abandoning the matter sought to be enjoined, the respondents proceeded to do it. It is also different from Walling v. Youngerman-Reynolds Hardwood Co., supra, and Hecht v. Bowles, supra, which related to conduct continuous in nature, and though that which was complained of was discontinued, it could be re-established and pursued.
In the case of Willis v. Buchman, 240 Ala. 386, 199 So. 892, 132 A.L.R. 1179, also cited by appellees, the defendant appealed from a judgment at law against him. After the appeal was taken the plaintiff in the judgment entered a cancellation and discharge on the record of the judgment. It was held that the motion to dismiss the appeal was proper. The only matter considered on the motion, as controversial, was that since usury was involved, public interest demanded its consideration. The Court held that interest in such matter should not prevent a dismissal. This case *258 is no authority applicable to the facts here presented.
In Bradford v. State ex rel. Esslinger, 226 Ala. 342, 147 So. 182, it was held that a quo warranto case should not be dismissed because the term of the office had expired, for that the emoluments of the office continued to be a matter of controversy.
The question we are now considering on this motion is whether a controversy is moot when it is whether certain funds in the state treasury should stand to the credit of the state surety insurance fund and be subject to its requirements or to the credit of the department of examiners of public accounts and be subject to its requirements. On final hearing the Court may determine that controversy, and if it is held that the fund was improperly placed to the credit of the state surety insurance fund, it could be ordered by the Court to be retransferred. It is not now beyond such power of the Court. So that the equity of the bill and whether it is subject to demurrer has not become moot.
In so far as concerns the order denying a motion for a temporary injunction, we also think that it is not moot. The bill not only seeks to enjoin payment of the premium of October 1950, but also in effect those maturing in October of future years during the term of the chief examiner of public accounts. It was only the premium due October 1950 which has been paid. If it be conceded that a prayer for temporary injunction becomes moot, but while the cause is pending the act sought to be enjoined is done, it does not thereby prevent a temporary injunction as to matters subsequently occurring also included in the prayer. That is the present status.
Moreover, if this Court on appeal in this case holds that the bill has equity and that the temporary injunction should have issued, this Court in so holding and decreeing could also order a restoration of the status existing when the bill was filed and enjoin a change of it pending the suit. Jones v. Securities and Exchange Comm., supra.
So that as to both decrees, we think the motion to dismiss the appeal should be and is overruled.
We have observed that the surety insurance fund, to which we have referred, originated in an Act of September 7, 1935, General Acts 1935, page 782. Section 8 of that Act is "That this Act shall become effective upon the proclamation of the Governor." As the Act went into the Code of 1940, section 338 of Title 28, provides: "The provisions of this article shall not be effective except upon a proclamation issued by the governor declaring that such chapter is in force and effect."
The bill alleges that this proclamation was issued by the governor on the 25th day of November, 1949. So that according to its terms the Act was dormant and ineffective until that time, both under the terms of the original Act and under the terms of the Code section.
It is our view that that status amounts to a delegation of legislative power, in violation of sections 43 and 44 of the Constitution. The Act did not provide that upon the finding by the governor of certain facts or circumstances to exist, and upon the basis of such finding he should make a proclamation thereof, thereby rendering the Act effective. The legislature cannot confer upon any person or authority the right, in its discretion to be exercised without regard to fixed standards set up by the Act, to declare when an enactment shall become effective. It can only delegate to such person or authority the right to determine the facts and circumstances, whose finding shall determine the effective date of the Act. 16 C.J.S., Constitutional Law, § 133, p. 342, note 28; Ward v. State ex rel. Parker, 154 Ala. 227, 45 So. 655; Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93; Morton v. Lusk, 248 Ala. 110(23), 26 So. 2d 849; In re Opinion of the Justices, 249 Ala. 389(3), 31 So. 2d 558; Hawkins v. State Board of Adjustment, 242 Ala. 547(4), 7 So. 2d 775; Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681; Opinion of the Justices, 244 Ala. 386(4), 13 So. 2d 674.
Of course this has no reference to the constitutional requirement of approval of legislative enactments as contained in section 125.
*259 The legislature may make an appropriation and set up a board to determine the facts on which it is declared to operate. John E. Ballenger Const. Co. v. State Board of Adjustment, 234 Ala. 377, 175 So. 387; Dunn Const. Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383; State ex rel. v. State Board of Adjustment, 249 Ala. 542, 32 So. 2d 216; Opinion of the Justices, 244 Ala. 386, 13 So. 2d 674; Walls v. City of Guntersville, 253 Ala. 480(6), 45 So. 2d 468.
Section 43 and 44, Constitution, do not invalidate local option laws. Opinion of the Justices, 232 Ala. 60, 166 So. 710; State, ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294; Ward v. State, supra; Phenix City v. Alabama Power Co., 239 Ala. 547(3), 195 So. 894; Opinion of the Justices, 253 Ala. 111, 43 So. 2d 3.
We know of no authority in this state which justifies a delegation to the governor of the power to declare what shall be the effective date of an act duly passed, when such declaration is merely the result of his own will and not of his determination of the facts upon which the act itself declares it to be effective.
In Re Opinion of the Justices, 242 Ala. 57, 4 So. 2d 654, the members of the Court were equally divided in opinion as to whether an act was mandatory requiring the governor to make proclamation when a certain state of facts shall occur, or whether it conferred on him power to exercise his discretion in that event. Some of them held it did not impose a duty but a discretion and, therefore, was a delegation of legislative power, in violation of the Constitution. Other members of the Court held the act merely delegated the power to ascertain a fact upon which the statute operated ipso facto. There was no difference of opinion among the justices as to what constitutes a delegation of legislative power, or that the result was properly declared by both groups of the Court upon the basis of their respective judgment as to the proper interpretation of the act.
In the case of Smith v. Speed, 50 Ala. 276, it is said that the purpose of the Constitution in respect to appropriations "was to prevent the executive power from controlling the public moneys."
We do not find from a study of appropriations acts in this state that this theory has not been generally observed by the legislature. Section of 14½ of the Equalization Act of 1927, General Acts 1927, page 449, makes the respective appropriations payable upon a finding by the governor that the condition of the treasury shall warrant it. We have not found that appropriations by acts duly passed and approved were made dependent upon the mere discretion of the governor not based upon some defined circumstances.
Objection is also made to this statute upon other grounds: one is that it is vague, uncertain and ambiguous, and that it is inconsistent with our constitutional form of government. Attention is called to the fact that under section 337, Title 28, Code, in order to make an amount payable out of the surety insurance fund to some other state agency, it is necessary for such agency to sue the officer in the county of his residence for a breach of the obligation of the bond and judgment must be rendered against such officer. The clerk thereupon certifies the existence and the amount of such judgment to the state comptroller who shall issue a warrant upon the treasury for the payment of the amount of said judgment. No provision is made for the director of the department of finance or other state official to participate in the defense of such a suit. According to the terms of the statute, the official sued might not see fit to make defense or might be in collusion with the head of the department in which he is employed, or not be available in Alabama for service of such a suit. There is no provision in this statute which authorizes anyone to intervene so as to make it a contested case. If it be assumed that such intervention would be authorized under the general statute for intervention, Title 7, section 247, Code; Franklin v. Dorsey-Jackson Chevrolet Co., 246 Ala. 245, 20 So. 2d 220, 157 A.L.R. 154, the result would be a suit in a court of traditional jurisdiction in common law form by one agency of the state against another agency of the state. In that situation apparently it would be the duty of the attorney general both to prosecute *260 and defend the same suit. Section 244, Title 55, Code.
It therefore presents a status, as we have said, which is contrary to our constitutional form of government and especially section 14 which prohibits the state from being a defendant in any court of law or equity. This includes state agencies. Dunn Const. Co. v. State Board of Adjustment, 234 Ala. 372(4), 175 So. 383; John E. Ballenger Const. Co. v. State Board of Adjustment, 234 Ala. 377(2), 175 So. 387; State Tax Comm. v. Commercial Realty Co., 236 Ala. 358, 182 So. 31.
It is our view that the Surety Insurance Fund Act is merely a method by which the state may set aside and hold for its purposes a certain amount of money, $100,000.00, transferred from the state insurance fund and also amounts charged to the appropriations of various departments of the state for premiums on the official bonds required by law. Being in one aspect but a transfer to one fund from another and prescribing the circumstances which will control such transfer, the situation is no justification for a suit in a duly constituted court between such agencies. The legislature could very well set up a board to determine when such transfer should be made from one fund to another in keeping with the object sought to be accomplished, as was done in respect to the insurance fund, sections 317-328, Title 28, Code; but to put jurisdiction of such a situation on a court of law is entirely out of harmony with our system.
It is interesting to note that we find only two states in the Union which have undertaken to set up such a proceeding. One is the state of Nebraska, which was considered by the Supreme Court of that state in the case of Laverty v. Cochran, Governor, 132 Neb. 118, 271 N.W. 354. The opinion in that case referred to the fact that the constitution of Nebraska requires public officials to execute official bonds. (Alabama has no such constitutional requirement.) The question then arose of whether or not a bond executed under such authority as this by the proper officer on behalf of the state surety insurance fund was a bond within the meaning of the constitution. The court held that it was not. That the status was, as we have indicated above, merely to provide the circumstances and standards which will control the transfer of public funds from one public agency to another, and that the situation did not call for a contractual obligation. The act was annulled for other reasons: one being that it imposed judicial powers upon executive officers as well as legislative powers. The court held that judicial powers could not be conferred upon administrative officers. That is not, as we have held, a proper interpretation of our Constitution. Section 139 of our Constitution has been held by us to have a different effect. Boyd v. Garrison, 246 Ala. 122(7), 19 So. 2d 385; State Tax Comm. v. Bailey & Howard, 179 Ala. 620, 60 So. 913; State Tax Comm. v. Stanley, 234 Ala. 66, 173 So. 609.
While the authority of the Nebraska court is not controlling here, it does serve to express our view of the nature of such a proceeding set up by the legislature and to illustrate, in our opinion, the want of conformity to our constitutional system.
North Dakota also has had experience in connection with such legislation. Its first case on that subject is that of State ex rel. Miller v. Taylor, 27 N.D. 77, 78, 145 N.W. 425. The act was declared invalid for one reason that it attempts to give to the commissioner of insurance the arbitrary power to determine how much of the fund shall be applied to the payment of losses and how much to other expenses, and because no limitation is put upon the amount which may be used for expenses, and that it is an unwarranted delegation of judicial power to an administrative officer, in that it commits to him the sole right to determine the amount to be given to the subdivision involved, whose officers are insured, and also delegates to an auditing board the power to determine when bonds of officers shall be cancelled. The act in question only had application to county, city, school district and township officers required by law to furnish a bond and made it obligatory for such bond to be made by the bonding department fund. Later another act was passed by the legislature of *261 North Dakota in order to relieve the situation of the objections which annulled the previous act, and in the case of State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A.1918B, 156, that act was upheld against the constitutional objections which were made. The court went into great particularity in analyzing the act, pointing out that state did not have constitutional requirements as to official bonds (and therefore was not in the status of the Nebraska court). It may be observed that this act as finally upheld had no provision in it for a suit in common form to determine the amount which would be transferred from the fund which was set up, but provided for administrative machinery for that purpose, and largely upon the basis of that status the statute was upheld. See, also, 66 A.L.R. 796-797; 43 Am.Jur. 184, section 413.
The bill in the instant case does not allege whether the $100,000.00 has been transferred from the state insurance fund to the state surety insurance fund, referred to in section 333, Title 28, Code. The Act of 1935 did contain a provision by which there was transferred from the state insurance fund to the state surety insurance fund the sum of $100,000.00, but that Act never became operative according to its terms until the governor made his proclamation in 1949, and when the governor did so the Act of 1935 had become superseded by the Code section. So that assuming the validity of the statute, as set out in the Code, there is no direct provision for such transfer to be made. The bill does not allege whether such transfer was in fact made.
Section 335 of Title 28, Code, authorizes the director of finance, with the approval of the governor, to make such rules and regulations as are necessary and essential for the proper and full enforcement of this Article, not inconsistent with the Constitution and laws of the state, and section 336 requires said department to provide forms or bonds to be executed, and another section provides that the premium rate shall be based on commercial rates of such transactions as of August 1, 1935.
Even if the proclamation of the governor fourteen years after the enactment of this Act had the effect of putting it in operation, it seems clear that it was not the intention of the legislature for it to be operative without a transfer of said $100,000.00, above mentioned, or until the director of finance and the governor shall make the necessary rules and regulations, including a form of the bond to be executed and an ascertainment of the premium rate based upon the commercial status operative August 1, 1935. The bill not alleging anything about such matters, we cannot assume that they did not occur as required by law. But in the event they have not occurred, it is our belief the Act could not be operative until such event.
Many of these observations are not necessary to the result of this suit since we find that the statute in question is a delegation of legislative authority in violation of sections 43 and 44 of the Constitution of Alabama. But we think such observations are not inappropriate in the event the litigation should not result as here contemplated or the legislature should see fit to amend the law as now set up.
Objection is also made that it violates section 93 of the Constitution, in that it is a lending of credit to an individual, association, or corporation, but we see nothing in the situation which makes it subject to that contention. It is an established policy of this state that section 93, supra, does not prohibit the state from lending its credit to a public corporation organized for the purpose of carrying on public functions. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; Rogers v. Garlington, 234 Ala. 13, 173 So. 372.
We do not think it is engaging in business by the state in competition with private enterprise in such way as to make it subject to section 93 of the Constitution.
The result of the foregoing discussion is that, in our opinion, the demurrer to the bill should have been overruled and the temporary injunction granted. A decree will be entered overruling the demurrer to the bill and ordering the issuance of a temporary injunction against further conduct which is sought to be prohibited in the prayer of the bill upon the execution by complainant of a bond payable to the respondents in the sum of $1,000.00 with sureties *262 to be approved by the register of the Circuit Court, in Equity, of Montgomery County, and conditioned as required by law.
Reversed, rendered and remanded.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | January 25, 1951 |
522a48d9-28e0-4470-a7cb-3a1c7fea9639 | Birmingham Electric Co. v. Carver | 52 So. 2d 200 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 200 (1951)
BIRMINGHAM ELECTRIC CO.
v.
CARVER.
6 Div. 166.
Supreme Court of Alabama.
February 22, 1951.
Rehearing Denied April 26, 1951.
*201 Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Clifford Emond, of Birmingham, for appellee.
FOSTER, Justice.
The primary contention made on this appeal is with respect to a charge of contributory negligence given for defendant. The suit is for personal injuries received by plaintiff in a collision of plaintiff's automobile with a bus owned by defendant on a street in Birmingham.
The suit was submitted on count "A", a simple negligence count and "B" a wanton count. The pleading was in short by consent. There was a verdict and judgment for defendant, and a new trial was granted. This appeal is from the judgment granting the new trial.
The charge of contributory negligence is in the following language: "If you are reasonably satisfied from the evidence in this case that plaintiff was himself guilty of negligence which proximately contributed to cause his injuries and damages on the occasion complained of, you cannot return a verdict for the plaintiff under count A of the complaint." Consideration of this charge will be given on the assumption that the evidence made a question for the jury as to the subsequent negligence of defendant. The specific inquiry is whether such a charge of contributory negligence is applicable to a count which includes subsequent negligence and there is evidence from which subsequent negligence may be found by the jury.
In order to analyze that question, it is necessary for us to go back to the basic principle on which a count merely charging simple negligence on the part of the defendant may be sustained by proof of subsequent negligence in a proper case. The proper case is that the subsequent negligence of the defendant is a proximate contributing cause of the injury and damages to the plaintiff. For in that event, negligence being shown, it matters not whether it is primary negligence or subsequent negligence in so far as the duty of the plaintiff to prove negligence by the defendant is concerned. The reason why subsequent negligence may be shown in such a count is because the count alleges that the negligence of the defendant was the proximate cause of his injury. Mobile Light and Railroad Co. v. Gadik, 211 Ala. 582(4), 100 So. 837. It may be the proximate cause whether it is primary or subsequent. Therefore it is included in the complaint.
*202 We come to the question of what contributory negligence is an answer to a simple negligence count, which includes subsequent negligence. It seems clear to us the answer is that an allegation that plaintiff was guilty of negligence in performing a certain duty, which proximately contributed to his injury, is as much an answer to that feature of the count which includes subsequent negligence as to that feature which includes primary negligence.
The whole question of last clear chance or subsequent negligence or the humanitarian doctrine, as it is sometimes called, is one of causation. We so observed in the case of Heffelfinger v. Lane, 239 Ala. 659, 196 So. 720, where we were not dealing with pleas which were in short by consent, the complaint charged merely negligence of defendant in running an automobile over plaintiff's intestate, proximately causing his death. At that time the pleas of contributory negligence were required by our decisions to specify the facts upon which the claim of contributory negligence was predicated. The pleas undertook to do that, but they did not state that the plaintiff's intestate was aware of impending danger where he was and that he negligently failed to extricate himself from it. They did allege that he was run against in a public highway, which he knew in general was dangerous, but they did not allege that he had any information as to the imminence of the danger, which is necessary in order to sustain a claim of subsequent contributory negligence. We observed that those pleas were sufficient whether the evidence shows subsequent negligence by defendant or primary negligence, and that "the principle of subsequent negligence or last clear chance is but an element of causation. In either event, the negligence of decedent must be a concurrent contributing factor existing and efficient at the very time of the accident." It was held that the pleas well set up the defense of contributory negligence, both to the claim of primary negligence and subsequent negligence which was included in the complaint.
In the case of Salter v. Carlisle, 206 Ala. 163, 90 So. 283, 284, we gave consideration to that question. There were negligence and wanton counts. The negligence counts did not in express terms charge subsequent negligence. The court instructed the jury with respect to subsequent negligence, and in that connection the court gave certain written charges at the request of the defendant to the effect that if plaintiff was guilty of negligence in the least degree which proximately contributed to her injury then they cannot find a verdict for the plaintiff. The count charging wantonness was not submitted to the jury. This left before them counts charging simple original or primary negligence and subsequent negligence. According to the charge above mentioned, the court noted that the phraseology is not to be approved and might have been refused without error. But in view of the fact that the defense of contributory negligence was pleaded in short by consent, they were properly given, the Court observing that "It stated the law of contributory negligence in general. Here plaintiff sought to recover on a charge of subsequent negligence as already explained. To counts so alleging plaintiff's cause of action, as well as to count 1, this charge 10 correctly applied the law of contributory negligence." Evidently the theory upon which that ruling was made was that to which we referred, that the question of last clear chance or subsequent contributory negligence is one of proximate causation. In that case the pleading was in short by consent and, therefore, it was not necessary to state the circumstances upon which defendant relied to show that contributory negligence was a proximate contributing cause of her injury.
It is well settled by the decisions of our Court prior to Rule 37 that no acts of contributory negligence, not specially pleaded, can be proved or made the predicate for a verdict for the negligent party. Central of Georgia R. R. Co. v. Pope, 221 Ala. 145, 127 So. 835; Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Byars v. Hollimon, 228 Ala. 494, 153 So. 748.
Our Rule of Practice 37, Code 1940, Tit. 7, Appendix, in the circuit court of law, has simplified pleading contributory negligence. It went into effect on June 18, *203 1942. We find the cases which require the plea of contributory negligence to specially plead the facts upon which the negligence is predicated is thereby changed so that in such pleading "no greater particularity of averment as respects the acts, omissions, conduct or behavior relied on as constituting contributory negligence is required than is required in averring, in a complaint, the acts, omissions, conduct or behavior relied on as constituting negligence."
But even so, it was held in Pankey v. City of Mobile, 250 Ala. 566, 35 So. 2d 497, that an allegation in a plea of contributory negligence was insufficient under Rule 37 if, after alleging facts showing a duty to plaintiff, it merely alleged that she was guilty of negligence which directly or proximately contributed to her fall. It was held to be a mere conclusion. The same objection to a complaint charging negligence would be well taken. The complaint or plea should allege that the alleged duty, specifying it, was negligently breached without the need of specifying the details constituting the breach. Prior to Rule 37, the plea must allege in addition to the above the particular manner in which it was breached. Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So. 2d 388.
With respect to a count in a complaint charging negligence, it is sufficient to allege only the facts and circumstances from which the law imposes a duty to the plaintiff, and then a general charge of negligence in performance of that duty without a statement of the particular manner in which it was negligently performed. 15 Alabama Digest, Negligence, pages 336, 337. To illustrate: in the case of Louisville and Nashville R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, a count was held good which alleged that the employee in charge of the train of defendant's railroad so negligently managed it that the engine ran against plaintiff's intestate at a public road crossing, proximately causing his death. It is said that such a count justified primary or subsequent negligence. The facts alleged showed a duty to use due care not to run its engine against deceased, but that it negligently did that very thing. It need not allege in what respect it was negligent. Louisville and Nashville R. R. Co. v. Sunday, 254 Ala. 299, 48 So. 2d 216; Kendrick v. Birmingham Southern Ry. Co., 254 Ala. 313, 48 So. 2d 320.
The charge we are dealing with is not limited to original contributory negligence but any negligence of plaintiff which proximately contributed to the injury. A special plea under Rule 37 in such broad terms would not be good because it does not allege what plaintiff negligently did or failed to do, and a charge in such broad terms would not be good when based upon a special plea which must specify the duty which is negligently breached. It is good based on a plea in short by consent which does not specify the duty that was breached. Therefore, the charge need not do so. It will be observed that the charge, which we have quoted and which we are considering, has application only by its terms to count "A", which is a simple negligence count.
Charges predicated upon the basis of the negligence of the plaintiff, being the sole proximate cause of his injury and damages, have been discussed in many of our cases. There may be expressions in some of those cases which if here applied would lead to a different conclusion from that expressed above, but we do not find where there has been a case involving such a charge as we are now considering, holding that it was error to give such charge applicable to a simple negligence count which also included subsequent negligence and where the plea of contributory negligence was by consent in general terms.
But our cases have consistently held that a charge involving sole proximate cause should not be given either in a negligence or wanton count because it is said that thereby initial negligence is given attention and it leads the jury to disregard the issues of wanton or subsequent negligence (which this writer thinks is a farfetched conclusion). In the case of Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148, the Court did not change that status of the law, but expressed the opinion of some of the justices that the charge was misleading at *204 most and should be subject to refusal without error. The Court did not so hold, but maintained the principles declared in our various cases, supra. Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139.
However, the question was left open as applied to subsequent negligence in the case of Williams v. Wicker, 235 Ala. 348, 179 So. 250. And in the case of Mobile City Lines v. Alexander, 249 Ala. 107, 30 So. 2d 4, the refusal of the sole proximate cause charge was justified, it was said, because there was an issue of wantonness.
It is to be admitted that the status of our decisions is very uncertain and unsatisfactory with respect to a sole proximate cause charge of contributory negligence, especially applicable to an issue of subsequent negligence. It is the opinion of the writer, as was expressed by Justice Bouldin in the case of Seitz v. Heep, supra, that, in the consideration of the question, the Court has not given proper consideration in sole proximate cause charges to the fact that the contributory negligence of the plaintiff must be the sole proximate cause of the injury. That excludes all other causes. However, it is not necessary to make any modification of those opinions as they have been reaffirmed by this Court time and again, with the whole Court considering the question. But the principle has not been applied to a charge which merely instructed the jury, as here, on a plea in short by consent, that if the plaintiff was negligent, which proximately contributed to cause his injury and damages, the verdict should not be for the plaintiff. This for the reason, which we have stated, that the proximate causation involved is the controlling quality of that factor of the instruction.
We do not think it is necessary to discuss other matters in the motion for a new trial. The trial court eliminated those grounds which were based on the insufficiency of the evidence. We do not think the trial court was justified in granting a new trial, and the judgment doing so is reversed and the original judgment for defendant reinstated.
Reversed and rendered.
BROWN, SIMPSON and STAKELY, JJ., concur.
FOSTER, Justice.
Our attention has been called to a failure on our part to respond to the contention made by appellee that the motion for a new trial was properly granted by the court by reason of certain remarks made by appellant's counsel on the trial of the case. The first of those contentions is thus stated in the record:
"Mr. Cole: Whether there be a discount to his insurance company or not, the car was repaired, and is repaired. I don't know what the facts are behind it as to arrangements one way or the other.
"Mr. Emond: We object to that, if the court please.
"The Court: What is it?
"Mr. Emond: About the car, there is no evidence as to any arrangement, except that this man has to pay for it.
"The Court: I will sustain the objection.
"Mr. Emond: I would like for the court to instruct the jury that it is highly improper, and has nothing to do with the case.
"The Court: Gentlemen, under the evidence in the case
"Mr. Emond: Judge, he stated there he didn't know where
"Mr. Cole: We object to him stating things he doesn't know to the court.
"Mr. Emond: He is supposed to argue what he knows, if he knows anything.
"The Court: All right.
"Mr. Cole: There is a lot of this case that we both don't know.
"Mr. Emond: Let's argue what we know."
The record, on page 46, contains statement on direct and cross examination by Higgins, shop manager of Liberty Motors which repaired plaintiff's car. He testified to the extent of the repairs made on plaintiff's car and submitted an itemized statement showing separately the amount *205 of the value of the parts used and of the labor. The statement of the value of the parts contained a credit by discount of $63.03. His direct and cross examination, referred to above, is as follows:
"Q. All right, sir. Was the amount that you have testified to there a reasonable charge for the work that was done on that car? A. Yes, sir. In other words, this amount was acceptable by the insurance company that carried the insurance on Mr. Carver's car.
"Q. Did you give a discount on that? A. Discount on the parts.
"Q. This was net after the discount was given? A. Yes, sir; that was the net figure.
"Mr. Emond: All right.
"On Cross Examination.
"Q. (By Mr. Cole) Mr. Higgins, you say that was madeis that a discount you gave the insurance company? A. Well, this discount shown on this estimate would be in the amount of sixty some odd dollars here. That was a discount on the parts. That is what is known as a fleet discount.
"Q. In other words, if he has an insurance company that takes care of his loss, you give him some kind of discount, and that was given in this case? A. A discount on those parts; yes, sir."
It appears that the court promptly sustained the objection which was made. This was a ruling that the remark was improper, whether it was or not. Whereupon counsel for appellee asked the court to instruct the jury that the remark made by appellant's counsel was highly improper and had nothing to do with the case, and it shows that the court was proceeding to respond to that request when counsel for appellee broke into what the court was saying and stopped him by making another observation, as will be seen from the record, which we have quoted. We presume that the court, in response to such request to instruct the jury would have done so satisfactorily if possible. There was no further action taken by counsel for appellee in respect to the matter. There was no motion made for a mistrial.
The rule has been established in this State that the motion for a new trial, based on alleged improper argument, should not be granted because "the remarks have merely a natural tendency to unfairly prejudice the other party's case." It is only where they are grossly improper and highly prejudicial as that neither rebuke nor retraction can entirely destroy their sinister influence that a new trial should be granted on that account, when there was no exception in that connection theretofore reserved. Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 287, 61 So. 80; Louisville & Nashville R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760; Birmingham Railway, Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876; Jackson Lumber Co. v. Trammell, 199 Ala. 536, 74 So. 469; Pryor v. Limestone County, 225 Ala. 540, 144 So. 18; Sinclair v. Taylor, 233 Ala. 304, 171 So. 728; Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So. 2d 640.
We have a line of cases which hold that in a suit for damages against a defendant it is highly improper for plaintiff's counsel to make any reference in argument to the fact that defendant has liability insurance on account of such claim, and that such remark is so highly prejudicial that its effect cannot be removed by any instruction which the court might make. Standridge v. Martin, 203 Ala. 486, 84 So. 266; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387. There are other cases which support that view, not necessary to cite here.
As we have shown the remarks made were by defendant's counsel and with reference to plaintiff, referring to the evidence that the discount to plaintiff was by reason of insurance to cover the damage to his car. We are not confronted by a situation where the matter of insurance is injected in the argument without any support from the evidence. First in response to plaintiff's questions and then to those of defendant, Higgins testified as to the meaning of the discount shown on the statement. Defendant had that right. It came out in his testimony that a discount on parts *206 was allowed when there was insurance covering the loss. The remark of counsel was with reference to a discount to his insurance company. The evidence supporting it was without any limitation on its effect and without objection made to it. Being thus supported, the remark of counsel adds nothing which was not already in the evidence, and therefore does not come within the influence of the principle stated above. Clark-Pratt Cotton Mills v. Bailey, 201 Ala. 333, 77 So. 995; W. T. Smith Lumber Co. v. McLain, 202 Ala. 32, 79 So. 370; Pittman v. Calhoun, 233 Ala. 450, 172 So. 263; Alabama City Products Co. v. Mathews, 220 Ala. 549, 126 So. 869.
In the case of Smith v. Baggett, 218 Ala. 227, 118 So. 283, 284, there was evidence given by plaintiff of an incidental remark made by defendant about seeing his insurance man. There was no objection to this by defendant. Plaintiff's counsel remarked in argument: "He (defendant's counsel) is willing to let evidence come in without objection that there was an insurance company involved." The trial court excluded the remark on motion of defendant. The court at first held that in doing so there was error. On rehearing a bare majority of the court held that the trial court did not commit reversible error, without explanation of their holding. This could very well have been because the remark of counsel was not justified by the evidence.
In the instant case we think the remark of counsel was justified by the evidence, but that is not the question here to be tried. The question is whether the remark improperly brought into the case the question of insurance in such manner that it could not be eradicated. We think, as we have said, that it did not.
Appellee also insists the action of the court in granting a new trial could be justified on account of a further observation made by defendant's counsel to the jury. In that connection the record shows the following (Argument by Mr. Cole for defendant):
"Officer Higginbottom testified in this case. He investigated as a representative of the City of Birmingham, and in his official capacity there as an officer of the city. He was subpoenaed by the plaintiff in this case; he was put on by them; he was their witness. I would have put him on, of course; they beat me to it, so to speak. He was put on by them, and then when his testimony starts to hurt
"Mr. Emond: We object to that, if the court please, and move to exclude that.
"Mr. Cole: That is all right, I am talking about the evidence.
"Mr. Emond: Talking about being hurt, or doing something
"Mr. Cole: I didn't say
"The Court: I am trying to pass on the matter.
"Mr. Emond: I would like to keep him in the record. We put the police officer on the stand, and we examined him, thinking he was going to testify what he did three or four days after the accident.
"Mr. Cole: Which he did, too.
"Mr. Emond: Which he didn't do. Then, may it please the court, there after he has been put on the stand, he is talked to by the representatives of the Birmingham Electric Company, and put back on his
"The Court: Gentlemen, the attorneys may argue a reasonable inference, or his recollection of the evidence. If his recollection about
"Mr. Emond: Not how he feels about some evidence.
"The Court:if his recollection doesn't agree with the other attorney's recollection, you are the one to decide that.
"Mr. Emond: Does the court say it doesn't hurthe is talking about the effect on my mind; that is highly improper, and he should know it.
"The Court: It has been held that you can't read the other lawyer's mind to the jury.
"Mr. Emond: Sometimes they can't read their own."
There appears to have been no ruling by the court upon the objection which was made, nor is there an insistence there was such a ruling.
*207 We do not think the remark of counsel which is quoted was of such nature as to justify the court in granting a new trial on account of it under the circumstances.
With respect to the matter discussed in the foregoing original opinion as to which objection is also made in the application for rehearing, all we have to say is that we continue to entertain the views expressed above, and we see no necessity to modify or extend the discussion of the question.
We believe we have given attention to the features of the application for rehearing which are stressed by counsel in brief, and we find nothing varying the conclusion which we previously reached.
The application for rehearing is therefore overruled.
All the Justices concur. | February 22, 1951 |
e40b43c1-7626-428b-959d-25aae5ca554b | Bridges v. McCorvey | 49 So. 2d 546 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 546 (1950)
BRIDGES et al.
v.
McCORVEY et al.
4 Div. 623.
Supreme Court of Alabama.
December 14, 1950.
*547 Roy L. Smith, of Phenix City, Chas. L. Rowe, of Elba, G. D. Halstead, of Headland, Wm. M. Beck, of Fort Payne, and Rives & Godbold, of Montgomery, for appellants.
Wm. S. Pritchard, Victor H. Smith and Pritchard & McCall, all of Birmingham, for appellees.
SIMPSON, Justice.
Appeal by petitioners in a proceeding wherein they sought a writ of prohibition and other relief to prevent H. M. Abercrombie, William E. Johnson, H. Coleman Long, J. Herbert Meighan, and Frank J. Mizell, Jr., as members of a subcommittee of the State Democratic Executive Committee of Alabama, from hearing and determining a contest of the election of petitioners as members of the State Democratic Executive Committee from the third congressional district of Alabama. Also made defendant to the petition was Gessner T. McCorvey, as chairman of the State Democratic Executive Committee of Alabama. On a final hearing in the court below, the Honorable Bowen W. Simmons, acting judge of the circuit court of Coffee County, denied relief. It is from this judgment that the appeal is prosecuted.
Two opinions have heretofore been promulgated in this matter, the first being Ex parte May, 253 Ala. 684, 46 So. 2d 836, where this court held that paragraph 14 of the petition for writ of prohibition constituted sufficient basis to invoke the jurisdiction of the court, on the theory that: "The circuit courts of this state have jurisdiction to issue writs of prohibition to prevent the executive committees of political parties and the sub-committees thereof from proceeding in election contests, where such committees or sub-committees do not have jurisdiction to hear and determine such contests * * *." Citing Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32.
The second opinion is reported as Ex parte May, Ala., 47 So. 2d 640, where the first decision was reaffirmed.
Said paragraph 14 of the petition was to the effect that the statements of contest were not duly filed by the contestants with the chairman of the State Democratic Executive Committee of Alabama and the required sum to cover the cost and expense of said contest was not deposited with the said chairman within fifteen days after the result of said primary election had been declared. Evidence on this issue was without substantial conflict and the lower court, after hearing the same ore tenus, very properly decided that the petitioners had failed to sustain the allegations and denied relief. This appeal cannot seriously challenge the stated ruling, but it is contended that the subcommittee appointed by the chairman of the State Committee to hear and decide the election contests was without jurisdiction and should be restrained from proceeding because allegedly: (1) There is no authority of law or rule of the committee authorizing a contest of the election *548 of a member of the State Democratic Executive Committee; (2) the chairman was without authority to appoint the subcommittee because there was no valid statute, rule or regulation authorizing him so to do; (3) that the subcommittee had no jurisdiction to hear and determine the said election contest because the members of the subcommittee are biased against the petitioners (contestees) in that each of them campaigned against the petitioners and that Mr. Abercrombie, the chairman, had previously expressed his opinion that the elections for members of the State Democratic Executive Committee in the third congressional district (petitioners' district) were fraudulent and the results of said elections should be discarded.
These several propositions had our studious consideration when the two former opinions were delivered, but we did not write to them. We will now, however, treat of them in order.
It is first contended that there is no provision of law or party rule for the contest of the election of a person to membership on the State Democratic Executive Committee, the argument being that only contests for nominations are provided for and that the petitioners were not nominated, but were elected to a party office. This argument is taken from a construction placed by appellants on certain sections of the statute providing for contests in primary elections, such as §§ 373, 374, 375, 378, 380, 384, 387, and 388, Title 17, Code 1940, which speak of contests of nominations of a person, rather than using the term election. We have consistently thought this theory to be unsound.
Section 341 provides that selection of members of the state executive committee of a party may be done in such manner as the governing authority of the party shall provide, and in the instant case the State Democratic Executive Committee, which is the governing authority of a party, did by resolution provide for the selection of its members in the Democratic primary. The contest is thus governed by the provisions of Title 17. But so also does the same title provide for the selection (nomination) of the members of the party to run for office in the general election.
A candidate seeking nomination of a party to run for a state or county office is a candidate for a party office and, when nominated, has a status as a quasi officer. Boyd v. Garrison, 246 Ala. 122, 19 So.2d 385(3); 18 Am.Jur. 285, § 157. Executive committeemen of a party, when elected as such in the primary, are also party officers. 18 Am.Jur. 271, § 139.
Section 373, Title 17, provides for the contest of nominations of candidates for county offices to be heard and determined by the county executive committee as to such offices and by the state committee "as to candidates for all other offices". This section, like others, such as §§ 378 and 384, therefore undoubtedly refers to all party offices. So when § 372 confers on the state committee the right to hear and determine contests regarding candidates in primary elections for all offices voted for in that election, except candidates for county offices, it necessarily includes candidates for the party office of membership on the state committee voted for in the primary election, pursuant to the provisions of the resolution of the state committee calling the primary and specifying the offices to be filled.
"Nomination" and "election" seem to be used interchangeably throughout the many pertinent sections, as the nature of the office might require, without recognizing a distinction in meaning. § 412 as to words and phrases in the statute indicates such a purpose. And to confine contests under § 384 to those selected in a primary to run for an office in the general election is too restrictive to meet with favor. § 394 itself makes provision for the appointment of a subcommittee as was done in this case, with authority, among other things, "to hear, consider and decide any contest of any election or of the nomination of any candidate in any election held under this chapter". (Emphasis supplied.)
*549 It seems most evident the statute, in providing for contests in primary elections of all offices, includes not only nomination of candidates of the party for state office, but also those who are named to fill any other party office, including that of executive committeeman. Another section which could be mentioned is § 336, which states, "A primary election, within the meaning of this chapter, is an election held by the qualified voters, who are members of any political party, for the purpose of nominating a candidate or candidates for public of party office."
To rationalize further, one elected in a primary election to membership on the state executive committee is a person who has been named or nominated to that party office. To nominate is to name (Webster), either by election or in a convention or some other way; and to elect to an office is to name one in an election for that office. Primary elections are to name by election persons to party offices, whether they are candidates of the party for office or named to some other party office. The ratio decidendi of Smith v. McQueen, 232 Ala. 90 (3,4), 166 So. 788, furnishes an apt analogue, where it was said that, while "election" and "appointment" are not synonymous: "* * * In common use * * * it [election] has come to denote such a selection made by a distinctly defined body, as by `the voters of an entire class,' and while the words `appointment' and `election' are not synonymous, yet they are sometimes used interchangeably in statutes. * * *" 232 Ala. 93, 166 So. 791.
Also in Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32, this court spoke of a nomination of a candidate for the office of judge of probate in the general election as "the election of a Democratic candidate for the office". 240 Ala. 83, 197 So. 32, 34. (Emphasis ours.)
We think it sound to hold that the statute discloses and intended to make no distinction between contests of persons elected in a primary election as nominees of the party to run for office, and those named in the same primary to fill other party offices, such as that of executive committeemen.
It is next insisted that the subcommittee had no power to act, for that there was no authority vested in the chairman of the state committee to appoint such committee. This argument seems to be taken from § 394, which stipulates that the state executive committee of any party shall have the power to appoint or to authorize and empower the chairman thereof to appoint a subcommittee to hear, consider and decide any such contest. It is argued that the committee did not empower the chairman to make the appointment and therefore the committee was not duly constituted.
This argument is answered by Rule 14 of the state committee, which provides that "the chairman of this committee is hereby authorized and empowered to create any special or subcommittee as may be desired." And we are not so sure but what without any such rule the chairman would not have such authority anyway. We note in § 383 the proviso that "The chairman of the state executive committee may appoint a sub-committee of not less than three to hear and decide any contest". (Emphasis ours.) But be that as it may, we think Rule 14 suffices.
We think it not inappropriate here to observe that courts are very reluctant to interfere with party matters and, unless there is clear violation of a jurisdictional requirement, will lay no hand on such matters. The quoted rule above, if necessary at all, was in our opinion sufficient to authorize the appointment by the chairman of the subcommittee. As was observed by the Kentucky Supreme Court in Moody v. Trimble, 109 Ky. 139, 58 S.W. 504, 505, 50 L.R.A. 810, 812: "* * * The settlement of such questions, in the nature of things, should be left to party authority; and therefore we will not scan too closely party rules which undertake, however imperfectly, to confer authority on its various committees to manage party affairs to the best interests of the organization, nor deny such authority, even if it be conferred in terms somewhat general. * * *"
The next argument for the court to intrude itself into this party matter is that the subcommittee, as appointed, is biased, some or a majority of its members having disfavored the election of the appellants (petitioners), and the chairman of such committee, it is asserted, having already expressed his opinion that the election of the executive committeemen in that district appeared fraudulent and the results should not be counted.
This constitutes no ground of disqualification. Fulton v. Longshore, 156 Ala. 611, 615, 46 So. 989, 19 L.R.A.,N.S., 602; Riley v. Wilkinson, 247 Ala. 231(17), 23 So. 2d 582. The case of Fulton v. Longshore, supra, is one of much factual similarity, where Judge Longshore, before whom an election contest was pending, belonged to the same (Populist) party as the defending candidate in the contest, was an active and partisan supporter of that candidate, and had expressed an opinion on election day that a voter who had been challenged was qualified to vote. In denying his disqualification to sit in the contest, this court said: "* * * `The interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge.' * * * no pecuniary or personal interest is here shown which will disqualify the respondent. He can have no possible pecuniary interest in the result of the contest over the sheriff's office, nor does the contestation in any possible way affect any of his individual or personal rights. It cannot be supposed that the interest he felt, as a party man, for the success of the Populist ticket, would influence him in the discharge of his sworn duty to try the case fairly and impartially. The law tolerates no such supposition or presumption, and therefore it can have no legal existence. Such a presumption could only be indulged upon legal grounds of disqualification. The interest which a judge may have as a citizen in a public question is not a personal one. * * *" 156 Ala. 614-615, 46 So. 990.
But were the Longshore case not conclusive of the question, a brief analysis of the contention will illustrate its lack of merit. This contest is one of the phases of an intra-party fight between so-called regular Democrats and so-called States' rights Democrats, where the control of the State Democratic Executive Committee by the respective factions was to be determined by the selection in the primary of the members of the state committee. Appellants (petitioners) belonged to the first faction and the majority of the subcommittee were States' rights Democrats, and the argument runs that in view of this the subcommittee should be disqualified on account of bias. Our own decisions are directly to the contrary, and no case has come to our attention to support such a view. Of necessity there was a distinct cleavage of views among all the members of the state committee, some espousing the candidates of one faction and the others the candidates of the other faction, and this division of opinion was fought out in the primary election from which this contest has emanated. It would be sophistical to argue that a subcommittee of members not aligned with either faction could possibly be obtained. So reduced to its last analysis, the contention of appellants is but an argument that since the contestees are apprehensive that they do not have a majority of their friends on the subcommittee, the court should disqualify it and authorize the appointment of members who do favor them. The law does not operate to that result. The jurisdiction and authority of the State Democratic Executive Committee are exclusivethere is no other court or tribunal before whom the rights of the contestants can be heard and to hold the alleged grounds to be a basis for disqualification would be but to disqualify the entire committee because of its partisan views. This would be a denial of the right of contest, a denial of justice, which is without the sanction of the law. Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576, 580, 17 So. 112.
The judgment must be affirmed.
Affirmed.
All the justices concur except GARDNER, C. J., not sitting. | December 14, 1950 |
1f3a1fd2-152f-4a14-8aad-c0340bdd3643 | Piner v. Piner | 50 So. 2d 269 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 269 (1951)
PINER
v.
PINER.
5 Div. 491.
Supreme Court of Alabama.
February 1, 1951.
Robt. E. Varner, of Tuskegee, for appellant.
Harry D. Raymon, of Tuskegee, for appellee.
STAKELY, Justice.
Bessie Mae Piner (appellee) filed her bill for divorce against her husband M. C. Piner (appellant) on account of cruelty attended with danger to life or health. She also sought the custody of the two minor children of the marriage, Ora Mae Piner three years of age and Vonica Ann Piner two years of age. The case was tried orally before the court and resulted in a decree which granted a divorce to Bessie Mae Piner and awarded to her the custody of the two children.
The appellant insists that the decree of the lower court should not stand because the testimony of the complainant as to cruelty is not supported by corroborating evidence. In a number of states the statute requires that the complainant's testimony be corroborated. Nelson on Divorce, Vol. 3, p. 69; 17 Am.Jur. 337. In some states a rule of practice formulated by the court so requires. In Alabama so far as we are aware there is no such statute. Nor is there such a rule of practice. So far as we can ascertain there is no authority in this state dealing with the subject except that in the case of Lyall v. *270 Lyall, 250 Ala. 635, 35 So. 2d 550, in discussing proof of a recriminatory charge, there is an indication that the quantum of evidence could be important.
It seems to us that every case should stand on its own peculiar facts because there is no general principle of law that precludes the granting of a divorce solely on the uncorroborated testimony of the complainant. Robbins v. Robbins, 100 Mass. 150; 97 Am.Dec. 91; 17 Am.Jur. p. 337. There could be cases where no corroborating evidence exists or where because of the circumstances in the case, it would not be reasonably possible to procure corroborating evidence. To deny a decree of divorce in situations like this would amount to frustration of justice when the evidence appears to be worthy of credence.
The authorities show that the main object of requiring corroborating evidence whether by statute or rule of practice is to prevent collusion. Brannen v. Brannen, 237 Iowa 188, 21 N.W.2d 459; 17 Am.Jur. 337; Nelson on Divorce, Vol. 3, p. 70. The way in which this case was tried in the lower court and is now presented on appeal satisfies us that there is no collusion between the parties in this case. We think that there is some corroborating evidence though perhaps slight in the present case and so the question in this case comes down to the weight and sufficiency of the evidence as in other cases. Guibord v. Guibord, 114 Vt. 278, 44 A.2d 158; Nelson on Divorce, Vol. 3, p. 71; 27 C.J.S. Divorce, § 136, pp. 732-733.
The trial court heard the witnesses testify in person before him and could observe their demeanor on the stand. He considered the evidence of cruelty sufficient to sustain the case for complainant. We see no reason to disturb the ruling.
With reference to the custody of the children we remark again that the parties were before the court in person. There is nothing to reflect upon the character of the mother or her ability to care for the children. A pertinent inquiry is which party was at fault in terminating the marital relation. Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580; Gayle v. Gayle, 220 Ala. 400, 125 So. 638. These considerations, taken with the tender age of the children, lead us to believe that the court correctly gave the custody of the children to the mother. Hammac v. Hammac, 246 Ala. 111, 19 So. 2d 392.
Affirmed.
FOSTER, LAWSON and SIMPSON, JJ., concur. | February 1, 1951 |
b0e024dd-8dee-4f85-96a6-4a2ec6245b56 | Merchants National Bank of Mobile v. Lott | 50 So. 2d 406 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 406 (1951)
MERCHANTS NATIONAL BANK OF MOBILE
v.
LOTT.
1 Div. 389.
Supreme Court of Alabama.
February 8, 1951.
J. B. Blackburn, of Bay Minette, for appellant.
McCorvey, Turner, Rogers, Johnstone & Adams, of Mobile, for appellee.
LIVINGSTON, Justice.
The Merchants National Bank of Mobile, as executor of the last will and testament of Martha P. W. Reeves, deceased, brought this suit in the Circuit Court, in Equity, of Baldwin County against Agnes B. Lott to redeem certain described lands from an alleged void tax sale. Upon submission of the cause, the trial court rendered a decree denying relief. Appellant filed a motion for a new trial which was denied, hence this appeal.
The lands sought to be redeemed are described as follows: "That certain lot or parcel of land, beginning at the Southeast corner of Lot Number 5, running *407 thence West to East boundary line of Lot Number Eight, 20.28 chains; thence South 10 degrees East 2.68 chains to Northwest corner of Lot Number Seven; thence South 76 degrees East 15.60 chains; thence South 9.00 chains to Mobile Bay; thence following the meanders of Mobile Bay and Weeks Bay to the place of beginning, containing 24 acres, more or less, according to plat and survey of N. L. Durant, September 5, 1899 and being Lot Number 6 in Section 4, Township 8 South, Range 2 East, Baldwin County, Alabama, according to the official plat thereof recorded in Deed Book 2 N.S. at pages 646-7, Baldwin County, Alabama Records."
Martha P. W. Reeves died in 1927, seized and possessed of said lands. On August 9, 1927, letters testamentary were granted to the Merchants National Bank of Mobile by the Probate Judge of Baldwin County to execute the will of Martha Pearl Weber Reeves, deceased. Thereafter the above described lands were assessed to the bank, as executor. On July 8, 1931, the land was sold for the non-payment of the 1930 taxes and the State of Alabama became the purchaser. On December 15, 1937, the State Land Commissioner conveyed the property to E. H. Bailey who in turn conveyed it to appellee, Mrs. Agnes B. Lott, on June 18, 1938.
This suit to redeem was instituted by the bank on November 25, 1947. Appellant insists that the tax sale is void and, as a consequence, it has a right to redeem. On the other hand, appellee claims that the tax sale is valid, and further, that although the tax sale is void, appellant's action to redeem was barred at the time of the commencement of the suit by virtue of the provisions of section 295, Title 51, Code, generally referred to as "the short statute of limitations," which section reads as follows: "No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; but if the owner of such real estate was, at the time of such sale, under the age of twenty-one years, or insane, he, his heirs or legal representatives, shall be allowed one year after such disability is removed to bring suit for the recovery thereof; but this section shall not apply to any action brought by the state; nor to cases in which the owner of the real estate sold had paid the taxes, for the payment of which such real estate was sold, prior to such sale; nor shall they apply to cases in which the real estate sold was not, at the time of the assessment, or of the sale, subject to taxation."
The above quoted statute has application to cases where the land is purchased from the State as well as instances where the purchase is made from the tax collector. Doe ex dem. Evers v. Mathews et al., 192 Ala. 181, 68 So. 182; Howard v. Tollett, 202 Ala. 11, 79 So. 309; Odom v. Averett, 248 Ala. 289, 27 So. 2d 479. But the statute does not begin to run until possession of the land is taken. Loper v. E. W. Gates Lumber Co., 210 Ala. 512, 98 So. 722, 723; Odom v. Averett, supra.
Although the tax deed was invalid, it gave color of title and possession held under it is adverse. Pugh v. Youngblood, 69 Ala. 296; Odom v. Averett, supra.
In the instant case, we may well pretermit a consideration of the validity of the tax deed if the evidence establishes that the purchaser at the tax sale, and her grantee, took and held adverse possession of the land conveyed by the tax deed for the period of time provided for in section 295, supra.
Where, as here, the evidence is taken before a commissioner, this Court must sit in judgment on the facts, as if at nisi prius, and arrive at a just conclusion without the aid of any presumption favoring the decision of the trial court on the issues presented. Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882. This duty we have performed, and are clear to the conclusion that section 295, supra, is a bar to appellant's right to the relief sought.
It is not denied that the land involved was purchased by the State of Alabama at tax sale on July 8, 1931, for the unpaid taxes for the year 1930; that the State Land Commissioner conveyed said land to *408 Mrs. E. H. Bailey by deed dated December 15, 1937, and that Mrs. Bailey conveyed it to Mrs. Agnes B. Lott, appellee here, by deed dated June 18, 1938.
Appellee's evidence tended to prove that immediately upon the execution and delivery of the deed of the State Land Commissioner to her, Mrs. Bailey, acting by and with her agent, W. O. Lott, the husband of Agnes B. Lott, took possession of the land, and that Mrs. Bailey and Mrs. Lott continued in possession until this suit was filed; that W. O. Lott owned other lands adjoining that here involved, and had owned the same since about 1924 or 1925; that W. O. Lott employed one Nelson to look after or watch over all of said lands to prevent timber stealing, trespassing, and any possession which might be acquired by "squatters"; that one Morgan did, in February 1938, take possession of a house located on the land here involved; that later W. O. Lott entered into a rental agreement with said Morgan, and that Morgan continued as such tenant for a period of some eighteen months although he did not pay all the rent as agreed,all of which is shown by written correspondence between Lott and Morgan; that after Morgan vacated the house, at the instance of W. O. Lott, it was rented to one Beatty who occupied the house for some time; that the house was later destroyed by fire; that all taxes due on the property were assessed to and paid by Mrs. Bailey and Mrs. Lott from the time Mrs. Bailey purchased the land from the State of Alabama; that Nelson continued to look after the property until his death in 1943; and that after the death of Nelson, Mrs. Lott, acting through her husband and agent, W. O. Lott, continued in possession of the land, without interruption until this suit was filed.
Appellant's evidence did tend to disprove the possession of Mrs. Bailey and Mrs. Lott, but it was more or less of a negative character.
We are convinced from a careful consideration of the entire record that the possession of Mrs. Bailey and Mrs. Lott was amply sufficient to satisfy the requirements of section 295, supra, "the short statute of limitations".
Moreover, we are clear to the conclusion that the appellant intended to, and did, abandon the lands here involved. No taxes were paid by the appellant after the tax year of 1929. On February 26, 1936, appellant wrote to the attorney representing the estate of Mrs. Reeves as follows: "It appears from our records that on or about January 5, 1936, the final date for possible redemption of the real estate in Baldwin County by the executor or heirs of Martha P. W. Reeves expired and that now this the remaining asset of the estate has passed out of the control of the executor. As you are aware, all of the beneficiaries named in the will were notified but in so far as we know no definite action was taken. In view of this situation, would it be advisable for the executor to secure a discharge through the Probate Court of Baldwin County * * * and in that manner close its file. A word from you would be appreciated."
A consideration of the entire record convinces us that the appellant is not entitled to redeem from the tax sale of August 8, 1931.
Affirmed.
BROWN, FOSTER and LAWSON, JJ., concur. | February 8, 1951 |
e1f1a11c-db48-474b-8767-79547947c0da | Wyatt v. Parrish | 50 So. 2d 424 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 424 (1951)
WYATT
v.
PARRISH, Judge.
5 Div. 489.
Supreme Court of Alabama.
February 8, 1951.
*425 J. B. Atkinson, Clanton, for appellant.
Lawrence F. Gerald and Jos. J. Mullins, Clanton, and T. B. Hill, Jr., Montgomery, for appellee.
LAWSON, Justice.
This is a mandamus proceeding instituted in the Chilton County Law and Equity Court by Delene B. Wyatt, appellant here, to require the appellee, as probate judge and ex-officio chairman of the Commissioners Court of Chilton County, to sign and deliver to relator a warrant for the payment of a claim against Chilton County for her services as clerk of the Commissioners Court of that county for the month of April, 1949, which claim had been audited, approved, passed and allowed by the Court of County Commissioners.
Upon the filing of the petition, it was ordered that alternative writ of mandamus issue to respondent. The alternative writ was duly issued, served and returned to the court. After service of the alternative writ upon respondent, he filed what is termed an answer to the petition. The alternative writ or rule nisi is not only process, but is pleading, and in strictness is the pleading to be answered by the respondent. Gainer v. Board of Education of Jefferson County, 250 Ala. 256, 33 So. 2d 880. While the procedural law in mandamus was not strictly observed in respondent's answer or return, we will treat the answer in this case as a return to the rule nisi. Ex parte Milner, 250 Ala. 511, 35 So. 2d 169.
The question as to whether or not the proper remedy was pursued by petitioner is not here presented. The respondent answered without any objection to the form of remedy and no such objection is suggested here. We have held that a failure to make specific objection is a waiver thereof. Crumley v. Henry, 221 Ala. 526, 129 So. 266. However, it appears that the proper remedy was pursued under the averments of the petition that the governing body of the county had audited, approved, passed and allowed petitioner's claim. Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576, 17 So. 112; Gray v. State ex rel. Garrison, 231 Ala. 229, 164 So. 293.
The relator interposed demurrer to the answer. The demurrer was overruled as to the answer as a whole and as to each paragraph thereof, whereupon relator suffered a nonsuit and has appealed to this court.
The submission here was on motion and merits. The motion is by appellee to dismiss the appeal on the following grounds: (1) That this court has no jurisdiction of the appeal; (2) that the judgment appealed from will not, as a matter of law, support and sustain an appeal to this court; (3) that there is no provision of law allowing *426 an appeal in this cause from the Chilton County Law and Equity Court to the Supreme Court of Alabama; (4) that the right of the appellee to appeal from the judgment rendered was to the circuit court of Chilton County, Alabama, and not to this court.
The first question for our consideration is whether a judgment of nonsuit may be entered in this character of proceeding from which an appeal can be taken to an appellate court. If not, the appeal must be dismissed. Davison v. Stutts, 233 Ala. 491, 172 So. 600.
Under the practice in mandamus proceedings it is not necessary to demur to or move to quash the answer. As before stated, the alternative writ is not only process but part of the pleading. The sufficiency of the answer to the alternative writ will be considered without further pleading. If the answer is sufficient, the writ will be denied. If insufficient, a peremptory writ will be granted. Longshore v. State ex rel. Turner, 137 Ala. 636, 34 So. 684. But it is not improper for relator to interpose demurrer or motion to quash the answer. Longshore v. State ex rel. Turner, supra; Gordon v. State ex rel. Cole, 237 Ala. 113, 185 So. 889; Ex parte Montgomery, 247 Ala. 497, 25 So. 2d 171.
The trial court's action in overruling relator's demurrer was in effect a determination that the answer stated a legal cause against the issuance of the peremptory writ. It would follow that unless the relator took issue on the averments of the answer, the peremptory writ would be denied and the petition for mandamus dismissed. The ruling of the trial court on the demurrer made it necessary for relator to suffer a nonsuit within the meaning of § 819, Title 7, Code 1940, which section reads as follows: "If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling or decision may be reserved for the decision of the appellate court by bill of exceptions or by appeal on the record as in other cases."
While no case has come to our attention wherein a judgment of nonsuit has been entered in a proceeding of this character, we see no reason why the provisions of § 819, Title 7, Code 1940, should not have application to such a proceeding. We hold, therefore, that in view of the action of the trial court in overruling relator's demurrer to the answer, it was necessary for relator to suffer a nonsuit and that the judgment of nonsuit entered by the trial court is final in such sense as to support an appeal. Ex parte Martin, 180 Ala. 620, 61 So. 905.
Appellee insists that the appeal should have been taken to the circuit court of Chilton County, and hence the appeal to this court should be dismissed. We cannot agree with this contention.
The Chilton County Law and Equity Court was created by a local act approved July 12, 1949, General and Local Acts, 1949, p. 314.
In § 1 of the said act it is provided that the Chilton County Law and Equity Court "shall be a court of record, and which shall have and exercise concurrent jurisdiction now conferred, or which may hereafter be conferred, upon the several Circuit Courts of the State," but it is deprived of jurisdiction of felony cases and its civil jurisdiction "on the law side of said court shall not exceed the sum of $500.00, exclusive of the interest and cost". It has concurrent equity jurisdiction with the circuit court. State v. LeCroy, Ala.Sup., 49 So. 2d 553.
Appeals from judgments of conviction in criminal cases and from judgments rendered "in any civil cause" must be taken to the circuit court of Chilton County. §§ 9 and 10. Appeals in equity cases come to this court. § 11.
Mandamus is an extraordinary remedy; hence, the judge of the Chilton County Law and Equity Court has the authority to issue writs of mandamus by virtue of the provisions of § 23, which reads as follows: "The judge of said court shall have power to issue search warrants, writs of habeas corpus, prohibition, certiorari, quo warranto, injunctions and all other *427 special and extraordinary writs, and the procedure, practice and rules of the Circuit Courts of Alabama relating to such writs as are now, or which hereafter may be provided, by law, except as otherwise provided in this Act, shall prevail in the Chilton County Law and Equity Court, and the judge thereof shall have the same powers and authority, including punishment for contempt as is or hereafter may be conferred upon the judges of the Circuit Courts of Alabama, unless otherwise provided in this Act."
There is no express provision in the act for an appeal from judgments, decrees and orders entered in the type of proceedings dealt with in § 23.
Appellee argues that since there is no such provision in the act, appeals in mandamus cases must go to the circuit court of Chilton County, mandamus being on the law side and the act providing that appeals from all judgments in civil causes shall be taken to the circuit court.
We do not think that this position is well founded for the reason that under the provisions of the said local act, the judge of the Chilton County Law and Equity Court has the same powers and authority in regard to mandamus and other extraordinary remedies as is conferred upon the judges of the circuit courts of this state and, therefore, appeals in such proceedings are governed by the provisions of § 1074, Title 7, Code 1940, which reads as follows: "From the final judgment of any circuit court or other court exercising the jurisdiction of such court, in any such proceeding, an appeal shall lie to the supreme court as in other cases; but such appeal must be taken within thirty days after the final judgment is rendered, and shall be a preferred case in the supreme court, and shall be decided at the first term to which it is taken." (Emphasis supplied.)
The motion to dismiss the appeal is overruled.
We come now to consider the merits. The assignments of error are to the effect that the trial court erred in overruling relator's demurrer to the respondent's answer.
The answer or return of respondent is as follows:
"1st. That he denies each and every averment therein contained.
"2d. For further answer to said petition and each paragraph thereof, separately and severally, says:
"That at the time of filing of the petition in this cause and at the time of filing this pleading, the petitioner, Delene B. Wyatt, was indebted to Chilton County, Alabama in a sum of Two Hundred and No/100 ($200.00) Dollars, for money on the 25 day of March, 1949, received by the respondent to the use of Chilton County, Alabama, which sum of money, with the interest thereon is still unpaid and is the property of Chilton County, Alabama.
"3d. For further answer to said petition and each paragraph thereof, separately and severally, says:
"That at the time of the filing of the petition in this cause and at the time of filing this pleading, the petitioner, Delene B. Wyatt, was indebted to Chilton County, Alabama in a sum of Two Hundred and No/100 ($200.00) Dollars, or more, for money on the 25 day of March, 1949, received by the respondent to the use of Chilton County, Alabama, which sum of money, with the interest thereon is still unpaid, and is the property of Chilton County, Alabama." (Emphasis supplied.)
It is manifest that the first paragraph of the answer, which merely denies the averments of the petition, is not subject to any of the grounds of the demurrer.
Paragraphs 2 and 3 of the answer do not deny the averments of the petition to the effect that relator had rendered service as claimed and that her claim had been audited, approved, passed and allowed by the Commissioners Court. Under the averments of these two paragraphs of the answer, respondent seeks to avoid the duty of signing and delivering a warrant to relator on the ground that relator was indebted to Chilton County in a sum in excess of that claimed by her. The validity of relator's claim and the action of the county commissioners in allowing it are not questioned.
*428 The court of county commissioners is a court of record, of peculiar constitution. It is clothed with large powers relating to the internal government and affairs of the county, some of which are in their nature legislative, some judicial, and others administrative or executive. The court has authority "To examine, settle, and allow all accounts and claims chargeable against the county." § 12, subdiv. 4, Title 12, Code 1940. When the court has audited and allowed a claim against a county, it is the duty of the judge of probate, the keeper of the records of the court, to sign all warrants drawn upon the county depository or county treasurer. § 51, Title 12, Code 1940. The audit and allowance of claims against the county is the exercise of administrative or executive, not judicial, power. If the record should show affirmatively that the court had allowed a claim not legally chargeable to the county, the allowance of which was an excess of the authority with which the court is entrusted, the allowance would be void. But when the claim is of a character with which the county is by law chargeable, the audit and allowance creates a prima facie liability on the county, and the prima facie liability on the county imposes on the judge of probate the duty of giving the claimant a warrant on the county treasury for the amount allowed. He is without authority to revise the action of the Commissioners Court in the allowance of the claim, as he would be without authority to revise its action in the disallowance of a claim. The duty of the probate judge is obedience to the mandate of the court, a mere ministerial duty imposed on him in his ministerial capacity as the keeper of the records of the court, in the performance of which he is without discretion. Commissioners' Court v. Moore, 53 Ala. 25; Jeffersonian Publishing Co. v. Hilliard, supra; Carnley, Judge of Probate v. Moore, 214 Ala. 114, 106 So. 604. In Jack v. Moore, 66 Ala. 184, 187, it was said: "* * * The issue of warrants on the county treasury, in payment of claims the Commissioners Court have allowed and ordered to be paid is a ministerial duty imposed on the judge of probate, in the performance of which he has no discretion, unless the order of allowance is of itself, and on its face, an absolute nullity, imposing no duty, and conferring no rights. When on its face the allowance of the claim is valid, and is the instrumentality for the payment of a claim chargeable on the county, he is without discretionhis duty is plain and simple, to issue the warrant on the county treasury, in obedience to the order of allowance; and if he refuses, the Circuit Court of the county, having a general jurisdiction and superintending power over all inferior tribunals, and officers exercising ministerial power within its territorial limits, can by mandamus compel obedience * * *" (Emphasis supplied)
We are clear to the conclusion that under the holdings of the cases above cited, paragraphs 2 and 3 of the answer set up no legitimate defensive matter to the issuance of the peremptory writ of mandamus. It follows that the trial court erred in overruling relator's demurrer to these paragraphs of the answer.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
BROWN, FOSTER and LIVINGSTON, JJ., concur. | February 8, 1951 |
0b35a7c2-1f04-481f-bd1a-60e30b879934 | Life & Casualty Ins. Co. of Tennessee v. Latham | 50 So. 2d 727 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 727 (1951)
LIFE & CASUALTY INS. CO. OF TENNESSEE
v.
LATHAM.
6 Div. 132.
Supreme Court of Alabama.
February 15, 1951.
*728 Patton & Robison, of Carrollton, and Jones, Dominick & McEachin, of Tuscaloosa, for appellant.
W. A. Davis, of Aliceville, for appellee.
FOSTER, Justice.
This is a suit on an alleged accident and life insurance policy by the beneficiary named in it. The only question before us is whether there was in effect at the time of insured's death such a policy, that is to say, whether the policy contracted for had taken effect as alleged in the complaint. The complaint was in one count, in Code form No. 12, giving the date of the policy as February 14, 1946. The insured was accidentally killed February 22, 1946. On that day the local agent received a policy from the general office duly executed. It had not been delivered by the agent at the time of the death of insured. The inference from the evidence most favorable to plaintiff was that the local agent may have received the policy before the death of insured. That was a disputed issue of fact.
The evidence was without dispute that, on February 14, 1946, insured paid forty cents, the first weekly premium, and received a receipt from Mr. Fountain, the local agent, reciting that it was held in suspense until his application is acted on by the company at its home office; that there was to be no liability on the part of the company unless the applicant is accepted and the policy delivered while the applicant is in good health, and the money credited to the premium receipt book. A policy was in possession of the agent after he found out about the death of insured and he then returned it to the general office. It was in evidence. It recited the date of issue, February 25, 1946. It contained a clause that "this policy shall not take effect prior to the date of issue of same, nor unless the first *729 premium shall have been paid in cash and the contract delivered and accepted during the lifetime and sound health of the insured."
Grant Latham testified for plaintiff that he was about one hundred and fifty yards away when insured was killed and saw the accident. That was about five or five thirty in the afternoon. That in about an hour and a half he went to Mr. Fountain and got him and a policy and carried them to Mr. Latham (father of insured). Mr. Fountain had the policy. He did not show it to the witness. He showed it to Mr. Latham, but he kept it in his hands. He was asked, "did Mr. Fountain tell you he had a policy on the life of Leonard Latham to be delivered to him?" Objection and exception were duly made. He answered, "Yes, sir." There were present Mr. and Mrs. Latham (father and mother of insured), also William Hays Latham and Hank Tilley. He opened the policy and showed it to them. Mr. Latham and William Hays inspected it. "Don't think Mrs. Latham saw it. The night train comes in about seven o'clock. The post office was supposed to be closed for a legal holiday. The policy in evidence looks like the policy he had and could be the same. Mr. Fountain said he reported the death to the company and they told him to send the policy back."
The next witness was J. G. Hood, sheriff of the county. He was at that time canvassing for re-election. He had a conversation with Mr. Fountain that afternoon and "he had some papers in his hand and he said that was his (Leonard Latham's) policy and it was bad he got killed, but just for forty cents his people would get $1,000.00." There were objection and exception duly made. That was late in the afternoon of the day Leonard was killed. He said it was a policy. He didn't unfold it and show it to the witness. Objection and exception were duly taken. The witness and Mr. Fountain were not transacting any business for the company.
The next witness for plaintiff was William Hays Latham who was a brother of deceased. He went "up there that night after the accident" and Mr. Fountain was there. He had a policy with him and witness read it. It was similar to the one in evidence, and was dated February 20, 1946. It had Leonard's name on it. "Mr. Fountain said he called somebody who told him to send the policy back and not to let us have it." There were objection and exception duly made. "He said he looked for Leonard Latham and he had gone to Tuscaloosa and he could not deliver it." That occurred, he said, that morning. Exception and objection were duly made. That conversation was heard by his father, but not his mother. That policy was just like this one which is dated February 25, 1946. He said he was going to mail it back to the company. He was in Aliceville, twenty-two miles away when he heard of the accident, and was at the scene in about thirty minutes.
Defendant's evidence also tended to show that Mr. Fountain received the policy in the mail that afternoon after the death of insured. Its date of issue was as it appears, February, 25, 1946, which was Monday. He states that all their policies are dated on Monday, and he receives them on Friday or Saturday before the Monday, the date of issue. Mr. Fountain had no authority to make contracts of insurance. He took applications and received premiums on applications, and later delivered the policies if they were issued and sent to him for delivery while the insured was still in sound health. The insured was killed about five or five thirty in the afternoon, and Mr. Fountain says he received the policy in the mail about six thirty or six forty-five. There is no evidence of an effort to prove a contract of insurance binding as of February 14, 1946, as alleged in the complaint.
We call attention to the fact that the receipt in no respect had the features of a binder such as was considered in the case of National Life & Accident Ins. Co. v. Claytor, 254 Ala. 413, 48 So. 2d 180.
In the court's oral charge he said to the jury that if after the acceptance of an application and payment of the premium, the policy is written, signed and *730 put into the hands of an agent of the company or the company properly mails it to the insured, that constitutes a delivery which makes it binding as of that date "provided the policy does not contain a provision to the contrary." He further charged the jury that, if a policy was issued whose effective date was after the death of insured or not delivered according to his previous instructions, the verdict should be for defendant. And that if they believe that the policy was never delivered, or the effective date was after the death of insured, they should find for defendant.
Objection was made to the evidence that the policy bore date of February 20, 1946, because it was secondary evidence of the contents of a writing without giving defendant notice to produce it. The evidence for defendant, given later in the trial, that the policy introduced in evidence by defendant, with February 25, 1946 as the date of issue, was the only policy of such sort ever issued or executed or put in the possession of Mr. Fountain, with Leonard Latham as insured, cured any error that may have occurred in allowing plaintiff to prove that Mr. Fountain did have such a policy dated February 20, 1946, although no notice to produce was given. On the basis of such evidence, notice to produce would have been an empty procedure, the same as proof that it was lost. Dabbs v. Letson, 210 Ala. 306, 98 So. 4.
The objection to certain statements made by Mr. Fountain are affected by principles which we will now refer to.
The general rule is that a statement made by an agent, not in connection with the occurrence of the transaction to which he was referring and not in the scope of his authority, is not admissible as evidence against the principal, except for the purpose of impeaching the witness. Couch v. Hutcherson, 243 Ala. 47, 8 So. 2d 580, 141 A.L.R. 697; Atlanta Life Ins. Co. v. Bolden, 239 Ala. 231, 194 So. 653; Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48.
Another principle is that "Whenever evidence of an act is in itself competent and admissible as a material fact in the case, and is so admitted, the declarations accompanying and characterizing such act become and form a part of the res gestae of the act, and, as such, are competent and admissible in evidence, as being explanatory of the act." Campbell v. State, 133 Ala. 81, 31 So. 802, 804. But there is a limitation on that principle, which is, "this does not apply to admissions as to past transactions." Mobile Light & R. Co. v. Baker, 158 Ala. 491, 48 So. 119; Tennessee River Transp. Co. v. Kavanaugh, 93 Ala. 324, 9 So. 395.
The evidence of William Hays Latham that Mr. Fountain had in his possession on February 22, 1946, after the death of insured, a policy dated February 20, 1946, in other respects like the one in evidence dated February 25, 1946, was admissible; but not that he looked for Leonard that morning to deliver the policy or that he had gone to Tuscaloosa and could not deliver it. That related to a past transaction and was not a part of the res gestae of the occurrence that day after the accident when he had possession of a policy and showed it to the witness.
It is evident that the material inquiry was twofold. Did the policy he had bear date of February 20th or February 25, 1946? Did Mr. Fountain have possession of it for delivery before insured died? It could not be effective under its terms unless delivered after its date and before insured died. If Mr. Fountain had in his possession for delivery a policy with February 20, 1946 as its date of issue, and that possession was before insured died on February 22, 1946, at five or five thirty in the afternoon, that would sustain the complaint, except that the complaint alleges that it was February 14, 1946. The evidence supporting those theories is so meager, it is barely a scintilla. Now if that policy had February 20, 1946, as the date of issue, then there would appear nothing to prevent the policy from taking effect before Leonard died that afternoon, if Mr. Fountain had possession of it for delivery before he died.
*731 The rule in such event would apply that, in the absence of a special contract, a policy is considered delivered when it is delivered by insurer to its agent for delivery to the insured. New York Life Ins. Co. v. McJunkin, 227 Ala. 228, 149 So. 663; American Nat. Life Ins. Co. v. Few, 224 Ala. 576, 141 So. 234.
A provision in a life insurance policy that no obligation is assumed unless insured is alive and in sound health on the date of its delivery is reasonable and valid. National Life & Accident Ins. Co. v. Collins, 244 Ala. 182, 12 So. 2d 353; Metropolitan Life Ins. Co. v. James, 225 Ala. 561, 144 So. 33; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755; National Life & Accident Ins. Co. v. Bridgeforth, 220 Ala. 314, 124 So. 886.
But the evidence of Grant Latham that Mr. Fountain later that evening, after the accident, had a policy and told the witness he had a policy on the life of Leonard to be delivered, was admissible as a part of the res gestae of his possession then and there of the policy. But it is of little probative value on the disputed issues.
The evidence of Mr. Hood, the sheriff, that late that afternoon Mr. Fountain had some papers and said it was "his (Leonard's) policy and it was bad he got killed, but just for forty cents his people would get $1,000.00," was illegal to the extent of that last clause. That was not a declaration characterizing the policy he then had in his possession, or explaining his possession of it in any respect. The objection should have been sustained.
The complaint declared upon a policy whereby defendant insured the life of Leonard Latham on the 14th day of February, 1946. It was not laid under a videlicet. It should therefore be proven as alleged. Independent Life Ins. Co. v. Vann, 24 Ala.App. 93, 130 So. 520; Alexander v. Woodmen of the World, 161 Ala. 561, 49 So. 883; 16 Alabama Digest, Pleading, page 200.
Numerous refused charges are assigned as error. Several of them assert correct principles of law which apply in this case, but the same principle was covered by the court's oral charge. We will not examine them all critically, since the judgment must be reversed and the trial court seems to be familiar with the applicable principles. We also think that the great weight of the evidence was against the verdict of the jury, and that the motion for a new trial should have been granted on that ground.
The judgment is reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, LAWSON and STAKELY, JJ., concur. | February 15, 1951 |
b05381dd-a4da-4a89-89f3-e9da9e4a4820 | Johnson v. Battles | 52 So. 2d 702 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 702 (1951)
JOHNSON
v.
BATTLES.
6 Div. 123.
Supreme Court of Alabama.
March 1, 1951.
Rehearing Denied May 24, 1951.
*704 McQueen & McQueen and Jas. E. Morrisette, all of Tuscaloosa, for appellant.
Davis & Zeanah, Tuscaloosa, for appellee.
LAWSON, Justice.
This is a suit brought by Mrs. Mae Battles, as administratrix, under the homicide statute, § 123, Title 7, Code 1940, against Thomas Lawrence Johnson for the unlawful death of her husband, George Battles.
The case was submitted to the jury on one count charging simple negligence, and the plea of the general issue in short by consent in the usual form. There was jury verdict for plaintiff. Judgment was in accord with the verdict. Defendant's motion for new trial was overruled and he has appealed to this court.
Reversal of the judgment appealed from is sought on three grounds: (1) that the trial court erred in sustaining plaintiff's objection to certain questions propounded plaintiff's witness Tucker by the defendant on cross-examination; (2) the refusal of the trial court to give the general affirmative charge with hypothesis as requested by the defendant; (3) failure of the trial court to grant defendant a new trial on the ground that the verdict was against the great weight of the evidence.
On cross-examination of Highway Patrolman Tucker, who was called as a witness for the plaintiff, the trial court sustained plaintiff's objections to the following questions:
"Q. Mr. Tucker, you said that you measured skidmarks back up the road from the intersection of seventy-two feet, and I believe you said you had been investigating automobile accidents for five years. From your experience in investigating automobile accidents and other training with the Highway Department, are you able to form an opinion as to the speed of an automobile as indicated by skidmarks?
"Q. Mr. Tucker, in your opinion, skidmarks as you saw there and measured, with the type of automobile Mr. Johnson was driving, on a highway of that kind, going down hill, going down a grade, would skidmarks of seventy-two feet indicate to you that the Johnson car was traveling at an excessive rate of speed?
*705 "Q. Mr. Tucker, from your experience can you form an opinion from skidmarks on highways such as you observed at the scene of this collision at what speed an automobile making those skidmarks was traveling?"
Assuming that one shown to be an expert may express an opinion as to the estimated speed of an automobile, predicated on the distance the tires "skidded" or were dragged along the pavement, Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; 70 A.L.R. 544; 156 A.L.R. 383, reversible error does not appear in connection with the trial court's action in sustaining plaintiff's objections to the questions heretofore set out. It is well established that the inquiry as to the competency of a witness to testify as an expert is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse. Kirby v. Brooks, 215 Ala. 507, 111 So. 235; Southern Bitulithic Co. v. Perrine, 191 Ala. 411, 67 So. 601; Neyman v. Alabama Great Southern R. Co., 174 Ala. 613, 57 So. 435. We are not willing to say that it is made to appear clearly that there was any abuse of discretion on the part of the trial court when the only evidence as to the witness' qualification to testify as an expert was that he had been a member of the Highway Patrol for five and a half years, during which time he had investigated many automobile accidents.
The defendant was not entitled to the affirmative charge on the ground that there was not sufficient evidence to go to the jury to show that the death of plaintiff's intestate resulted from injuries received in the automobile collision.
Plaintiff's intestate was injured in an automobile collision which occurred on the highway leading from Tuscaloosa to Birmingham on the afternoon of September 11, 1948, when the 1937 Dodge automobile in which intestate was riding as a passenger collided with an automobile owned and being driven by defendant. Plaintiff's intestate died on March 12, 1949, approximately six months after the accident. The evidence shows that intestate was well and strong prior to the accident and that he was confined to his bed from the time of the accident to the date of his death. The only evidence showing that intestate's death resulted from injury received in the automobile collision was a copy of a death certificate certified by the State Registrar of the Bureau of Vital Statistics of the Alabama Department of Public Health, which was properly certified by the designated bureau clerk. The certificate of death sufficiently shows that the plaintiff's intestate died from uremic poisoning resulting from a fractured pelvis received in an automobile accident.
This information is required to be set out in the certificate of death under the provisions of § 25, Title 22, Code 1940. In pertinent part said section provides: "* * * The medical certificate shall be made and signed by the physician, if any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw the deceased alive, and the hour of the day at which death occurred. He shall further state the cause of death, so as to show the course of the disease or sequence of causes resulting in the death, giving first the name of the disease causing death (primary cause) and the contributory (secondary) cause, if any, and the duration of each. * * * Causes of death which may be the result of either disease or violence shall be carefully defined; and if from violence, the means of injury shall be stated, and whether (probably) accidental, suicidal or homicidal. * * *"
Section 42, Title 22, Code 1940, provides in part as follows: "* * * Any such copy of the record of a birth or death, when properly certified by the state registrar, shall be prima facie evidence in all courts and places of the facts therein stated."
We think that the certificate of death, duly certified, when taken in connection with the evidence tending to show the condition of plaintiff's intestate prior to the accident and subsequent thereto, is sufficient to make out a prima facie showing that intestate's death resulted from injuries received in the highway accident which occurred on September 11, 1948. It *706 then became the duty of defendant to overcome or rebut the presumption made by the certificate of death. American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215, and cases cited.
On September 11, 1948, the date on which the accident on which this suit is based occurred, one Jack Dailey and Abram Kizziah were at the home of George Battles, plaintiff's intestate. Battles requested Dailey, who owned an automobile, to drive him to the home of one Jack Martin. Dailey told Battles that he didn't feel like driving, but that they could go in Dailey's car if Kizziah would drive. The three of them left Battles' home, with Kizziah driving the car, Battles riding on the front seat to the right of the driver, and the owner of the car, Jack Dailey, riding on the back seat.
They reached the Tuscaloosa-Birmingham highway which, for present purposes, we will treat as running north and south, and had proceeded in a northly direction approximately a mile and a half on that highway when the accident occurred. Jack Martin, to whose home they were driving, lived west of the highway.
The collision occurred at a point a short distance south of the road into which Kizziah intended to turn and drive in a westerly direction to get to the home of Martin
The defendant, Johnson, at the time of the collision, was proceeding in a southerly direction on the Tuscaloosa-Birmingham highway.
The testimony as to how the accident occurred is in sharp conflict.
The only witness who testified for the plaintiff as to the manner in which the collision occurred was the driver of the automobile, Kizziah. According to his testimony, he had stopped the automobile on the eastern side of the highway and held out his left hand preparatory to making a turn into the road which led to the home of Martin; that a car proceeding in a southerly direction turned from the western side of the highway in front of him and proceeded on down the shoulder on the east side of the highway; that shortly thereafter the car driven by the defendant followed the path of the first car until it reached the point where the car which Kizziah was driving was located, and the right side of Johnson's car hit the right side of the car driven by Kizziah and propelled it across the highway, where it stopped on the western side thereof, with the Johnson car ultimately coming to a stop on the eastern side of the highway. According to Kizziah, the defendant, Johnson, at the time of the collision was traveling at a speed estimated to be between seventy and seventy-five miles an hour. The place where the collision occurred was between 250 and 300 feet below the crest of a hill. The traffic was heavy, the day clear and the road dry.
The defendant, Johnson, testified that he came over the crest of the hill at a speed of approximately fifty miles an hour; that the car driven by Kizziah pulled out from behind a large truck and turned from the eastern side of the highway toward the western side as if to go onto the side road and turned directly in front of him; that he put on his brakes as soon as he saw the car driven by Kizziah begin to turn and that his brakes "screeched" and skidmarks were left a distance of approximately ninety-two feet. According to Johnson, the right-hand fender of his car hit the center of the right side of the car driven by Kizziah and knocked it over on the western side of the highway and that his car, that is, Johnson's car, finally came to rest some distance south of the point of collision on the eastern side of the highway. A picture of the automobile driven by Kizziah which was introduced in evidence strongly tends to support Johnson's version as to the location of Kizziah's car at the time of the impact.
A Mr. and Mrs. Sigler, who were traveling toward Birmingham on the afternoon of the collision and who were in the second car behind the car driven by Kizziah, substantiated his testimony in several material respects.
The foregoing is not a complete statement of the testimony introduced in the case, but we think it will suffice for the purposes of this appeal.
The burden was, of course, on the plaintiff to prove that the negligence of *707 the defendant was a proximate cause of the injuries to her intestate. We are clear to the conclusion that the evidence relating to the speed of the automobile driven by the defendant, under the prevailing condiditions, was sufficient to justify a finding by the jury that the negligence of the defendant was a proximate cause of the injury.
But counsel for defendant strenuously argues that nevertheless plaintiff was not entitled to a verdict because of the defense of contributory negligence. As to this defense, of course, the burden was upon the defendant to prove it.
Plaintiff's intestate was riding as a passenger in the automobile driven by Kizziah. It is the generally recognized rule that a person riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all care for his own safety, but is under the duty to exercise reasonable or ordinary care to avoid injury; that is, such care as an ordinarily prudent person would exercise under like circumstances. McDermott v. Sibert, 218 Ala. 670, 119 So. 681. There is no evidence in this case which would support a finding that the plaintiff's intestate was himself guilty of negligence. It is not so contended by counsel for appellant.
It is contended, however, that Kizziah, the driver of the automobile in which intestate was riding as a passenger, was guilty of negligence which proximately caused the injuries and that, therefore, plaintiff is not entitled to recover.
But Kizziah's negligence, if any, could not bar a recovery by plaintiff unless his negligence was imputable to plaintiff's intestate. It is a commonplace of the law that ordinarily a passenger in an automobile driven by another, over whom he has no control, is not, on that state of fact, without more, chargeable with contributory negligence. St. Louis-San Francisco R. Co. v. Norwood, 222 Ala. 464, 133 So. 27; Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So. 2d 299; Moore v. Cruit, 238 Ala. 414, 191 So. 252; Roberts v. Louisville & N. R. Co., 237 Ala. 267, 186 So. 457; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Id., 222 Ala. 120, 130 So. 807; Id., 224 Ala. 383, 140 So. 575; Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870; Strickland v. Davis, 221 Ala. 247, 128 So. 233.
The cases above cited support the conclusion that the evidence presented on this appeal makes no case of joint adventure or joint enterprise in the operation of a car in which plaintiff's intestate was an occupant.
The fact that the occupant is a passenger at his own request does not affect his status. Faltico v. Minneapolis Street Ry. Co., 198 Minn. 88, 268 N.W. 857, 65 C.J.S., Negligence, § 168, page 823. In Keller v. Keystone Furniture Co., 132 Pa.Super. 547, 1 A.2d 562, it was held in effect that the mere fact that the passenger's husband owned the vehicle and that the operator was driving at the owner's request does not make the operator the agent of the guest or establish the guest's right to share in the control of the vehicle.
The rule is well established that in order to create the imputation of negligence of the driver to the passenger, the passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management or direction of the vehicle. 65 C.J.S., Negligence, § 168, pages 822-825; Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49.
We are inclined to agree with the assertion made by counsel for appellant that the great weight of the evidence shows that the car driven by Kizziah had proceeded from the eastern side of the highway toward the western side and was partly on the western side of the highway at the time of the impact. But even if it be assumed that such act on the part of Kizziah was negligent, it does not follow that the plaintiff was not entitled to recover under the evidence in this case, since any negligence of Kizziah cannot be imputed to plaintiff's intestate.
We have heretofore indicated that the evidence in this case was sufficient to support a finding by the jury that the *708 defendant was guilty of negligence which proximately caused the injury to intestate. If the negligence of Kizziah, if any, which is not imputable to intestate, and the negligence of the defendant were concurring proximate causes of injury, the plaintiff was entitled to recover. Roberts v. Louisville & N. R. Co., 237 Ala. 267, 186 So. 457. In Moore v. Cruit, supra, 238 Ala. 419, 191 So. 255, it was said: "Nor is it essential for plaintiff's recovery that negligence of defendant's driver be shown as the sole proximate cause of his injuries. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause. Chambers v. Cox, 222 Ala. 1, 130 So. 416."
We hold, therefore, that the trial court did not err in refusing the affirmative charge as requested by the defendant and in overruling his motion for a new trial on the ground that the verdict is contrary to the great weight of the evidence.
The judgment is affirmed.
Affirmed.
BROWN, FOSTER and STAKELY, JJ., concur.
In our original opinion we did not pass on the question of whether the evidence shows as a matter of law that Kizziah, the driver of the car in which plaintiff's intestate was riding at the time of his injury, was guilty of negligence which proximately contributed to intestate's injury. A decision on that question was unnecessary in view of our holding to the effect that the evidence did not show, as a matter of law, that the negligence of Kizziah, if any, could be imputed to intestate.
In briefs filed here in support of application for rehearing, counsel for appellant, defendant below, earnestly insist that the evidence in this case without dispute shows that Kizziah was the agent of intestate and that, therefore, intestate was chargeable with the negligence of Kizziah, which it is insisted appears without dispute.
It is well established that where a relation of principal and agent or master and servant exists between the driver and an occupant of an automobile, the negligence of the agent or the servant is imputable to the principal or master and will prevent his recovery against a third person. Brown v. Southeastern Greyhound Lines, Ala.Sup., 51 So. 2d 524; 5 Am.Jur. 785, § 499; 65 C.J.S., Negligence, §§ 161-162, pages 804, 805.
But we do not think the evidence as it appears in this record shows that as a matter of law Kizziah was the agent of plaintiff's intestate, Battles.
In the original opinion we summarized the facts as they tended to explain Battles' presence in the car driven by Kizziah. In deference to counsel for appellant, we set out below the evidence as given in brief, which it is contended shows as a matter of law that the relationship of principal and agent existed between Kizziah and intestate. We quote from appellant's brief, omitting, of course, conclusions of counsel drawn from the evidence and rulings on objections:
"For convenience, the testimony in support of this contention is quoted from the record as follows: On direct examination the witness Kizziah was asked the following questions and made the following replies.
"Q. Where were you going, Mr. Kizziah? A. Well, we was goinghe was going to get Jack Dailey to take him over to Jack Martins' and Jack said if I would drive, he said he was sleepy and didn't feel like driving, and we started over there.
"Q. Over to Mr. Martin's? A. Yes, sir.
"On cross examination the witness Kizziah testified as follows:
"Q. What business were you going to Mr. Martin's on? A. Mr. Battles was going to see Mr. Martin.
"Q. Now, Mr. Battles asked Mr. Dailey to let him go to Mr. Martin's in his car, in Dailey's car? A. That's right.
"Q. And Dailey told him that he was sleepy? A. That's right.
"Q. And that you could ride him over there? A. That's right.
*709 "Q. And you were driving Mr. Battles at Mr. Battles' request in Mr. Dailey's car to Mr. Martin's at the time of the collision?
A. Yes, sir.
"Q. That's what happened? A. Yes, sir."
The testimony of the owner of the car as set forth in appellant's brief is as follows:
"Q. Did Mr. Battles make any arrangement with you as to the operation of the car? A. Yes, sir, he asked me to take him up there.
"Q. Mr. Battles asked you to take him where? A. Take him up towards Bucksville.
"Q. What did you tell him? A. I told him that I didn't feel like driving.
"Q. What did Mr. Battles say? A. He said he'd get Abram Kizziah to drive the car and he asked me if it would be all right and I told him it would.
"Q. And then Abram Kizziah proceeded to drive the car up the road and that's when the collision happened? A. Yes, sir."
At the time of the accident, as shown in the original opinion, Kizziah was driving the car, Battles was on the front seat with Kizziah, and Dailey was on the back. Dailey was asleep at the time of the accident.
The rule is too well settled to require citation of authority that if Dailey, the owner of the car, had invited Battles to go on the trip, Dailey's negligence could not be imputed to Battles. And the rule would be the same if Dailey had been driving the car, although Battles had asked him to take him on the trip. Robinson v. Leonard, 100 Vt. 1, 134 A. 706; Faltico v. Minneapolis Street Ry. Co., 198 Minn. 88, 268 N.W. 857. The fact that the trip was taken for the sole benefit of Battles would not change the rule. In this connection we quote from Mork et ux. v. Caslov, 327 Pa. 298, 192 A. 903, 904:
"On the other hand, the plaintiff argues that her status in the car was that of a guest passenger; that while the trip was undertaken for her benefit and at her request, she had no control of the car, nor did she assume to direct her sister in its operation; that the sister did not, as a matter of law, become her servant or agent merely because she extended to plaintiff the accommodation of a conveyance.
"It is well settled that the status of an occupant of an automobile does not depend upon the fact that the purpose to be served is for his benefit, or even that the trip is made at his instance or request. In other words, the relation of master and servant, or of principal and agent does not arise in cases of this character solely from the fact that the occupant of the car is transported at his request, or in connection with some matter affecting his own interest, * * *."
Although Dailey the owner of the car, was not driving at the time of the accident, it cannot be said that the driver of the car became the agent of Battles merely because the trip was taken for Battles' benefit alone.
Kizziah in his direct testimony said that Dailey asked him to drive. On cross-examination he indicated the request came from Battles. Dailey's testimony was to the same effect. In any event, Dailey gave his permission that Kizziah drive and he, the owner, was in the car at the time of the accident. We just cannot say, under such a state of facts, that as a matter of law Dailey had surrendered his right of control of the operation of the car to Battles or that Battles had any right to control Kizziah in the operation of the car on the theory that he was his agent. And unless Battles had the right to control Kizziah, then, of course, Kizziah's negligence cannot be imputed to him. We think that under the evidence the jury could have found that Kizziah was the agent of Dailey, in which event the negligence of Kizziah would not be imputable to Battles. In McAndrews v. Leonard, 99 Vt. 512, 134 A. 710, 715, it was said: "The negligence of the driver was not imputable to the plaintiff. She had no control of the car nor of its management. The relation of master and servant, or of principal and agent, or of being engaged in the joint prosecution of a common purpose, did not exist between them. In driving the car on the occasion in question, the defendant was the agent of *710 Attilio Franzoni, its owner, at whose request he was driving it, and he will be held to the same degree of care and responsibility to the plaintiff that his principal would have been had he personally been operating the car and the same accident happened in other respects under the same circumstances."
We have carefully examined the cases cited by counsel for appellant in brief. We do not think any of them are in point because the factual situations are in no wise analogous to that presented in this record.
Application for rehearing overruled.
LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur. | March 1, 1951 |
44731c4e-d376-4c88-82fc-e816d777cf7d | Davis v. Ross | 53 So. 2d 544 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 544 (1951)
DAVIS et al.
v.
ROSS et al.
4 Div. 607.
Supreme Court of Alabama.
May 17, 1951.
Rehearing Granted June 28, 1951.
Douglas Brown and Val L. McGee, Ozark, E. O. Baldwin, Andalusia, and Crews Johnston, Clayton, for appellants.
W. R. Martin and Chas. O. Stokes, Ozark, for appellees.
SIMPSON, Justice.
This appeal is from an interlocutory decretal order overruling a motion to dissolve a temporary injunction restraining two of the appellants from conducting services in, or going upon, the church building of Haven Chapel A. M. E. Church of America.
As finally amended the bill was filed by M. Ross and some twenty-five other individuals, as members and trustees of Haven Chapel A. M. E. Church of America, a voluntary unincorporated religious society. The defendants are A. A. Davis, David Hamilton and three other individuals. Davis is a presiding elder and Hamilton a preacher in the African Methodist Episcopal Church Conference, alleged to be nonmembers of Haven Chapel A. M. E. Church, and nonresidents of the county in which the suit is brought and the church and its property are located. The other *545 three defendants are members of the Haven Chapel Church.
Some years previous to the events giving rise to this litigation, the Haven Chapel congregation withdrew from a church under the jurisdiction of and connected with African Methodist Episcopal Church Conference, acquired a tract of land and erected a church building and began and continued to function as an independent congregational church, without affiliation with any higher judicatory. Subsequently a schism or division arose in the society with respect to the then pastor of the church, one Burkett. The pastor was deposed, but the difference persisted between factions of the membership. Finally a meeting of the society was called by the complainant trustees to be held in the church to consider, among other things, possible affiliation with another, perhaps local, union. Due to activity on the part of Burkett and his wife prior to the meeting, the meeting was attended by a large number of persons, members and nonmembers, including the Burketts, Davis and Hamilton. All of these, it is alleged, had conspired together to accomplish the affiliation of Haven Chapel Church with African Methodist Episcopal Church Conference, to make it a subordinate body under jurisdiction and control of said Conference, its pastors to be selected by the Conference rather than by choice of the society, and to effect the transfer of Haven Chapel Church property to said Conference. In carrying out such purpose the pro-affiliating faction, members and nonmembers, dominated the meeting and obtained a vote in agreement with their purposes. By the unlawful and unauthorized manner in which the meeting was conducted, it is alleged, the will and wish of the loyal and faithful majority of the society was overriden and denied. Thereafter, the pro-affiliate faction proceeded to elect new trustees and other officers of the church and to take over by force and unlawfully the church property, excluding the complainants from the use of the property they had themselves, with other members, acquired and had used for religious purposes. Davis and Hamilton, it appears, took possession of the church property by breaking locks which had been placed thereon by complainant trustees.
The bill sought a temporary injunction restraining Davis and Hamilton, individually, or any agent, servant, employee or appointee of African Methodist Episcopal Church Conference from conducting services in said church building belonging to Haven Chapel A. M. E. Church of America, or using the same for any purpose whatever, or from going upon or trespassing on said property in any manner whatsoever. The bill contained a prayer for this and other relief on final hearing of the cause. The temporary injunction was granted as prayed. Defendants filed answer denying the allegations of the bill and moved to dissolve the temporary injunction. The matter was set down for hearing on the bill, the answer and affidavits submitted by the respective parties. As stated, the motion to dissolve was overruled.
Of course, the meritorious question presented for our decision on this appeal is the propriety of the order overruling the motion to dissolve. Appellants contend that the bill is without equity and also that the allegations of the bill are refuted by the answer and affidavits, but we have concluded the bill has equity as one to protect and preserve the property rights of the society and its members against the alleged unlawful intrusion on the part of nonmembers to the exclusion of those rightfully entitled to its use and enjoyment. Manning v. Yeager, 201 Ala. 599, 79 So. 19; Ashworth v. Brown, 240 Ala. 164, 198 So. 135; Christian Church of Hunstville v. Sommer, 149 Ala. 145, 43 So. 8, 8 L.R.A.,N.S., 1031; Guin v. Johnson, 230 Ala. 427, 161 So. 810; 28 Am.Jur. 314, § 123.
On considering the question of dissolution of a temporary injunction on denials of answer and supporting affidavits, much must be left to the sound discretion of the trial court in weighing the relative degrees of injury or benefit to the respective parties resulting from maintenance of the injunction or its dissolution. Lindsey v. Viking Refrigerators, 241 Ala. 425, 3 So. 2d 65; Dudley v. Whatley, 244 Ala. 508, 14 So. 2d 141, 147 A.L.R. 508; *546 Hunter v. Parkman, 250 Ala. 312, 34 So. 2d 221; McLean v. Church of God, 254 Ala. 134, 47 So. 2d 257. And on the basis of this principle, we have decided it is probably best to let the injunction stand as ordered by the trial court. The only persons affected by this injunction are all outsiders the two appellants, Davis and Hamilton, alleged to be nonmembers of the local society, and such agents, servants or appointees of African Methodist Episcopal Church Conference as might attempt to intrude upon the property of the society. Neither the three appellants other than Davis and Hamilton, nor any other member of Haven Chapel Church is included in the restraining order. No member of Haven Chapel Church, of whatever faction, is deprived of his or her right to worship within the church. Hence, we are not persuaded that any irreparable injury might be expected to result from maintenance of the injunction in effect until a final disposition of the cause.
Since we have reached the conclusion that the bill had equity on the theory above stated, we deem it unnecessary to consider a second or related theory, which is that an effort on the part of a faction of the membership of Haven Chapel Church to affiliate and connect that church or society with the African Methodist Episcopal Church Conference and to transfer its church property to said Conference would constitute such a departure from established doctrine, usage, etc., of the society as to warrant equitable interference. As to this, we call attention to the well-settled doctrine that to sustain such a theory a radical departure must be clearly shown and, further, that the courts will not interfere with mere factional differences arising in ecclesiastical bodies, or in disparate interpretations of doctrine. Such matters are left for settlement to the societies, Mount Olive Primitive Baptist Church v. Patrick, 252 Ala. 672, 42 So. 2d 617; Mitchell v. Church of Christ, 221 Ala. 315, 128 So. 781, 70 A.L.R. 71; though application of this principle to the case in hand is, of course, not now made, it being deemed proper to require fuller development of the matter on final hearing of the cause.
On original consideration of this appeal, due to a misapprehension we concluded to a reversal of the decree below. Upon a reconsideration on rehearing, we have withdrawn our former opinion, granted the rehearing, set aside the judgment of reversal, and affirmed the decree denying the motion to dissolve the temporary injunction.
Rehearing granted; judgment of reversal set aside, and affirmed.
All the Justices concur except LAWSON, J., not sitting. | June 28, 1951 |
e0f2d816-5f28-4e83-972e-3348f4582738 | Bankers & Shippers Ins. Co. of NY v. Blackwell | 51 So. 2d 498 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 498 (1951)
BANKERS & SHIPPERS INS. CO. OF NEW YORK
v.
BLACKWELL.
2 Div. 281.
Supreme Court of Alabama.
February 8, 1951.
Rehearing Denied March 29, 1951.
*500 F. W. Davies and Davies & Williams, all of Birmingham, for appellant.
Edgar P. Russell, Jr., and Wilkinson & Wilkinson, all of Selma, for appellee.
FOSTER, Justice.
This is a suit by appellee against appellant on a transportation policy of insurance as later amended by parol agreement. It was tried on counts 3 and 4. Demurrer to those counts was each overruled. The first contention made by appellant is their sufficiency against the demurrer.
Count 3 alleged the issuance on August 25, 1948 of a transportation policy by appellant to appellee in the amount of $8,000.00 to cover the lawful goods and merchandise belonging to appellee. That during the first week in November, 1948, said contract of insurance was amended by parol agreement, by which the coverage was amended so as to include lawnmowers hauled by plaintiff for hire, while in transit, against loss to said goods by overturning, the consideration being the reliance by plaintiff on such amended policy and the noncancellation of it by defendant and the nonpayment by defendant of the unearned portion of the premium.
The first contention as to the demurrer to this count is that it does not allege a sufficient consideration for the added feature to it. The necessity for such consideration is of course admitted. But it is claimed by appellee that the count is sufficient in that respect, measured by the rule declared by this Court in Hartford Fire Ins. Co. v. Aaron, 226 Ala. 430, 147 So. 628, 630. We there referred to the principle that "if the contract is bilateral in its advantages and obligations, it may be modified by mutual agreement before a breach without any other consideration than the mutual assent of the parties, to its continued binding effect upon both of them." Cowin v. Salmon, 244 Ala. 285, 13 So. 2d 190; Commercial Credit Co. v. Perkins, 236 Ala. 616, 184 So. 178; Spencer v. Richardson, 234 Ala. 323, 175 So. 278.
It is next insisted that the count does not show an insurable interest in plaintiff as to the lawnmowers. The complaint alleges that the coverage includes lawnmowers hauled by plaintiff for hire while in transit. The rule is that plaintiff, while carrying the goods for hire, creates by law a certain responsibility to the owner for their safe delivery, either as a carrier or bailee, and therefore that he has an insurable interest to the extent of the full value of the property for his own benefit and that of the owners interested. Snow v. Carr, 61 Ala. 363, 371; 44 Corpus Juris Secundum, Insurance, p. 919, § 217(e); 29 Am.Jur. 295, section 324; Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U.S. 312, 6 S. Ct. 750, 29 L. Ed. 873, 876; Goldstein v. Harris, 24 Ala.App. 3, 130 So. 313.
This principle is not affected by section 126, Title 7, Code, requiring the beneficial owner to sue on certain claims. The carrier or bailee is here a beneficial owner and sues by that right. This admits that after a loss the claim is within the statute. Capital City Ins. Co. v. Jones, 128 Ala. 361, 30 So. 674; Life & Casualty Ins. Co. v. Crow, 231 Ala. 144, 164 So. 83; Goldstein v. Harris, supra.
Appellant also insists the allegations are not sufficient to show such a verbal contract of insurance as is necessary to be valid in alleging the terms of it. But the complaint alleges that the coverage of the outstanding policy was extended by agreement to include lawnmowers hauled by plaintiff for hire while in transit against *501 loss to said goods by overturning. The policy, to which this was added, contains with the addition all that is necessary as to detail and complies with the requirements of Commercial Fire Ins. Co. v. Morris, 105 Ala. 506, 18 So. 34.
The next contention made by appellant is based on the sufficiency of pleas 5, 6, 10, 11, 12, 14, 15, 16, 17, 22, 23 and 24 against the demurrer which was sustained to them. Those pleas all set up the terms of the usual and customary policy issued by appellant and other insurance carriers to cover the risk, which it is alleged appellant assumed by virtue of the verbal coverage. The argument is based on the principle that a verbal contract of insurance is governed by the terms and provisions of the usual and customary policy issued to cover such risks; that such verbal contracts can only be thus sustained by then providing the details intended to be included. Hartford Fire Ins. Co. v. King, 106 Ala. 519, 17 So. 707; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175.
But such is not the nature of the verbal matter added to the written agreement. It does not purport to stipulate for a contract whose terms are not expressly agreed upon in detail, but it adds a coverage to an outstanding contract whose terms are fully set forth in the policy to which the new feature is added. That is sufficient to comply with the rule. Commercial Fire Ins. Co. v. Morris, supra; Home Ins. Co. v. Adler, 71 Ala. 516.
The same legal status applies to the rulings of the court in sustaining objection to the testimony offered by appellant to prove what were the terms and provisions of the usual policy issued to cover risks on cargoes carried by carriers embracing the risk included in the amendment added to the policy. For the reason stated, supra, there was no error in those rulings.
Appellant also assigns error in respect to the judgment of the court sustaining plaintiff's demurrer to pleas 8, 21 and 25. We adopt in respect to them the following statement in appellant's brief:
"All of said pleas were grounded on the general proposition that at the time the loss occurred, appellee was engaged in hauling said lawnmowers in interstate commerce and appellee had not secured any permit or certificate of convenience and necessity from the I. C. C. to haul said lawnmowers, as required by the laws of the United States; and that said hauling was illegal and in violation of the laws of the United States; and that said acts constituted a criminal offense in violation of the laws of the United States; and that such acts were contrary to the public policy of the United States. It was also alleged that the alleged contract which appellee had to haul said lawnmowers was illegal and unenforceable and null and void. This is the substance of plea 25.
"The trial court took the view that regardless of all of these allegations, and regardless of the fact that appellee was operating in violation of the law, that this did not invalidate the insurance."
The decisions of this Court have, through a long line of cases, given consideration to a principle analogous to that here involved. It is thus expressed, with the authorities cited, in Knight v. Watson, 221 Ala. 69, 127 So. 841, 842:
"A statute imposing a license tax as a revenue measure merely, although declaring the doing of business without such license unlawful and affixing a penalty as a method of enforcement, does not render void and unenforceable contracts made without such license. Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510, 132 Am.St.Rep. 20; Morgan v. Whatley & Whatley, 205 Ala. 170, 87 So. 846; Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am.St.Rep. 52.
"But an act under the police power, designed to regulate the business, to protect the public against fraud and imposition, requiring a license as evidence of qualification and fitness, and prohibiting any act of business under penalty, unless such license is first obtained, does render such contracts illegal, void, and unenforceable in actions for the recovery of compensation and the like. Bowdoin v. Alabama Chemical Co., 201 Ala. 582, 79 So. 4; Sunflower Lumber Co. v. Turner Supply Co., supra; Woods v. Armstrong, 54 Ala. 150, 25 Am. *502 Rep. 671." See, also, Ellis v. Batson, 177 Ala. 313, 58 So. 193; Gill Printing Co. v. Goodman, 224 Ala. 97, 139 So. 250; Marx v. Lining, 231 Ala. 445, 165 So. 207.
An exhaustive annotation on the subject, specifically with reference to insurance contracts, is given in 132 A.L.R. 125, with the supporting case of Northwestern Amusement Co. v. Aetna Casualty and Surety Co., 165 Or. 284, 107 P.2d 110, 132 A.L.R. 118. See, also, 29 Am.Jur. 208 et seq.; 44 Corpus Juris Secundum, Insurance, p. 1007, § 242; Rainer v. Western Union Tel. Co., Mo.App., 91 S.W.2d 202; Roddy v. Hill Packing Co., 156 Kan. 706, 137 P.2d 215.
A distinction which runs through some of the insurance cases is that "If insurance on property does not encourage or promote an unlawful use or business it is not void, although it may be collaterally connected therewith; but, if it directly protects or encourages the unlawful act or business, the policy will be invalid." 44 Corpus Juris Secundum, Insurance, § 242, p. 1007; 132 A.L.R. 125. Again, it is said that if the effect of the insurance "is to promote the illegal use, the contract is void as against public policy; but, if the contract does not promote the illegal use, it is not void though it may have a collateral connection with the illegal use." Demary v. Royal Indemnity Co., La.App., 182 So. 389.
Another statement by this Court is "that contracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the law which was enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, is void and nonenforceable * * * (and) Whenever a party requires the aid of an illegal transaction to support his case, he cannot recover." Ellis v. Batson, supra, 177 Ala. at page 317, 58 So. at page 194; Pope v. Glenn Falls Ins. Co., 136 Ala. 670, 34 So. 29. See, also, 9 A.L.R.2d 184.
Plaintiff's contract of insurance was not prohibited by law. While the Motor Transportation Act is for regulation and protection, the insurance here involved did not violate that Act. But we think plaintiff could not establish his case without reference to or in reliance upon an illegal act or transaction within the principle declared above. This is for the following reason: his only insurable interest is dependent upon an illegal transaction made so by an act, which was enacted for regulation and protection and not for revenue. His contract to transport the lawnmowers, and the transportation of them as a contract carrier in interstate commerce, was illegal and subjected him to a penalty by virtue of such an act of Congress, 49 U.S.C.A. §§ 309 and 322, which was a regulation for the protection of the public. He cannot recover against the consignor or consignee for the charges for doing so. Knight v. Watson, supra; Town of Cottonwood v. H. M. Austin & Co., 158 Ala. 117, 48 So. 345; Bluthenthal v. Headland, 132 Ala. 249, 31 So. 87; Booker T. Washington Burial Ins. Co. v. Roberts, 228 Ala. 206, 153 So. 409; General Electric Co. v. Town of Fort Deposit, 174 Ala. 179, 56 So. 802.
The case of Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. Ed. 105, is distinguishable. It may be quite true that the insurance was only remotely connected with the illegality of the trip and the insurance was in no respect to aid, assist or advance any such illegal purpose. But we observe that the assured was there the owner of the vessel and had an insurable interest not dependent upon an illegal transaction for its existence, and his possession and ownership were not contrary to law. If its possession was contrary to law it is said not to be the subject of valid insurance. 132 A.L.R. 125.
The possession of the truck in the instant case was not contrary to law, and insurance upon it in favor of plaintiff would be different from insurance by him on the lawnmowers of another carried by him on a trip which was illegal because the contract of carriage was illegal and, therefore, confers on the truck owner no interest in the lawnmowers enforceable at his instance, being a party to an illegal transaction from which alone his insurable interest is derived and necessary to be shown to support his claim on the insurance contract.
*503 There is apparent authority for an opposite view, which is thus explained editorially in 9 A.L.R.2d 185. The courts are primarily restricted by the outcome of the inquiry into whether the insured is so situated with reference to the property that he would be liable to loss should it be damaged or destroyed by the peril against which it is insured.
But that theory will not fit our cases. Our cases hold steadfastly to the view that if plaintiff to support his case must predicate his right on a contract which violates a law which was enacted as a police regulation to protect the public against fraud, imposition or unfitness, especially with a penalty for its violation, and which is not primarily a revenue measure, cannot stand in our courts. Knight v. Watson, supra, and other cases cited there and supra. In view of those pronouncements, the editorial comment supra, cannot be adopted as our guide.
The broad statement in Pope v. Glenn Falls Ins. Co., supra, and Ellis v. Batson, supra, must be construed in connection with the principle so fully established by our cases. It is not alone the illegality of the transaction which is controlling, but the nature of such illegality. It is not necessary to approve the statement in Pope v. Glenn Falls Ins. Co., as properly applied in that case. It was there stated only to further support an argument which was well supported without it. A contract void by noncompliance with the statute of frauds is valid as respects persons not connected with it, when the parties themselves have not repudiated it. Bradley v. Hall, 239 Ala. 544, 195 So. 883.
But the pleas here set up that sort of contract which puts plaintiff beyond the help of the courts. It confers on him no right upon which to base his claim of an insurable interest.
We do not think that any good purpose could be accomplished by wading through the one hundred and eighty-seven assignments of error to see if correct principles have been properly applied in them. The judgment must be reversed for sustaining the demurrer to pleas 8, 21 and 25. We assume that will be sufficient for another trial.
Reversed and remanded.
BROWN, LIVINGSTON, and LAWSON, JJ., concur.
On Rehearing.
FOSTER, Justice.
Our attention is called to the fact that there is an exclusion from the requirements of 49 U.S.C.A. § 309, and the penalties of section 322, so that they do not apply to casual, occasional or reciprocal transportation of property by motor vehicles in interstate commerce. This is a part of the Motor Carrier Act. 49 U.S.C.A. § 303(b)(9). Whereas section 309, to which we referred supra, applies to persons engaged in the business of a contract carrier. It would appear therefore that section 303(b)(9) provides an exception to section 309. It is rather an exclusion than an exception. Section 309 only applies to one engaged in the business of a contract carrier. Section 303(b)(9) provides an exclusion from the operation of that chapter of casual, occasional or reciprocal carriers by motor vehicles, not so engaged as a regular occupation or business. So that the latter is not, precisely speaking, an exception from section 309, because it rather describes an operation not covered by section 309. But it is referred to as an exception in State of California v. Thompson, 313 U.S. 109, 61 S. Ct. 930, 85 L. Ed. 1219.
We go to pleas 8, 21 and 25 to see if they are sufficient measured by a principle of pleading that, "If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there is an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party." McBride v. Baggett Transp. Co., 250 Ala. 488, 35 So. 2d 101, 103; Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4. This principle also applies to pleading exceptions from the operation of a contract. Life & Casualty Ins. Co. v. Garrett, 250 Ala. 521, 35 So. 2d 109.
If section 303(b) (9) is an exception to section 309, it should be pleaded by plaintiff by replication if the pleas are free from the demurrer interposed to them.
*504 Plea 8 alleges that plaintiff was "engaged in the operation as a carrier in interstate commerce."
Plea 21 alleges that "plaintiff was engaged in hauling said lawnmowers in interstate commerce as a contract carrier."
Plea 25 alleges that "plaintiff was engaged in hauling or carrying said lawnmowers in interstate commerce."
If those pleas do not sufficiently allege that in carrying the lawnmowers plaintiff was engaged in the business of hauling as a contract carrier, the theory was not made the basis of a ground of demurrer so far as we can find, and no such ground was pointed out in brief on original submission. In fact the contention was made for the first time by supplemental brief on this application for rehearing. To engage in business has been defined by this Court as "that which occupies the time, attention, and labor of men, for the purpose of a livelihood or profit." One act may be sufficient if the circumstances show a purpose to continue the business. Abel v. State, 90 Ala. 631, 8 So. 760. That definition we think is not local in its application. The language of the plea, supra, may not strictly speaking be a positive allegation that defendant was at the time engaged in the business of a contract carrier in interstate commerce. But they allege that he was engaged in hauling in interstate commerce, without a permit and that it was illegal and in violation of the laws of the United States. If plaintiff contends that they do not exactly allege as they should that he was then engaged in such business, the contention should be properly pointed out in the demurrer so as to allow an amendment if necessary.
We are also requested to review our former holding that the Motor Carriers Act of Congress, 49 U.S.C.A. §§ 301 to 327, is not within the principle to which we applied it, whereby one who has violated it may not maintain a suit when his right is dependent upon the contract which is thus violative of an act which is not one for revenue but for regulation in the public interest. It is said in State of California v. Thompson, supra, that a statute of California relating to motor carriers is not a revenue measure, but that "It is not shown to be other than what on its face it appears to be, a measure to safeguard the members of the public desiring to secure transportation by motor vehicle, who are peculiarly unable to protect themselves from fraud and overreaching of those engaged in a business notoriously subject to those abuses. [313 U.S. 109, 61 S. Ct. 932.]" The Federal Motor Carrier Act does not contain a clause making void a contract of transportation without a compliance by one engaged in that business. But section 322, supra, makes it a crime to do so knowingly and willfully, and authorizes an injunction. We think it is subject to the comment made in State of California v. Thompson, supra, that it was enacted to safeguard the public desiring to use that form of transportation peculiarly unable to protect themselves from fraud and over-reaching.
It is said in many cases that the contract must have been against public policy to deny its enforcement by one who has performed it against the other interposing that defense. The theory is that no one can lawfully do that which tends to injure the public or is detrimental to the public. This principle has been the dominant factor in such cases both in this Court and that of the United States Supreme Court. Knight v. Watson, 221 Ala. 69, 127 So. 841; Lowery v. Zorn, 243 Ala. 285, 9 So. 2d 872; Steele v. Drummond, 275 U.S. 199, 48 S. Ct. 53, 72 L. Ed. 238; Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S. Ct. 476, 75 L. Ed. 1112; A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U.S. 38, 61 S. Ct. 414, 85 L. Ed. 500; Bement & Sons v. National Harrow Co., 186 U.S. 70, 22 S. Ct. 747, 46 L. Ed. 1058.
In the case of A. C. Frost & Co. v. Coeur D'Alene Mines Corp., supra, the suit was by the holder of a contract for the purchase of stock from a corporation. The corporation before making the contract of sale had not complied with the Securities Act of the United States, 15 U.S.C.A. § 77a et seq. The petitioners so-called, or plaintiffs, charged that the respondent corporation had repudiated the contract and asked judgment *505 for damages for its breach. The corporation defended upon the ground that the contract was entered into in violation of the Securities Act of Congress and was void and, therefore, the defendant was not liable in damages for its breach. The court observed that the legislative purpose was protection of innocent purchasers of securities, observing that "They (innocent purchasers) are given definite remedies inconsistent with the idea that every contract having relation to sales of unregistered shares is absolutely void". [312 U.S. 38, 61 S. Ct. 417.] The court gave further expression to the views above expressed by us with respect to the enforcibility of contracts which are made in violation of law and public policy, citing the above cases, and observing: "No one can lawfully do that which tends to injure the public or is detrimental to the public good. If it definitely appears that enforcement of a contract will not be followed by injurious results, generally, at least, what the party has agreed to ought not to be struck down. * * * the end which Congress intended to accomplish was treated as the controlling factor." The effect of the opinion is to justify a suit by an innocent purchaser of securities against a corporation making a contract for the sale of such securities to the purchaser at a time when the corporation had not complied with the Securities Act of Congress, and when the contract is subject to the penalties of such Act. That conclusion is based upon the fact that plaintiff in that case was within the protection of the legislative purpose sought to be accomplished and as the controlling factor in the Act of Congress. Therefore, to deny him relief on such a contract, it was said, would defeat the purpose sought to be accomplished by it. It was in no sense a suit by the corporation which violated the Act in an effort to enforce the terms of the Act and whose rights are dependent upon a contract prohibited by the Act. Whereas such is the nature of the instant suit.
In the case of Twin City Pipe Line Co. v. Harding Glass Co., supra, the plaintiff was a pipe line company which had entered into an agreement with the defendant which was a consumer of gas. The contract provided that the glass company, as consumer, would take all its requirements of gas so long as the pipe line company could adequately supply them, and to pay the rate prescribed by public authority, and in the event of a shortage of gas the pipe line company might discontinue serving the glass company upon condition that the same character of service be given to it that was given to other industries. The plaintiff in the suit sought to enjoin the glass company from taking gas from another pipe line company in violation of that contract. The glass company in defense of that suit contended that the contract violated the public policy of Arkansas, which prohibited perpetuities and monopolies. With reference to such a contract the court asserted the general principles to which we have referred above. It referred to the meaning of public policy in that connection, saying there is no fixed rule by which to determine what contracts are repugnant to it and that contracts should be stricken down upon the basis of that principle with caution and only in cases plainly within the reason on which the doctrine rests, and that it is only because of the dominant public interest that one who has had the benefit of the performance by the other party will be permitted to avoid his own promise. In conclusion the court held: "The contract does not subject the glass company to, or tend in any manner to impose upon the public, any wrong, disadvantage, or evil attributable to monopoly or restraint of trade.
"The glass company has failed to show that the contract has any tendency to injure the public, and no reason appears why it should not be enforced according to its terms." [283 U.S. 353, 51 S. Ct. 478.]
It is our view that when a transportation company engages in the business of interestate commerce as a contract carrier without complying with the requirements of the Motor Carrier Act, as to which there are criminal sanctions provided in the Act, such carrier has put himself in a position which contravenes the policy of that Act which was provided, as said in *506 the case of State of California v. Thompson, supra, to enable shippers to "protect themselves from fraud and overreaching of those engaged in a business notoriously subject to those abuses." It is our view that the Federal Motor Carrier Act was distinctly for that purpose.
We think one primary purpose is to protect the public against irresponsible carriers who do not have adequate facilities, financial backing and personal integrity to render to the public adequate service. It is not a question of whether the particular carrier did have adequate facilities, financial backing and personal integrity sufficient to protect the shipper on that particular occasion, or shippers generally; but it is a question of his complying with the law which is applicable to him and for the protection of the public. We know of no case or authority which would permit such a carrier, in violation of law, to found a claim upon the basis of such a contract.
In our case of White v. Henry, Ala.Sup., 49 So. 2d 779, cited by appellee on rehearing, the suit was not by the carrier violating the law but by the shipper not doing so. The rule does not apply to him when it is not shown that he intentionally participated in the violation of the law.
In this case plaintiff had not completed his part of the contract. But he is predicating an insurable interest in property not his own on the theory that he has the interest of a bailee, to support an insurance contract which will protect him in the collection of charges whose basis is solely by virtue of an illegal contract which he has not performed. True, he can collect also, if he can recover his personal claim, the value of the property lost for the benefit of his shipper and owner of the property.
We believe it would be contrary to dominant public policy for one to engage in the business of a contract carrier in interstate commerce without a permit required by law and enforce a transportation insurance contract to protect his rights against accidents, although he thereby may sustain no liability, and his only interest to be protected is that which arose by virtue of such contract. Until we learn better that will be our opinion in that respect.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | February 8, 1951 |
0c20e7d7-958d-496b-9261-b4637b85fe7f | Stratford v. Lattimer | 50 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 420 (1951)
STRATFORD
v.
LATTIMER et al.
3 Div. 583.
Supreme Court of Alabama.
February 1, 1951.
Rehearing Denied February 22, 1951.
*421 Rives & Godbold, of Montgomery, for appellant.
Walter J. Knabe, of Montgomery, for appellee.
SIMPSON, Justice.
Appeal from a decree sustaining demurrer to a bill for declaratory judgment for the construction of a deed and for relief incident thereto. Decision turns on a proper construction of the deed.
The deed was one of gift executed May 11, 1898, by S. Cornelia Graham to her daughter, Eugenia Stratford, for life with remainder over after her death to Eugenia's children, etc. When the deed was executed the grantee's children were Celia Stratford (Lattimer) and William Stanley Stratford, the appellees, and John B. Stratford, who predeceased his mother, leaving as his only descendant his son, Frank de Graffenreid Stratford, the appellant, who filed the bill. In essence, the question is whether the conveyance to Eugenia granted to her said children a vested remainder or a contingent remainder or a vested remainder subject to be divested. See Smaw v. Young, 109 Ala. 528, 547, 120 So. 370; Lyons v. Bradley, 168 Ala. 505, 53 So. 244.
The two pertinent provisions of the deed appear in the granting and habendum clauses. The granting clause recites that the grantor, Mrs. Graham, has "* * * granted, bargained and sold, and by these presents do hereby grant, bargain, sell and convey unto the said Eugenia Stratford, for and during the term of her natural life, and after her death to her children, the following described real estate" (describing it). (Emphasis ours.)
The habendum clause of the deed reads: "To have and to hold the aforegranted premises, together with the appurtenances, privileges and improvements thereunto belonging, unto the said Eugenia Stratford for and during the term of her natural life and after her death to her children or their descendants; that is if any of the said Eugenia Stratford's children shall die before the said Eugenia, leaving a child, or children, such child or children shall take the interest in said lot to which the parent would have been entitled had it been living." (Emphasis supplied.)
During the lifetime of the grantee, Eugenia, and before her son John B.'s death, her said three children executed a deed of conveyance quitclaiming to her all of their right, title and interest in the property; and on her death, Eugenia, by will devised the property to her two then living children, Celia and William Stanley, the *422 appellees here. As observed, John B. predeceased his mother and the contention of his brother and sister, the appellees, is that the granting clause conveyed to the three children then living when the deed was executed and delivered a vested remainder in the property, on the basis of which the complainant would have no interest, his father having theretofore during his lifetime quitclaimed his vested interest to the life grantee in the original deed. The trial court was in agreement with this theory and therefore sustained the demurrer to the bill.
The complainant, who has appealed from that decree, however, argues that the disposition to Eugenia's children was per stirpes and that the remainder to them was defeasible on condition subsequent, viz., by the death of child, before Eugenia's death, leaving children; that, therefore, since that event occurred, the complainant, being the only child or descendant of John B. Stratford, became vested with an undivided interest in the property by virtue of the habendum clause in the deed.
Unless our effort to construe the two recitals in the deed should become ensnared with arbitrary rules of construction which would distort the real apparent language of the conveyance, we think it plain that the construction sought for by the bill to be a correct one and adverse to the ruling below.
The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause, unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; (2) where an estate is expressly granted, a reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193, 193 So. 229; and (3) absent of a clear showing of an intention to the contrary, estates will vest and an intent to postpone vesting must be clearly established. McCurdy v. Garrett, 246 Ala. 128, 19 So. 2d 449.
While these rules of construction are steadfastly adhered to, they must be considered in the light of the governing rule that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, arbitrary rules should not be allowed to subvert that intention. Deramus v. Deramus, 204 Ala. 144, 85 So. 397; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Irwin v. Baggett, 231 Ala. 324, 164 So. 745; Dickson v. Van Hoose, supra; Cobbs v. Union Naval Stores, 202 Ala. 333, 80 So. 415; Gentle v. Frederick, 234 Ala. 184, 174 So. 606.
It is, of course, true that arbitrary rules of construction must control if there be two clauses in a conveyance which are utterly inconsistent with each other and which cannot be reconciled or made to stand together, under which circumstances the granting clause prevails. But this rule should never be resorted to until all efforts to reconcile the conflicting parts have failed. Deramus v. Deramus, supra. And if from a consideration of the entire instrument there is doubt or obscurity as to the real meaning of the granting clause, the entire instrument must be construed so as to give effect to all of its provisions if possible. These rules merely mean to assert the cardinal rule of interpretation, which was so aptly stated by Justice Bouldin in Gentle v. Frederick, supra, to wit: "In every case, however, the final purpose of all rules of construction is to ascertain and give effect to the intent, if not unlawful. The entire instrument, as well as its several parts, is to be looked to for this purpose. Every distinct provision in a conveyance is presumed to have been inserted for a purpose. The document should be so construed as to give a field of operation to its several provisions, if practicable." 234 Ala. 186, 174 So. 607.
Indeed, it is made so by our statute law that the courts, in construing conveyances, must ascertain and give effect to the intention and meaning of the parties, "to be collected from the entire instrument." Code 1940, Title 47, §§ 23, 17; Reynolds v. Reynolds, supra, 208 Ala. 677, 95 So. 180.
*423 In the light of these rules of construction, we think it unsound to hold that it was the intention of the grantor to vest in the three children of Eugenia living when the deed was executed and delivered, a vested remainder interest; otherwise the habendum would be absolutely meaningless. On the contrary, as the language of the deed recites, the grantor obviously intended that "if any of said Eugenia Stratford's children shall die before the said Eugenia, leaving a child, or children, such child or children shall take the interest in said lot to which the parent would have been entitled had it been living."
We do not think the two clauses, the granting and habendum clauses, presented by the deed are utterly, if they be at all, inconsistent. The quoted clause of the habendum merely results in rendering the term "children" used in the granting clause ambiguous, in which case to carry out the obvious purpose or intention of the grantor, another well-established rule intervenes to aid construction; that is, the term "children" may be enlarged to include "grandchildren." Spencer v. Title Guarantee Loan & Trust Co., 222 Ala. 221, 223, 132 So. 32; Benners v. First National Bank, 247 Ala. 74, 22 So. 2d 435; Cooper v. Birmingham Trust & Savings Co., 248 Ala. 549, 28 So. 2d 720, 725; Wilson v. Rand, 215 Ala. 159, 110 So. 3.
While it is, of course, to be conceded that when an instrument employs the term "child" or "children" in a technical or legal sense, grandchildren are not included, for, as stated in Restatement of Property, p. 1498, § 285 (1) a: "* * * This restriction is a product of the fact that the term `children' when used by a conveyor to describe the takers under his limitation is one ordinarily used to describe immediate offspring only. Hence, when this term is found, without additional language or circumstances indicating a different meaning, the inference is both reasonable and proper that the user intended to exclude descendants of the designated parent more remote than those of the first generation."
Here, however, the deed does present additional language importing a meaning different from the technical meaning of "children," in which circumstances to give effect to the true meaning of the instrument, the term will be construed to embrace grandchildren. Apposite is that statement in Spencer v. Title Guarantee Loan & Trust Co., supra, 222 Ala. 223, 132 So. 34, to wit: "* * * to ascertain and give effect to the intention of the grantor or testator, the great end of all construction, the term `children' may be and often is enlarged to include `grandchildren.'"
Frankly, we can see no room for any other construction under the rule of our cases, since the grant in remainder to the children of Eugenia is clearly testamentary in character, and in such cases we have adopted the principle employed in construing wills that the word "child" will be extended to comprehend "grandchild" and issue generally where (1) from necessity the testamentary disposition will be inoperative unless the meaning is extended beyond its natural import, or (2) when from the entire instrument it appears the testator did not intend to use the word "child" in its strictly technical sense. Spencer v. Title Guarantee Loan & Trust Co., supra; Wilson v. Rand, supra; Scott v. Nelson, 3 Port. 452, 29 Am.Dec. 266. See also Restatement, supra, p. 1496 et seq., § 285. Manifestly, the first alternative of the rule, if not the second too, is here applicable, since from necessity the conveyor's intent would be rendered inoperative unless the meaning is extended beyond its technical sense to include grandchildren.
We think it sound to hold, therefore, that the language of the conveyance from Mrs. Graham to her daughter, Eugenia, imports a contingent stirpital disposition of the property to the grantee's children after grantee's death, resulting that the appellant, child of John B. Stratford, received his deceased father's share on the death of said grantee.
Error, therefore, prevailed in sustaining demurrer to the bill, so a decree will here be rendered overruling the same.
Reversed, rendered and remanded.
FOSTER, LAWSON, and STAKELY, JJ., concur. | February 1, 1951 |
0259b5d6-cf5a-44e0-a829-587393dcb8f2 | Chamblee v. Chamblee | 49 So. 2d 917 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 917 (1951)
CHAMBLEE
v.
CHAMBLEE.
6 Div. 176.
Supreme Court of Alabama.
January 11, 1951.
J. T. Johnson, of Oneonta, for appellant.
S. R. Starnes, of Oneonta, for appellee.
LAWSON, Justice.
The appellee, Frances Ramey Chamblee, filed suit in the circuit court of Blount County, in equity, against her husband, Raymond Fritz Chamblee, seeking a divorce on the ground of cruelty. She also prayed for the custody and control of the two minor children of the parties, a boy seven years of age and a girl three years of age, and for support and maintenance for the said minor children.
Appellant, the husband, answered and denied the averments in the wife's bill to the effect that he had committed actual violence on her person, attended with danger to her life or health, or that from his conduct there was reasonable apprehension of such violence. The husband made his answer a cross-bill praying for a divorce on the grounds of adultery and habitual drunkenness to which she became addicted after marriage. He also prayed for the custody and control of the two minor children.
The trial court made and entered a decree awarding the complainant, Frances Ramey Chamblee, a divorce on the ground of cruelty. The decree awarded to complainant the custody and control of the two minor children and directed the husband to pay to the register of the court the sum of $50 per month for the support and maintenance of the said minor children, said sum to be paid by the register to the complainant. From this decree the husband has appealed to this court.
*918 The cause was submitted for final decree on the pleadings and the depositions of the witnesses. When evidence is taken in this manner in the court below, a decree rendered thereon is reviewed here without any presumption in favor of its correctness. Section 17, Title 13, Code 1940; Gardner v. Gardner, 248 Ala. 508, 28 So. 2d 559, and cases cited.
There can be no doubt that under the evidence, the defendant was guilty of cruelty sufficient to warrant the dissolution of the marriage. It is not strenuously insisted to the contrary.
Appellant does earnestly insist that the evidence shows that complainant had committed adultery and that, therefore, the trial court erred in decreeing a divorce in her favor.
It is the rule that a divorce should not be granted a complainant where there exists another statutory ground for divorce in favor of the respondent. Ribet v. Ribet, 39 Ala. 348; Stabile v. Stabile, 203 Ala. 635, 84 So. 801; Stephens v. Stephens, 233 Ala. 178, 170 So. 767; Lyall v. Lyall, 250 Ala. 635, 35 So. 2d 550; Butler v. Butler, Ala.Sup., 48 So. 2d 318.
But we cannot agree with appellant in his insistence that the evidence is sufficient to show that appellee was guilty of adultery. The evidence in that connection was entirely circumstantial. True, the charge of adultery in a bill for divorce may be proved by circumstantial evidence, but the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed. Gardner v. Gardner, supra, and cases cited.
The testimony relative to the adultery of the wife creates at most a mere suspicion. Her alleged paramour was the husband's very closest friend, who was in the home on many occasions at the request of the husband. He became a close friend of the wife and her alleged acts of indiscretion with this man are not too inconsistent with the relationship which seems to have existed between him and the appellant and appellee. Appellee denied all accusations of adultery. While the acts of the wife may have been sufficient to create suspicion, they were wholly insufficient under our authorities to prove adultery. Morrison v. Morrison, 95 Ala. 309, 10 So. 648; Le May v. Le May, 205 Ala. 694, 89 So. 49; Scott v. Scott, 215 Ala. 684, 112 So. 218; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718; Brown v. Brown, 229 Ala. 471, 158 So. 311; Windham v. Windham, 234 Ala. 309, 174 So. 500; Gardner v. Gardner, supra.
It is the well-settled rule in this state that in determining who should have the custody of children, the best interests and welfare of the child or children should be the controlling and paramount inquiry. Gardner v. Gardner, supra, and cases cited.
A careful examination of the entire evidence convinces us that the welfare and best interests of the minors involved in this cause will be subserved in committing their custody and control to their mother. We also agree with that part of the lower court's decree requiring the father to contribute fifty dollars per month to the support and maintenance of the minor children.
The decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
BROWN, FOSTER, and STAKELY, JJ., concur. | January 11, 1951 |
30604e94-ca53-4ab8-9cba-ae5ffe1e922d | McClung v. Louisville & NR Co. | 51 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 371 (1951)
McCLUNG et al.
v.
LOUISVILLE & N. R. CO. et al.
6 Div. 90.
Supreme Court of Alabama.
March 15, 1951.
*372 Jackson, Rives & Pettus, Birmingham, for appellants.
Chas. H. Eyster, Decatur, Gibson & Gibson and Thos. F. McDowell, Birmingham, for appellees.
FOSTER, Justice.
This is an appeal from a final decree denying relief to complainants and dismissing their bill. The bill sought an *373 abatement of certain operations which are claimed to constitute a nuisance. Complainants, appellants here, have homes situated on Lanark Road in Birmingham, on the southern slope of Red Mountain overlooking English Village, also called Hedona.
About fifty years before complainants filed their bill, the Louisville and Nashville Railroad Company, a respondent here, constructed a branch line from its main line to Boyles. There were several ore mines then in operation near the crest of Red Mountain on its southern slope. Later the ore mine operations were discontinued and trackage beyond Hedona to the west was removed. At Hedona the railroad company had a main track, a team track, and a spur track which extended over to the bins owned by the C. G. Kershaw Contracting Company. The bins and spur had been used for about fifteen years before the suit was begun.
As to appellee railroad company, appellants claim that the nuisance was to residents on Lanark Road which overlooks Hedona. This section was and is a high class residential area as shown by the exhibits. Complainants' homes are on that road. It is alleged that coal dust in large quantities is caused to arise from loading coal cars on the team track from trucks for shipment, which dust and the smoke from locomotives are blown into their homes causing great damage. Complainants claim that the coal dust is caused by transferring the coal from trucks to the coal cars by hand shovels, and that no attempt has been made to minimize the dust by sprinkling, oiling or washing the coal, or using some other loading place not in a residential section. It is alleged that the coal dust is blown into their residences in large quantities and on frequent occasions to such extent as to prevent the enjoyment of their homes. The homes of complainants were purchased in 1936, 1938 and 1943, at a time when there was very little use of this railroad, with none of the acts now causing the alleged nuisance. During and subsequent to the War there has been considerable increase in the use of this railroad on that line and at that loading point. The suit was filed September 1946. There has been no acquiescence in the alleged nuisance. Section 1088, Title 7, Code.
It is claimed that the C. G. Kershaw Contracting Company created a nuisance in unloading metal sand cars into their sand bins by beating on the sides of the cars with heavy tools to loosen the sand from the cars so as to flow freely by gravity into the bins. This beating of the metal sand cars was of frequent occurrence, sometimes early in the morning, creating loud noises: all of which was disturbing to appellants and other residents of Lanark Road. The evidence shows that a rubber mallet, or perhaps a wooden tool or a scrape, could be used without producing so much noise. See, Strough v. Ideal Supplies Co., 300 Ky. 34, 187 S.W.2d 839.
As to respondent Koppers, complaint is made of odors, fumes and loud noises from the heating and distributing of the contents of tank tar cars belonging to them, which were heated and the contents distributed by motor equipment at Hedona. The effect was to disturb the residents of Lanark Road because of the motors running night an day, creating noise, odors and fumes which permeated the homes of appellants and other residents of Lanark Road. Evidence of such matters was given by many other residents who are not parties, but apparently well wishers.
In fact the evidence amply shows the dust, smoke, soot, heat, inconvenience and damage done to the complainants, and others not suing; that such inconvenience is not fanciful nor such as would affect only one of a fastidious taste, but is such as would affect an ordinary reasonable man. It is therefore a nuisance as defined by section 1081, Title 7, Code.
But before such nuisance will be enjoined everything should be viewed in respect to both parties to the issue. "If one so lives in a shop district of a city, he ought not to complain that a shop is carried on in the next door to him, if it is done in a proper manner; but if he selects as his home the residence district *374 of such town, and builds his house there, then he would have a right to complain, if a third party should establish and carry on a shop or plant next door to him, which annoyed his family and disturbed the quietude and pleasure of his home by excessive noise, offensive odors, dust, etc." First Avenue Coal & Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L.R.A., N.S., 522; Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So. 2d 162.
We think the evidence justifies an injunction against the C. G. Kershaw Contracting Company restraining it from so operating and conducting its business at Hedona or English Village of unloading sand and gravel and other material from cars into bins by beating and pounding on the cars so as to make loud and disturbing noises, obnoxious to the residents in that area. However, we do not think the evidence justifies an injunction against the Homewood Lumber Company and the Homewood Paint and Hardware Company.
We also think an injunction would be proper against Koppers Company restraining them from causing to be emitted odors and fumes accompanied with loud noises, occasioned by the operation of heating and distributing the contents of tank tar cars at Hedona. While it appears that this has not been done recently, it also appears that the reason for not doing so is because of an absence of demand for the product.
In respect to the Louisville and Nashville Railroad Company and the emission by it of smoke and sparks from locomotives and similar annoyances, we find the law to be that when the operation by the railroad is pursuant to lawful authority, such railroads are treated as public highways and the proprietors as public servants. "Any diminution of the value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a `taking' within the constitutional provision. The immunity is limited to such damages as naturally and unavoidably result from the proper conduct of the road and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations incident to running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and non-negligent operation of a railroad." Richards v. Washington Terminal Co., 233 U.S. 546, 34 S. Ct. 654, 657, 58 L. Ed. 1088. Compare, Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737; Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909; Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459.
As we view the situation, the foregoing principle is directly applicable. The railroad company was operating by lawful authority, and there is no evidence that the noises and vibrations caused by running the train together with the smoke and sparks emitted have been other than from the normal and non-negligent operation of its facilities.
It is true that at the time complainants purchased their property this railroad was not used for any commercial purpose, but it had been so used in the past. It was located at the same place and the reason why it had not been used was lack of patronage. When the development of the region called for transportation of material by railroad, this line came into active operation again. While the purchasers of the property near Hedona may not have anticipated such reactivation, they assumed the risk knowing of its possibility. We do not see, therefore, where there has been any conduct on the part of the railroad company in the matter of causing noises and emitting smoke in its operations which is unlawful as defined in Richards v. Washington Terminal Co., supra.
We also observe that in the determination of that question, the court in the Richards case gave due consideration to the Fifth Amendment to the Federal *375 Constitution, which prohibits the taking of property for public use without just compensation. Sections 23 and 235 of the Alabama Constitution are to the same effect. Section 235 extends also to injuries where a taking has not been effected. But such injuries referred to in section 235, when there is no taking, must be caused by the construction or enlargement of the works of the corporation which is charged with causing the injury or by its negligence.
It is well settled in this State that the lawfully authorized and carefully conducted operation of a business cannot be an abatable nuisance, Branyon v. Kirk, 238 Ala. 321 (21), 191 So. 345, unless it takes property without just compensation, as emphasized in the Richards case, supra. Applying the principle here, as in that case, the operations being lawful, negligence must be shown. We do not see where negligence is shown by the railroad company in causing the damage to the adjoining property owners and, therefore, the injunction as to the railroad company was properly denied.
With respect to the operations of Adams, Rowe and Norman, Inc., Milton E. Huddleston, Jim Henderson and J. D. Smart, the evidence shows that Adams, Rowe and Norman are coal dealers and have caused a large amount of coal to be loaded at Hedona by Milton E. Huddleston, Jim Henderson and J. D. Smart. These parties haul coal from the mines to be loaded at Hedona to be shipped to Adams, Rowe and Norman. In loading coal from trucks onto the coal cars, the trucks are run on a ramp near the cars where the coal is pitched by hand shovels from the trucks to the coal cars. The coal is usually dry and has considerable dust which is blown into the area and causes much annoyance and inconvenience to the residents there. The truck owners who did the hauling were either independent contractors or sellers of the coal loaded on the cars and were paid on that basis. So that Adams, Rowe and Norman were not responsible for the manner in which that service was performed. From that situation, it would appear that Adams, Rowe and Norman are not subject to be enjoined in connection with the manner in which the coal was loaded from the trucks onto the cars. But we see no reason why an injunction should not be issued against the coal haulers, Milton E. Huddleston, Jim Henderson and J. D. Smart, enjoining them from loading the coal onto the railroad cars from trucks in such way as to create the dust complained of. It is shown from the evidence that this can be done by sprinkling the coal with water before being transferred to the cars. Therefore, the decree of the lower court refusing to enjoin Adams, Rowe and Norman is affirmed. But an injunction must issue against Milton E. Huddleston, Jim Henderson and J. D. Smart, as indicated above. Although Milton E. Huddleston is not now engaged in this business at Hedona, he has been so engaged since this suit was begun and presumably nothing but an injunction will stop him from doing so again upon sufficient inducement.
The decree of the circuit court, in equity, is affirmed is so far as it refused an injunction against the Louisville and Nashville Railroad Company, Homewood Lumber Company, Homewood Paint and Hardware Company, and Adams, Rowe and Norman, Inc.; but we think a permanent injunction should issue enjoining C. G. Kershaw Contracting Company from so operating and conducting its business at Hedona or English Village of unloading sand and gravel and other material from cars into bins by beating and pounding on the cars so as to make loud and disturbing noises, obnoxious to the residents in the area. We think the Koppers Company, Inc., should likewise be enjoined from causing to be emitted odors and fumes, accompanied with loud noises, occasioned by the operation of heating and distributing the contents of tank tar cars at Hedona. And that Milton E. Huddleston, Jim Henderson and J. D. Smart should be enjoined from loading coal onto railroad cars from trucks at Hedona in such way as to create an excessive discharge of dust in that area. The decree is reversed to that extent *376 and one is here rendered enjoining C. G. Kershaw Contracting Company, Inc., Koppers Company, Inc., Milton E. Huddleston, Jim Henderson and J. D. Smart, as above indicated.
The costs of this cause are taxed one-fourth against C. G. Kershaw Contracting Company, one-fourth against the Koppers Company, and one-half against the appellants.
Affirmed in part and in part reversed and rendered.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 15, 1951 |
22ec818a-96c4-4f5a-95f4-f519003f368d | Phillips v. City of Homewood | 50 So. 2d 267 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 267 (1951)
PHILLIPS et al.
v.
CITY OF HOMEWOOD.
6 Div. 127.
Supreme Court of Alabama.
January 11, 1951.
Rehearing Denied February 15, 1951.
Morel Montgomery, of Birmingham, for appellants.
Irvine C. Porter, of Birmingham, for appellee.
FOSTER, Justice.
This is an appeal from an order of a judge denying a petition for a temporary injunction heard on notice. Section 1057, Title 7, Code.
The injunction sought is to prevent the enforcement against complainants of a city *268 zoning ordinance. The original ordinance was No. 260. In residential districts, section 21.4 of the ordinance permitted the use of property for public or private schools. While in that status complainants acquired property in the district and set up a private school. The city then amended section 21.4 of the zoning ordinance so as to permit property in such district to be used for public schools, but not for private schools. This bill complained it was to that extent discriminatory and an arbitrary classification and sought an injunction against its enforcement against their maintenance of a private school.
The bill also made an attack on the sufficiency of the publication of the notice of the proposed amendment as required by sections 773 and 778, Title 37, Code. One of those statutes provides for publication at least fifteen days in advance of the passage of the ordinance, and the other provides for publication at least once a week for two consecutive weeks in advance of its passage. The clerk testified that it was duly advertised as required by law in the Shades Valley Sun, a newspaper published in the City of Homewood. The notice appearing in the record has a memorandum "Shades Valley Sun May 11 and 18". The ordinance was passed on May 22, 1950. For the present, we will not undertake to develop that contention, for we think the ordinance is subject to the objection that as to complainants it is an arbitrary and discriminatory classification.
That interpretation of such a situation is well supported by authority. In the case of City of Miami Beach v. State ex rel. Lear, 128 Fla. 750, 175 So. 537, 539, a situation was dealt with which is similar in all material respects to the one involved on this appeal, wherein the court made the following observation: "The prohibiting classification finds no foundation or basis in reason or experience that has been brought to our attention." Again in the case of Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.E.2d 583, 585, a similar situation was also before the court, citing the case of City of Miami Beach v. State ex rel. Lear, supra, and adopting its reasoning and conclusion, and observing: "The ordinance before us bears no substantial relationship to the promotion of the public health, safety, morals, or welfare. Such legislation amounts in fact to a capricious invasion of the property rights of the appellee, and as such can not be sustained." The same theory was given effect in the case of Western Theological Seminary v. City of Evanston, 331 Ill. 257, 162 N.E. 863, also Women's Kansas City St. Andrews Society v. Kansas City, 8 Cir., 58 F.2d 593. No case or authority to the contrary has been cited to us and we have found none. As stated above, we agree with that interpretation of the situation.
The fact that complainant could obtain a judicial determination of the question by seeking a declaratory judgment does not in any respect reflect upon the right to have injunctive relief whether it be in connection with such a declaratory judgment or without seeking such a judgment. The principle is well established that a court of equity will enjoin the enforcement of an ordinance which unlawfully deprives complainant of her property rights or unlawfully interferes with her right to use the same. Davis v. City of Mobile, 245 Ala. 80, 16 So. 2d 1; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823; City of Birmingham v. Leo A. Seltzer, Inc., 229 Ala. 675, 159 So. 203; Town of Cuba v. Mississippi Cotton Oil Co., 150 Ala. 259, 43 So. 706, 10 L.R.A.,N.S., 310; Bryan v. City of Birmingham, 154 Ala. 447, 45 So. 922; Board of Com'rs of City of Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A., N.S., 575; Franklin Social Club v. Town of Phil Campbell, 204 Ala. 259, 85 So. 527; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593.
Complainants also make an attack upon the amendment to section 21.4, supra, of the zoning ordinance that it is not of itself comprehensive in its nature, relying upon the case of Chapman v. City of Troy, 241 Ala. 637, 4 So. 2d 1, and Gillette v. Tyson, 219 Ala. 511, 122 So. 830. See, also, Johnson v. City of Huntsville, 249 Ala. 36, 29 So. 2d 342; Davis v. City of Mobile, supra; Alabama Alcoholic Beverage Control Board v. City of Birmingham, supra.
*269 The answer to that contention is briefly stated, that those authorities have no application to an amendment to a comprehensive ordinance then in existence, the amendment simply becomes a part of the existing comprehensive ordinance and it is not necessary that the amendment itself should be comprehensive in its nature.
It results from the foregoing discussion that, in our opinion, the complainants were entitled to have a temporary injunction issued as prayed for. The order of the trial judge denying such a writ is reversed and an order is here made directing the issuance of a temporary writ of injunction, as prayed for, to continue in force until the further orders of the circuit court in equity, which has jurisdiction over this cause, but upon condition that the complainants will execute bond with a surety payable to the respondent and approved by the register of the circuit court in equity in the penal sum of $250, conditioned to pay all damages and costs which any person may sustain by the suing out of such injunction, if the same is dissolved. Section 1043, Title 7, Code.
The cause is remanded to the circuit court in equity for further proceedings.
Reversed, rendered and remanded.
BROWN, LAWSON and STAKELY, JJ., concur. | January 11, 1951 |
e50bd09b-4535-46bc-91c8-47d863f65d40 | Kahalley v. State | 48 So. 2d 794 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 794 (1950)
KAHALLEY
v.
STATE.
1 Div. 417.
Supreme Court of Alabama.
November 16, 1950.
*795 Thos. F. Sweeney, of Mobile, for appellant.
A. A. Carmichael, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
The constitutionality of Act No. 520, General Acts 1943, p. 487, codified as § 436(1), Supplement, Title 14, Code 1940, is brought under review. It reads: "Any male person who goes near and stares, gazes or peeps into any room, apartment, chamber or other place of abode, not his own or under his control, which is occupied by a female person or female persons, shall be guilty of a misdemeanor, and shall, on conviction be fined not more than five hundred dollars, and may also be sentenced to hard labor for the county for not more than one year, one or both, at the discretion of the court."
The case was first submitted in the Court of Appeals and that court, being of the opinion that the statute was unconstitutional, transferred the case to this court. Code 1940, Tit. 13, §§ 87, 98.
On a studious consideration, we entertain the same view. The act is so vague and uncertain as to be violative of the Fourteenth Amendment to the Federal Constitution. It is arbitrary and fixes no ascertainable standard whereby the public may be governed. It marks no line between lawfulness and criminality, condemning all acts alike of the kind specified and as applied, would affect innocent beings in the ordinary pursuits of life. It leaves open the widest conceivable inquiry, the scope of which no one could foresee and the results of which no one could foreshadow and adequately guard against.
In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law's enforcement. Musser v. Utah, 333 U.S. 95, 97, 68 S. Ct. 397, 92 L. Ed. 562; Winters v. New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681, 71 L. Ed. 1146; Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322; Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062; Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117; United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S. Ct. 298, 65 L. Ed. 516; A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S. Ct. 295, 69 L. Ed. 589; Smith v. Cahoon, 283 U.S. 553, 564, 51 S. Ct. 582, 75 L. Ed. 1264; State v. Goldstein, 207 Ala. 569, 93 So. 308; Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 105 So. 214.
A cursory inspection of the act, we think, will point up its deficiencies. Undoubtedly it was intended to serve a useful purpose and to bring to justice so-called "Peeping Toms." But, regrettably, the act sweeps within its influence conduct neither evil in nature nor detrimental to the public interest, which could not be proscribed as criminal. Many innocent situations might be conceived, such as the postman, endeavoring to deliver a letter or package, gazing *796 or peeping in the window or door to see if anyone is at home; the iceman, seeking to deliver the ice at the back door, looks in to see if anyone is there; the laundryman or salesman or anyone going to a home not his own or under his control, whether to transact business or on a social visit, gazes in; or one gazing or peeping, or we might say looking, into a lighted window at night as he passes close by the house along the sidewalk; or one trying to be a good neighbor when he sees smoke or suspects fire or hears a scream or cry in the adjoining house, peeps in to see if help is needed; and so on ad infinitum, all of which acts and conduct could be brought within the punitive ban of this penal statute. It must be manifest that, as written, it could be an instrument of oppression and a tool of tyranny and is of that character of legislation that has been condemned as repugnant to the Fourteenth Amendment.
When a statute uses words of no determinative meaning and the language is so vague and indefinite not only as to punish acts clearly punishable, but conduct which cannot be punished, it will be declared void for uncertainty. A state must so write its penal statutes as to be not so vague and indefinite as to permit the punishment of innocent acts and conduct which are a part of the right of every citizen to pursue, as well as acts evil in nature and affected with the public interest. Stromberg v. California, supra (U.S.); State v. Goldstein, supra (Ala.); State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527; State v. Lantz, 90 W.Va. 738, 111 S.E. 766, 26 A. L.R. 894; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888; 14 Am.Jur., §§ 19, 22, 28, pp. 773 et seq.; cases cited supra.
The applicable law is thus stated in the leading case of Connally v. General Construction Co., supra: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. * * *" 46 S. Ct. 127.
No doubt the conduct of the defendant in the instant case was reprehensible. But it is not the accusation but the statute itself that prescribes the rule to govern conduct, and warns against transgression, and "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, supra [306 U.S. 451, 59 S. Ct. 619]; Stromberg v. California, supra; Champlin Refining Co. v. Corporation Commission, supra; Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949.
We must and do hold the act to be void and the defendant will be ordered discharged from the instant prosecution.
Reversed and rendered.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | November 16, 1950 |
2f5d614a-d56c-424e-8006-3aeba6f6b849 | Nelson v. Donaldson | 50 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 244 (1951)
NELSON et al.
v.
DONALDSON.
3 Div. 576.
Supreme Court of Alabama.
January 25, 1951.
*246 Jack Crenshaw, of Montgomery, for appellants.
Hill, Hill, Stovall & Carter and Rives & Godbold, all of Montgomery, for appellee.
LAWSON, Justice.
This is an appeal from a judgment of the circuit court of Montgomery County upholding an order of the Board of Adjustment of the City of Montgomery whereby that board ordered the City Building Inspector to issue a building permit to C. T. Donaldson, the appellee here.
In 1948 the City of Montgomery enacted a zoning ordinance, which became effective on November 19, 1948. This ordinance was enacted and adopted in conformity with Title 37, Chapter 16, §§ 774-785, inclusive, of the 1940 Code of Alabama. Under this ordinance the City of Montgomery is divided into a number of districts and the use of property located in the various districts is prescribed. As to residence A-1 districts, the use is limited to single family dwellings, with some few additional uses, such as churches, public libraries, public parks, accessory structures, etc. Neither dwellings for two families nor apartment houses are permitted in residence A-1 districts. An apartment house is defined as a building containing three or more family dwelling units.
The ordinance provides that "except as otherwise provided, no structure or land shall be used hereafter and no structure or part thereof shall be erected, altered or moved unless in conformity with the regulations herein specified for the district in which it is located." However, with exceptions not here pertinent, any structure or use existing or under construction at the time the ordinance was enacted, or at the time it is changed by amendment, is permitted to continue, even though such structure or use is not in conformity with the provisions of the ordinance. But no nonconforming use or structure can be extended unless such extension conforms with the provisions of the ordinance as to the district in which it is located.
The ordinance provides that its terms are to be enforced by the building inspector of the city and it is made unlawful for anyone to commence the excavation for or the construction of any building or other structure until the building inspector of the city has issued for such work a building permit, *247 including a statement that the plans, specifications and intended use of such structure in all respects conform with the provisions of the ordinance.
The ordinance further provides for the establishment of a board of adjustment. It does not purport to set out the powers of the board of adjustment, but provides that the appointment, procedure, powers and actions of the board of adjustment are governed and controlled by the provisions of § 781, Title 37, Code 1940, as it may be amended. Since the board of adjustment is provided for in the ordinance, its powers stem directly from the statute and may not be circumscribed, altered or extended by the municipal governing body. Under these circumstances, the inclusion in the zoning ordinance of a word-for-word recital of the statutory powers of the board would be superfluous. Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N.J. 509, 64 A.2d 347, 9 A.L.R.2d 678.
The powers of the board of adjustment, as enumerated in § 781, Title 37, supra, are in pertinent part as follows: "* * * To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto. To hear and decide special exceptions to the terms of the terms (sic) of the ordinance upon which such board is required to pass under such ordinance. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. * * *" (Emphasis supplied.)
In exercising such powers, the board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and to that end has all the powers of the officer from whom the appeal is taken. § 781, Title 37, Code 1940.
By § 783, Title 37, Code 1940, it is provided: "Any party aggrieved by any final judgment or decision of such board of zoning adjustment, may within fifteen days thereafter appeal therefrom to the circuit court or court of like jurisdiction, by filing with such board a written notice of appeal specifying the judgment or decision from which appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken and the cause in such court be tried de novo." (Emphasis supplied.)
Shortly prior to February 11, 1950, the appellee, Donaldson, made application to the city building inspector for a permit to build an apartment house on the front of a lot owned by him at 709 Federal Drive, which is in a residence A-1 district, wherein the construction of an apartment house is prohibited. The permit was not issued. On February 11, 1950, Donaldson took an appeal to the board of adjustment. On February 25th the board of adjustment entered an order granting a variance to Donaldson and ordered that a permit be issued to him to construct the apartment house.
Certain persons owning property in the vicinity of 709 Federal Drive appealed to the circuit court of Montgomery County. The cause was tried de novo in the circuit court on or about March 21, 1950, and a judgment was entered by that court affirming the order of the board of adjustment and ordering that a permit be issued to Donaldson to construct the apartment house, on the ground that under the evidence he was entitled to a variance from the terms of the ordinance. From the judgment of the circuit court the objecting property owners have appealed to this court.
Our zoning statutes seem to be generally in harmony with the Standard State Zoning Enabling Act prepared under the auspices of the Federal Department of Commerce, which act has been adopted in many of the states. See McQuillan, Municipal Corporations, 3d Ed., Vol. 8, § 25.219. The *248 board of adjustment in some of the states is called a board of appeals. In other states, it is called by the same name as is designated in our statute. In most of the states, the proceeding for a judicial review of the decision or order of the board of adjustment is by certiorari, but in some of the states the proceeding for such review is by appeal, the same method as is provided in our statute.
The inquiry in the circuit court is neither enlarged nor diminished by appeal. The scope of inquiry on appeal is the same as before the board of adjustment, though the circuit court is a court of general jurisdiction. In other words, under our statute the authority of the circuit court on appeal to permit a variance from the terms of the ordinance is the same as that conferred on the board of adjustment by § 781, Title 37, Code 1940. Vogel v. Board of Adjustment for City of Manchester, 92 N.H. 195, 27 A.2d 105; Oklahoma City et al. v. Harris et al., 191 Okl. 125, 126 P.2d 988; In re McInerney, 47 Wyo. 258, 34 P.2d 35. In Oklahoma City et al. v. Harris, supra, it was pointed out that under the Oklahoma law, review of the order or decision of the board of adjustment is by appeal and it was held that on appeal the district court "sits as a glorified board of adjustment."
The dominant question raised by appellants is whether or not the power given by § 781, Title 37, Code 1940, to vary the effect of the zoning ordinance in specific cases includes the power to authorize a nonconforming use, that is, a use which is prohibited by the ordinance. Appellants insist that such authority is not conferred by § 781, Title 37 supra; that the privilege to erect a nonconforming building or a building for a nonconforming use cannot be granted under the guise of a variance permit; that the authority to permit variances from the terms of the zoning ordinance conferred by § 781, Title 37, supra, is restricted to slight modifications as to height, area, distance from boundaries, etc.
In support of their contention, appellants argue that to construe the language of § 781, Title 37, supra, relating to the powers of the board of adjustment to authorize a variance from the terms of an ordinance as giving the board power to authorize a nonconforming use, would result in its unconstitutionality, in that it would be an unconstitutional delegation of legislative power to an administrative agency, there being no sufficient standards, rules, restrictions or limitations under which the board should act in reaching its conclusions.
The specific question has not been decided by this court. In Leary v. Adams et al., 226 Ala. 472, 477, 147 So. 391, 396, we pretermitted as unnecessary to the decision in that case the assertion that the power of the board of adjustment to authorize a variance was limited to minor details, saying: "The city contends that the board of adjustment was limited in its functions to hear appeals concerning minute details and principally as to height and area only, and was without authority to modify the zoning ordinance as here sought. This may present a debatable question (In re Rose Builders' Supply Co., 202 N.C. 496, 163 S.E. 462; Falvo v. Kerner, 222 App.Div. 289, 225 N.Y.S. 747; People ex rel. Sheldon v. Board of Appeals, 234 N.Y. 484, 138 N.E. 416), the consideration of which may well await the necessity for its determination."
While it is true that no body in which is vested the legislative power may abdicate its legislative function by delegating power to another body to make the law, it is equally well established that the legislative body may delegate to a subordinate body the power to execute and administer its laws, where the legislative body has formulated a standard reasonably clear to govern the action of such subordinate body. While these general rules are well settled, their applicability probably never will be. The ever-recurring problem is whether any statute constitutes an unlawful delegation of legislative power or merely a power to administer and execute the declared policy of the legislative body within reasonably clear standards fixed by the statute.
The courts in other jurisdictions have been called upon on numerous occasions to consider the effect of the provisions in zoning laws and ordinances permitting variances, in identical or substantially the same language as contained in § 781, Title *249 37, Code 1940. The decisions of such courts are in decided conflict.
In Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333, 337, the Supreme Court of Illinois held that a statute of that state, in so far as it attempted to confer authority on the board of appeals to grant variances from the terms of the zoning ordinance where there are practical difficulties or unnecessary hardships in carrying out the letter of the ordinance, was unconstitutional on the ground that: "The statute gives no direction, furnishes no rule, and provides no standard for determining what are practical difficulties or unnecessary hardships which justify setting aside the provisions of the ordinance and varying or modifying their application, but leaves those questions to be determined by the unguided and unlimited discretion of the board." The effect of this decision, as we understand it, was to deprive the board of appeals of authority even to grant variances as to minor details. See Speroni v. Board of Appeals of City of Sterling et al., 368 Ill. 568, 15 N.E.2d 302; People ex rel. Danielson v. City of Rockford et al., 338 Ill.App. 347, 87 N.E.2d 660.
In several other states it has been held, in effect, that under the provisions of ordinances and statutes similar to those of our state here under consideration, the board of adjustment or board of appeals could grant variances as to minor details of construction, etc., but that they could not authorize nonconforming uses, for to do so would be to exercise a legislative function. Nicolai et al. v. Board of Adjustment of City of Tucson, 55 Ariz. 283, 101 P.2d 199; Bray et al. v. Beyer et al., 292 Ky. 162, 166 S.W.2d 290; Sims et al. v. Bradley et al., 309 Ky. 626, 218 S.W.2d 641; Jack Lewis, Inc., v. Mayor and City Council of Baltimore, 164 Md. 146, 164 A. 220; Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 165 A. 703, Cf. Heath et al. v. Mayor and City Council of Baltimore et al., 187 Md. 296, 49 A.2d 799, and Heath v. Mayor and City Council of Baltimore et al., 190 Md. 478, 58 A.2d 896; Lee et al. v. Board of Adjustment of City of Rocky Mount, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1; James v. Sutton, Chief Building Inspector, et al., 229 N.C. 515, 50 S.E.2d 300; Livingston v. Peterson, 59 N.D. 104, 228 N.W. 816; Harrington v. Board of Adjustment of City of Alamo Heights, Bexar County, et al., Tex.Civ.App., 124 S.W.2d 401; Texas Consolidated Theatres v. Pittillo, Tex.Civ.App., 204 S.W.2d 396; Board of Adjustment et al. v. Stovall et al., Tex.Civ.App., 218 S.W.2d 286; Walton v. Tracy Loan & Trust Co. et al., 97 Utah 249, 92 P.2d 724.
In the recent case of Flynn v. Zoning Board of Review of City of Pawtucket, R. I., 73 A.2d 808, the Supreme Court of Rhode Island held, in substance, that the subsection of a zoning ordinance authorizing the board of review to grant exceptions to the terms of the ordinance so as to permit a nonconforming use was invalid as an attempt to re-delegate legislative power delegated to the city by the state legislature. As to whether the power to authorize variances as to nonconforming uses is affected by that decision is not clear.
Counsel for appellants cite the case of Civil City of Indianapolis et al. v. Ostrom Realty & Construction Co., 95 Ind.App. 376, 176 N.E. 246, as holding that in Indiana the board of zoning appeals was without power to authorize a nonconforming use under any circumstances. We do not think that case so holds. In O'Connor et al. v. Overall Laundry, Inc., et al., 98 Ind.App. 29, 183 N.E. 134, 137, it was held that the board of zoning appeals "has power to permit and authorize exceptions and variations from the district regulations in the class of cases or the particular situation specified in the ordinance. In the instances set out in the ordinance and in absolutely no other instance has the board any power to `vary.'" We think the following Indiana cases show that the board of zoning appeals in that state do have the power to authorize nonconforming uses in certain instances. Board of Zoning Appeals v. Waintrup, 99 Ind.App. 576, 193 N.E. 701; Board of Zoning Appeals v. Moyer, 108 Ind.App. 198, 27 N.E.2d 905; Keeling et al. v. Board of Zoning Appeals of City of Indianapolis et al., 117 Ind.App. 314, 69 N.E.2d 613.
*250 In Anderson et al. v. Jester et al., 206 Iowa 452, 221 N.W. 354, 358, it was held that the delegation of power to the board of adjustment to authorize variances was not unconstitutional. As to the power conferred to authorize a variance it was said: "The power of the board of adjustment is to vary, to make special exceptions to the application of the zoning and use regulations, not to vary, further than as the incidental effect in the specific case, boundaries or the provisions of the ordinance. * * * The variance must be reasonable, not arbitrary. It may not under the same circumstances be granted to one and withheld from another. The power is to be used in subordination to the general welfare, and not for the benefit of one who does not bring himself within the terms of the statute * * * The power may not be arbitrarily exercised and its exercise must be confined strictly within the limitations of the statute. * * *"
Without any treatment of the constitutional question, the Supreme Court of Missouri in State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W.2d 1030, held, in effect, that the board of zoning appeals was not empowered to authorize a nonconforming use. To like effect is In re Botz, 236 Mo.App. 566, 159 S.W.2d 367.
In Thalhofer v. Patri, 240 Wis. 404, 3 N.W.2d 761, 763, it was said: "Provisions in statutes and ordinances authorizing slight variations in the application of zoning laws are common and have generally been upheld as against the contention that such a provision is an unlawful delegation of legislative power." But in State ex rel. Tingley v. Gurda, 209 Wis. 63, 243 N.W. 317, 319, the Wisconsin court said: "However, if it be assumed that by this provision it was intended to confer upon the board of appeals power to waive exact compliance with some detail of the ordinance, it would hardly go to the extent of authorizing the board to work substantial amendments to the ordinance, or to ignore it altogether, or to accomplish its repeal."
The cases heretofore considered tend to support the contention of appellants that the provisions of § 781, Title 37, Code 1940, do not authorize a variance as to a nonconforming use.
We come now to consider the cases from other jurisdictions which do not support that view.
In several states the constitutionality of statutes and ordinances authorizing variances in practically the same language as our statute has been upheld as against the contention that they were unconstitutional as containing an unlawful delegation of legislative power to an administrative agency, without any specific reference being made to the question as to whether the power to authorize variances included the power to permit a nonconforming use. McCord et al. v. Ed Bond & Condon et al., 175 Ga. 667, 165 S.E. 590, 86 A.L.R. 703; L. & M. Investment Co. v. Cutler et al., 125 Ohio St. 12, 180 N.E. 379, 86 A.L.R. 707; Momeier v. John McAlister, Inc., 203 S.C. 353, 27 S.E.2d 504; Spencer-Sturla Co. v. City of Memphis, 155 Tenn. 70, 290 S.W. 608. To like effect is Johnston v. Board of Supervisors of Marin County, 31 Cal. 2d 66, 187 P.2d 686.
The courts of other states have held in effect that to construe the power to authorize variances to include the power to permit nonconforming uses does not result in the unconstitutionality of the "variance" provisions of the statute and ordinance, there being sufficient standards or rules set up to guide the board of adjustment or board of appeals in the exercise of its authority. Appeal of Blackstone, 8 W.W.Harr., Del., 230, 190 A. 597; Tau Alpha Holding Corp. et al. v. Board of Adjustments of City of Gainesville et al., 126 Fla. 858, 171 So. 819; Thomas et al. v. Board of Standards and Appeals of City of New York et al., 263 App.Div. 352, 33 N.Y.S.2d 219, reversed on other grounds, 290 N.Y. 109, 48 N.E.2d 284; Roosevelt Field, Inc., et al. v. Town of North Hempstead et al., 277 App.Div. 889, 98 N.Y.S.2d 350; State v. Gunderson, 198 Minn. 51, 268 N.W. 850; Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534; Fortuna v. Zoning Board of Adjustment, 95 N.H. 211, 60 A.2d 133, 135, wherein is approved the holding in Vogel v. Board of Adjustment of Manchester, 92 N. *251 H. 195, 27 A.2d 105; In re Dawson et al., 136 Okl. 113, 277 P. 226; Oklahoma City v. Harris et al., 191 Okl. 125, 126 P.2d 988; Huebner et ux. v. Philadelphia Sav. Fund Soc. et al., 127 Pa.Super. 28, 192 A. 139; Berman et al. v. Exley et al., 355 Pa. 415, 50 A.2d 199; Application of Devereaux Foundation, Inc., 351 Pa. 478, 41 A.2d 744.
In the following cases the power of boards of adjustment or boards of appeal to authorize nonconforming uses was upheld without treatment of the constitutional question. Board of Adjustment of City and County of Denver v. Handley et al., 105 Colo. 180, 95 P.2d 823; Board of Zoning Appeals v. Moyer, 108 Ind.App. 198, 27 N.E.2d 905; State ex rel. Kreher v. Quinlan, City Engineer, et al., 182 La. 721, 162 So. 577; People ex rel. St. Basil's Church of City of Utica v. Kerner, et al., 125 Misc. 526, 211 N.Y.S. 470; Lattsco, Inc., v. Mutual Mort. & Invest. Co., Ohio Com.Pl., 6 Ohio Supp. 102, 168 A.L.R. 64, note; Bubis v. City of Nashville, 174 Tenn. 134, 124 S.W.2d 238.
Perhaps the review of the authorities from other states serves no purpose other than to answer the contention asserted by counsel for appellants to the effect that the courts of other states are in accord on the question, and to show the lack of uniformity in the holdings of the courts of other states on this aspect of the so-called Standard State Zoning Enabling Act.
We are of the opinion that § 781, Title 37, Code 1940, properly empowers the boards of adjustment to determine that in a particular situation the zoning ordinance should not be applied literally, and to that end the board should make proper adjustment to prevent unnecessary hardship, even to the extent of authorizing nonconforming uses. In order to prevent injustice, oppression, arbitrary application, and to promote "the public interest," the board of adjustment has the power to find, under a certain set of facts, that the literal application of the ordinance would not be within the spirit of the ordinance. In other words, having in mind the public interest, and the interest of the people in a given use district, the legislature intended that so long as no oppression or unnecessarily great burden exists and, therefore, no great individual injustice done, the ordinance should be applied strictly; but, on the other hand, if the situation is such as to indicate oppression and unnecessary individual burden, then the spirit of the zoning ordinance would not be in accordance with the spirit of the law, that it should not be applied strictly and literally.
The power and authority to determine the existence of such a state of facts is not a delegation of legislative authority. The board of adjustment does not have the right to act arbitrarily or to amend or depart from the terms of the ordinance at its uncontrolled will and pleasure. Section 781, Title 37, supra, in so far as it relates to the power of the board to permit variances from the terms of the zoning ordinance merely delegates the power and authority, coupled with the duty to perform the function of hearing testimony, to determine if the facts are such as was intended by the legislature to entitle the property owner to a variance from the terms of the zoning ordinance. This is a quasi judicial function by an administrative board.
Variances from the terms of the zoning ordinance should be permitted only under peculiar and exceptional circumstances. Hardship alone is not sufficient. The statute says "unnecessary hardship," and mere financial loss of a kind which might be common to all of the property owners in a use district is not an "unnecessary hardship."
We come now to consider the evidence presented before the trial court upon which it was held that appellee was entitled to a variance from the terms of the zoning ordinance.
The testimony was taken orally before the trial judge and his findings on the facts had the effect of a verdict of a jury and, hence, the judgment will not be disturbed unless plainly erroneous. Hampton v. Stewart, 240 Ala. 2, 194 So. 509.
In 1938 or 1939, Donaldson, the appellee, bought a house and lot now known as 707 Federal Drive. Donaldson and his family lived in the house until 1941, when it was remodeled so as to convert it into a two-story *252 brick veneer apartment house, containing three family dwelling units. One of the dwelling units is occupied by the Donaldson family. In 1942 or 1943 Donaldson erected garage apartments on the rear portion of this property known as 707 Federal Drive.
In 1947 Donaldson purchased, from the Montgomery Heights Company, the land, the use of which is the subject of this proceeding, and which is known as 709 Federal Drive. It is immediately north of Donaldson's property at 707 Federal Drive. It fronts 112 feet on the west side of Federal Drive and has a depth of 185 feet. Donaldson's sister and brother-in-law own the property immediately north of 709 Federal Drive. Donaldson owns property across the street.
Donaldson purchased 709 Federal Drive for the purpose of constructing thereon an apartment development. On the date of purchase there was no constitutional ordinance prohibiting the construction of an apartment, garage or otherwise, on 709 Federal Drive. But Donaldson, acting on the assumption that there was a valid ordinance of the city of Montgomery requiring the consent of the property owners for a distance of 300 feet before a garage apartment could be erected on the property, sought and obtained the consent of such owners to construct a garage apartment on the rear of his lot, 709 Federal Drive. Such an ordinance had been adopted, but it was declared unconstitutional by this court in Pentecostal Holiness Church of Montgomery v. Dunn, 248 Ala. 314, 27 So. 2d 561. Shortly after the purchase of the property and after obtaining such consent, Donaldson proceeded to construct upon the rear of the lot in question a structure with six automobile garages or "stalls" on the ground level, and two family dwelling units above the two garages in the center of the structure. The four extra garages were constructed so that there would be a garage for each family occupying the four-unit apartment which he contemplated building on the front of the lot. At the time of the building of this so-called garage apartment, Donaldson installed a paved driveway from the street and a concrete apron 32 feet wide and 80 feet long in front of the garages, at an expense of approximately $2,000. A gas line was installed sufficient to accommodate two dwelling units on the rear of the lot and four on the front. A water line for the garage apartment units was installed and connected, and two water lines were connected to the water main and "stubbed" off at the front of the lot to accommodate the contemplated four-unit apartment building. Telephone cable was laid of sufficient size to accommodate not only the garage apartments, but the proposed four-unit apartment as well. A sewer line was laid with connections for the proposed four-unit apartment building. All of the above work was done prior to the effective date of the comprehensive zoning ordinance here involved.
After completing the building on the rear of the lot, Donaldson was unsuccessful in obtaining financing of the apartment which he contemplated building on the front. In the spring of 1948, the city planning commission of the city of Montgomery held public hearings as to the proposed comprehensive zoning ordinance. At one of the meetings Donaldson appeared and offered to present his proposed plans for the construction of the apartment on the front of his lot at 709 Federal Drive. He had obtained plans for an apartment building from a local contractor, but the bid was more than he could pay.
On April 19, 1948, Donaldson wrote the city planning commission that he was ready to build the four-unit apartment on the front of the lot and accompanied his letter with a plat of the lot and plans for the building. The planning commission of the city considered the matter and reported to the city commission that "in view of the fact that the party had started his development before the new zoning plan was developed, it is the recommendation of the planning commission that this request be granted." Donaldson continued to encounter difficulty in obtaining financial assistance and no further steps were taken toward the actual construction of the four-unit apartment building prior to November 19, 1948, when the comprehensive zoning ordinance became effective. By virtue of *253 the said comprehensive zoning ordinance, 709 Federal Drive was placed in a residence A-1 district, wherein, as before pointed out, the construction of an apartment house is prohibited.
We are clear to the conclusion that under the evidence the trial court was fully justified in finding that appellee had suffered an unnecessary hardship sufficient to warrant the granting of a variance from the terms of the zoning ordinance. Unless appellee is permitted to construct the apartment house, he will suffer considerable financial loss, a financial loss of a kind entirely different from that of any other property owner within the same district, in that he had already incurred considerable expenditure of money in connection with the construction of the apartment house, entirely aside from any investment which he had in the lot itself. The evidence supports a finding that his property could not be advantageously used for any other purpose than the construction of the apartment house, in view of the presence on the rear of the lot of the garage apartments which, as before pointed out, were constructed before the zoning ordinance went into effect.
The evidence fully supports a finding that the spirit of the ordinance will not be violated by permitting appellee to construct the apartment house. There were in the use district multiple dwelling houses other than the garage apartment on the rear of Lot 709, Federal Drive, and the other multiple dwelling units owned by appellee on the adjoining lot. The mere fact that other multiple dwelling units are in existence in the use district would not in and of itself warrant the granting of a permit of the kind requested by appellee. But it is a factor to be considered where the evidence shows, as it does in this case, unnecessary hardship.
The evidence supports the further finding that the construction of the apartment house will not depreciate the value of other property in the use district, but in fact will add to the value of such property, in view of the fact that at the present time the garage apartments on the rear of Lot 709, Federal Drive, with their open garages, detract from the appearance of the entire neighborhood.
The facts in this case fully justify the action of the board of adjustment and the circuit court of Montgomery County in granting a variance from the terms of the zoning ordinance under § 781, Title 37, Code 1940.
The judgment is affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON, SIMPSON, and STAKELY, JJ., concur. | January 25, 1951 |
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